Document Burlingtonwa_doc_3edabd50e3

CITY OF BURLINGTON Shoreline Master Program Adopted 2012 ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- City of Burlington – Shoreline Analysis Report –June 2012 Shoreline Grant No. G1000073 i City of Burlington Shoreline Grant No. G1000073 Shoreline Analysis Report and Shoreline Inventory City of Burlington Shorelines including the Skagit River and the Gages Slough Wetland Corridor, in context of NMFS Biological Opinion relating to floodplain development, with a focus on mitigation and restoration planning. Mayor Steve Sexton Planning Director Margaret Fleek Burlington Planning Commission Rebecca Bradley-Lowell Ken Frye Jana Vater Marianne Manville-Ailles Brian Hanson Rock White Sally Straathof 2012 ---PAGE BREAK--- City of Burlington – Shoreline Analysis Report –June 2012 Shoreline Grant No. G1000073 ii TABLE OF CONTENTS Page PROJECT SUMMARY AND BACKGROUND 1 PURPOSE AND NEED 6 SHORELINE JURISDICTION 6 STUDY AREA 8 REGULATORY FRAMEWORK 9 City of Burlington 9 State and federal regulations 9 SHORELINE INVENTORY 11 Land Use Patterns 11 Transportation 14 Wastewater and Stormwater Utilities 14 Impervious Surfaces and Vegetation 15 Shoreline Modifications 17 Existing and Potential Public Access Sites 17 Critical Areas: Geological Hazardous Areas; Frequently Flooded Areas including Floodplain, channel migration zone and floodway; Aquifer Recharge Areas; Wetlands; Fish and Wildlife Conservation Areas including Habitats and Species of Local Importance and Listed Species and Habitat 18 HISTORICAL OR ARCHEOLOGICAL SITES 23 OTHER AREAS OF SPECIAL INTEREST 23 Water Oriented Uses 23 Toxic or Hazardous Waste Sites 24 OPPORTUNITIES FOR PROTECTION AND RESTORATION 24 Biological Goals and Objectives 24 Adaptive Management Plan 25 Monitoring program 25 ANALYSIS OF ECOLOGICAL FUNCTIONS & ECOSYSTEM-WIDE PROCESSES 25 Geographic Context (WRIA 25 Major Land Use Changes and Current Shoreline Conditions 26 Analysis of Ecological Functions and Ecosystem Processes on Skagit River Shoreline and Gages Slough 27 Gages Slough Characterization Puget Sound Partnership 28 LAND USE ANALYSIS AND IMPLICATIONS 29 Urban Wildlife Habitat Plan 29 No Net Loss Plan of Action 35 No Adverse Effect standard of the Reasonable and Prudent Alternative 35 ---PAGE BREAK--- City of Burlington – Shoreline Analysis Report –June 2012 Shoreline Grant No. G1000073 iii APPENDICES A. MAPS AND PHOTOS 36 • Shoreline Reach Locations and Shoreline Environment Designations on Street Base Map and Aerial Map • Public Access Map and Illustrative Photos • Photographs of Reach I • Photographs of Reach II • Photographs of Dike/Leve Repairs on North/South Leg and East/West Leg of Skagit River • Photographs of ESA compliant Levee Repairs in Process • Historic Comparisons of Skagit River Channel Migration beginning in the 1860’s • Levee Setback Restoration Plan • WDFW Habitats and Species Map • WRIA #3 Map • High water aerial of Burlington and Vicinity B. SHORELINE MASTER PROGRAM RECOMMENDATIONS 37 • Introduction • Purpose • Applicability • Definitions • Master Program Goals • Shorelines of Statewide Significance • Gages Slough Wetland and Wetland Restoration • Shorelands Environment Designations • Policies and Regulations • Administration • Appendix A – Shoreline Wetland, Fish and Wildlife Habitat, and General Critical Area Regulations C. Skagit River Big Bend Reach Habitat Restoration Feasibility Study Excerpts Relating to Johnson Bar, major restoration site in vicinity 38 D. Gages Slough Management Plan including history of Sterling Dam, history of the Gages Slough Management Plan, technical studies, restoration sites, Puget Sound Partnership Watershed Characterization, and Water Quality monitoring data 39 E. Biological Opinion checklist and Puget Sound Partnership Characterization Maps 40 F. Public Involvement Process - Notice to agencies and the public 41 G. References 42 H. Adoption of Existing Environmental Documents 43 ---PAGE BREAK--- City of Burlington – Shoreline Analysis Report – June 2012 Shoreline Grant No. G1000073 1 PROJECT SUMMARY AND BACKGROUND The Shorelines Management Act of 1971 was adopted because shorelines and wetlands are among the state’s most valuable and fragile natural resources. The purpose of a Master Program is to coordinate the process for their utilization, protection, restoration, and preservation. The City of Burlington adopted the Skagit County Shoreline Master Program by reference in May of 1981, when it was adopted by Skagit County. At that time, the City of Burlington only touched the shoreline with the Wastewater Treatment Plant outfall structure. Since then, several miles of Skagit River Shoreline have been annexed into the City. These annexations and changes in state law lead to the need for a Master Program for Gages Slough and the Skagit River Shorelines. Today, the jurisdiction of the Shorelines Management Act of 1971 extends to include the River and associated buffers, and land extending 200 feet from the waterward top of the Skagit River levee. It also includes Gages Slough, a wetland that drains into the river, but does not include the Gages Slough wetland buffers that are already regulated by the Critical Areas Ordinance. The City of Burlington obtained a grant from the Washington State Department of Ecology in 2009 to complete a comprehensive Shoreline Master Program (SMP) update. One of the first steps of the update process is to inventory and characterize the City’s shorelines as defined by the state’s Shoreline Management Act (SMA) (RCW 90.58). This inventory was conducted in accordance with the Shoreline Master Program Guidelines (Guidelines, Chapter 173-26 WAC) and project Scope of Work promulgated by Ecology, and includes all areas within current City limits. Under these Guidelines, the City must identify and assemble the most current, accurate and complete scientific and technical information available that is applicable. This shoreline inventory and analysis will describe existing conditions and characterize ecological functions in the shoreline jurisdiction. This will serve as the baseline against which the impacts of future development actions in the shoreline will be measured. The Guidelines require that the City demonstrate that its updated SMP yields “no net loss” in shoreline ecological functions relative to the baseline due to its implementation. An information request letter was distributed to potential interested parties and agencies that may have relevant information. Many studies have been completed that provide a framework for program development. Collected information was supplemented with other resources such as City documents, scientific literature, personal communications, aerial photographs, and a physical inventory of the City’s shorelines. The City of Burlington annexed several miles of shoreline along the Skagit River between 1992 and 1994. The community grew rapidly beginning in 1989 with the opening of a shopping mall and subsequent rapid development of over 5.3 million square feet of commercial and industrial space and almost 1,500 dwelling units. Future shoreline plans along the Skagit River are focused on improving the structural integrity of the levee system and working with federal agencies to ensure that the most accurate hydraulic and hydrologic data is used in all computer modeling exercises that are used to establish the 100-year ---PAGE BREAK--- City of Burlington – Shoreline Analysis Report – June 2012 Shoreline Grant No. G1000073 2 base flood elevations. In depth Geotechnical Investigations have been completed and final design of the levee upgrades is being completed with two products, a new setback levee segment in the Western area and levee enlargement on the landward side from the point of beginning of the levees in the Northeastern area to the point of intersection with the BNSF railroad. The long range plan of action is to have the levees certified as providing 100-year flood protection and gain accreditation from the Federal Emergency Management Agency. There is a change in direction of the Federal Emergency Management Agency regarding the analysis and mapping procedures for non-accredited levees, and all map revisions across the country are on hold while the revised procedure is under review. The ability of the city to ensure stability in the community while maximizing flood hazard mitigation opportunities is at stake. Skagit River With respect to the Skagit River shorelines, the development of a Shoreline Master Program is straightforward since the shoreline is fronted by levees and there are strict limits on what can be done along the river. Levee vegetation is regulated under PL84-99, the Corps of Engineers levee maintenance standards. Following an Endangered Species Act Section 7(a) 2 Formal Consultation and Magnuson-Stevens Fishery Conservation and Management Act Essential Fish Habitat Consultation for the Skagit River, vegetation management standards that comply with the Endangered Species Act riparian buffer standards have been successfully negotiated among the regulatory agencies and the Diking Districts. Major levee repairs and reconstruction have been completed in 2011 to address flood damage and existing structural issues with the portion of the levee from the Old Highway 99 Bridge to the west. Work includes substantial plantings and installation of Large Woody Debris (LWD) to meet ESA requirements. See Appendix G References for Biological Opinions issued by National Marine Fisheries Services and the US Fish and Wildlife Service. Public access along the levees and the river is insured through a solid Interlocal Agreement with the City and Dike District #12. After the 1995 flood, a proposal was put forward to acquire 100+ acres of vacant land along the river to construct a secondary levee system in the northeastern area. The plan has been adjusted over time to structurally improve the existing levee in this reach to provide 100-year flood protection with a long overtopping backslope, clay keyway, and wide top. The land that has been acquired is used as a community park. Removing floodplain land from development is the first step; constructing an improved levee segment is in process. In the western area, an interim setback of approximately 500 feet from the landward toe of the levee has being established for all new construction that allows for existing open space, parks and agriculture uses, to facilitate a future levee setback of an additional five hundred feet along the three bridge corridor in the City Limits. The current design is to construct a new setback levee meeting federal levee accreditation standards, leaving the existing levee in place for public access and providing for interior drainage, until such time as a technically and scientifically correct recommendation is feasible on removal of the old levee to increase the channel migration zone without adverse effects. ---PAGE BREAK--- City of Burlington – Shoreline Analysis Report – June 2012 Shoreline Grant No. G1000073 3 For the most part, the shorelines consist of the levee system. There are two public fishing areas, at the Gardner Road street end and along Whitmarsh Road between the Railroad bridge and the Mount Vernon/Burlington bridge. The regional Wastewater Treatment Plant has its location and outfall into the River between the fishing areas. There are two storm water outfall locations, each of which has a pump station. There is an existing pier that is owned by a local sports fishing club who moor their boats at the site and lease the land from Dike District #12. There are several existing older homes, accessory structures for agriculture uses, and the access driveway to a trailer park designed for quick evacuation. There are three bridges and a road. There is no commercial or industrial activity of any kind along the shoreline, other than the Wastewater Treatment Plant. There is vacant land in agricultural use, and the large area along the river for an outdoor community park. Increased demand for sanitary sewer service on a regional basis focused attention on expanding the Wastewater Treatment Plant, including a switch from chlorine to ultraviolet disinfection and a major focused program for industrial pretreatment and commercial retrofit, a significant water quality improvement at the Skagit River outfall. Gages Slough Part of the flood hazard mitigation plan includes improving Gages Slough so that water can flow more readily during and after a flood event, specifically considering sediment removal and culvert installations. This planning effort will be more focused over the next few years and will comply with the Shoreline Master Program. Technical studies have been completed for Gages Slough with important information about the existing conditions. These include water quality monitoring as part of the Lower Skagit River Water Quality Study completed in 1993, the Comprehensive Surface Water Management Plan adopted in 1992, and the Surface Water Management Plan Update and Facilities Pre-design Report completed in 1996. Out of these initial studies, three major actions took shape. A Coastal Zone Management Grant provided funding for in-depth technical studies of Gages Slough in 1998, to set up a long range management plan to facilitate removal of Gages Slough from its listing as a 303 site, in violation of the Clean Water Act. Gages Slough was moved "off" the 303(d) List on September 1, 2000 when EPA approved the cleanup plan known as a TMDL. Category 4A indicates that EPA has approved a cleanup plan that is thought to be capable of returning the waters to Category 1 (meets tested standard). Concurrently, a new pump station was designed and constructed to provide for storm water management as the city grows and to facilitate management of the hydroperiod of Gages Slough, in response to the clear need for wetland restoration activities and the forecast demands of the Comprehensive Surface Water Plan. A Citizen’s Advisory Committee was formed to develop the Shoreline Master Program for Gages Slough and the Skagit River Shorelines. The problems associated with the degraded series of connected wetlands, Gages Slough, that crosses the community, and concerns about the need for very costly stormwater management facilities in the floodplain, became the focus of every Neighborhood meeting in the 1990’s. Gages Slough had become a combination sewer and garbage dump. City staff was not aware of the history of Gages Slough and made the assumption that the upriver end of Gages Slough had some sort of direct connection via culvert into Hart Slough, and reported that as a fact to the technical consultants. However, the culvert connects only to Brickyard Creek, which is the ditched stream connected to the culvert/fish passage. There are no piped connections to Gages Slough. The recent history of the area began with the construction of the Sterling Dam blocking any above grade ---PAGE BREAK--- City of Burlington – Shoreline Analysis Report – June 2012 Shoreline Grant No. G1000073 4 connections to Gages Slough in 1899, because there were numerous floods that were affecting the Railroad tracks. The Sterling Dam is owned and maintained by Dike District #12. It is located north of SR 20 adjacent to Holtcamp Road. Backup documentation is found in Appendix D. See Appendix D for Gages Slough History, Technical Studies and Water Quality Monitoring Data. In 1998, a wetlands ecological study was completed for Gages Slough including delineation, a functional assessment using the Department of Ecology Hydrogeomorphic modeling approach, along with a water level and water quality analysis, and a management and restoration plan has been designed and integrated into this Master Program. Existing uses along Gages Slough include single family residential, commercial, agriculture and industrial use. See Appendix A, Maps for wetland classifications and Assessment Units. A survey of all the property owners along Gages Slough (both in and outside the City Limits) was taken in the winter of 1995-96, and the results were mailed to all property owners in March of 1996. Grave concerns about the future of the wetlands were expressed, particularly in light of the fact that there was a significant flood event on the Skagit River in the winter of 1995 and there was a lot of discussion about turning Gages Slough into a backup flood control channel. These activities and issues led to creation of the Citizen’s Advisory Committee and to the request for the grant funding to get the essential elements of the long range management plan established. Today, the Gages Slough Management Plan has been adopted as part of the overall Comprehensive Plan, the Parks and Recreation Comprehensive Plan and the Comprehensive Surface Water Management Plan. The plan was completed in the Spring of 1999, updated September 1999, August 2006, February 2007, and followed by a 2009 Gages Slough Reconnaissance report identifying a series of restoration project sites. There are two wetland buffer restoration projects that are five years or older and there is one wetland buffer restoration project that was planted in 2011, at the site of an old city burn dump. As a participant in the NPDES II municipal permit system, the Public Works Department is actively increasing the focus on improvements to the Gages Slough corridor that enhance its ability to process stormwater and return clean water to the Skagit River system. New improved water level monitoring instruments have been installed in Gages Slough. water quality monitoring is completed by the Public Works Department. In addition, the Skagit Conservation District Stream Team has a committed team of volunteers that also does regular water quality monitoring in Gages Slough for temperature, turbidity, and fecal coliform, the TMDL standards. See Appendix D for Water Quality Monitoring Data. Shoreline Master Program first draft in late 1990’s Following the Skagit River flood event in 1995, the City’s Flood Hazard Mitigation Plan was expanded to look at overtopping levees, improving the culverts and drainage in Gages Slough and acquiring the 100 acre site along the Skagit River for Flood Hazard Mitigation. The Citizen’s Advisory Committee was established in the fall of 1996, as it became apparent that a comprehensive approach was needed. The Citizen's Advisory Committee represented a broad range of interests reflective of the local citizenry. The Master Program process provides the comprehensive umbrella to pull all the elements together. The committee met for over two years. Because of controversy over the shoreline master program guidelines in the late 1990’s, all of the ---PAGE BREAK--- City of Burlington – Shoreline Analysis Report – June 2012 Shoreline Grant No. G1000073 5 shoreline products were adopted in other comprehensive plans, including the overall Comprehensive Plan, the Parks and Recreation Comprehensive Plan and the Surface Water Management Plan. The Gages Slough technical studies have been updated regularly and there is on-going water quality monitoring. With the complexities of addressing long term flood hazard mitigation, endangered species act compliance, water quality and urban concerns including public trails, wildlife habitat corridor quality, an update of the Gages Slough Plan is in process. With the assistance of the Department of Ecology staff, the community obtained a CZM grant in 1998 to develop a relevant Master Program for Gages Slough and the Skagit River Shorelines, along with a management plan for the future that deals with the problems of a rapidly urbanizing area. Along the way, the Washington Administrative Code rules for preparing Shoreline Master Program were turned over to a Shoreline Guidelines Commission, and the final products were substantially delayed. At the same time, findings in the Lower Skagit Water Quality Study clearly demonstrated the problem with Gages Slough, then on the “303 “list of Clean Water Act violations. The Total Maximum Daily Load (TMDL) program is the water quality improvement program to fix those violations. Drainage Utility Continued severe local storm water problems led to the creation of a drainage utility to assist with funding the top priority problems. The most significant of these was construction of a new storm water pump station at the end of Gages Slough. This facility came on line in the winter of 1998. The design enables the City to control the hydroperiod of Gages Slough during a substantial portion of the year, and so the findings of the Technical Study completed for the report were vital to deciding where to establish the appropriate level(s). Representatives of the Citizen’s Advisory Committee for the Coastal Zone Management Grant and Master Program project actively participated in the establishment of the design criteria for the pump station relative to potential impacts on the Gages Slough wetland ecosystem. Flexibility to adapt the operating mode and level of wetland, based on the evolving management plan for the Slough, is designed into the system. The continued collection of data over the years relative to water level will help validate the modeling process in future hydrologic analyses of the system. Endangered Species Act The Endangered Species Act is a critical issue for Burlington, specifically as a result of the Biological Opinion issued on September 22, 2008 by the National Marine Fisheries Service that is required to be implemented for the FEMA National Flood Insurance Program, following litigation. Detailed information is included in this report to describe the relationship of the City of Burlington to the Endangered Species Act and to lay out the proposed habitat assessment and conservation plan. It is the position of the City of Burlington that the ordinances, processes, and written procedures meet the no adverse effect standard of the Reasonable and Prudent Alternative, as supplemented by this report and its best available science references. See Appendix E for Biological Opinion Checklist. ---PAGE BREAK--- City of Burlington – Shoreline Analysis Report – June 2012 Shoreline Grant No. G1000073 6 Process The City Planning Commission is functioning as the Citizen Advisory Committee for this process, and it is comprised of Burlington residents. They have conducted 20 public meetings through 2011 and will continue to conduct meetings and public hearings as the process is completed. Agencies and tribes and interested parties have been notified three times of the availability of the shoreline draft documents for comment. The City Website is maintained up to date with all documents. The City Council held public meetings/hearings, and adopted the Master Program and the Shoreline Area Designation Map by Resolution as recommended by the Planning Commission. The program and map were sent to the Department of Ecology for their mandated 90 day review. At the time the State approves the Master Program and map, the Shoreline Master Program will be codified by ordinance and this will complete the final adoption procedure. PURPOSE AND NEED The purpose and need of the Shoreline Master Program planning exercise is to take a comprehensive look at the regulatory framework, review existing conditions on the shorelines, identify gaps and problems, and come up with a long range approach to optimize environmental conditions while accommodating reasonable development. The Shoreline Master Program has the goals of no net loss of ecological functions and no effect on Endangered Species or Habitat. This is a shared goal with the National Marine Fisheries Services Biological Opinion, and the shoreline update program is part of the mechanism for developing an area wide compliance plan that includes the habitat assessment as the baseline document. The City needs an agreed upon program to continue progress towards environmental and habitat restoration goals, ensure that there is on-going improvement in ecological functions and water quality, and provide a framework of long term regulatory stability and the ability to complete the development of the remaining vacant land and the redevelopment over time of existing sites. The City needs to remain a strong and viable community with a solid economic base that reflects and respects its natural location. SHORELINE JURISDICTION As defined by the Shoreline Management Act of 1971, shorelines include certain waters of the state plus their associated “shorelands.” At a minimum, the waterbodies designated as shorelines of the state are streams whose mean annual flow is 20 cubic feet per second (cfs) or greater, lakes whose area is greater than 20 acres, and all marine waters. Shorelands are defined as: “those lands extending landward for 200 feet in all directions as measured on a horizontal plane from the ordinary high water mark; floodways and contiguous floodplain areas landward 200 feet from such floodways; and all wetlands and river ---PAGE BREAK--- City of Burlington – Shoreline Analysis Report – June 2012 Shoreline Grant No. G1000073 7 deltas associated with the streams, lakes, and tidal waters which are subject to the provisions of this chapter…Any county or city may determine that portion of a one- hundred-year-floodplain to be included in its master program as long as such portion includes, as a minimum, the floodway and the adjacent land extending landward two hundred feet therefrom… Any city or county may also include in its master program land necessary for buffers for critical areas (RCW 90.58.030)” Shoreline management jurisdiction in Burlington is limited by the City’s unique location with most of the City Limits in the 100-year floodplain, protected by levees. The disconnected Channel Migration Zone is cut off at the levee, and the Floodway is defined by the City as all areas riverward of the riverward toe of dikes and levees along the Skagit River. There is no official FEMA regulatory floodway in the Skagit River flats area because it was too complex to solve when the Flood Insurance Rate Maps were adopted in 1985. The shoreline jurisdiction will be determined case by case, measuring from the Ordinary High Water Mark or floodway. The Protected Area under the September 22, 2008 Biological Opinion consultation conducted by the National Marine Fisheries Service consists of the areas from the levee into the River, including the Riparian Habitat Zone, the disconnected Channel Migration Zone, and the Floodway. A separate Biological Opinion was prepared by the National Marine Fisheries Service, issued October 20, 2011, pursuant to section 7(a)(2) of the Endangered Species Act on the effects of the proposed Skagit River – Diking Districts 1,3,12,17 and 22 Levees Rehabilitation of Flood Control Works Project in Skagit County, Washington. In this Biological Opinion, the National Marine Fisheries Service concludes that the action, as proposed, is not likely to jeopardize the continued existence of Puget Sound Chinook salmon, and Puget Sound steelhead, or result in the destruction or adverse modification of designated critical habitat for Puget Sound Chinook salmon. The completed levee rehabilitation project includes the installation of LWD Large Woody Debris, and willow trees that will be maintained at a specified height, along with other components. The detailed report is on file with the City. Gages Slough consists of a series of connected wetlands that receive groundwater from the Skagit River. The direct river connection was eliminated in 1899 with construction of the Sterling Dam. The wetlands are connected at the outfall into the river by both gravity into a concrete structure that keeps the fish out and a pump station for periods of higher water. The wetlands are classified as shorelines. Buffers are regulated by the critical areas code. The Burlington levee system has been studied in depth. The levees are being enlarged on the Northeastern segment to provide 100-year flood protection and levees are being designed as new setback levees in the Western segment to provide 100-year flood protection. Restoration and mitigation opportunities are focused on three components: forested riparian buffer areas at Johnson Bar extending east from the City Limits with land that is primarily owned by the City but located in Skagit County, and the Whitmarsh Road area below the crossdike; wetland buffer restoration in the Gages Slough Corridor; and riverfront restoration along the future setback portion of the levee from the Railroad Bridge to the west. Overall, levee improvements, leading to levee certification by a professional engineer and accreditation by the Federal Emergency ---PAGE BREAK--- City of Burlington – Shoreline Analysis Report – June 2012 Shoreline Grant No. G1000073 8 Management Agency, are planned to protect the City from the 100-year base flood event, and to keep endangered and priority species and habitat in the Skagit River channel under most conditions. The Shoreline Master Program jurisdiction is generally defined to include the land within 200’ of the waterward top of the levee along the Skagit River and the Gages Slough wetland corridor. Wetland buffers will continue to be regulated by the Critical Areas Ordinance along Gages Slough. STUDY AREA The City of Burlington is located in the middle of the Skagit River flats, with the Skagit River on the east and south sides of the City. Unincorporated Skagit County lies to the north and west. State Route 20 passes through the City from the west to the east, Interstate 5 and the BNSF Main Line pass through the City from the north to the south and the BNSF main line and the east-west rail lines also have a junction in Burlington. The City encompasses approximately 4.4 square miles. The study area for this report includes all land currently within the City’s proposed shoreline jurisdiction as shown in Appendix A Map and Photos. There are approximately 2.95 miles of riverfront in the City Limits, extending from River Mile 16.6 to 19.48. An additional 1.65 miles of riverfront upriver from the Boat Launch Ramp is fronted by the same Dike District #12 levee that also protects the City, from River Mile 19.48 to River Mile 20.90, and there is one potential restoration project (Johnson Bar) in that area on land outside the City Limits that is partly owned by the City. Gages Slough is a series of connected wetlands that is a total of approximately 7.3 miles in length with 3.5 miles located in the City and Urban Growth Area. At the point where Gages Slough originally connected to the Skagit River, at least during high water, the Sterling Dam was built in 1899, and repaired following a flood event in 1909. The history of this area is described in a series of photos, maps and old reports in Appendix D. The area of Gages Slough west of the City Limits extending to the Pump Station and the Skagit River is the subject of an Interlocal Agreement with Skagit County and Dike District #12 for maintenance. The long range goal for the Gages Slough corridor is to acquire Gages Slough in public ownership from the Pump Station to Anacortes Street as the focus for a nonmotorized public access link, interpretative signage, stormwater quality improvement, and wetland buffer restoration projects. Gages Slough east of Anacortes Street is owned by adjacent homeowners for the most part, and private wetland buffer restoration is encouraged. Detailed suggestions for homeowner planting plans are available from the City. The overall issues regarding the City’s location in the 100-year floodplain, surrounded by farmland and the Skagit River cannot be ignored in this study effort, as they provide the framework for the future that includes no expansion for urban development beyond the current Urban Growth Area. Burlington is committed to farmland preservation and to establishing a connected open space area around the City as an urban separator. At the same time, the City is located at the intersection of ---PAGE BREAK--- City of Burlington – Shoreline Analysis Report – June 2012 Shoreline Grant No. G1000073 9 major transportation corridors, and it is vital to protect the liveability and the economic future of the community. REGULATORY FRAMEWORK City of Burlington The Shoreline Management Act of 1971 brought about many changes for local jurisdictions, including the City of Burlington. The legislative findings and policy intent of the SMA states: “There is, therefore, a clear and urgent demand for a planned, rational, and concerted effort, jointly performed by federal, state, and local governments, to prevent the inherent harm in an uncoordinated and piecemeal development of the state's shorelines (RCW 90.58.020).” While protecting shoreline resources by regulating development, the SMA is also intended to provide balance by encouraging water-dependent or water-oriented uses while conserving or enhancing shoreline ecological functions and values. The SMP is based on state guidelines but tailored to the specific conditions and needs of individual communities. The City adopted the Skagit County Shoreline Master Program by reference in 1981, and specified that the shorelines did not include Gages Slough. Regulations applicable to critical areas which are located within shoreline jurisdiction have been in place and update routinely with the most complete update in 2002. Relevant critical areas regulations have been integrated into the Shoreline Master Program, such as the flood hazard mitigation standards for the Skagit River shoreline. The Appendix A to the Shoreline Master Program addresses other relevant critical area standards such as Shoreline Wetlands, Fish and Wildlife Habitat Areas, and General Critical Areas Regulations applicable to shoreline locations, considered part of the Shoreline Master Program. Appendix B provides the Shoreline Restoration Plan and Appendix C is the Shoreline Jurisdiction Map. Most of the uses, developments, and activities regulated under the Critical Areas Ordinance are also subject to the City’s Comprehensive Plan, the Burlington Municipal Code, the International Building Code, and various other provisions of City, state and federal laws. Any applicant must comply with all applicable laws prior to commencing any use, development, or activity. Burlington ensures consistency between the codes, plans and programs by reviewing each for consistency during periodic updates of the City’s Comprehensive Plan as required by State statute. State and federal regulations State and federal regulations most pertinent to development in the City’s shorelines include the federal Endangered Species Act, the federal Clean Water Act, the state Shoreline Management Act, and the State Hydraulic Code. Other relevant federal laws include the National Environmental Policy Act, Anadromous Fish Conservation Act, Clean Air Act, and the Migratory Bird Treaty Act. State laws which address shoreline issues include the Growth Management Act, State Environmental Policy Act, tribal agreements and case law, Watershed Planning Act, Water Resources Act, Salmon Recovery Act, and the Water Quality Protection Act. A variety of agencies U.S. Army Corps of Engineers, National Marine Fisheries Service, U.S. Fish and Wildlife Service, Washington Department of Ecology, Washington Department of Fish and Wildlife) are ---PAGE BREAK--- City of Burlington – Shoreline Analysis Report – June 2012 Shoreline Grant No. G1000073 10 involved in implementing these regulations, but review by these agencies of shoreline development in most cases would be triggered by in- or over-water work, discharges of fill or pollutants into the water, or substantial land clearing. Depending on the nature of the proposed development, state and federal regulations can play an important role in the design and implementation of a shoreline project, ensuring that impacts to shoreline functions and values are avoided, minimized, and/or mitigated. With the comprehensive SMP update, the City will strive to ensure that Burlington’s Shoreline Master Program regulations are consistent with other State and Federal requirements. A summary of some of the key regulations and agency responsibilities follows. Section 10: Section 10 of the federal Rivers and Harbors Appropriation Act of 1899 provides the U.S. Army Corps of Engineers (Corps) with authority to regulate activities that may affect navigation of “navigable” waters. The Skagit River is a designated navigable water body. Accordingly, proposals to construct new or modify existing in-water structures (including piers, marinas, bulkheads, breakwaters), to excavate or fill, or to “alter or modify the course, location, condition, or capacity of” river waters must be reviewed and approved by the Corps. Section 404: Section 404 of the federal Clean Water Act provides the Corps, under the oversight of the U.S. Environmental Protection Agency, with authority to regulate “discharge of dredged or fill material into waters of the United States, including wetlands”. The extent of the Corps’ authority and the definition of fill have been the subject of considerable legal activity. As applicable to the City of Burlington’s shoreline jurisdiction, however, it generally means that the Corps must review and approve most activities along the Skagit River and in the Gages Slough wetlands. These activities may include wetland fills, stream and wetland restoration, and culvert installation or replacement, among others. Similar to SEPA requirements, the Corps is interested in avoidance, minimization, restoration, and compensation of impacts. Federal Endangered Species Act (ESA): Section 9 of the ESA prohibits “take” of listed species. Take has been defined in Section 3 as: “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” The take prohibitions of the ESA apply to everyone, so any action of the City that results in a take of listed fish or wildlife would be a violation of the ESA and exposes the City to risk of lawsuit. Per Section 7 of the ESA, activities with potential to affect federally listed or proposed species and that either require federal approval, receive federal funding, or occur on federal land must be reviewed by the National Marine Fisheries Service (NOAA Fisheries) and/or U.S. Fish and Wildlife Service (USFWS) via a process called “consultation.” As previously mentioned, a Corps permit under Section 10 of the Rivers and Harbors Appropriation Act is required for projects in the Skagit River. Section 401 Water Quality Certification: Section 401 of the federal Clean Water Act allows states to review, condition, and approve or deny certain federal permitted actions that result in discharges to state waters, including wetlands. In Washington, the Department of Ecology is the state agency responsible for conducting that review, with their primary review criteria of ensuring that state water quality standards are met. Actions within the shoreline jurisdiction that require a Section 10 or Section 404 permit (see above), will also need to be reviewed by Ecology. Hydraulic Code: Chapter 77.55 RCW (the Hydraulic Code) gives the Washington Department of Fish and Wildlife (WDFW) the authority to review, condition, and approve or deny “any construction activity that will use, divert, obstruct, or change the bed or flow of state waters.” As applicable to the City of Burlington’s shoreline jurisdiction, however, it generally means that ---PAGE BREAK--- City of Burlington – Shoreline Analysis Report – June 2012 Shoreline Grant No. G1000073 11 WDFW must review and approve most activities in fresh waters. These activities may include pier and bulkhead repair or construction, wetland alteration, and culvert installation or replacement, among others. WDFW can condition projects to avoid, minimize, restore, and compensate adverse impacts. SHORELINE INVENTORY Development of a shoreline inventory is intended to record the existing or baseline conditions upon which the development of shoreline master program provisions will be examined to ensure the adopted regulations provide no net loss of shoreline ecological functions. The City has gathered, to the extent information is relevant and readily available, the following information: • Regulations affecting shorelines • Land Use Patterns • Transportation • Utilities • Existing Structures • Impervious Surfaces and Vegetation • Shoreline Modifications • Public Access Areas • Critical Areas • Channel Migration Zones and Floodplains • Archeological and Historical Resources • Areas of Special Interest • Restoration Opportunities (degraded sites) • Data Gaps The following subsections expand upon each of the above required inventory elements, identifying sources of information, summarizing data in tables broken down by various reaches, and providing a narrative where appropriate for each element. In order to break down the shoreline into manageable units and to help evaluate differences between discrete shoreline areas, the shoreline has been sequentially divided into reaches based on land use (i.e. residential, water-dependent, park, etc) and shoreline-specific condition (i.e. topography, morphology, land cover, etc.). The result is two reaches along the Skagit River shoreline. Gages Slough is divided into three major geographic areas, and each wetland assessment unit within the reach is classified based on Department of Ecology guidelines. Land Use Patterns Land use conditions in shoreline areas are a major factor in the preparation of master programs for two reasons. First, the Shoreline Management Act (SMA), Chapter 90.58 RCW, establishes a policy that gives preference to uses that are unique to or dependent upon a shoreline location. Consequently, WAC ---PAGE BREAK--- City of Burlington – Shoreline Analysis Report – June 2012 Shoreline Grant No. G1000073 12 173-26-201(2)(d) calls for master program provisions to give higher priority to the following types of uses, in the order presented below: 1. Areas for protecting and restoring ecological functions. 2. Water-dependent and associated water-related uses. 3. Other water-related and water-enjoyment uses. 4. Single-family residential uses where they are appropriate and can be developed without significant impact to ecological functions and displacement of water-dependent uses. 5. Non-water-oriented uses where the uses described in 1-4 above are inappropriate or where non-water-oriented uses demonstrably contribute to the objectives of the SMA. A second important reason for inventorying shoreline and adjacent land uses is that this inventory information is critical for assigning environment designations as called for in WAC 173-26-211. As noted in WAC 173-26-211(3), the SMP and the comprehensive plan must be mutually consistent. The City is protected by a levee along the Skagit River Shoreline, and the City and Dike District #12 have acquired at least 200 acres of land to preclude development for other than recreation and flood hazard mitigation, to accommodate setback levees and levee enlargement with the goal of certified levees that are accredited by FEMA as providing 100-year flood protection. Gages Slough is a degraded category 3 wetland with many planned restoration projects intended to upgrade storm water quality and restore buffers and it has been inventoried in detail by qualified wetland scientists. The following Table describes the zoning, existing conditions and development potential for each reach of the shorelines. The commercial zoning in the three-bridge corridor, Reach 2, is confusing in that one would assume there is a tremendous development potential. However, the area is subject to Interim Controls that are reauthorized following a public hearing every six months to preclude any development while the planning process is underway for the setback levees through the area. The rationale for keeping the underlying zoning in place is specifically to ensure that the property acquisition process is fair to the current property owners. At such time as land acquisition is completed, the area will be rezoned. ---PAGE BREAK--- City of Burlington – Shoreline Analysis Report – June 2012 Shoreline Grant No. G1000073 13 Shoreline Reach Zoning Existing Condition Development Potential 1. Skagit River Northeast Open Space Parks and Agriculture Levee adjacent to Park, one boat pier, one boat launch ramp, one sewer plant with outfall, two forested riparian buffers located water side of levee at distance ok for trees Vegetation strictly regulated by USACE Levee Vegetation Mgmt Standards & PL84-99; small willows along riprap with size limit and mowed levee banks; LWD installations where appropriate as part of levee rehabilitation. No development potential; Restoration potential at Johnson Bar; limited restoration at Whitmarsh crossdike. A separate Biological Opinion was prepared by the National Marine Fisheries Service, issued October 20, 2011, pursuant to section 7(a)(2) of the Endangered Species Act on the effects of the proposed Skagit River – Diking Districts 1,3,12,17 and 22 Levees Rehabilitation of Flood Control Works Project in Skagit County, Washington and the levee rehabilitation projects are in full compliance with the ESA consultation standards. 2. Skagit River West 3-bridge corridor Levee Setback Area Commercial with GMA Interim Controls in effect for no development while planning is completed for levee setbacks; following land acquisition, site will be rezoned OSPA (Open Space Parks, Agriculture). Underlying zoning remains in place until that time to ensure that property owners will be fairly compensated when land is acquired by Dike District #12. Levee along river; land acquisition and federal environmental review in process for setback area. Vegetation strictly regulated by USACE Levee Vegetation Mgmt Standards & PL84-99; small willows along riprap with size limit and mowed levee banks; LWD installations where appropriate as part of levee rehabilitation. Interim Controls in place to prevent development while planning in process; Future potential recreation and restoration area along existing levee corridor. New setback levee will comply with ESA consultation standards as may be modified for the location. 3. Gages Slough Pump Station to Anacortes Street. Note: Pump Station to City Limits is subject to Interlocal Agreement with Skagit County for maintenance. Agriculture, Commercial & Residential Degraded wetland with identified restoration and public access sites; Goldenrod Road Restoration site in great condition; 6 years of monitoring and maintenance to date; WSDOT restoration site is being maintained just outside City Limits. Minimal redevelopment or infill on some parcels adjacent to buffer area; significant potential for nonmotorized trail along the Slough, public access, interpretative signs, and additional buffer restoration planting programs. 4. Remaining land in City Limits and UGA Single Family Residential Degraded wetland with some piped outfall locations and several identified future buffer restoration sites Minimal infill; focus on public education and BMPs 5. Gages Slough east of the UGA Agricultural and Residential Degraded wetland Interlocal with Skagit County needed to promote BMPs; cattle and no buffers among water quality problems ---PAGE BREAK--- City of Burlington – Shoreline Analysis Report – June 2012 Shoreline Grant No. G1000073 14 Transportation Transportation facilities are correlated with increased impervious surface, decreased water detention, and water quality impacts including public and private roadways, whether residential streets or local highways,. The inventory of transportation facilities is an essential facet to determining shoreline function and the spatial relationship of these facilities to various shoreline uses. In general, information about transportation facilities was derived from the City’s Geographic Information System GIS (2009), aerial photographs, and other map resources. There are three bridges across the Skagit River, the BNSF Railroad, the Old 99 Bridge (with stormwater treatment pond), and Interstate 5. There is an access road along the south City Limits, Whitmarsh Road. There is pedestrian/nonmotorized access along the levee between the Whitmarsh Road crossdike and the Boat Launch Ramp. Gages Slough is crossed by 12 streets, most of which predate any stormwater treatment requirements. Retrofit of some streets with water quality treatment vaults has occurred in conjunction with street improvement projects, along with increasing the size of the culverts that have replaced bridges over the past hundred years. There is one Boat Launch Ramp at the end of Gardner Road, providing access to the Skagit River. Wastewater and Stormwater Utilities There are two primary utilities with the ability to directly and indirectly impact State shorelines: wastewater and stormwater. Burlington is very fortunate in that there are no wastewater utilities present within shoreline jurisdiction other than the outfall for the treated effluent from the Wastewater Treatment Plant. There are no combined storm and sanitary sewers in the City. Stormwater utilities exist within shoreline jurisdiction with direct discharges throughout the City to local waterbodies. Both water quantity and quality are considered when discussing stormwater issues. The City operates these two utilities under its Public Works Department. The City operates and maintains pipes, catch basins, and detention facilities in conjunction with the Gages Slough wetlands and the Skagit River, as well as stormwater outfalls into Drainage Districts that discharge into salt water miles from Burlington. The program is intended to maintain and improve water quality and to protect fish and other wildlife. Although much of the Public Works’ jurisdiction is outside of the shoreline zone, the regulated surface waters, both natural and piped, are discharged into the Skagit River. Wastewater Utilities The City provides sewer services to a larger region, including Lake Samish in Whatcom County, the area along Highway 99 ranging from places in Alger to the Cook Road intersection, to the Campground, Bayview Ridge as far west as Farm to Market Road, and all areas located within the City, collecting and treating wastewater at the Burlington Wastewater Treatment Plant located ---PAGE BREAK--- City of Burlington – Shoreline Analysis Report – June 2012 Shoreline Grant No. G1000073 15 adjacent to the Skagit River just from the Boat Launch Ramp. This plant discharges into the Skagit River after providing primary and secondary treatments. Disinfection with Chlorine was eliminated with the major upgrade of the Plant and replaced with Ultraviolet light accompanied by a vigorous pretreatment and inspection program. Discharges from the plant are regulated by the Washington Department of Ecology under National Pollutant Discharge Elimination System (NPDES) permits, which include performance standards and monitoring requirements. The Burlington Wastewater Treatment Plant was presented with an “Outstanding Wastewater Treatment Plant” award by the Department of Ecology in 2009. The award is given to those who achieve 100 percent compliance with the regulations imposed by the discharge permit. The City has received this award many times. Stormwater Utilities The Washington Department of Ecology issued the City a NPDES permit on January 17, 2007. This Western Washington Phase II Municipal Permit, under a five year permit cycle, went into effect on February 16, 2007 and expires on February 15, 2013 (one year extension granted by Governor). The City of Burlington is a Phase II city and submitted the Notice of Intent (NOI) for Coverage on schedule. Each permittee is required to develop and implement a Stormwater Management Program (SWMP) designed to reduce the discharge of pollutants from the City’s municipal separate storm sewer system to the maximum extent practicable and to protect water quality. The use of the best management practices (BMPs) in the SWMP will help the City meet or exceed the NPDES permit requirements. Under the conditions of the permit, the City must protect and improve water quality through public education and outreach, detection and elimination of illicit non-stormwater discharges spills, illegal dumping, wastewater), management and regulation of construction site runoff, management and regulation of runoff from new development and redevelopment, and pollution prevention and maintenance for municipal operations. There are 35 stormwater outfalls into Gages Slough, and there are four stormwater outfalls into the Skagit River, located at the Sewer Plant (the old Darigold line), the Whitmarsh Road Pump Station Old 99 Bridge, and the Gages Slough Pump Station Impervious Surfaces and Vegetation Impervious surface and, conversely, vegetation are relevant to shoreline functions because of the relationship between the two elements and stormwater runoff. Burlington thanks the City of Anacortes and the Watershed Company for allowing the use of this excellent literature review, and other information. In a number of ways, vegetated areas slow the movement, reduce the quantity, and improve the quality of runoff that makes its way into streams and other waterbodies. Increases in impervious surface coverage, and the consequent reduction in soil infiltration, have been correlated with increased velocity, volume and frequency of surface water flows. This hydrologic shift alters sediment and pollutant delivery to streams and other receiving bodies (Booth 1998; Arnold and Gibbons 1996). Increased surface water flows associated with impervious surface coverage of suburban areas (20-30%) has been linked to decreased bank stability and increased erosion (May et al. 1997a). Rainwater can evaporate off of vegetation without ever reaching the ---PAGE BREAK--- City of Burlington – Shoreline Analysis Report – June 2012 Shoreline Grant No. G1000073 16 ground, infiltrate into the soils where it is taken up by vegetation and evapotranspirated, infiltrate into the soils to recharge groundwater, or move slowly over the surface or subsurface into a waterbody. Impervious surfaces replace vegetation and speed the movement of runoff into waterbodies while increasing the volume of the runoff, and may pick up pollutants in the process. Knutson and Naef (1997) concluded that as little as 10 percent impervious surface coverage is sufficient to alter bank stability and erosion. Changes in hydrology brought on by impervious surfaces have also been linked to shifts in macroinvertebrate community composition, which could have profound and far-reaching impacts on the productivity of a watershed (Pederson and Perkins 1986, as cited in Leavitt 1998). Looking at the town as a whole, it is 4.4 square miles or 2,816 acres @640 acres per square mile. At 42.3 miles of street, assuming 50 feet of pavement width, there is 11,167,200 square feet of pavement. There is 7,790,657 square feet of commercial and industrial impervious surface. This is a total of 18,957,857 square feet of impervious surface, or about 435 acres. This puts the total impervious surface at about 15-20% if different road widths are included, which seems reasonable in light of the permanent open space on Burlington Hill, in Gages Slough, in Parks and riverfront. The Gages Slough corridor was initially developed with a 25 foot wetland buffer and the buffer was increased to 50 feet after several years. Buffer restoration plans have identified 17 sites for projects, three are completed and being monitored and maintained, and further study is planned to upgrade the stormwater utility qualities of Gages Slough, such as sediment removal and water quality treatment bioswales. There are some locations along Gages Slough that have structures that are relatively close to the edge of the buffer. In general the Slough is the collector for 80% of the stormwater in Burlington and it is polluted. See Appendix D for water quality monitoring program and data. The Skagit River shoreline is fronted by levees and armored with riprap. With the existing riverfront currently protected by a levee system, no changes are proposed to the Essential Fish Habitat, the Riparian Area, or the Floodway with the planned upgrade of the levees to gain 100-year base flood protection. There are two existing forested Riparian habitat zones in locations where the existing levees are setback from the riverfront, a total of 1.29 miles out of a total of 4.6 miles of levee that protects the city, or 28%. The remainder of the levees that are along the River frontage consist of mowed levee vegetation with small willows that are cut down at a specific size to grow again; the levee vegetation is required to be maintained under the Corps of Engineers annual levee vegetation maintenance standards under PL 84-99, as modified by the October 20, 2011 Biological Opinion. Dike District #12 relies on this program to maintain the levee’s structural integrity and to qualify for Corps of Engineers assistance during and after flood events. References: Biological Opinion, Consultation for Skagit River Levee Repair Projects, Skagit County WA: Flood Damage Repairs to Numerous Levees in Diking Districts 1,3,12,17, and 22, Prepared by U.S. Fish and Wildlife Service Reference Number 13410-2010-F-0254, Agency U.S. Army Corps of Engineers Seattle District, May 27, 2011. Endangered Species Act (ESA) Section 7(a)(2) Biological Opinion and Magnuson-Stevens Fishery Conservation and Management Act Essential Fish Habitat (EFH) Consultation, Skagit River – Diking Districts 1,3,12,17 and 22 Levees Rehabilitation of Flood Control Works Project in Skagit County Washington; NMFS Consultation Number: 2011/0033, October 24, 2011. ---PAGE BREAK--- City of Burlington – Shoreline Analysis Report – June 2012 Shoreline Grant No. G1000073 17 Shoreline Modifications Shoreline modifications are anthropogenic alterations to the natural shoreline edge and nearshore environments, and primarily include a variety of armoring types like bulkheads and levees (some associated with fill); piers and docks; marinas; boat repair and maintenance facilities; other in-water structures such as boatlifts, boathouses, and moorage covers; culverts; weirs; and bridges. These sorts of modifications may alter shoreline functions by changing erosion, sediment, and water movement patterns; the distribution of aquatic and terrestrial vegetation; and predator-prey dynamics of fish and wildlife. An inventory of the extent and location of shoreline modifications along shorelines is important to understand baseline conditions and the potential cumulative effect of future goals, policies and regulations. The Skagit River drains an area of 3,140 square miles and flows for 162 miles from its headwaters in the Cascade Mountains, through low-lying valleys, and finally through the broad Skagit flats to Puget Sound. The Skagit River is the largest in the Puget Sound basin and possesses the most abundant and diverse populations of salmon, steelhead trout and bull trout in the region. It is the sixth largest drainage on the west coast of the continental United States. The Skagit River shorelines located within the City’s corporate boundaries are characterized by significant modifications that have occurred since European settlement in the area began in the mid 1800s. Most of the adjacent floodplain that historically contained complex water/wetland systems and habitats has been drained and filled for either agriculture or urban development. A system of levees has been constructed over time to protected adjacent properties from seasonal flooding, and most of the area was reclaimed, protected by levees, drained and cleared by the early 20th century. The first county-sponsored dike districts were formed in 1888, and by 1895 the first state dike districts were created. This system of levees is a dominant physical feature affecting shoreline functions, restoration potential and planning. The river channel has remained relatively stable since the turn of the last century. See Exhibit A Maps and Photos for both historic and current maps of the river channel. Existing and Potential Public Access Sites Public access includes the ability of the general public to reach, touch, and enjoy the water’s edge, to travel on the waters of the state, and to view the water and the shoreline from adjacent locations. In order to accomplish these goals per WAC guidelines, local governments should develop a set of planning tools that identifies public access opportunities. Currently, the City’s Transportation Plan, Comprehensive Plan, Parks and Recreation Comprehensive Plan, and the development regulations already include policies and guidelines to meet public access requirements. To support this on-going planning effort, WAC 173-26-201(3)(c) calls for local governments to inventory existing and potential shoreline public access sites, including public rights-of-way and utility corridors. The Burlington Parks and Recreation Comprehensive Plan map and the setback levee restoration concept plan are included in Appendix A Maps and Photos, identifying the current public access planning, including the future levee setback area. ---PAGE BREAK--- City of Burlington – Shoreline Analysis Report – June 2012 Shoreline Grant No. G1000073 18 Critical Areas: Geological Hazardous Areas; Frequently Flooded Areas including floodplain, channel migration zone and floodway; Aquifer Recharge Areas; Wetlands; Fish and Wildlife Conservation Areas including Habitats and Species of Local Importance and Listed Species and Habitat The City’s critical areas regulations include geologically hazardous areas, frequently flooded areas, aquifer recharge areas, wetlands and riparian corridors, and fish and wildlife conservation areas. The inventory of critical areas was based on a wide range of information sources, including City GIS, critical area inventories, Washington Department of Fish and Wildlife databases, and other relevant maps and literature obtained from the Washington Department of Natural Resources (DNR), Ecology, National Marine Fisheries Service, and U.S. Fish and Wildlife Service. See Appendix A Maps and Photos. Habitat locations, as provided by Priority Habitats and Species mapping by WDFW (2009), are shown in Appendix A. As stated in the Critical Areas Code, the following shall constitute critical areas: 1. Wetlands and riparian corridors, including Gages Slough; Wetlands serve many important ecological and environmental functions and help to protect public health, safety and welfare by providing flood storage and conveyance, erosion control, fish and shellfish production, fish and wildlife habitat, recreation, water quality protection, water storage, education, scientific research and other public benefits. Critical areas regulations seek to protect these functions to prevent the continual loss of wetlands, and where practical to enhance or restore wetlands functions and values. 2. Areas with a critical recharging effect on aquifers used for potable water; Potable water is an essential life-sustaining element. Burlington’s drinking water comes from Public Utility District rather than groundwater supplies. Once groundwater is contaminated, it is difficult, costly, and sometimes impossible to clean up. The goal for aquifer recharge is to prevent contamination and depletion, avoid exorbitant clean up costs, hardships and potential physical harm to people. There are some existing wells used for irrigation in the City Limits that are not mapped. 3. Fish and wildlife habitat conservation areas: In addition to their intrinsic value, certain species of fish and wildlife represent important historic, cultural, recreational and economic resources. Many species serve as indicators of the condition of the environment and the quality of life that local residents have invested in, enjoy and respect. The goal is to protect, restore where practical, and enhance fish and wildlife populations and their associated habitats. 4. Frequently flooded areas: Frequently flooded areas include the 100-year floodplain, areas with a 1% chance of flooding in any give year, and the floodway that is defined as the area riverward of the riverward toe of the levees. It is the purpose of floodplain regulations to promote the public health, safety, and general welfare, and to minimize public and private losses due to flood conditions in the floodplain and the floodway. 5. Geologically hazardous areas: Geologically hazardous areas include areas susceptible to the effects of erosion, sliding, earthquake, or other geologic events. They pose a threat to the health and safety of citizens when incompatible residential, commercial, industrial, or ---PAGE BREAK--- City of Burlington – Shoreline Analysis Report – June 2012 Shoreline Grant No. G1000073 19 infrastructure development is sited in areas of a hazard. Geologic hazards pose a risk to life, property, and resources when steep slopes are destabilized by inappropriate activities and development or when structures or facilities are sited in areas susceptible to natural or human caused geologic events. Some geologic hazards can be reduced or mitigated by engineering, design, or modified construction practices so that risks to health and safety are acceptable. When technology cannot reduce risks to acceptable levels, building and other construction within identified geologically hazardous areas is prohibited. Description of the Species and Habitat The two major Federal listed species of concern are Chinook Salmon and Bull Trout, both identified as Threatened. Chinook Salmon was listed as Threatened in Puget Sound on August 2, 1999. Bull Trout was listed as Threatened in the Puget Sound Unit on June 10, 1998. This information is from the U.S. Fish and Wildlife Service website. Critical habitat is designated for areas containing the physical and biological habitat features, or primary constituent elements (PCEs) essential for the conservation of the species or that require special management considerations. This area is a Designated Critical Habitat for 19 Evolutionarily Significant Units of Salmon and Steelhead. This action was finalized after litigation by rule published in the Federal Register Vol. 70 No. 170 on September 2, 2005. NMFS believes that adopting a more inclusive, watershed-based description of critical habitat is appropriate because it: “ recognizes the species’ use of diverse habitats and underscores the need to account for all of the habitat types supporting the species’ freshwater and estuarine life stages, from small headwater streams to migration corridors and estuarine rearing areas;(2) takes into account the natural variability in habitat use that makes precise mapping problematic some streams may have fish present only in years with abundant rainfall); and reinforces the important linkage between aquatic areas and adjacent riparian/upland areas.” The essential habitat features for salmon include, but are not limited to, spawning sites, food resources, water quality and quantity, and riparian vegetation. Essential habitat types include juvenile rearing areas, juvenile migration corridors, areas for growth and development to adulthood, adult migration corridors, and spawning areas. The literature cited in the series of Federal Register publications over several years concluded that fully protected riparian management zones of one site-potential tree height would adequately maintain 90-100 percent of most key riparian functions of Pacific Northwest forests if the goal was to maintain instream processes over a time frame of years to decades. A minimum 30-meter riparian management zone for salmonid protection was also cited in the literature review. Site specific analysis is always the best means to characterize the adjacent riparian zone. Diking and bank stabilization, construction/urbanization, habitat restoration projects, wastewater/pollutant discharge, wetland and floodplain alteration and woody debris/structure removal from rivers summarizes the items identified in the Federal Register that reflect the existing condition along the Skagit River and Gages Slough Corridor in the City of Burlington and Dike District #12. These are the types of activities that will affect the riparian area’s contribution to properly functioning conditions for salmonid habitat. ---PAGE BREAK--- City of Burlington – Shoreline Analysis Report – June 2012 Shoreline Grant No. G1000073 20 The Lower Skagit River has been managed for flood control and channel stability for more than a century. The natural channel meander has been restricted, channel complexity has been lost, and floodplain connectivity, especially to wetlands, has been lost. These are existing problems that have accumulated for many years. Conservation and restoration opportunities need to be a collaborative effort among the parties represented by the Skagit Watershed Council and approached as a regional program. Offsite restoration opportunities could be jointly sponsored when restoration is not feasible in the immediate vicinity of a levee segment, for example. Further, the Federal Register states that in areas where the existing riparian zone is seriously diminished (e.g. in many urban settings and agricultural settings where flood control structures are prevalent), Federal agencies should focus on maintaining any existing riparian functions and restoring others where appropriate, for example, by cooperating with local watershed groups and landowners. NMFS acknowledges in its description of riparian habitat function that different land use types will have varying degrees of impact and that activities requiring a federal permit will be evaluated on the basis of disturbance to the riparian zone. Federal permitting agencies will be required to ensure that the permitted action, regardless of whether it occurs in the stream channel, adjacent riparian zone, or upland areas, does not appreciably diminish the value of critical habitat for both the survival and recovery of the listed species or jeopardize the species’ Evolutionarily Significant Units or ESUs) continued existence. For reasons presented in the Federal Register document, NMFS has revised its designation of freshwater and estuarine critical habitat for Chinook salmon to include riparian areas that provide the following functions: shade sediment transport, nutrient or chemical regulation, streambank stability, and input of large woody debris or organic matter. Habitat quality in this range is intrinsically related to the quality of riparian and upland areas and of inaccessible headwater or intermittent streams which provide key habitat elements large woody debris, gravel, water quality) crucial for salmon and steelhead in reaches. Critical habitat was also designated for bull trout in the Federal Register on October 26, 2005 (50 CFR Part 17). Primary constituent elements are provided by the mainstem river including appropriate water temperature range, hydrograph supporting year-round bull trout populations, migratory corridor, abundant food base and permanent water. In this area of the river, the primary function is as a migration corridor. Species Presence and Use within the Area The Biological Assessment Report for the Riverside Bridge Replacement Project, prepared by Harding Lawson Associates, dated September 21, 1999 provides local information on the Skagit River situation. Many species of salmon are found in the project area that is generally the upstream area from Sterling east of the end of the levee at Lafayette Road, the levee frontage along the Skagit River through Burlington, and the areas that may be affected by the levee certification program. Based on the project’s location in the Skagit River system, the area is used for both adult and juvenile migration. Fish do not spawn in the vicinity of the project. Almost all the salmon that migrate through the project area move upstream and begin to spawn at Gilligan Creek near Highway 9, although a few chum may spawn below the creek. There are adult fish (of one kind or ---PAGE BREAK--- City of Burlington – Shoreline Analysis Report – June 2012 Shoreline Grant No. G1000073 21 another) in the project area almost every month of the year (mid-July to June). Only the first half of July is relatively fish-free. Juveniles are moving through the project area from February to the end of June. Nearly all juvenile fish are absent from the project area by July 1. Factors such as temperature and rainfall affect where the salmon will occur in the river (surface vs. bottom, middle vs. streambank). Fish in general are more active during rainfall events. A fish trap is in service just upstream of the Old 99 Bridge, but below the Burlington Northern Santa Fe Railroad Bridge. The trap is operated by the Washington Department of Fish and Wildlife (WDFW) and was first installed in 1990. The traps are checked every night and every third day, January through September. Traps are checked at night more frequently because many species of fish prefer to travel at night. Data from this trapping effort is very helpful. A biological assessment prepared by Anchor Environmental, LLC has been finalized in 2010 with WSDOT for the Skagit River Bridge Modification Project through the three-bridge corridor and information presented here has been reviewed and updated to ensure general consistency. Reference: Biological Assessment, Skagit River Bridge Modification and Interstate Highway Protection Project, Prepared for Skagit County Public Works, Prepared by Anchor Environmental LLC. Numerous actions have occurred in the past few years including litigation that have shaped the ESA program. Interesting information is presented on bull trout. They rear in the mainstem Skagit River and spawn in the tributaries. Autumn floods in 2003 and 2006, combined with summer low flows in 2005 and 2006 have reduced bull trout spawning by as much as 60% in recent years (WDFW 2007). Washington State Department of Fish and Wildlife Priority Habitats and Species information The City of Burlington requested information that documents the location of important fish and wildlife resources from the State of Washington Department of Fish and Wildlife on March 4, 2008. Subsequently, the city contacted DFW on October 28, 2008 to determine if the information was still up to date, and received a follow-up telephone call stating that the Skagit River information was updated at about that time, and in all likelihood, there have been no changes. No changes appear as of March 2010. One of the products of the Skagit Watershed Council is the publication of the Skagit Chinook Recovery Plan in 2005, prepared by the Washington Department of Fish and Wildlife and the Skagit River System Cooperative. It appears that many of these recommendations have been included in the NMFS Biological Opinion. Priority Habitats and Species - Effective Date: March 2008 State of Washington Department of Fish and Wildlife ---PAGE BREAK--- City of Burlington – Shoreline Analysis Report – June 2012 Shoreline Grant No. G1000073 22 Priority Anadromous Fish in the Skagit River: 1. Fall, Spring and Summer Chinook 2. Coho Salmon 3. Summer and Winter Steelhead 4. Pink Salmon 5. Sockeye Salmon 6. Fall Chum 7. Dolly Varden/Bull Trout 8. Resident Coastal Cutthroat The Skagit has a priority anadromous and resident fish presence. There is an increase in the number of bald eagles in the general area, along with migratory waterfowl and many other birds and small mammals. Priority Habitats in the Burlington Area: The Gages Slough corridor is identified as a priority habitat area, and there are 15 identified wetland buffer restoration project sites included in the current adopted Gages Slough Management Plan, with three completed projects and several in the planning stages. The Gages Slough Management Plan is being updated in 2012 with Low Impact Development standards and other water quality improvement programs. There are also riverine and other types of wetlands along the river on the river side of the levees and upstream of the levee system, and one mitigation effort that is being discussed is how to take advantage of opportunities to enhance the riparian zone along the Skagit, and to determine whether there may be additional opportunities for habitat improvement that may be feasible in this area, or in collaboration with others to achieve regional mitigation goals. Endangered Species Act – Section 7 Consultation Final Biological Opinion And Magnuson-Stevens Fishery Conservation and Management Act Essential Fish Habitat Consultation The ESA – Section 7 Consultation Final Biological Opinion and Magnuson-Stevens Fishery Conservation and Management Act Essential Fish Habitat Consultation was transmitted to FEMA from National Marine Fisheries Service Northwest Region on September 22, 2008. The report is in response to litigation and is intended to provide an Opinion on the effects of the National Flood Insurance Program on listed species found within the Puget Sound region, which are Puget Sound Chinook salmon, Puget Sound Steelhead, Hood Canal summer-run chum salmon, Lake Ozette sockeye salmon, and the Distinct Population Segment of endangered Southern Resident killer whales. The city implemented the program on September 20, 2010. Burlington is an existing city that is almost built out and located almost 100% in the 100-year floodplain, and it is the position of the city that the current programs, ordinances and policies in effect meet the No Adverse Effect standard of the Reasonable and Prudent Alternative Elements presented in the Opinion, and if additional ---PAGE BREAK--- City of Burlington – Shoreline Analysis Report – June 2012 Shoreline Grant No. G1000073 23 measures are needed, they will be implemented. The best available science that is being used to make this determination is reflected in this report and accompanying reference documents. The city is committed to clean water and flood hazard mitigation including no net loss of ecological functions, no adverse effect on listed species, and moving ahead on restoration opportunities. The NMFS Biological Opinion is available at http://www.nwr.noaa.gov/. See Appendix E for Biological Opinion Checklist with city response. HISTORICAL OR ARCHEOLOGICAL SITES Burlington started as a logging camp around 1882 when the valley was a forest of huge virgin cedar trees. As the forest was logged, the stumps were removed to provide access to the fertile soils that had been deposited by the Skagit River. This was the means by which one of the world’s more fruitful alluvial valleys came into production. The original plat of Burlington was recorded in 1891, showing the heart of town and two major railroad rights of way intersecting to form the hub of the town. Burlington was incorporated on June 16, 1902 with a population of 260. The railroad came to Burlington in 1890 and was likely the most influential factor in its early growth. After 1912, the interurban branch line to Sedro-Woolley connected here with the main line between Mount Vernon and Bellingham. Today, a switchyard occupies the south-central portion of Burlington and the intersection with the East-West track occurs near the center of town. Along the Skagit River, there was once a ferry landing at the site of the Gardner Road Boat Launch Ramp. Because the levees have been in place for over 100 years, there are no visible archeological sites along the riverfront. There are remains of an old fire pit and salmon bones that were uncovered, and then reburied because the project will not affect the site and it will remain in place, in the course of a Section 106 assessment in the proposed levee setback area in 2009. No major archeological sites are known in the City Limits. OTHER AREAS OF SPECIAL INTEREST Water Oriented Uses According to Ecology’s SMP Guidelines (173-26-020 WAC), “water-oriented use means a use that is water-dependent, water-related, or water-enjoyment, or a combination of such uses.” The following descriptions and examples are provided: • Water-dependent uses consist of uses which require direct access to the water to perform their primary function. Burlington has a boat launch ramp, a private mooring dock, and allows fishing along the riverfront in season. • Water-related uses refer to uses that do not require direct water access, yet provide goods or services associated with water-dependent uses. There do not appear to be any in the shorelines of Burlington. • Water-enjoyment uses refer to uses that do not require direct water access but are enhanced by a waterfront location. Typical examples include residential property and ---PAGE BREAK--- City of Burlington – Shoreline Analysis Report – June 2012 Shoreline Grant No. G1000073 24 parks. Residential property is limited to locations along Gages Slough, and the Skagit River Park is about 130 acres in size, adjacent to the levee. Toxic or Hazardous Waste Sites There is one old burn dump site adjacent to Gages Slough, with the remnants consisting mostly of broken glass. This is the location of a buffer restoration project planted in 2011. The dump itself has been covered with dirt and planted with thorny bushes and the restoration project includes replanting the wetland buffer with native plants including trees, and public access. OPPORTUNITIES FOR PROTECTION AND RESTORATION Biological Goals and Objectives These are the goals for the habitat conservation plan of the City so that any proposed activity does not appreciably reduce the likelihood of survival and recovery of the listed species under the Endangered Species Act, and that the plan minimizes and mitigates the impact of the taking of any listed species or habitat to the maximum extent practical. 1. Preservation means acquiring a site, using conservation easements, donations, etc., to protect its current values. Land acquisition is in process for both the Skagit River and Gages Slough. 2. Enhancement of a habitat means improving an existing site in some way that will encourage and retain fish and wildlife, such as increasing pond size or improving buffer. Following land acquisition, habitat enhancement is feasible. Public education is in process for encouraging land owners to use Best Management Practices on their own property and to enhance habitat areas and values in their own backyards. Along the Skagit River, enhancement areas are Johnson Bar and the forested buffer at Whitmarsh fields, where evergreen trees and maples are being planted to improve the buffer. Additionally, a significant project may be feasible at Johnson Bar based on the Big Bend Study (See Appendix C 3. Restoration means a damaged or degraded site will in some manner be improved. The Gages Slough corridor is the prime target for restoration projects. The Wetland Restoration Demonstration project in the Jack Doyle Memorial Neighborhood Park is the first example. The second project is in the sixth year of maintenance and monitoring, located west of Interstate 5 in a very visible location. There are a total of 15 sites in the Gages Slough corridor that have been identified and a reconnaissance level plan has been prepared for each one, including locations for installation of bioswales adjacent to the wetlands for water quality enhancement. Public/private partnerships are strongly encouraged. Along the Skagit River, the three-bridge corridor levee setback area is a long term future restoration project opportunity that would come into play when the bridges are extended. 4. Long-term management of priority habitat sites includes strategies to protect the habitat values of the sites. Every site in the Urban Wildlife Habitat designation has a monitoring ---PAGE BREAK--- City of Burlington – Shoreline Analysis Report – June 2012 Shoreline Grant No. G1000073 25 and management plan that is tailored to the specific requirements of the location. This work includes removal of invasive species and replanting as necessary in a timeline based on the season. 5. Not appreciably reduce the likelihood of survival and recovery is the statutory goal for permit issuance under the Endangered Species Act. In Burlington, this includes a strategy that will keep floodwaters out of the developed urban area so that pollution from the city does not enter the Skagit River, and prevent fish stranding in polluted areas with no potential for survival. The City and Dike District #12 are working together to develop a plan for levee certification and accreditation by FEMA, to prevent or at least severely restrict urban flooding in flood events up to the 100-year base flood. This project is the topic of an environmental impact statement (see references). Adaptive Management Plan An adaptive management strategy is used to address significant uncertainty associated with a particular habitat conservation plan, but it is not practicable (or possible) to require that all adaptive management strategies impose an elaborate experimental design, but rather to overcome data gaps. As foreseeable circumstances change, a contingency plan must be in place to address the issues. An example here might be changes in the Corps of Engineers Levee Vegetation Maintenance standards, or a flood event that changes a planned restoration project. Monitoring program Monitoring types include compliance monitoring, effect monitoring, and effectiveness monitoring. Today, water quality monitoring is a TMDL and NPDES II requirement and there is ongoing monitoring at the Sewer Plant and at Stormwater outfall locations, as well as in the Gages Slough corridor. Restoration planting projects have an initial five-year intense maintenance and monitoring program, with less frequent visits as the sites mature. Mitigation projects will each have a specific monitoring plan. ANALYSIS OF ECOLOGICAL FUNCTIONS AND ECOSYSTEM-WIDE PROCESSES Geographic Context (WRIA The City of Burlington is located on the Skagit River flats in the Northern Puget Sound Region and contains river and wetland shorelines associated with Washington State’s Water Resource Inventory Area (WRIA) 03 See Appendix A Maps. There is approximately 2.95 miles of riverfront in the City Limits, extending from River Mile 16.6 to 19.48. An additional 1.65 miles of riverfront upriver from the Boat Launch Ramp is fronted by the same Dike District #12 levee that also protects the City, from River Mile 19.48 to River Mile 20.90, and there is one potential restoration project in that area on land outside the City Limits that is partly owned by the City. Gages Slough is an associated wetland that is a total of approximately 7.3 miles in length with 3.5 miles located in the City and Urban Growth Area. ---PAGE BREAK--- City of Burlington – Shoreline Analysis Report – June 2012 Shoreline Grant No. G1000073 26 Major Land Use Changes and Current Shoreline Conditions The City of Burlington is unique because it lies at the transportation hub of Skagit County. Burlington started as a logging camp around 1882 when the valley was a forest of huge virgin cedar trees. As the forest was logged, the stumps were removed to provide access to the fertile soils that had been deposited by the Skagit River. This was the means by which one of the world’s more fruitful alluvial valleys came into production. Levees were placed along the Skagit River to protect the town and the farmland in the late 1800’s. The Skagit River was the primary route for commerce. The original plat of Burlington was recorded in 1891, and the Town Limits were a long way from the river, with the hub of the town surrounding the intersection of two major railroad rights of way. Burlington was incorporated on June 16, 1902 with a population of 260. The railroad came to Burlington in 1890 and was likely the most influential factor in its early growth. The fields next to the Skagit River provided spray fields for the wash water from food processing plants. The old Darigold Plant had an outfall near the current Wastewater Treatment Plant and grew some really big fish. The levees were relocated closer to the river in the 1950’s and the town gradually grew. After the food processing plants closed, the city purchased the spray fields (1996) to prevent further development next to the river. After the 1990 flood event, work began in earnest to maintain the structural integrity of the levees with the installation of clay keyways and widening the tops and lengthening the backslopes. Work continues today. The Gages Slough wetland corridor management plan was completed in 1998 and adopted. Water quality improvement is linked to improvements in surface water management and wetland buffer restoration and installation of features such as bioswales to clean the stormwater, an on-going program. ---PAGE BREAK--- City of Burlington – Shoreline Analysis Report – June 2012 Shoreline Grant No. G1000073 27 Analysis of Ecological Functions and Ecosystem Processes on Skagit River Shoreline and Gages Slough Ecological processes and functions of the City of Burlington’s shoreline areas are organized around the Department of Ecology’s list of processes and functions for rivers and streams and associated floodplains, and wetlands. For both areas, the list includes the evaluation of three major processes: 1) hydrologic; 2) vegetation; and 3) habitat. These are further broken down into the following functions which are in turn used to evaluate reach performance: Ecological Function River and floodplains Wetlands Hydrologic Transport of water and sediment across the natural range of flow variability; attenuating flow energy; developing pools, riffles, gravel bars, recruitment and transport of LWD and other organic material. Storing water and sediment, attenuating wave energy, removing excessive nutrients and toxic compounds, recruiting woody debris and other organic material. Shoreline Vegetation and Vegetation in the case of the wetland (LWD is large woody debris) Maintaining temperature; removing excessive nutrients and toxic compound, sediment removal and, stabilization; attenuation of flow energy; and provision of LWD and other organic matter. Maintaining temperature; removing excessive nutrients and toxic compound, attenuating wave energy, removing and stabilizing sediment; and providing woody debris and other organic matter. Hyporheic functions Removing excessive nutrients and toxic compound, water storage, support of vegetation, and sediment storage and maintenance of base flows Removing excessive nutrients and toxic compound, storing water and maintaining base flows, storing sediment and support of vegetation Habitat for native aquatic and shoreline-dependent birds, invertebrates, mammals; amphibians; and anadromous and resident native fish: Habitat functions may include but are not limited to: space or conditions for reproduction, resting, hiding and migration; and food production and delivery. Habitat functions may include but are not limited to: space or conditions for reproduction, resting, hiding and migration; and food production and delivery. Assessment of each function is based upon both quantitative data results derived from the inventory information, and a qualitative assessment based on aerial photography, field inventory (where possible), and existing assessment information identified in the References. As described earlier, the shoreline has been divided into reaches based on various morphological, ecological, and land-use conditions. Reaches 1 and 2 represent the Skagit River shoreline and reaches 3, 4 and 5 represent the Gages Slough wetlands. Each reach has been given an overall “rating” for ecological functions based on the available and relevant GIS information and the corresponding quantitative and qualitative evaluation. Rating was completed using a “low” to “high” function scale. The level categories are: Low, Low/Moderate, Moderate, Moderate/High and High. ---PAGE BREAK--- City of Burlington – Shoreline Analysis Report – June 2012 Shoreline Grant No. G1000073 28 Shoreline Reach & Rating Shoreline Processes and Functions Occurring within the Reach Alterations and Assessment of Function Recommendations for Protection & Restoration 1. Skagit River West 3-bridge corridor Levee Setback Area Low Transport of water and sediment; habitat for fish migration; gravel bar Hardened bank with levee along river; land acquisition in process for setback area Interim Controls in place to prevent development while planning in process; Future potential restoration area 2. Skagit River Northeast Low/Moderate Transport of water and sediment; habitat for fish migration; maintaining temperature; habitat for birds, amphibians, mammals in 2 forested riparian buffers Hardened bank with levee adjacent to Park, one boat pier, one boat launch ramp, one sewer plant with outfall, two forested riparian buffers No development potential; Restoration potential at Johnson Bar; limited restoration at Whitmarsh crossdike 3. Gages Slough Pump Station to Anacortes St Moderate Habitat for aquatic and shoreline-dependent birds, invertebrates, mammals; amphibians; and fish such as perch in some locations: Degraded wetland with identified restoration and public access sites; Two buffer restoration projects being monitored and maintained; more planned Minimal redevelopment or infill on some parcels adjacent to 50 foot buffer area; goal is to have this reach in public ownership with full restoration over time 4. Remaining land in City Limits and UGA Low/Moderate Habitat for aquatic and shoreline-dependent birds, invertebrates, mammals; amphibians; and fish such as perch in some locations: Degraded wetland with some piped outfall locations; residential area; most of Slough is owned by adjacent property; Minimal infill; focus on public education and BMPs; encourage backyard restoration planting projects 5. Gages Slough east of the UGA Low Habitat for some birds, invertebrates, mammals; amphibians; much is farmed to the edge Degraded wetland Interlocal needed to promote BMPs Gages Slough Characterization Puget Sound Partnership The Puget Sound Partnership has undertaken an assessment of all waterways that bring pollutants to Puget Sound. Gages Slough drains through the Skagit River (WRIA 3) into the Puget Sound Basin and falls under the Puget Sound Partnership’s Whidbey Action area of concern. Improving management of stormwater and reducing the sources of water pollution is one of the key objectives in the Puget Sound Partnerships’ 2020 Action Agenda (Puget Sound Partnership, 2007). The Puget Sound Partnership (PSP) watershed characterization for Puget Sound and the more specific WRIA 3/4 analysis (PSP, 2010 digital files) highlighted many areas in which Gages Slough can contribute to cleaner water entering Puget Sound. Gages Slough was rated in the highest degradation category for water flow, surface storage, recharge, discharge, and delivery. The importance of Gages Slough’s contribution to these watershed processes in the lowland landscape group was rated from moderately high to moderate and restoration was recommended for Gages Slough (see Appendix This PSP study also encourages the City to continue the path of stormwater pollutant reduction and efforts to employ Low Impact Development (LID) in Burlington will contribute to the overall goal of increasing the freshwater quality index score for the Skagit River. ---PAGE BREAK--- City of Burlington – Shoreline Analysis Report – June 2012 Shoreline Grant No. G1000073 29 LAND USE ANALYSIS AND IMPLICATIONS Urban Wildlife Habitat Plan The purpose of this element of the shoreline master program plan is to address habitat and wildlife issues. The plan was developed in 1998 as part of the first effort to prepare a shoreline master program and was subsequently adopted as part of the Parks and Recreation Comprehensive Plan. The Gages Slough Management Plan was adopted in both the Parks and Recreation and the Surface Water Management Comprehensive Plans, to ensure that the programs would be in place. As stated in the Policies, Goals and Objectives, the City of Burlington is committed to encourage the enhancement and improvement of water quality, fish and wildlife habitat along Gages Slough and the Skagit River shoreline with an approved element of the plan that addresses habitat and wildlife issues and protects local fish and wildlife species that are identified at the federal, state and local level, including the species of local significance listed in the Burlington Critical Areas Code. This Plan element is designed to focus on providing habitat for wildlife species, foodfish, and freshwater fish in close proximity to a metropolitan area. This is the Skagit River shoreline specifically relative to salmon and bull trout and the need for riparian habitat along the riverfront levee system. The second area is the Gages Slough corridor that contains species of local significance as identified in the Critical Areas Ordinance. The third area is Burlington Hill, where development is in process on approximately half of the hill, and there is some remaining forested land forming a habitat corridor and also bald eagle habitat, although the closest nest site is in the Gages Slough area. Background The City of Burlington is in a unique situation, with over two miles of Skagit River frontage and a series of wetlands called Gages Slough that diagonally crosses the City. In November-December of 1995, a Survey was conducted of all the property owners along Gages Slough from Pulver Road to District Line Road. On January 23, January 30, February 6 and February 27, 1996, four regular winter Neighborhood meetings were conducted to review and comment on the proposed program and discuss options. In March, 1996, the results of the Gages Slough Survey were mailed to all Gages Slough property owners, and notified of a public workshop and a public hearing. These were well attended. The Citizen's Advisory Committee for Gages Slough and the Skagit River Shoreline was formed in 1996, with 21 members. Meeting for over two years, this committee developed a proposal for action that is based on the scientific study of Gages Slough in 1998, in addition to drafting a Shoreline Master Program for Burlington. The outcome of this Committee is a vision of the community for the future that recognizes the plan for the Slough must take into account the adjoining land uses. The Gages Slough Management Plan is a comprehensive program designed to gradually improve the deteriorated series of wetlands consistent with the long-term goals of the community and the region for environmental quality, flood hazard mitigation, surface water management, and public education and access to the Urban Wildlife Habitat area. Gages Slough originates east of the City Limits, meandering through the City of Burlington, discharging eventually to the Skagit River, roughly one mile west of Interstate 5. The total length of the slough is approximately 7.3 miles. ---PAGE BREAK--- City of Burlington – Shoreline Analysis Report – June 2012 Shoreline Grant No. G1000073 30 Roughly 3.5 miles of the slough lies within the study area that includes the Urban Growth Area and the westerly end of the slough to its point of discharge. The step-by-step approach has eight major components including Community Involvement, Education, Best Management Practices, Regulations, Restoration Plan, Monitoring Plan, Capital Improvement Plan and Interlocal Agreements. The plan is summarized in Exhibit E, and it was first adopted as an appendix to the Comprehensive Land Use Plan in 1999. The reference documents for clarification or more detail on any element of the Appendix Chapter of the City of Burlington Comprehensive Plan is available in the office of the Department of Planning and Community Development, titled 1998 CZM Grant Report - Gages Slough. The update of the Gages Slough Management Plan is scheduled for 2012. In 1993, the Army Corps of Engineers recommended setting the levees back 300 feet through Burlington. Following the 1995 flooding of the Skagit River, the City of Burlington and Dike District #12 actively began land acquisition along the River, with the first major purchase being the Skagit River Park. In the next phase of study, the City of Burlington participated in a working group over the course of 2000-2001, to develop viable alternatives for a permanent flood damage reduction plan along the Skagit River. Every alternative recognized and relied on the need to set back the levees 500 feet (increased from the original 300 foot recommendation) along the southern City Limits of Burlington, through the three-bridge corridor that is the bottleneck for passage of floodwaters through the area in the case of a 100-year flood event. Concurrent with the need for a greater setback of the levees is the unique opportunity to restore the riparian buffer and bring back the lost wildlife habitat corridor along the Skagit River. The update of the Parks and Recreation Comprehensive Plan to include an Urban Wildlife Habitat element was a focal point for discussion in the Fall 2002 Neighborhood Planning meetings. Designing the Habitat area along the Skagit River following the setback of the levees for both public and wildlife is a matter of great public interest, and there will be an extensive process for that project. Other issues raised include deciding what type of wildlife is desirable to attract such as plantings for different bird species, creating waterfowl habitat, constructing side channels for fish habitat, perhaps providing opportunities for research. There is great interest in providing opportunities for walking and jogging along the shoreline and off the streets. Citizens are interested in providing educational opportunities as well, such as self-guided nature walks and interpretative areas. The adopted 1999 Comprehensive Plan for Shoreline Goals and Policies and the Gages Slough Management Plan provide the framework for action; additional input is needed to focus on specific concepts to implement the plans. As funding becomes available, an overall plan will be implemented to take advantage of opportunities for passive recreation in the vicinity of the Slough and the Riverfront, such as walkways, benches, bird watching areas, and self-guided interpretative areas, in locations and arrangements consistent with the high priority for fish and wildlife protection. Another key finding is that the number one item that people care about when they think about Burlington’s Shorelines along the Skagit River and Gages Slough, is nonmotorized access around and through the community, followed closely by leaving a legacy to future generations, public access to the Skagit River shoreline and clean water in Gages Slough. ---PAGE BREAK--- City of Burlington – Shoreline Analysis Report – June 2012 Shoreline Grant No. G1000073 31 Identification of Populations and Threats There are several “listed” species (threatened or endangered) in this area. The two major Federal listed species of concern are Chinook Salmon and Bull Trout, both identified as Threatened. Chinook Salmon was listed as Threatened in Puget Sound on 08/02/1999. Bull Trout was listed as Threatened in the Puget Sound Unit on June 10, 1998. This information is from the U.S. Fish and Wildlife Service website. Critical habitat is designated for areas containing the physical and biological habitat features, or primary constituent elements (PCEs) essential for the conservation of the species or that require special management considerations. In addition, with the adoption of a new Critical Areas Ordinance meeting the criteria for Best Available Science, the following species and habitats have been designated on a site-specific basis according to the official Species and Habitats of Local Significance Map: 1. Great Blue Heron nest sites 6. Cavity Nesting Ducks breeding areas 2. Vauxs Swifts Communal Roosts 7. Trumpeter Swan concentrations 3. Pileated Woodpecker nest sites 8. Harlequin Duck breeding areas 4. Osprey nest sites 9. Waterfowl Concentrations 5. Townsend Big-eared Bat communal roosts 10. Bald Eagle Threats to listed species include poor water quality entering the River from Gages Slough, lack of a riparian buffer along the Skagit River on the river side of the levees to provide shade, large woody debris, and nearshore habitat, the need for high quality habitat and habitat corridors for all species to insure ecological diversity. The Washington Department of Fish and Wildlife Habitats and Species Map for the Burlington area are found in Appendix A Maps. The city has evaluated the Priority Habitats and Species of WDFW, the U.S. Department of the Interior and U.S. Fish and Wildlife data on the area, and the biological assessments already completed relative to salmon habitat. This project is coordinated with GMA planning and as detailed proposals are designed, they will be circulated and reviewed for compliance with the Endangered Species Act. Planning to Address Cumulative Effects In order to address the cumulative effects of urbanization on the wildlife habitat in the City of Burlington, the Skagit River riparian zone and the Gages Slough wetland corridor and buffer must both be restored and protected. On one hand, the Skagit River contains species listed under the Endangered Species Act, but so does the surrounding land area. Bringing back a listed species requires that the overall habitat area be protected and restored, so that there is a healthy ecosystem throughout the area. Restoring Gages Slough is as significant an action as restoring the riparian zone along the Skagit River, because they are linked together and influence the environmental health of the entire area. The City is working closely with both Skagit County and Dike District #12 to protect and restore land in the area, but located outside of the City Limits and its Urban Growth Area. The Gages Slough corridor west of the City is the subject of an Interlocal Agreement between Burlington and Skagit County and the goal is to take steps to complete joint city/county planning for that area for the purpose of nonmotorized access, habitat restoration and natural resource protection. ---PAGE BREAK--- City of Burlington – Shoreline Analysis Report – June 2012 Shoreline Grant No. G1000073 32 The City of Burlington is actively engaged in cooperative planning with Dike District #12 and Skagit County to combine flood hazard mitigation with habitat planning that is linked directly to the natural features of the area so that cumulative effects will be adequately addressed and consistent policies shaped to reduce fragmentation of important habitats and maintain linkages within a habitat network. There are many significant opportunities for including and encouraging public use for wildlife interpretation and observation, and through the public involvement process, sites and plans are coming together, utilizing existing public access points and future plans for nonmotorized links. Step one along the Skagit River is to continue land acquisition to provide room to set the levees back and create new habitat and enhance the existing habitat. At the same time the levees are setback, facilities will be developed for items such as fencing, interpretive or observation trails, interpretative signs or kiosks, restrooms, and parking. A very effective program of land donation in exchange for park impact fee credit has been in place in the Gages Slough corridor for several years, providing new opportunities for urban wildlife habitat and locations for constructed wetlands for water quality treatment. Constructing setback levees back along the south City Limits through the three-bridge corridor will open the old levees up for public access, and over time after the new levees are cured and the three bridges are also set back, it may be possible to have restoration projects in the corridor. This depends on how the upstream and plans come together for flood hazard mitigation. What types of Habitat does the Community Have? This section provides a narrative description that includes an assessment of threats, historical trends and ownerships. An estimate of acreage of habitat types is included. Appendix A Maps includes the Washington Department of Fish and Wildlife Habitats and Species Map and the City’s Habitat Location Map that shows distribution of these habitats. The intent of the maps is not to show precise boundaries but to indicate which valuable habitats exist in the community. Habitat area in the 3.5 mile Gages Slough corridor that is located in the City Limits, Urban Growth Area, and extends west to the link with the Skagit River is estimated at 157 acres. This area has been in private ownership, other than right-of-way until land acquisition began in the westerly one mile in 2000, the top priority for land acquisition in the Gages Slough Management Plan. A detailed wetland classification and delineation including running the Department of Ecology’s hydrogeomorphic computer model on the area indicates that the majority of the corridor is degraded and in need of restoration. The slough was used as a dumping ground for many years; at the first Gages Slough Cleanup Day, over 2.5 tons of trash was removed, about 70 tires and a car. Public education is gradually turning the corner and backyard restoration projects are becoming popular; detailed public information is available at the city on planting plans for various locations and plant lists. The Gages Slough Management Plan and the first Wetland Restoration Demonstration project, along with future plans for water quality improvement such as constructed wetlands in the Gages Slough Corridor all serve to move towards a high quality wetland corridor. Parks and Street ---PAGE BREAK--- City of Burlington – Shoreline Analysis Report – June 2012 Shoreline Grant No. G1000073 33 staff receives continuing training in Best Management Practices. Additional major wetland restoration projects are in the permitting stage. Habitat area in the three bridge corridor portion of the 3.3 mile Skagit River corridor that is located in the City Limits, Urban Growth Area, and extends west to the link with the outfall of Gages Slough is estimated at 101 acres. This is the area where the levees are planned to be set back an additional 500 feet. Upriver from this area, the land adjacent to the River is already owned by the City and Dike District #12 and it includes the Skagit River Park and the Mayor Roger “Gus” Tjeerdsma Boat Ramp. This habitat is primarily a fish passage area and does not include salmon spawning grounds. There are fish in the River year around and detailed biological assessments clearly demonstrate that this corridor is compromised by the levee system being so close that there is virtually no significant vegetation to provide shade or large woody debris, or side channel rearing habitat for salmonids. Setting the levees back and restoring the riparian habitat in the three-bridge corridor at the southerly City Limits is a long term concept that may help to achieve the goals of the resource protection, flood damage prevention, urban wildlife habitat enhancement, and parks and recreation. At a minimum, the old levees will provide opportunities for non-motorized access. With respect to habitat area on Burlington Hill, there is an open space corridor 150 feet in width at the base of the easterly side of the hill, an area of about 7 acres. In addition, there is a connecting forested corridor of land consisting of two parcels, a total of about 8 acres, one site under long term lease for park use from the local Public Utility District #1 and another that has now been acquired by the city from an estate. In addition, there are a variety of other small sites that are in permanent open space classification on the hill. The Burlington Hill area is a significant wildlife habitat area, with a herd of deer, lots of birds including eagles, hawks, and songbirds. What Habitats do People Want? The goal of this section is to demonstrate that the plans and programs being advanced through the public involvement process clearly incorporate the community’s positive attitudes on fish and wildlife and habitat values. The community strongly supports a step by step, well thought out approach to resource management, so that dollars spent get results and that volunteer efforts and individual property owner’s efforts are a very significant element of the plan. The strategy for Gages Slough is thoroughly laid out in the Gages Slough Management Plan. The strategy for the Skagit River is an integrated regional strategy that comes out of the flood hazard reduction planning process and the adopted Shoreline Goals and Policies. The City of Burlington has its own parallel flood hazard reduction plan and is aggressively moving forward with land acquisition and identification of funding and planning for the details of levee setbacks in the riparian corridor. The public involvement process in Burlington has several elements, including community planning meetings, a citywide newsletter mailed twice a year, and a Land Use Bulletin with a regular feature on Gages Slough and the Skagit River Shorelines. A formal Citizen’s Advisory Committee was formed in 1996 and met for two years to develop a Shoreline Master Program for Gages Slough and the Skagit River Shoreline. The public was brought into the process through the ongoing Neighborhood Planning program, to review and refine the recommendations. These went to public hearing before the Planning Commission and were adopted by the City Council in the 1998 update of the overall City Comprehensive Plan. The public is gravely concerned about the deteriorated ---PAGE BREAK--- City of Burlington – Shoreline Analysis Report – June 2012 Shoreline Grant No. G1000073 34 condition of Gages Slough and the problems of flood damage prevention and public access to the Skagit River Shoreline. The public is excited about habitat restoration. The integration of these programs into the Parks and Recreation Comprehensive Plan was the focus of the Fall 2002 Neighborhood Meetings. The Planning Commission conducted a public hearing in February on the 2010 update, and the Parks Board completed their review. Additional public input was provided by a citywide survey included in the 2010 Spring Citywide Newsletter, on the city website, with hard copies available at various locations, to gather fresh citizen input on Shorelines, Parks and Recreation in Burlington, since the issues are closely intertwined. The results clearly demonstrate that the long range planning process is right on target with respect to community values, challenges and opportunities. What Strategies are Used? The step-by-step approach has several components, described below. Issues of timing (urgency of certain needed actions such as land acquisition, water quality)
Land acquisition is the first step along the Skagit River for the levee setback.
Land acquisition is only proposed for the westerly mile of Gages Slough and the balance is focused on public education and homeowner actions to restore the wetland buffer and maintain their portion of the Slough using Best Management Practices.
Land acquisition is also a key step on Burlington Hill along with easements for Open Space, and a long-term lease with the Public Utility District.
Completion of a water quality element in the Surface Water Management Plan is a critical step that was completed in 2004. Strategies (what actions will be taken)
Plans are still being formulated for specific design of the land in the levee setback area to provide public access and restore the riparian corridor.
The Gages Slough Management Plan details the eight major components including Community Involvement, Education, Best Management Practices, Regulations, Restoration Plan, Monitoring Plan, Capital Improvement Plan and Interlocal Agreements. How the necessary actions will be done
Priorities for preservation, enhancement, restoration and management are established through the comprehensive planning process and through detailed scientific and technical studies that focus on the unique characteristics and qualities of each site.
These are public resources with state and regional importance, not just local significance.
The Skagit River corridor is a Shoreline of Statewide Significance, and the health of the River is only as good as the water that enters the river from other locations including Gages Slough.
While Gages Slough is considered an impaired water, and does not contain salmon, its health is a direct indicator of the overall health of the ecosystem in the valley. ---PAGE BREAK--- City of Burlington – Shoreline Analysis Report – June 2012 Shoreline Grant No. G1000073 35 What will be done in the future? The City of Burlington is planning cooperatively with Dike District #12, Mount Vernon, and Skagit County and Interlocal Agreements are in place on several key program elements. The Capital Improvement Plan for the City identifies long-term commitments for this program. No Net Loss Plan of Action A. Levee Setback Restoration Concept Plan. See Appendix A Maps for graphic representation of concept. B. Riparian habitat buffer restoration planting program and wetland buffer restoration planting, maintenance and monitoring program. See Appendix D Gages Slough Management Plan and Technical Studies including Water Quality Monitoring. C. Johnson Bar habitat restoration plan. See Appendix C Big Bend Reach Feasibility Study including Johnson Bar. D. Mitigation via Farmland Preservation and holding UGA boundary. See City of Burlington 2005 Comprehensive Plan for details. No Adverse Effect standard of the Reasonable and Prudent Alternative The National Marine Fisheries Service’s Biological Opinion is addressed by the current ordinances, processes, and written procedures as outlined in Appendix E. These programs meet the no adverse effect standard of the Reasonable and Prudent Alternative, as supplemented by this report and its best available science references. ---PAGE BREAK--- City of Burlington – Shoreline Analysis Report – June 2012 Shoreline Grant No. G1000073 36 APPENDIX A MAPS AND PHOTOS • Shoreline Reach Locations and Shoreline Environment Designations on Street Base Map and Aerial Map • Public Access Map and Illustrative Photos • Photographs of Reach I • Photographs of Reach II • Photographs of Dike/Leve Repairs on North/South Leg and East/West Leg of Skagit River • Photographs of ESA compliant Levee Repairs in Process • Historic Comparisons of Skagit River Channel Migration beginning in the 1860’s • Levee Setback Restoration Plan • WDFW Habitats and Species Map • WRIA #3 Map • High water aerial of Burlington and Vicinity ---PAGE BREAK--- SHORELINE DESIGNATIONS SHORELINE DESIGNATIONS SHORELINE DESIGNATIONS SHORELINE DESIGNATIONS Reaches 1 to 5 Reaches 1 to 5 Reaches 1 to 5 Reaches 1 to 5 June 2012 ---PAGE BREAK--- LEGEND City Limits Gages Slough 50 ft. setback from Wetland Boundary Shoreline Zone 200’ upland from shoreline Shoreline Segments Urban Conservancy Natural Environment Aquatic Environment Future Dike Setback SHORELINE DESIGNAT SHORELINE DESIGNAT SHORELINE DESIGNAT SHORELINE DESIGNATIONS IONS IONS IONS Reaches 1 to 5 Reaches 1 to 5 Reaches 1 to 5 Reaches 1 to 5 June 2012 ---PAGE BREAK--- SKAGIT RIVER SHORELINE PUBLIC ACCESS Page 1 of 2 Baseball Field Soccer Field Dog Walking Walking Fishing Restrooms Children’s Play Area Boat Launch Picnic Area
Johnson Bar  Boat Launch Ramp  Wastewater Treatment  Skagit River Park See detailed photos on Page 2 ---PAGE BREAK--- SKAGIT RIVER SHORELINE PUBLIC ACCESS Page 2 of 2 ---PAGE BREAK--- JOHNSON BAR PUBLIC ACCESS - BOAT LAUNCH RAMP WASTEWATER TREATMENT PLANT OUTFALL SKAGIT RIVER SHORELINE REACH 1 PHOTOGRAPHS – Page 1 of 2 ---PAGE BREAK--- RIPRAP ALONG SHORELINE PUBLIC ACCESS - WALKING TRAIL TOP OF LEVEE WILLOW TREES ALONG SKAGIT RIVER SHORELINE SKAGIT RIVER SHORELINE REACH 1 PHOTOGRAPHS – Page 2 of 2 ---PAGE BREAK--- SKAGIT RIVER SHORELINE REACH 2 PHOTOGRAPHS – Page 1 of 2 SOCCER FIELDS TOP OF DIKE/TRAIL RAILROAD BRIDGE SHORELINE VEGETATION ---PAGE BREAK--- SKAGIT RIVER SHORELINE REACH 2 PHOTOGRAPHS – Page 2 of 2 OLD 99 BRIDGE SHORELINE TOP OF DIKE INTERSTATE 5 BRIDGE INTERSTA TE 5 BRIDGE ---PAGE BREAK--- DIKE REPAIRS - 2011 North/South Leg of Skagit River Page 1 of 2 ---PAGE BREAK--- East/West Leg of Skagit River Page 2 of 2 ---PAGE BREAK--- SKAGIT RIVER SHORELINE LEVEE REPAIRS 2011 PHOTOGRAPHS – Page 1 of 2 ---PAGE BREAK--- SKAGIT RIVER SHORELINE LEVEE REPAIRS 2011 PHOTOGRAPHS – Page 2 of 2 ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- City of Burlington – Shoreline Analysis Report – June 2012 Shoreline Grant No. G1000073 37 APPENDIX B SHORELINE MASTER PROGRAM ---PAGE BREAK--- SHORELINE MASTER PROGRAM GAGES SLOUGH AND THE SKAGIT RIVER SHORELINES BURLINGTON MUNICIPAL CODE TITLE 18 2012 Mayor Steve Sexton Margaret Fleek, Planning Director Chal Martin, Public Works Director Eddie Tjeerdsma, Dike District #12 Shoreline Grant No. G1000073 CITY COUNCILMEMBERS • Bill Aslett • Tonya Bieche • Garnor Bensen • Rick DeGloria • Edie Edmundson • Chris Loving • Ted Montgomery CITIZEN ADVISORY COMMITTEE • Rebecca Bradley-Lowell • Ken Frye • Brian Hanson • Marianne Manville-Ailles • Sally Straathof • Jana Vater • Rock White ---PAGE BREAK--- SHORELINE MASTER PROGRAM – City of Burlington MASTER PROGRAM FOR GAGES SLOUGH AND THE SKAGIT RIVER SHORELINES BURLINGTON MUNICIPAL CODE TITLE 18 1 TABLE OF CONTENTS Topic Page Introduction 2 Chapter 18.01 Purpose 6 Chapter 18.02 Administrative Provisions 9 Chapter 18.04 Master Program Policy Goals 21 Chapter 18.05 General Provisions 25 Chapter 18.07 Shorelines Environment Designations 40 Chapter 18.08 Regulations 44 Chapter 18.13 Definitions 57 Appendix A Shoreline Wetland, Fish and Wildlife Habitat, and General Critical Areas Regulations 72 Appendix B Shoreline Restoration Plan 100 Appendix C Shoreline Jurisdiction Map 114 ---PAGE BREAK--- SHORELINE MASTER PROGRAM – City of Burlington MASTER PROGRAM FOR GAGES SLOUGH AND THE SKAGIT RIVER SHORELINES BURLINGTON MUNICIPAL CODE TITLE 18 2 INTRODUCTION The Shorelines Management Act of 1971 was adopted because shorelines and wetlands are among the state’s most valuable and fragile natural resources. The purpose of a Master Program is to coordinate the process for their utilization, protection, restoration, and preservation. The City of Burlington adopted the Skagit County Shoreline Master Program by reference when it was adopted by Skagit County. At that time, the City of Burlington only touched the shoreline with the Wastewater Treatment Plant outfall structure. Since then, several miles of Skagit River Shoreline have been annexed into the City. These annexations and changes in state law lead to the need for a Master Program for Gages Slough and the Skagit River Shorelines. Today, the jurisdiction of the Shorelines Management Act of 1971 extends to include the River and land extending 200 feet from edge of the Skagit River Burlington Floodway that is defined for the purpose of this code as the top of the levee on the riverside until delineated on a case by case basis. It also includes Gages Slough, a wetland that drains into the river, but not its buffers that will remain regulated by the Critical Areas Ordinance. Although the end of Gages Slough is located in Skagit County, that area is the subject of an Interlocal Agreement. With respect to the Skagit River shorelines, the task is more straightforward since the shoreline is fronted by levees and there are tight limits on what can be done along the river. It is a highly altered shoreline with very little natural vegetation. Vegetation management standards that comply with the Endangered Species Act riparian buffer standards have been negotiated among the regulatory agencies and the Diking Districts, evidenced by the completion in 2011 of levee repairs necessitated by flood events in 2003 and 2006. This Master Program reflects the existing conditions and limited redevelopment options. There are also significant issues about flood hazard mitigation options for the city and the region, and the city and Dike District #12 are actively working towards the goal of protecting the city in the 100-year flood event with accredited levees. Public access has been resolved via a solid Interlocal Agreement with the City and Dike District #12. After the 1995 flood, a proposal was put forward to acquire 100+ acres of vacant land along the river to construct a secondary levee system in the northeastern area. The plan has been adjusted over time to structurally improve the existing levee in this reach to provide 100-year flood protection with a long overtopping backslope, clay keyway, and wide top. The land that has been acquired is used as a community park. Removing development from the floodplain is the first step; constructing an improved levee segment is in process. In the western area, an interim setback of approximately 500 feet from the landward toe of the levee has being established for all new construction except for open space, parks and agriculture uses, to facilitate a future levee setback of an additional five hundred feet along the three bridge corridor in the City Limits. This is renewed at six month intervals as required by the State Growth Management Act as the planning process proceeds. Part of the 2008-2013 Floodplain Management and Natural Hazard Mitigation Plan includes improving Gages Slough so that water can flow more readily during and after a flood event. ---PAGE BREAK--- SHORELINE MASTER PROGRAM – City of Burlington MASTER PROGRAM FOR GAGES SLOUGH AND THE SKAGIT RIVER SHORELINES BURLINGTON MUNICIPAL CODE TITLE 18 3 Addressing the balance that must be struck between Flood hazard mitigation and Wetland restoration presents a most interesting challenge for this project. Technical studies have been completed for Gages Slough that provide important information about the existing conditions. These include water quality monitoring as part of the Lower Skagit River Water Quality Study completed in 1993, the Comprehensive Surface Water Management Plan adopted in 1992, and the Surface Water Management Plan Update and Facilities Pre-design Report completed in 1996. Out of these initial studies, three major actions took shape. A Coastal Zone Management Grant provided funding for in-depth technical studies of Gages Slough in 1998, to set up a long range management plan to facilitate removal of Gages Slough from its listing as a 303 site, in violation of the Clean Water Act. Concurrently, a new pump station was designed and constructed to provide for storm water management as the city grows and to facilitate management of the hydroperiod of Gages Slough, in response to the clear need for wetland restoration activities and the forecast demands of the Comprehensive Surface Water Plan. A Citizen’s Advisory Committee was formed to develop this Master Program for Gages Slough and the Skagit River Shorelines. In 1998, a wetlands ecological study was completed for Gages Slough including delineation, a functional assessment using the Department of Ecology Hydrogeomorphic modeling approach, along with a water level and water quality analysis, and a management and restoration plan has been designed and integrated into this Master Program. Existing uses along Gages Slough include single family residential, commercial, agriculture and industrial use. Designing an appropriate program for best management practices, reducing water pollution and wetland restoration includes establishing appropriate elevations for the culvert system that now create a series of ponds behind each roadway segment. The Skagit River shoreline has been inventoried. For the most part, the shorelines consist of the levee system. There are two public fishing areas, at the Gardner Road street end and along Whitmarsh Road between the Railroad bridge and the Mount Vernon/Burlington bridge. The regional Wastewater Treatment Plant has its location and outfall into the River between the fishing areas. There are two storm water outfall locations, each of which has a pump station. There is an existing pier that is owned by a local sports fishing club who moor their boats at the site and lease the land from Dike District #12. There are several existing older homes, accessory structures for agriculture uses, and the access driveway to a trailer park designed for quick evacuation, all located on the landward side of the levee. There are three bridges and a road. There is no commercial or industrial activity of any kind along the shoreline, other than the Wastewater Treatment Plant. There is vacant land in agricultural use, and the large area along the river for an outdoor community park. A survey of all the Gages Slough property owners was completed in the fall of 1995. Following the Skagit River flood event in 1995, the City’s Flood Hazard Mitigation Plan was expanded to look at overtopping levees, improving the culverts and drainage in Gages Slough and acquiring the 100 acre site along the river for Flood Hazard Mitigation. The Citizen’s Advisory Committee was established in the fall of 1996, as it became apparent that a comprehensive approach was needed. The Citizen's Advisory Committee represented a broad range of interests reflective of the local citizenry. The Master Program process provides the comprehensive ---PAGE BREAK--- SHORELINE MASTER PROGRAM – City of Burlington MASTER PROGRAM FOR GAGES SLOUGH AND THE SKAGIT RIVER SHORELINES BURLINGTON MUNICIPAL CODE TITLE 18 4 umbrella to pull all the elements together. The committee met for over two years. Because of controversy over the shoreline master program guidelines in the late 1990’s, all of the shoreline products were adopted in other comprehensive plans, including the overall Comprehensive Plan, the Parks and Recreation Comprehensive Plan and the Surface Water Management Plan. The Gages Slough technical studies have been updated regularly and there is on-going water quality monitoring. With the fresh opportunity presented to update the Shoreline Master Program, an in-depth Shoreline Analysis Report has been developed as background and analysis for this 2012 Shoreline Master Program. The Shoreline Management Act set out several overarching polices to guide the development and use of the State‘s shorelines. They are:
Encourage water-dependent uses: “uses shall be preferred which are consistent with control of pollution and prevention of damage to the natural environment, or are unique to or dependent upon use of the states’ shorelines…”
Protect shoreline natural resources, including “...the land and its vegetation and wildlife, and the water of the state and their aquatic life...”
Promote public access: “To the greatest extent feasible, consistent with the overall best interest of the state and the people generally, protect the public‘s opportunity to enjoy the physical and aesthetic qualities of shorelines of the state, including views of the water.”(WAC 173-26-221 (4)(b)(iii)) The Shoreline Master Program Guidelines are standards adopted by the Department of Ecology that local governments must follow in drafting their local Shoreline Master Programs. These guidelines translate the broad and varied policies of the Shoreline Management Act into standards for locally regulating shoreline use. In 1995, the State Legislature directed the Department of Ecology to update the state‘s guidelines to ensure consistency with the Shoreline Management Act and the Washington State Growth Management Act. The guidelines had not been updated since their original adoption in 1972. In December 2003, Ecology adopted revised Shoreline Master Program Guidelines. The amended DOE guidelines provide a greater level of specificity in what local Shoreline Master Programs should include in the development of goals, policies, and regulations; they offer a broader range of possible shoreline designations for local jurisdictions to characterize local conditions; and identify specific issues to be included and reviewed in the Shoreline Master Program development. In addition to the overall goals articulated in the original law, local Shoreline Master Programs must now address a number of environmental considerations including, but not limited to the following:
Restoration of impaired ecological function through comprehensive planning and voluntary implementation
No net loss of ecological functions
Critical areas
Flood hazard reduction
Shoreline vegetation conservation
Water quality, stormwater, and nonpoint pollution ---PAGE BREAK--- SHORELINE MASTER PROGRAM – City of Burlington MASTER PROGRAM FOR GAGES SLOUGH AND THE SKAGIT RIVER SHORELINES BURLINGTON MUNICIPAL CODE TITLE 18 5 The Burlington Shoreline Master Program consists of environmental designations for the shoreline segments and goals, policies, and regulations applicable to uses and development within the Shoreline Management Zone. ---PAGE BREAK--- SHORELINE MASTER PROGRAM – City of Burlington MASTER PROGRAM FOR GAGES SLOUGH AND THE SKAGIT RIVER SHORELINES BURLINGTON MUNICIPAL CODE TITLE 18 6 CHAPTER 18.01 – PURPOSE Sections: 18.01.010 Authority. 18.01.020 Findings. 18.01.030 Purpose. 18.01.040 Title and Short Title. 18.01.010 Authority. Authority for development, enactment and administration of this program is the Shoreline Management Act of 1971, Chapter 90.58, Revised Code of Washington. 18.01.020 Findings. A. The City Council concurs with the state legislature in finding that the shorelines of the state are among the most valuable and fragile of our natural resources and that there is great concern throughout the state relating to their utilization, protection, restoration and preservation. In addition, ever increasing pressures of additional uses are being placed on the shorelines necessitating increased coordination in their management and development. Furthermore, much of the shorelines and uplands adjacent thereto are in private ownership; that unrestricted construction on the privately owned or publicly owned shorelines is not in the best public interest; and, therefore, coordinated planning is necessary in order to protect the public interest associated with shorelines while, at the same time, recognizing and protecting private property rights consistent with the public interest. There is, therefore, a clear and urgent demand for a planned, rational and concerted effort, jointly performed by local, state, and federal governments, to prevent the inherent harm in uncoordinated and piecemeal development of shorelines. B. The City Council finds that there are two areas of shorelines within the City of Burlington and its Urban Growth Area, consisting of the Skagit River floodway and contiguous floodplain areas landward two hundred feet from such floodways; and the Gages Slough wetland associated with the Skagit River. C. The City Council finds that the Gages Slough wetland has been substantially altered and degraded as a result of the influence of urbanization, lack of best management practices in both urban and agricultural areas and that a restoration, monitoring and maintenance plan shall be included as part of this master program. D. The City Council deems the goals, shoreline area designations, policies, regulations, and procedures set forth in this shoreline management master program to be essential to the protection of the public health, safety and general welfare of the people of the City of Burlington and its Urban Growth Area. E. Adaptive management shall be applied to the shoreline conditions by means of on-going monitoring of water quality, water levels, review of restoration activities relative to the ---PAGE BREAK--- SHORELINE MASTER PROGRAM – City of Burlington MASTER PROGRAM FOR GAGES SLOUGH AND THE SKAGIT RIVER SHORELINES BURLINGTON MUNICIPAL CODE TITLE 18 7 wetland functional assessment, analysis of data relative to Total Maximum Daily Load (TMDL) standards for the Wastewater Treatment Plant, review of the practices of Dike District #12 relative to vegetation management, and review and analysis of watershed planning activities occurring in Water Resource Inventory Areas #3 and F. The City Council finds that many of the environmental protection issues facing the city can only be addressed on a regional level and the city shall participate actively in those regional efforts. 18.01.030 Purpose. A. To promote the public health, safety and general welfare by providing long range, comprehensive policies and effective, reasonable regulations for development and use of the City of Burlington shorelines; and B. To implement this program in a positive, effective and equitable manner; and C. To further assume and carry out the responsibilities established by the act for the City of Burlington, and to foster by adoption the policy contained in RCW 90.58.020 for shorelines of the state: D. In implementing the policy of the Shoreline Management Act, this Master Program pursues the following objectives: 1. Plan for and foster reasonable and appropriate uses. 2. Promote and enhance the public interest. 3. Protect against adverse effects to public health, the land and its vegetation and wildlife, and the waters of the state and their aquatic life. 4. Protect the rights of navigation and public access. 5. Enhance the public’s opportunity to enjoy the physical and aesthetic qualities of the natural shorelines of the state. 6. Protect and enhance shoreline resources, particularly those that cross jurisdictional boundaries within the state, those that are used by residents throughout the state and those that affect shoreline conditions outside a local jurisdiction’s boundaries. Insure that the cumulative effects of individual actions do not irreparably damage or diminish shoreline resources. 7. Protect the rights of ownership, including those of the state and other public entities, consistent with the public interest. 8. Achieve planning and regulatory consistency between jurisdictions in the implementation of shoreline management objectives. 9. Provide for equal and fair treatment of all parties with respect to shoreline resources. 10. Ensure that the long term interests of the state’s current and future citizens are favored over short term interests. Maintain shoreline management options and resources for future generations. 11. Ensure consistency with other state laws and regulations and that the state is able to meet other laws and responsibilities, including the Federal Endangered Species Act. ---PAGE BREAK--- SHORELINE MASTER PROGRAM – City of Burlington MASTER PROGRAM FOR GAGES SLOUGH AND THE SKAGIT RIVER SHORELINES BURLINGTON MUNICIPAL CODE TITLE 18 8 E. The legislature declares that the interest of all of the people shall be paramount in the management of shorelines of statewide significance (the Skagit River shoreline in the City of Burlington). The Department of Ecology in adopting guidelines for shorelines of statewide significance, and local government, in developing master programs for shorelines of statewide significance, shall give preference to uses in the following order of preference which:
Recognize and protect the statewide interest over local interest;
Preserve the natural character of the shoreline;
Result in long term over short term benefit;
Protect the resources and ecology of the shoreline;
Increase public access to publicly owned areas of the shorelines;
Increase recreational opportunities for the public in the shoreline;
Provide for any other element as defined in RCW 90.58.100 deemed appropriate or necessary. In the implementation of this policy the public’s opportunity to enjoy the physical and aesthetic qualities of natural shorelines of the state shall be preserved to the greatest extent feasible consistent with the overall best interest of the state and the people generally. To this end, uses shall be preferred which are consistent with control of pollution and prevention of damage to the natural environment or are unique to or dependent upon use of the state’s shoreline. Alterations of the natural condition of the shorelines of the state, in those limited instances when authorized, shall be given priority for single family residences, ports, shoreline recreational uses including but not limited to parks, marinas, piers, and other improvements facilitating public access to shorelines of the state, industrial and commercial developments which are particularly dependent on their location on or use of the shorelines of the state and other development that will provide an opportunity to substantial numbers of the people to enjoy the shorelines of the state. Permitted uses in the shorelines of the state shall be designed and conducted in a manner to minimize, insofar as practical, any resultant damage to the ecology and environment of the shoreline area and any interference with the public’s use of the water. 18.01.040 Title and Short Title. This document shall be known and may be cited as the Master Program for the Skagit River Shorelines and Gages Slough in the City of Burlington. This document may refer to itself internally as “this Master Program” or “Program”. ---PAGE BREAK--- SHORELINE MASTER PROGRAM – City of Burlington MASTER PROGRAM FOR GAGES SLOUGH AND THE SKAGIT RIVER SHORELINES BURLINGTON MUNICIPAL CODE TITLE 18 9 CHAPTER 18.02 – ADMINISTRATIVE PROVISIONS Sections: 18.02.010 Applicability to Development 18.02.020 Applicability to Substantial Development 18.02.030 Statement of Exemption 18.02.040 Non-conforming Uses and Structures 18.02.050 Enforcement 18.02.060 Geographical Jurisdiction 18.02.070 Applicability to Persons 18.02.080 Applicability to Federal Agencies 18.02.090 Applicability to other Local, State, and Federal Laws 18.02.100 Applicability to and Conflicts with Other Local and State Policies and Regulations 18.02.120 Liberal Construction 18.02.010 Applicability to Development A. A development or use shall not be undertaken on the shorelines in the City of Burlington unless it is consistent with the Master Program and the policies of the Act, whether or not a shoreline permit is required for such development or use. See definition of development. B. Existing development is required to comply with the Master Program at the time of expansion or change of use or initiation of new forms of activity. C. If use or development is nonconforming, change of ownership will not require compliance with the Master Program unless the new owner/operator significantly expands the operations or initiates new forms of activity. D. The City will periodically review the cumulative effect of actions taken within the shoreline to ensure that the goal of no net loss of shoreline environmental functions is being met. E. The City, for the purposes of making administrative decisions and processing permits as may be required by the SMP, means the Department of Planning and Community Development and its Director. See also BMC 17.03.040 Administrative interpretations. F. The process of reviewing proposals shall be designed to assure that regulatory or administrative actions do not unconstitutionally infringe upon private property rights in accordance with WAC 173-26-186(5). ---PAGE BREAK--- SHORELINE MASTER PROGRAM – City of Burlington MASTER PROGRAM FOR GAGES SLOUGH AND THE SKAGIT RIVER SHORELINES BURLINGTON MUNICIPAL CODE TITLE 18 10 18.02.020 Applicability to Substantial Development A. Shoreline Substantial Development Permits 1. A Substantial Development Permit is not required for projects that are below the threshold levels established in WAC 173-27-040(2), Developments Exempt from Substantial Development Permit Requirement, as follows: (See WAC citation for complete list.) a. Any development of which the total cost or fair market value, whichever is higher, does not exceed $5,718, if such development does not materially interfere with the normal public use of the water or shorelines of the state. [Note: The State of Washington requires that every five years the dollar threshold for this exemption be adjusted for inflation by the Washington Office of Financial Management (OFM). The adjustment is based upon changes in the Consumer Price Index during that time period. (see Chapter 18.13, Definitions) The OFM must calculate the new dollar threshold and transmit it to the Office of the Code Reviser for publication in the Washington State Register at least one month before the new dollar threshold is to take effect. WAC 173-27-040(2)(a)] For purposes of determining whether or not a permit is required, the total cost or fair market value shall be based on the value of development that is occurring on shorelines of the state as defined in RCW 90.58.030(2)(c). The total cost or fair market value of the development shall include the fair market value of any donated, contributed or found labor, equipment or materials; b. Normal maintenance or repair of existing structures or developments, including damage by accident, fire, or elements; c. Construction of the normal protective bulkhead common to single family residences; d. Emergency construction necessary to protect property from damage by the elements; e. Construction and practices normal for farming, irrigation, and ranching activities, including agricultural service roads and utilities on shorelines, and the construction and maintenance of irrigation structures including but not limited to head gates, pumping facilities, and irrigation channels. A feedlot of any size, all processing plants, other activities of a commercial nature, alteration of the contour of the shorelines by leveling or filling other than that which results from normal cultivation, shall not be considered normal or necessary farming or ranching activities. A feedlot shall be an enclosure or facility used or capable of being used for feeding livestock hay, grain silage, or other livestock feed, but shall not include land for growing crops or vegetation for livestock feeding and/or grazing, nor shall it include normal livestock wintering operations; f. Construction or modification of navigational aids such as channel markers and anchor buoys; g. Construction on shorelines by an owner, lessee, or contract purchaser of a single family residence for his own use or for the use of his family, which residence does not exceed a height of thirty-five feet above average grade level and which meets ---PAGE BREAK--- SHORELINE MASTER PROGRAM – City of Burlington MASTER PROGRAM FOR GAGES SLOUGH AND THE SKAGIT RIVER SHORELINES BURLINGTON MUNICIPAL CODE TITLE 18 11 all the requirements of the state agency or local government having jurisdiction thereof, other than requirements imposed pursuant to this Title; h. Construction of a dock, including a community dock, designed for pleasure craft only, for the private noncommercial use of the owner, lessee, or contract purchaser of single and multiple family residences. This exception applies if the fair market value of the dock does not exceed ten thousand dollars, but if subsequent construction having a fair market value exceeding two thousand five hundred dollars occurs within five years of completion of the prior construction, the subsequent construction shall be considered a substantial development for the purpose of this Title; i. Operation, maintenance, or construction of canals, waterways, drains, reservoirs, or other facilities that now exist or are hereafter created or developed as a part of an irrigation system for the primary purpose of making use of system waters, including return flow and artificially stored ground water for the irrigation of lands; j. The marking of property lines or corners on state owned lands, when such marking does not significantly interfere with normal public use of the surface of the water; k. Operation and maintenance of any system of levees, ditches, drains, or other facilities existing on September 8, 1975, which were created, developed, or utilized primarily as a part of an agricultural drainage or diking system; l. Site exploration and investigation activities that are prerequisite to preparation of an application for development authorization under this Title, if: 1) The activity does not interfere with the normal public use of the surface waters; 2) The activity will have no significant adverse impact on the environment including, but not limited to, fish, wildlife, fish or wildlife habitat, water quality, and aesthetic values; 3) The activity does not involve the installation of a structure, and upon completion of the activity the vegetation and land configuration of the site are restored to conditions existing before the activity; 4) A private entity seeking development authorization under this section first posts a performance bond or provides other evidence of financial responsibility to the City of Burlington to ensure that the site is restored to preexisting conditions; and 5) The activity is not subject to the permit requirements of RCW 90.58.550 (oil or gas exploration); m. The process of removing or controlling an aquatic noxious weed, as defined in RCW 17.26.020, through the use of an herbicide or other treatment methods applicable to weed control that are recommended by a final environmental impact statement published by the department of agriculture or the department jointly with other state agencies under chapter 43.21C RCW. n. Watershed restoration projects as defined in RCW 89.08.460 are exempt from the requirement to obtain a substantial development permit. Gages Slough is part of the watershed project approved by the Department of Ecology and its restoration is exempt from the permit requirement. ---PAGE BREAK--- SHORELINE MASTER PROGRAM – City of Burlington MASTER PROGRAM FOR GAGES SLOUGH AND THE SKAGIT RIVER SHORELINES BURLINGTON MUNICIPAL CODE TITLE 18 12 o. A public or private project that is designed to improve fish or wildlife habitat or fish passage shall be exempt from the substantial development permit requirements of this chapter when all of the following apply: 1) The project has been approved by the department of fish and wildlife; 2) The project has received hydraulic project approval by the department of fish and wildlife; 3) The City has determined that the project is substantially consistent with the Master Program. 2. A Shoreline Substantial Development permit application is a Type II permit, as per BMC 17.68.030. 3. The “effective date of a Substantial Development Permit” is the date of filing. The date of filing is the date Ecology receives the City‘s final decision. The date of filing for a shoreline variance or conditional use permit is the date the decision of Ecology is transmitted by Ecology to the City. The date of filing starts the two-year clock for beginning of construction and establishes the appeal period of the permit to the Shoreline Hearings Board. The two year time period does not include periods of pendency for other related permits or legal actions. 4. Time requirements for Shoreline Permits are as follows (See WAC 173-27-090 for complete language.): a. Construction activities shall commence, or where no construction activities are involved, the use or activity shall commence within two years of the effective date of a Substantial Development Permit. b. The period for commencement of construction or use may be extended once for a one year period, if a request based on reasonable factors is filed before the expiration date and notice of the proposed extension is given to parties of record. c. The authorization to conduct development activities shall terminate five years after the effective date of a Substantial Development Permit. d. The authorization period to conduct development activities may be extended once for a one year period, if a request based on reasonable factors is filed before the expiration date and notice of the proposed extension is given to parties of record. e. The time periods in sections and above, do not include the time during which a use or activity was not actually pursued due to the pendency of administrative appeals or legal actions or due to the need to obtain any other government permits and approvals for the development that authorize the development to proceed, including all reasonably related administrative or legal actions on any such permits or approvals. f. It is the applicant’s responsibility to inform local government of any legal actions or permits that may affect time periods established herein. The City may terminate the shoreline permit if the applicant fails to demonstrate good faith in obtaining all other necessary permits or resolve any legal actions1 in a timely manner. ---PAGE BREAK--- SHORELINE MASTER PROGRAM – City of Burlington MASTER PROGRAM FOR GAGES SLOUGH AND THE SKAGIT RIVER SHORELINES BURLINGTON MUNICIPAL CODE TITLE 18 13 5. Permit Review Procedures shall be as follows: a. The Planning and Community Development Department maintains records of project review actions resulting in issuance of permits, including shoreline substantial development permits. b. Copies of Shoreline Management Act Permit Data Sheet and Transmittal Letters forwarded to the Department of Ecology shall be utilized for evaluation of the potential cumulative effects of previous and proposed actions in shoreline areas. 6. Appeals to the Shorelines Hearings Board, shall be consistent with RCW 90.58.140. B. Conditional Use Permits 1. The purpose of a conditional use permit is to allow greater flexibility in administering the use regulations of the Master Program in a manner consistent with the policies of the SMA. Conditional use permits may also be granted in circumstances where denial of the permit would result in a thwarting of the policy enumerated in the SMA. 2. A shoreline conditional use permit is a Type III permit, as per BMC 17.68.030. 3. The Planning Commission shall, following an open record public hearing, make a recommendation to the City Council, who has the authority to make the final local decision. 4. The application for a shoreline conditional use permit shall be processed pursuant to the legislative policies stated in the Shoreline Management Act, RCW 90.58.020 (Legislative Findings—State Policy Enunciated—Use Preference) and the Shoreline Master Program of the City of Burlington. 5. The criteria for approving conditional uses shall be consistent with WAC 173-27-160 (Review Criteria for Conditional Use Permits) and include the following: a. That the proposed use is consistent with the policies of RCW 90.58.020, the Master Program, and the BMC; b. That the proposed use will not interfere with the normal public use of public shorelines; c. That the proposed use of the site and design of the project is compatible with other authorized uses within the area and with uses planned for the area under the Comprehensive Plan and the SMP; d. That the proposed use will cause no significant adverse effects to the shoreline environment in which it is to be located; and e. That the public interest suffers no substantial detrimental effect. f. Other uses that are not classified or set forth in the Master Program may be authorized as conditional uses provided that the applicant can demonstrate, in addition to the criteria set forth in subsection a. of this section and RCW 90.58.020, that extraordinary circumstances preclude reasonable use of the property in a manner consistent with the permitted use regulations of the Master Program. g. When reviewing conditional use permit applications, consideration shall be given to the cumulative impact of like actions in the area. For example, if conditional use permits were granted for other developments in the area where similar ---PAGE BREAK--- SHORELINE MASTER PROGRAM – City of Burlington MASTER PROGRAM FOR GAGES SLOUGH AND THE SKAGIT RIVER SHORELINES BURLINGTON MUNICIPAL CODE TITLE 18 14 circumstances exist, the total of the conditional uses shall also remain consistent with the policies of RCW 90.58.020 and shall not produce substantial adverse effects to the shoreline environment. h. Uses which are specifically prohibited or not allowed by the Master Program may not be authorized pursuant to either subsections a. or b. of this section. C. Variances 1. The purpose of a variance permit is strictly limited to granting relief from specific bulk, dimensional or performance standards set forth in the applicable master program where there are extraordinary circumstances relating to the physical character or configuration of property. Shoreline variances should be granted in a circumstance where strict implementation of the master program would impose unnecessary hardships on the applicant or where denial of the permit would result in a thwarting of the policy enumerated in the SMA. In all instances, extraordinary circumstances should be shown, and the public interest shall suffer no substantial detrimental effect. 2. A shoreline variance permit is a Type II permit, as per BMC 17.68.030. The Board of Adjustment shall, following an open record public hearing, make a final local decision on the permit application. 3. Variances for development that will be located landward of the ordinary high water mark may be authorized provided the applicant can demonstrate all of the following: a. That the strict application of the bulk, dimensional, or performance standards as set forth in the Master Program precludes or significantly interferes with a reasonable permitted use of the property. b. That the hardship is specifically related to the property and is the result of unique conditions, such as irregular lot shape, size, or natural features, in the application of the Master Program and not, for example, from deed restrictions or the applicant‘s own actions. c. That the design of the project will be compatible with other permitted activities in the area and will not cause adverse effects to adjacent properties or the shoreline environmental designation. d. That the variance authorized does not constitute a grant of special privilege not enjoyed by other properties in the area, and will be the minimum necessary to afford relief. e. That the public interest will suffer no substantial detrimental effect. 4. Variances for development that will be located waterward of the OHWM may be authorized, provided the applicant can satisfy all of the criteria specified in Subsection b of this section. The applicant must also demonstrate that the public rights of navigation and use of the shorelines will not be adversely affected by the granting of the variance, and that the strict application of the bulk, dimensional, or performance standards set forth in the Master Program precludes all reasonable use of the property. ---PAGE BREAK--- SHORELINE MASTER PROGRAM – City of Burlington MASTER PROGRAM FOR GAGES SLOUGH AND THE SKAGIT RIVER SHORELINES BURLINGTON MUNICIPAL CODE TITLE 18 15 5. In granting of all shoreline variances, consideration shall be given to the cumulative impact of additional requests or like actions in the area. D. Revisions to Permits 1. When an applicant seeks to revise a shoreline substantial development permit, conditional use permit, or variance, whether such permit or variance was granted under this SMP, or under the Skagit County SMP in effect prior to adoption of the Burlington SMP, the Planning and Community Development Department shall request from the applicant detailed plans and text describing the proposed changes to the project. If the staff determines that the proposed changes are within the general scope and intent of the original substantial development permit, conditional use permit or variance, as the case may be, the revision may be approved by the Planning Director, without the need for the applicant to file a new Substantial Development Permit application, provided the development is consistent with the SMA, WAC 173-27-100 (Revisions to Permits), and the Master Program. 2. Within the scope and intent of the original permit means the following: a. No additional over-water construction will be involved, except that pier, dock, or float construction may be increased by 500 square feet or 10 percent from the provisions of the original permit, whichever is less. b. Lot coverage and height may be increased a maximum of 10 percent from the provisions of the original permit, c. Additional or revised landscaping is consistent with the conditions attached to the original permit and with the Shoreline Master Program. d. The use authorized pursuant to the original permit is not changed. e. No adverse environmental impact will be caused by the project revision. f. The revised permit shall not authorize development to exceed height, lot coverage, setback, or any other requirements of the Master Program except as authorized under a variance granted as the original permit or a part thereof. 3. If the revision, or the sum of the revision and any previously approved revisions, will violate the criteria specified above, the Planning and Community Development Department shall require the applicant to apply for a new shoreline substantial development or conditional use permit or variance, as appropriate, in the manner provided for herein. 4. If proposed revisions to the original permit involve a conditional use or variance, the City shall submit the proposed revision to the DOE for review. The DOE shall respond with its final decision on the proposed revision request within 15 days of the date of receipt by the DOE. WAC 173-27-100(6). ---PAGE BREAK--- SHORELINE MASTER PROGRAM – City of Burlington MASTER PROGRAM FOR GAGES SLOUGH AND THE SKAGIT RIVER SHORELINES BURLINGTON MUNICIPAL CODE TITLE 18 16 18.02.030 Statement of Exemption A. Whenever a development falls within the exemptions stated in 18.02.020A.1. and the development is subject to a U.S. Corps of Engineers Section 10 permit under the Rivers and Harbors Act of 1899, or a section 404 permit under the Federal Water Pollution Control Act of 1972, the City shall prepare a letter addressed to the applicant and the department, exempting the development from the substantial development permit requirements of chapter 90.58 RCW. This exemption shall be in the form prescribed by WAC 173-27-050. B. A statement of exemption is also required for exempt work on levees. C. Exemptions shall be construed narrowly. Only those developments that meet the precise terms of one or more of the listed exemptions may be granted exemption from the substantial development permit process. D. An exemption from the substantial development permit process is not an exemption from compliance with the act or the local master program, or from any other regulatory requirements. To be authorized, all uses and developments must be consistent with the policies and provisions of the applicable master program and the Shoreline Management Act. A development or use that is listed as a conditional use pursuant to the local master program or is an unlisted use, must obtain a conditional use permit even though the development or use does not require a substantial development permit. When a development or use is proposed that does not comply with the bulk, dimensional and performance standards of the master program, such development or use can only be authorized by approval of a variance. E. The burden of proof that a development or use is exempt from the permit process is on the applicant. F. If any part of a proposed development is not eligible for exemption, then a substantial development permit is required for the entire proposed development project. G. Local government may attach conditions to the approval of exempted developments and/or uses as necessary to assure consistency of the project with the act and the local master program. 18.02.040 Non-conforming Uses and Structures A. The following definitions and standards shall apply to nonconforming structures and uses regulated by this Master Program: 1. “Nonconforming use or development” means a shoreline use or development that was lawfully constructed or established prior to the effective date of the City of Burlington Shoreline Master Program or amendments thereto, but does not conform to current regulations or standards of the program. 2. Structures that were legally established and are used for a conforming use, but are nonconforming with regard to shoreline setback requirements may be maintained and repaired and may be enlarged or expanded provided that any such enlargement or expansion: a. will not extend the footprint of the structure any closer to the shoreline or wetland than the current design; ---PAGE BREAK--- SHORELINE MASTER PROGRAM – City of Burlington MASTER PROGRAM FOR GAGES SLOUGH AND THE SKAGIT RIVER SHORELINES BURLINGTON MUNICIPAL CODE TITLE 18 17 b. will not interfere with, or obstruct dedicated public access routes to the shoreline, per applicable requirements set out herein; c. will meet any construction standards enacted by the City to protect adjacent flood risk reduction structures, d. will be consistent with the current, or another authorized, conforming use, and e. will adhere to underlying Municipal Code and building regulations. 3. Uses and development that were legally established and are nonconforming with regard to the use regulations of the Master Program may continue as legal nonconforming uses. Such uses shall not be enlarged or expanded unless otherwise permitted by this SMP. 4. A use that is listed as a shoreline conditional use, but existed prior to adoption of the Master Program or any relevant amendment and for which a conditional use permit has not been obtained shall be considered a nonconforming use. 5. A use that is listed as a shoreline conditional use, but existed prior to the applicability of the Master Program to the site and for which a conditional use permit has not been obtained shall be considered a nonconforming use. 6. A structure for which a variance has been issued shall be considered a legal nonconforming structure and the requirements of this section shall apply as they apply to preexisting nonconformities. 7. A structure that is being used, or has been used for a nonconforming use, may be used for a different nonconforming use only upon the approval of a shoreline conditional use permit. A shoreline conditional use permit for any such new nonconforming use may be approved only upon a finding that: a. No reasonable alternative conforming use is practical; and b. The proposed use will be at least as consistent with the policies and provisions of the SMA and the Master Program and as compatible with the uses in the area as the preexisting use. In addition, such conditions may be attached to the permit as are deemed necessary to assure compliance with the above findings, the requirements of the Master Program and the Shoreline Management Act, and to assure that the use will not become a nuisance or a hazard. 8. A nonconforming structure that is moved within the SMZ must be brought into conformance with the Master Program, unless such relocation is expressly authorized through previous agreement between the City and the property owner. 9. If a nonconforming structure is damaged or partially destroyed to an extent not exceeding 50 percent of the assessed valuation of such structure as established by the most current Skagit County assessor’s tax roll, may be restored to its original condition, as authorized by the city’s building official, and its immediately preceding or existing ---PAGE BREAK--- SHORELINE MASTER PROGRAM – City of Burlington MASTER PROGRAM FOR GAGES SLOUGH AND THE SKAGIT RIVER SHORELINES BURLINGTON MUNICIPAL CODE TITLE 18 18 use at the time of partial destruction may be continued or resumed. (BMC 17.66.050) Such damaged or destroyed building may be reconstructed to a size not to exceed the existing footprint at the time of the damage or destruction and within the height at the time of the damage or destruction, and except for the shoreline setback provision in section A.2. above, must conform to those specifications required by the current building code and applicable zoning requirements for reconstruction of non conforming structures, provided that: a. application is made for the permits necessary to restore the development within six months of the date the damage occurred, b. all permits are obtained, and c. the restoration is started within one year and completed within two years of permit issuance. 10. If a nonconforming use is discontinued for twelve consecutive months or for twelve months during any two-year period, the rights to such use shall expire and any subsequent use of such structure shall be conforming. A use authorized pursuant to subsection 7 of this section shall be considered a legal nonconforming use for purposes of this section. 11. An undeveloped lot, tract, parcel, site, or division of land located landward of the OHWM that was established in accordance with local and state subdivision requirements prior to the effective date of the City of Burlington Shoreline Master Program, but does not conform to the present lot size standards or is not configured to allow for reasonable use that would meet current shoreline setback requirements, may be developed if permitted by other land use regulations of the BMC and so long as such development conforms to all other requirements of the Master Program and the SMA. In this case, a SMP variance shall be required. 18.02.050 Enforcement A. In the event of failure to comply with the plans approved by the City or with any conditions imposed upon the shoreline development permit, the permit shall immediately become void and any continuation of the use activity shall be construed as being in violation of the Burlington Municipal Code Title 17. B. Any person failing to conform to the terms of a permit issued in accordance with the SMP or who undertakes development on the shorelines of the state without first obtaining any permit required by the SMP shall be subject to a civil penalty as per RCW 90.58.210 and WAC 173-27-280. 18.02.060 Geographical Jurisdiction This Master Program shall apply to all lands and waters as defined by RCW 90.58.030 for the City of Burlington including the Skagit River Shoreline District and associated Gages Slough Wetland corridor. ---PAGE BREAK--- SHORELINE MASTER PROGRAM – City of Burlington MASTER PROGRAM FOR GAGES SLOUGH AND THE SKAGIT RIVER SHORELINES BURLINGTON MUNICIPAL CODE TITLE 18 19 The Shoreline Management Zone extends a minimum of 200 feet upland from the line of the ordinary high water mark (OHWM) of the Skagit River or 200 feet from the edge of the floodway within the floodplain, whichever is greater. The floodway may be the area established by FEMA maps or by identifying the contiguous land upon which flood waters may be carried during periods of flooding that can occur with reasonable regularity, although not necessarily annually. These areas prone to flooding have been identified, under normal conditions, by changes in surface soil conditions or changes in types or quality of vegetative ground cover condition, topography, or other indicators of flooding. As of the date of writing of this shoreline master program, the jurisdictional map shall utilize the waterward top of levee as the edge of the floodway. The actual extent of shoreline jurisdiction will be determined on a case by case basis as needed. The Shoreline Management Zone includes associated wetlands, but not wetland buffers beyond 200-feet of the floodway 18.02.070 Applicability to Persons This Master Program shall apply to every person, individual, firm, partnership, association, organization, corporation, local or state government agency, public or municipal corporation, or other entity which develops, owns, leases or administers lands, wetlands, and waters which fall under the jurisdiction of the Shoreline Management Act. Nothing in this management program shall be construed as allowing any abridgment of private property rights. 18.02.080 Applicability to Federal Agencies (WAC 173-27-060) A. Direct federal agency activities in or affecting Washington's coastal zone shall be consistent to the maximum extent practicable with the enforceable policies of the most recent federally approved Washington state coastal zone management program pursuant to the Federal Coastal Zone Management Act, 16 U.S.C. 1451 et seq. (CZMA) and federal regulations adopted pursuant thereto. Washington's coastal zone, as established in the state's approved coastal zone management program, includes the following coastal counties: Whatcom, Skagit, San Juan, Island, Snohomish, King, Pierce, Thurston, Mason, Kitsap, Jefferson, Clallam, Grays Harbor, Pacific and Wahkiakum. The Shoreline Management Act is incorporated into the Washington state coastal zone management program and, thereby, those direct federal agency activities affecting the uses or resources subject to the act must be consistent to the maximum extent practicable with the enforceable provisions of the act, regulations adopted pursuant to the act and the local master program. When the Department of Ecology receives a consistency determination for an activity proposed by the federal government, it shall request that local government review the proposal and provide the Department of Ecology with its views regarding the consistency of the activity or development project with the enforceable policies of the local master program. ---PAGE BREAK--- SHORELINE MASTER PROGRAM – City of Burlington MASTER PROGRAM FOR GAGES SLOUGH AND THE SKAGIT RIVER SHORELINES BURLINGTON MUNICIPAL CODE TITLE 18 20 The CZMA federal consistency decision-making process for federal agency activities is prescribed in the Coastal Zone Management Act (16 U.S.C. 1456 and in federal regulations at 15 C.F.R. part 930, subpart C, and in Washington's most recent federally approved CZM program document. B. Federal agency activities may be required by other federal laws to meet the permitting requirements of chapter 90.58 RCW. C. The policies and provisions of chapter 90.58 RCW, including the permit system, shall apply statewide to all nonfederal developments and uses undertaken on federal lands and on lands subject to nonfederal ownership, lease or easement, even though such lands may fall within the external boundaries of a federal ownership. 18.02.090 Applicability to other Local, State, and Federal Laws Obtaining a shoreline permit or letter of exemption for a development or use does not excuse the applicant from complying with any other local, regional, state, or federal laws applicable to such development or use. 18.02.100 Applicability to and Conflicts with Other Local and State Policies and Regulations In the event that there are conflicts between the Master Program and other applicable state and local policies, regulations, and ordinances, the provisions of the Master Program shall prevail. 18.02.120 Liberal Construction This program is exempted from the rule of strict construction, and it shall be liberally construed to give full effect to the objectives and purposes for which it was enacted. (See also RCW 90.58.900-Liberal Construction). ---PAGE BREAK--- SHORELINE MASTER PROGRAM – City of Burlington MASTER PROGRAM FOR GAGES SLOUGH AND THE SKAGIT RIVER SHORELINES BURLINGTON MUNICIPAL CODE TITLE 18 21 CHAPTER 18.04 – MASTER PROGRAM POLICY GOALS Sections: 18.04.010 Adoption 18.04.020 Master Program Policy Goals 18. 04.010 Adoption The following policy goals are adopted to provide an overall, comprehensive foundation and sense of direction upon which the regulations, shoreline area designations, and administrative procedures are based. 18.04.020 Master Program Policy Goals A. Economic Development Element 1. Land and Shoreline use patterns shall provided for the location of existing and future transportation facilities, utilities, and recreation activities that are dependent on access to the water. 2. Because of the unique floodway and floodplain limitations on the use of the Skagit River shorelines, particularly the levee system, the majority of the shoreline shall be identified and reserved for recreational and open space uses. 3. Existing and projected water-oriented uses shall be accommodated through environment designation policies and regulations based on the inventory of existing shoreline resources and analysis of future demand for water-oriented uses. 4. Because navigation is restricted to small boats, primarily for sports fishing, preference shall be given to those uses that allow a significant number of people to enjoy the shoreline, public access (water-enjoyment) and/or uses that demonstrably pursue shoreline objectives. 5. Preference shall also be given to uses that enhance the ecological viability and enhancement of fisheries habitats along the Skagit River shoreline. B. Public Access Element 1. The public access system shall provide for both physical and visual access. The system shall include but not be limited to public lands and shall seek to increase the amount and diversity of public access to the state’s shorelines and adjacent areas consistent with the natural shoreline character, property rights, including the public’s rights under the Public Trust Doctrine, and public safety. ---PAGE BREAK--- SHORELINE MASTER PROGRAM – City of Burlington MASTER PROGRAM FOR GAGES SLOUGH AND THE SKAGIT RIVER SHORELINES BURLINGTON MUNICIPAL CODE TITLE 18 22 2. The public’s right to use the surface waters of the state for navigation under the Public Trust Doctrine shall be protected. 3. The public’s right to view the waters of the state shall be protected, including measures such as maximum height limits, setbacks, and view corridors to minimize the impacts to existing views from public property or substantial numbers of residences. 4. The primary public access area to the Skagit River shall consist of the land that is subject to the Interlocal Agreement with Dike District #12, with motorized public access at Gardner Road Bar and just west of the Railroad Bridge and with nonmotorized public access along the Levee adjacent to the Skagit River. 5. Public access to Gages Slough shall include, where appropriate, viewing areas or interpretative trails and publicly owned park lands. Decisions on where to locate public access and the extent of access that is allowed will be based on best scientific information developed specifically for Gages Slough. C. Recreation Element 1. Insure optimal recreational opportunities now and in the future in shoreline areas that can reasonably tolerate, during peak use periods, active, passive, competitive, or contemplative uses without destroying the integrity and character of the shoreline. 2. The Skagit River public recreation area specifically includes the shorelines extending from Gardner Road Bar to the Burlington- Mount Vernon Bridge for fishing, boating, passive and active recreation activities. As the setback levee is constructed through the bridge corridor, opportunities for public access will increase. 3. The Gages Slough recreation opportunities shall be limited based on the best available scientific information developed specifically for Gages Slough. 4. Recreation policies in the Parks and Recreation Comprehensive Plan are adopted here by reference and those policies are consistent with growth projections and level-of-service standards. D. Circulation Element 1. Existing and planned circulation systems are adequate to serve as access to shorelines. 2. Nonmotorized routes that connect the community with the shorelines and include environmental restoration and interpretative components shall be made whenever feasible. ---PAGE BREAK--- SHORELINE MASTER PROGRAM – City of Burlington MASTER PROGRAM FOR GAGES SLOUGH AND THE SKAGIT RIVER SHORELINES BURLINGTON MUNICIPAL CODE TITLE 18 23 E. Use Element 1. It is the goal to protect and restore the Gages Slough wetlands to optimize water quality, habitat, best management practices and ensure that adjacent land use patterns are compatible with the protection and enhancement of the wetlands and take advantage of the unique attributes of the site, allowing no net loss of wetlands, and for Gages Slough, to also increase the size of culverts, remove obstructions, develop and implement specific plans to improve the functions relative to surface water management, and generally improve the flow characteristics to provide for efficient conveyance of water through the city during flood events. 2. It is the goal to allow limited use of the Skagit River and its shoreline compatible with the current edition of the Burlington Floodplain Management and Natural Hazard Mitigation Plan, consistent with the following priorities: recognizing and protecting the state-wide interest over local interests, preserving natural character, realizing long term over short term benefit, protecting resources and ecology, increasing public access to publicly owned areas, increasing recreational opportunities, providing for any other element that is appropriate or necessary. F. Conservation and Restoration Element 1. The Skagit River riparian corridor shall be managed in accordance with regional watershed planning standards and best management practices, including vegetation management of shoreline areas fronted by levees. Adaptive management techniques shall be employed as additional scientific information and regional mitigation plans are developed. 2. The floodplain shall be managed in accordance with applicable federal, state, regional and local regulations, best management practices and best available science practices, along with the City of Burlington Floodplain Management and Natural Hazard Mitigation Plan. 3. Reclaim and restore areas which are biologically and aesthetically degraded to the greatest extent feasible while maintaining appropriate use of the shoreline. Preserve and protect the natural resources of the shorelines in the public interest and for future generations. 4. Protect ground water aquifers from contamination. 5. Protect native vegetation and wildlife within the protected wetlands and riparian corridors and their buffers, and encourage planned buffer restoration and parks open space enhancement, provided that, in the case of the shoreline fronted by levees along the Skagit River, vegetation management standards are established by the Corps of Engineers, as may be amended. ---PAGE BREAK--- SHORELINE MASTER PROGRAM – City of Burlington MASTER PROGRAM FOR GAGES SLOUGH AND THE SKAGIT RIVER SHORELINES BURLINGTON MUNICIPAL CODE TITLE 18 24 6. Encourage the cleanup and ecological restoration of degraded shorelines, including the Gages Slough corridor. G. Historic and Cultural Element 1. Identify, protect, preserve and restore important archeological, historical and cultural sites located in shorelines for educational and scientific purposes, and enjoyment of the public. 2. Optimize educational opportunities by encouraging interpretative displays and facilities for educational purposes, as part of public access. H. Flood Damage Reduction Element 1. Continue to work closely with the Dike Districts, Skagit County, and business and property owners in flood risk reduction planning. 2. Implement the flood risk reduction planning objectives and projects in the City of Burlington as further defined in the Burlington Floodplain Management and Natural Hazard Mitigation Plan. 3. Participate in watershed-wide programs to reduce flood hazards and improve shoreline ecology. ---PAGE BREAK--- SHORELINE MASTER PROGRAM – City of Burlington MASTER PROGRAM FOR GAGES SLOUGH AND THE SKAGIT RIVER SHORELINES BURLINGTON MUNICIPAL CODE TITLE 18 25 CHAPTER 18.05 – GENERAL PROVISIONS Sections: 18.05.010 Introduction 18.05.020 Policies and Regulations 18.05.010 Introduction General policies and regulations are applicable to all uses and activities (regardless of master program environment designation) that may occur along a jurisdiction's shorelines. If used properly, they can also reduce redundancy in a master program by eliminating the need to repeat regulations over and over for each environment designation. This chapter is broken up into twelve different topic headings and is arranged alphabetically. Each topic begins with a discussion of background master program issues and considerations, followed by general policy statements and regulations. The intent of these model provisions is to be inclusive, making them applicable over a wide range of environments as well as particular uses and activities. 18.05.020 Policies and Regulations A. Universally Applicable Policies and Regulations 1. Applicability The following regulations describe the requirements for all shoreline uses and development in all environment designations. 2. Policies a. The City will periodically review conditions on the shoreline and conduct appropriate analysis to determine whether or not other actions are necessary to protect and restore the ecology, protect human health and safety, upgrade the visual qualities, protect property rights and enhance residential and recreational uses on the City’s shorelines. Specific issues to address in such evaluations include, but are not limited to: 1) Water quality. 2) Conservation of aquatic vegetation (control of noxious weeds and enhancement of vegetation that supports more desirable ecological and recreational conditions). 3) Upland vegetation. 4) Shoreline stabilization and modifications. ---PAGE BREAK--- SHORELINE MASTER PROGRAM – City of Burlington MASTER PROGRAM FOR GAGES SLOUGH AND THE SKAGIT RIVER SHORELINES BURLINGTON MUNICIPAL CODE TITLE 18 26 b. The City will keep records of all project review actions within shoreline jurisdiction, including shoreline permits, letters of exemption, and building permits. c. Where appropriate, the City will pursue the policies of this master program in other land use, development permitting, public construction, and public health and safety activities that may not fall under the authority of the Shoreline Management Act. Specifically, such activities include, but are not limited to: 1) Water quality and storm water management activities, including those outside shoreline jurisdiction but affecting the shorelines of the state. 2) Aquatic vegetation management. 3) Health and safety activities, especially those related to sanitary sewage. 4) Public works and utilities development. 5) Involve affected federal, state, and tribal governments in the review process of shoreline applications. 3. Regulations a. All proposed shoreline uses and development, including those that do not require a shoreline permit, must conform to the Shoreline Management Act, Chapter 90.58 RCW, and to the policies and regulations of this master program. b. All new shoreline development must be in support of an allowable shoreline use that conforms to the provisions of this master program. Except as otherwise noted, all shoreline developments not associated with a legally existing or an approved shoreline use are prohibited. c. Shoreline uses, development, and conditions listed as "prohibited" shall not be eligible for consideration as a shoreline variance or shoreline conditional use permit. d. The "policies" listed in this master program will provide broad guidance and direction and will be used by the City in applying the "regulations." The policies, taken together, constitute the Shoreline Element of the Burlington Comprehensive Plan. e. Where provisions of this master program conflict, the provisions most directly implementing the objectives of the Shoreline Management Act, as determined by the City, shall apply unless specifically stated otherwise. f. All new shoreline use and development shall result in no net loss of shoreline ecological functions necessary to sustain shoreline natural resources by utilizing the mitigation sequencing as outlined in BMC Section18.05.020 C.3. B. Archeological and Historic Resources 1. Applicability The following provisions apply to archaeological and historic resources that are either recorded at the State Historic Preservation Office and/or by local jurisdictions or have been inadvertently uncovered. ---PAGE BREAK--- SHORELINE MASTER PROGRAM – City of Burlington MASTER PROGRAM FOR GAGES SLOUGH AND THE SKAGIT RIVER SHORELINES BURLINGTON MUNICIPAL CODE TITLE 18 27 2. Policies Due to the limited and irreplaceable nature of the resource, public or private uses, activities, and development should be prevented from destroying or damaging any site having historic, cultural, scientific or educational value as identified by the appropriate authorities and deemed worthy of protection and preservation. 3. Regulations a. All shoreline permits shall contain provisions which require developers to immediately stop work and notify the City if any phenomena of possible archaeological value are uncovered during excavations. In such cases, the developer shall be required to provide for a site inspection and evaluation by a professional archaeologist to ensure that all possible valuable archaeological data are properly salvaged or mapped. b. Permits issued in areas known to contain archaeological artifacts and data shall include a requirement that the developer provide for a site inspection and evaluation by a professional archaeologist in coordination with affected tribes. The permit shall require approval by the City before work can begin on a project following inspection. Significant archaeological data or artifacts shall be recovered before work begins or resumes on a project. c. Significant archaeological and historic resources shall be permanently preserved for scientific study, education and public observation. When the City determines that a site has significant archaeological, natural, scientific or historical value, a Substantial Development Permit shall not be issued which would pose a threat to the site. The City may require that development be postponed in such areas to allow investigation of public acquisition potential and/or retrieval and preservation of significant artifacts. d. In the event that unforeseen factors constituting an emergency as defined in RCW 90.58.030 necessitate rapid action to retrieve or preserve artifacts or data identified above, the project may be exempted from the permit requirement of these regulations. The City shall notify the State Department of Ecology, the State Attorney General's Office and the State Historic Preservation Office of such a waiver in a timely manner. e. Archaeological sites located both in and outside the shoreline jurisdiction are subject to RCW 27.44 (Indian Graves and Records) and RCW 27.53 (Archaeological Sites and Records) and shall comply with WAC 25-48 (Archeological Excavation and Removal Permit) as well as the provisions of this master program. f. Archaeological excavations may be permitted subject to the provisions of this program. g. Identified historical or archaeological resources shall be considered in park, open space, public access and site planning, with access to such areas designed and managed so as to give maximum protection to the resource and surrounding environment. h. Clear interpretation of historical and archaeological features and natural areas shall be provided when appropriate. ---PAGE BREAK--- SHORELINE MASTER PROGRAM – City of Burlington MASTER PROGRAM FOR GAGES SLOUGH AND THE SKAGIT RIVER SHORELINES BURLINGTON MUNICIPAL CODE TITLE 18 28 i. The City will work with affected tribes and other agencies to protect Native American artifacts and sites of significance and other archaeological and cultural resources as mandated by Chapter 27.53 RCW. C. Critical Areas 1. Applicability a. Wetlands and their buffers occurring in the City’s shoreline jurisdiction, [Note: The City is not opting for the expansion of the shoreline jurisdiction, as provided for in RCW 90.58.030(2)(d)(ii)]; b. The main stem of the Skagit River, which is designated an Aquatic Environment in section 18.07.040 C of this SMP and its buffer which provides the critical ecological function of fish passage to upstream spawning and rearing habitats. c. The language adopted as part of this SMP has been reviewed and determined to meet the standard of no net loss of ecological functions. 2. Policies a. In implementing this master program, the City will take necessary steps to ensure compliance with Chapter 43.21 RCW, the Washington State Environmental Policy Act of 1971, and its implementing guidelines. b. All significant adverse impacts to the shoreline should be avoided or, if that is not possible, minimized to the extent feasible. c. Applicable sections of the Critical Area Ordinance (CAO) pertaining to wetlands have been incorporated into the SMP and have been included as Appendix A, Shoreline Wetland, Fish and Wildlife Habitat, and General Critical Areas Regulations. 3. Regulations a. All project proposals, including those for which a shoreline permit is not required, shall comply with Chapter 43.21c RCW, the Washington State Environmental Policy Act. b. Projects that cause significant ecological impacts are not allowed unless mitigated according to the sequence in Item d. below to avoid reduction or damage to ecosystem-wide processes and ecological functions. c. Projects that cause significant adverse impacts, other than significant ecological impacts, shall be mitigated according to the sequence in Item d below. d. When applying mitigation to avoid or minimize significant adverse effects and significant ecological impacts, the City will apply the following sequence of steps in order of priority, with 1) being top priority: 1) Avoiding the impact altogether by not taking a certain action or parts of an action; ---PAGE BREAK--- SHORELINE MASTER PROGRAM – City of Burlington MASTER PROGRAM FOR GAGES SLOUGH AND THE SKAGIT RIVER SHORELINES BURLINGTON MUNICIPAL CODE TITLE 18 29 2) Minimizing impacts by limiting the degree or magnitude of the action and its implementation by using appropriate technology or by taking affirmative steps to avoid or reduce impacts; 3) Rectifying the impact by repairing, rehabilitating, or restoring the affected environment; 4) Reducing or eliminating the impact over time by preservation and maintenance operations; 5) Compensating for the impact by replacing, enhancing, or providing substitute resources or environments; and 6) Monitoring the impact and the compensation projects and taking appropriate corrective measures. e. The City will set mitigation requirements or permit conditions based on impacts identified. In determining appropriate mitigation measures, avoidance of impacts by means such as relocating or redesigning the proposed development will be applied first. Lower priority measure will be applied only after higher priority measures are demonstrated to be not feasible or not applicable. f. All shoreline development shall be located and constructed to avoid significant adverse impacts to human health and safety. g. All such activities shall be carried out in ways that cause the least impact to critical areas and their buffers. If any damage is caused to a critical area or buffer in connection with such activity, the critical area and its buffer must be restored to the extent feasible. To be exempt does not give permission to destroy a critical area or ignore risk. Proponents of such activities shall be responsible for notifying the director if any damage occurs and shall provide all necessary restoration or mitigation. For information on identifying, protecting or mitigating adverse impacts to critical areas, refer to sections in this chapter on wetlands, aquifer recharge areas, geologically hazardous areas, fish and wildlife habitat conservation areas, and flood hazard areas. h. The critical areas buffer for the Skagit River shall be waterward of the waterward toe of the levee or 200 feet from the ordinary high water mark of the river where no levee exists. D. Flood Hazard Reduction 1. Applicability The provisions in this section apply to those areas within the Shoreline Management Zone lying along the Skagit River floodplain corridor, including the river, and associated wetlands in the floodplain. The provisions in this section are intended to address two concerns especially relevant to river shorelines: ---PAGE BREAK--- SHORELINE MASTER PROGRAM – City of Burlington MASTER PROGRAM FOR GAGES SLOUGH AND THE SKAGIT RIVER SHORELINES BURLINGTON MUNICIPAL CODE TITLE 18 30 a. Protecting human safety and minimizing flood hazard to human activities and development. b. Protecting and contributing to the restoration of ecosystem-wide processes and ecological functions found in the applicable watershed or sub-basin. 2. Policies a. Implement a comprehensive program to manage the City’s floodplain corridor that integrates the following City ordinances and activities: 1) Regulations of the Master Program as codified in the BMC. 2) The Floodplain Management Standards in BMC 15.15.600-640 of BMC Chapter 15.15, Critical Areas. 3) The development standards of the underlying zoning district. 4) The City storm water management plan and implementing regulations. 5) The City’s participation in flood hazard reduction programs, including the Federal Emergency Management Act and the Washington State Flood Control Assistance Account Program, and the 2008-2013 Floodplain Management and Natural Hazard Mitigation Plan. 6) City, County and Dike District approved flood risk reduction measures. 7) The construction or improvement of new public facilities, including roads, levees, utilities, bridges, and other structures. 8) The ecological restoration of selected shoreline areas. b. In regulating development on shorelines within SMA jurisdiction, endeavor to achieve the following: 1) Maintenance of human safety. 2) Protection and, where appropriate, the restoration of the physical integrity of the ecological system processes, including wetland buffer restoration, and storm water quality restoration. 3) Protection of water quality and natural groundwater movement. 4) Protection of fish, vegetation, and other life forms and their habitat vital to the aquatic food chain. 5) Protection of recreation resources and aesthetic values. c. Undertake flood hazard mitigation planning in a coordinated manner among affected property owners and public agencies and consider the entire Skagit River drainage system. d. Manage the existing levee system along the Skagit River shoreline to optimize flood protection and manage levee vegetation as required under the Corps of Engineers PL 84-99 standards as may be amended. e. Provide public pedestrian access to the shoreline for low-impact outdoor recreation. ---PAGE BREAK--- SHORELINE MASTER PROGRAM – City of Burlington MASTER PROGRAM FOR GAGES SLOUGH AND THE SKAGIT RIVER SHORELINES BURLINGTON MUNICIPAL CODE TITLE 18 31 3. Regulations a. New, structural, public flood hazard reduction projects that are continuous in nature, such as levees, shall provide public access to the shoreline unless such access is not feasible or desirable according to the criteria in the Public Access section of the SMP. b. Designs for flood hazard reduction measures and shoreline stabilization measures in the river corridor must be prepared by qualified professional engineers, geologists, and/or hydrologists who have expertise in local riverine processes. c. Existing hydrological connections to the floodplain and associated wetlands shall be maintained where feasible. d. Use and development that do not meet the following standards are prohibited in the floodway: 1) Minor structures and additions for which a building permit is not required. 2) Fills of less than 12 cubic yards or which will not raise the level of the land above that of the surrounding area; 3) Normal maintenance, resurfacing and rebuilding, at comparable grade of streets, and accessways; 4) Underground improvements and excavations; 5) Maintenance and minor repair of existing improvements; 6) Improvements to structures listed on the National or State Register of Historic Places; 7) Other minor developments which cause no significant impoundment or displacement of floodwaters, such as open fences, signs and small unenclosed structures. 8) Utility outfall structures authorized by the Corps of Engineers and levee construction to maintain the structural integrity of critical infrastructure. e. New structural flood hazard reduction measures in shoreline jurisdiction are allowed only when it can be demonstrated by a scientific and engineering analysis that they are necessary to protect existing development, that nonstructural measures are not feasible, that impacts on ecological functions and priority species and habitats can be successfully mitigated so as to assure no net loss, and that appropriate vegetation conservation actions are undertaken consistent with WAC 173-26-221(5) or as required under the Corps of Engineers PL 84-99 standards as may be amended. f. Structural flood hazard reduction measures shall be consistent with an adopted comprehensive flood hazard management plan approved by the department that evaluates cumulative impacts to the watershed system. ---PAGE BREAK--- SHORELINE MASTER PROGRAM – City of Burlington MASTER PROGRAM FOR GAGES SLOUGH AND THE SKAGIT RIVER SHORELINES BURLINGTON MUNICIPAL CODE TITLE 18 32 E. Public Access 1. Applicability Shoreline public access is the physical ability of the general public to reach and touch the water's edge and/or the ability to have a view of the water and the shoreline from upland locations. Public access facilities may include picnic areas, pathways and trails, floats and docks, promenades, viewing towers, bridges, boat launches, and improved street ends. The City has adopted a plan for nonmotorized public access that extends along the Skagit River frontage on the levees, and connects to a trail system along Gages Slough and through the city to the east to Cascade Trail and to the west. 2. Policies a. Public access should be considered in the review of all private and public developments as appropriate. b. Developments, uses, and activities on or near the shoreline should not impair or detract from the public's access to the water, or the rights of navigation, or space for water-dependent uses. c. Promote and enhance the public interest with regard to rights to access waters held in public trust by the state while protecting private property rights and public safety. 3. Regulations a. Except as provided in regulations b and c below, shoreline substantial developments or conditional uses shall provide public access where any of the following conditions are present: 1) Where a development or use will create increased demand for public access to the shoreline, the development or use shall provide public access to mitigate this impact. 2) Where a development or use will interfere with an existing public access way, the development or use shall provide public access to mitigate this impact. Impacts to public access may include blocking access or discouraging use of existing on-site or nearby accesses. 3) Where a use which is not a priority shoreline use under the Shoreline Management Act locates on a shoreline of the state, the use or development shall provide public access to mitigate this impact. 4) Where a use or development will interfere with a public use of lands or waters subject to the public trust doctrine, the development shall provide public access to mitigate this impact. 5) Where the development is proposed by a public entity or on public lands. ---PAGE BREAK--- SHORELINE MASTER PROGRAM – City of Burlington MASTER PROGRAM FOR GAGES SLOUGH AND THE SKAGIT RIVER SHORELINES BURLINGTON MUNICIPAL CODE TITLE 18 33 6) Where called for under the City’s Connected Open Space and Nonmotorized public access plan, including completing public access along the levees on the Skagit River and the Gages Slough trail. b. The shoreline permit file shall describe the impact, the required public access conditions, and how the conditions address the impact. Mitigation for public access impacts shall be in accordance with the definition of mitigation and mitigation sequence. c. An applicant need not provide public access where the City determines that one or more of the following conditions apply. 1) The adopted City’s public access planning indicates that public access is not required. 2) Unavoidable health or safety hazards to the public exist which cannot be prevented by any practical means; 3) Significant ecological impacts will result from the public access which cannot be mitigated; or 4) Significant undue and unavoidable conflict between any access provisions and the proposed use and/or adjacent uses would occur and cannot be mitigated. d. In order to meet any of the conditions through " above, the applicant must first demonstrate and the City determine in its findings that all reasonable alternatives have been exhausted, including but not limited to: 1) Regulating access by such means as maintaining a gate and/or limiting hours of use; 2) Designing separation of uses and activities (e.g. fences, terracing, use of one- way glazings, hedges, landscaping, etc.); and 3) Developing provisions for access at a site geographically separated from the proposal such as a street end, vista or trail system. e. Public access provided by shoreline street ends, public utilities and rights-of-way shall not be diminished (This is a requirement of RCW 35.79.035 and RCW 36.87.130). f. Public access sites shall be connected directly to the nearest public street or public right-of-way and shall include provisions for physically impaired persons, where feasible. g. Required public access sites shall be fully developed and available for public use at the time of occupancy of the use or activity unless not feasible. h. Public access easements and permit conditions shall be recorded on the deed of title and/or on the face of a plat or short plat as a condition running contemporaneous with the authorized land use, at a minimum. Said recording with the County Auditor's Office shall occur at the time of permit approval (RCW 58.17.110). ---PAGE BREAK--- SHORELINE MASTER PROGRAM – City of Burlington MASTER PROGRAM FOR GAGES SLOUGH AND THE SKAGIT RIVER SHORELINES BURLINGTON MUNICIPAL CODE TITLE 18 34 i. Minimum width of public access easements shall be 20 feet, unless the City determines that undue hardship would result. In such cases, easement width may be reduced only to the minimum extent necessary to relieve the hardship. j. The standard state approved logo or other approved signs that indicate the public's right of access and hours of access shall be constructed, installed and maintained by the applicant in conspicuous locations at public access sites. In accordance with regulation 3-a, signs may control or restrict public access as a condition of permit approval. k. Future actions by the applicant successors in interest or other parties shall not diminish the usefulness or value of the public access provided. l. Public access shall be provided as close as feasible to the water's edge without causing significant ecological impacts and should be designed in accordance with the Americans with Disabilities Act. m. Public access shall be designed to provide for public safety and comfort and to minimize potential impacts to private property and individual privacy. There shall be a physical separation or other means of clearly delineating public and private space in order to avoid unnecessary user conflict. n. Public views from the shoreline upland areas shall be enhanced and preserved. Enhancement of views should not be construed to mean excessive removal of existing native vegetation that partially impairs views. o. Public access and interpretive displays should be provided as part of publicly funded restoration projects where significant ecological impacts can be avoided. p. The adopted “Connected Open Space Plan and Nonmotorized Plan in the City’s Parks and Recreation Plan” shall be implemented to provide a continuous waterfront multi-purpose trail and Gages Slough trail that connects to the Blooming Tree Trail on SR 20 and will connect the community east/west/north/south. F. Shorelines of Statewide Significance 1. Applicability The Shoreline Management Act specifically designates certain areas as shorelines of state-wide significance. The interest of all of the people shall be paramount in the management of shorelines of state-wide significance. Preference shall be given to uses and developments which are consistent with the principle of statewide over local interest. Natural rivers or segments thereof lying west of the crest of the Cascade range of a point where the mean annual flow is measured at one thousand cubic feet per second or more and associated shorelands. The flow of the Skagit River is over 100,000 cubic feet per second and constitutes the shoreline of state-wide significance for the City of Burlington. ---PAGE BREAK--- SHORELINE MASTER PROGRAM – City of Burlington MASTER PROGRAM FOR GAGES SLOUGH AND THE SKAGIT RIVER SHORELINES BURLINGTON MUNICIPAL CODE TITLE 18 35 2. Policies The City, in adopting guidelines for shorelines of state-wide significance shall give preference to uses in the following order of preference which: a. Recognize and protect the state-wide interest over local interest; b. Preserve the natural character of the shoreline; c. Result in long term over short term benefit; d. Protect the resources and ecology of the shoreline; e. Increase public access to publicly owned areas of the shorelines; f. Increase recreational opportunities for the public in the shoreline; g. Provide for any other element deemed appropriate or necessary within the context of the policies and use regulations of this program. G. Signage 1. Applicability A sign is defined as a device of any material or medium, including structural component parts, which is used or intended to be used to attract attention to the subject matter for advertising, identification or informative purposes. The following provisions apply to any commercial or advertising sign directing attention to a business, professional service, community, site, facility, or entertainment, conducted or sold either on or off premises. 2. Policies a. Signs should be designed and placed so that they are compatible with the aesthetic quality of the existing shoreline and adjacent land and water uses. b. Signs should not block or otherwise interfere with visual access to the water or shorelines. 3. Regulations a. All signs shall be located and designed to avoid interference with vistas, viewpoints and visual access to the shoreline. b. Over-water signs, signs on floats or pilings, and signs for goods, services, or businesses not located directly on the site proposed for a sign are prohibited. c. Lighted signs shall be hooded, shaded, or aimed so that direct light will not result in glare when viewed from surrounding properties or watercourses. d. Signs shall not exceed 32 square feet in surface area. On-site freestanding signs shall not exceed 6 feet in height. When feasible, signs shall be flush-mounted against existing buildings. e. Temporary or obsolete signs shall be removed within 10 days of elections, closures of business, or termination of any other function. Examples of temporary signs ---PAGE BREAK--- SHORELINE MASTER PROGRAM – City of Burlington MASTER PROGRAM FOR GAGES SLOUGH AND THE SKAGIT RIVER SHORELINES BURLINGTON MUNICIPAL CODE TITLE 18 36 include: real estate signs, directions to events, political advertisements, event or holiday signs, construction signs, and signs advertising a sale or promotional event. f. Signs that do not meet the policies and regulations of this program shall be removed or conform within two years of the adoption of this master program. g. No signs shall be placed in a required view corridor. h. Allowable Signs: The following types of signs may be allowed in all shoreline environments: 1) Water navigational signs, and highway and railroad signs necessary for operation, safety and direction. 2) Public information signs directly relating to a shoreline use or activity. 3) Off-premise, free standing signs for community identification, information, or directional purposes. 4) National, site and institutional flags or temporary decorations customary for special holidays and similar events of a public nature. 5) Temporary directional signs to public or quasi-public events if removed within 10 days following the event. i. Prohibited Signs: The following types of signs are prohibited: 1) Off-premises detached outdoor advertising signs. 2) Commercial signs for products services, or facilities located off-site. 3) Spinners, streamers, pennants, flashing lights and other animated signs used for commercial purposes. Highway and railroad signs are exceptions. 4) Signs placed on trees or other natural features. H. Utilities (Accessory) 1. Applicability Accessory utilities are those that affect small-scale distribution services connected directly to the uses along the shoreline. They are addressed in this section because they concern all types of development and have the potential to impact the quality of the shoreline and its waters. 2. Policies a. Accessory utilities should be properly installed so as to protect the shoreline and water from contamination and degradation. b. Accessory utility facilities and rights-of-way should be located outside of the shoreline area to the maximum extent possible. When utility lines require a shoreline location, they should be placed underground. c. Accessory utility facilities should be designed and located in a manner which preserves the natural landscape and shoreline ecological processes and functions and minimizes conflicts with present and planned land uses. ---PAGE BREAK--- SHORELINE MASTER PROGRAM – City of Burlington MASTER PROGRAM FOR GAGES SLOUGH AND THE SKAGIT RIVER SHORELINES BURLINGTON MUNICIPAL CODE TITLE 18 37 3. Regulations a. In shoreline areas, accessory utility transmission lines, pipelines and cables shall be placed underground unless demonstrated to be infeasible. Further, such lines shall utilize existing rights-of-way, corridors and/or bridge crossings whenever possible. Proposals for new corridors in shoreline areas involving water crossings must fully substantiate the infeasibility of existing routes. b. Accessory utility development shall, through coordination with government agencies, provide for compatible multiple uses of sites and rights-of-way. Such uses include shoreline access points, trails and other forms of recreation and transportation systems, providing such uses will not unduly interfere with utility operations or endanger public health and safety. c. Sites disturbed for utility installation shall be stabilized during and following construction to avoid adverse impacts from erosion and, where feasible, restored to pre-project configuration and replanted with native vegetation. d. Utility discharges and outfalls should be located, designed, constructed, and operated in accordance with best management practices to ensure degradation to water quality is kept to a minimum. I. Vegetation Conservation 1. Applicability a. The following provisions apply to any activity that results in the removal of or impact to shoreline vegetation, whether or not that activity requires a shoreline permit, except as noted herein. Such activities include clearing, grading, grubbing, and trimming of vegetation. These provisions also apply to vegetation protection and enhancement activities. b. Management of vegetation as a function of flood risk reduction structure maintenance shall comply with standards of the PL 84-99 Rehabilitation and Inspection Program for non-federal levees conducted by the U.S. Army Corps of Engineers or other agencies with jurisdiction over such structures. 2. Policies a. Vegetation within the City shoreline areas, waterward of dikes and levees or where no such structures exist, should be enhanced over time to provide a greater level of ecological function. b. The Master Program, in conjunction with other City of Burlington development regulations, should establish a coordinated and effective set of provisions and programs to protect and restore functions provided by shoreline vegetation. c. Aquatic weed management should stress prevention first. Where active removal or destruction is necessary, it should be the minimum to allow water-dependent activities to continue, minimize negative impacts to native plant communities, and include appropriate handling or disposal of weeds. ---PAGE BREAK--- SHORELINE MASTER PROGRAM – City of Burlington MASTER PROGRAM FOR GAGES SLOUGH AND THE SKAGIT RIVER SHORELINES BURLINGTON MUNICIPAL CODE TITLE 18 38 3. Regulations a. Except for levees, all development, including clearing and grading, shall minimize vegetation removal in areas of shoreline jurisdiction to that necessary to accommodate the proposed development. In order to implement this regulation, applicants proposing development that includes significant vegetation removal, clearing, or grading within areas of shoreline jurisdiction, as a part of a Substantial Development Permit application or a shoreline exemption certificate application, a site plan drawn to scale, indicating existing and proposed land contours, dimensions and locations of all existing and proposed structures and improvements, a general indication of the character of vegetation found on the site, and the extent of proposed clearing and/or grading (see WAC173-27-180(9)). The City may require that the proposed development or extent of clearing and grading be modified to reduce the impacts to ecological functions. Note that this provision does not apply to the removal of noxious and invasive plant species. b. Vegetation restoration of disturbed shorelines waterward of levees shall use diverse native plant material similar to that which originally occurred on-site, unless the City finds that such material is not appropriate. c. A condition of all development shall be that those shorelines on the site not occupied by structures, landscaping, accessory uses, or other areas dedicated to human activities shall be revegetated with native vegetation, to the extent feasible given the applicable shoreline conditions and the likelihood of long term survival of such vegetation if it is reintroduced. d. The enhancement of vegetation shall be a condition of all development in the shoreline environments, except where the City finds that: 1) Vegetation enhancement is not feasible on the project site or necessary. 2) The restoration of ecological processes and functions can be better achieved through other measures. 3) Sufficient native vegetation already exists e. Aquatic weed control shall only occur when native plant communities and associated habitats are threatened or where an existing water dependent use is restricted by the presence of weeds. Aquatic weed control shall occur in compliance with all other applicable laws and standards. f. The control of aquatic weeds by hand pulling, mechanical harvesting, or placement of aqua screens shall be considered normal maintenance and repair and, therefore, exempt from the requirement to obtain a shoreline substantial development permit. g. Use of herbicides to control aquatic weeds shall be prohibited, except where no reasonable alternative exists and weed control is demonstrated to be in the public interest. A conditional use permit shall be required in such case. h. Selective pruning of trees for purposes of safety and protection of public views of the river is allowed, provided such pruning is the minimum necessary. i. Management of vegetation as a function of flood risk reduction structure maintenance shall comply with standards of PL 84-99 Rehabilitation and Inspection ---PAGE BREAK--- SHORELINE MASTER PROGRAM – City of Burlington MASTER PROGRAM FOR GAGES SLOUGH AND THE SKAGIT RIVER SHORELINES BURLINGTON MUNICIPAL CODE TITLE 18 39 Program for non-federal levees conducted by the U.S. Army Corps of Engineers or other agencies with jurisdiction over such structures. J. Water Quality 1. Applicability The following section applies to all development and uses in shoreline jurisdiction that may affect water quality. 2. Policies a. All shoreline uses and activities should be located, designed, constructed, and maintained to avoid significant ecological impacts by altering water quality, quantity, or hydrology. b. The City should require reasonable setbacks, buffers, and storm water storage basins and encourage low-impact development techniques and materials to achieve the objective of lessening negative impacts on water quality. c. All measures for controlling erosion, stream flow rates, or flood waters through the use of stream control works should be located, designed, constructed, and maintained so that net off-site impacts related to water do not degrade the existing water quality. d. As a general policy, the City will seek to improve water quality, quantity, and flow characteristics in order to protect and restore ecological functions and ecosystem- wide processes of shorelines within Shoreline Management Zone. 3. Regulations a. All shoreline development, both during and after construction, shall avoid or minimize significant ecological impacts, including any increase in surface runoff, through control, treatment, and release of surface water runoff so that the receiving water quality and shore properties and features are not adversely affecting. Control measures include, but are not limited to, dikes, catch basins or settling ponds, oil interceptor drains, grassy swales, planted buffers, and fugitive dust controls. b. All development shall conform to local, state, and federal water quality regulations. c. The City shall require reasonable setbacks, buffers, and encourage low impact development techniques and materials to achieve the objective of lessening negative impacts on water quality. d. The City has adopted the current edition of the Washington Department of Ecology Stormwater Manual as par of the surface water management regulations. e. All measures for the treatment of runoff for the purpose of maintaining and/or enhancing water quality should be conducted on-site before shoreline development impacts waters off-site. ---PAGE BREAK--- SHORELINE MASTER PROGRAM – City of Burlington MASTER PROGRAM FOR GAGES SLOUGH AND THE SKAGIT RIVER SHORELINES BURLINGTON MUNICIPAL CODE TITLE 18 40 CHAPTER 18.07 – SHORELINES ENVIRONMENT DESIGNATIONS Sections: 18.07.010 General 18.07.040 Shorelines Area Designations 18.07.010 General A. Shoreline Environment - Applicability 1. Burlington’s shorelines under the Shoreline Master Program are limited to those portions of the Skagit River, corresponding shorelands and the Gages Slough Wetlands that occur within the City’s corporate limits, as detailed in BMC 18.02.060. For the purpose of this SMP the floodway is at the waterward top of the levee as depicted in Figure 1. Figure 1 Shoreline Management Zone (Note: This is a conceptual diagram only, and not a specific description of particular river locations. True floodway and jurisdictional extent will be determined at the time of permitting.) B. Environmental Designations 1. The Shoreline Management Act requires that each identified shoreline environment be given a designation, based on its physical condition and development pattern. The environmental designations provide a framework for implementing shoreline policies and regulations specific to each shoreline environment. 2. The Burlington Shoreline Master Program has environmental designations based on the following: ---PAGE BREAK--- SHORELINE MASTER PROGRAM – City of Burlington MASTER PROGRAM FOR GAGES SLOUGH AND THE SKAGIT RIVER SHORELINES BURLINGTON MUNICIPAL CODE TITLE 18 41 a. Ecosystem characteristics and environmental functions; b. Restoration potential; c. Existing uses; d. Development and redevelopment potential; and e. Public and private plans. 3. Shorelines not found to be mapped or designated, such as through an annexation, will be assigned an Urban Conservancy environmental designation until such time that the SMP is updated to include analysis and appropriate designation of those shorelines. C. Mapping 1. An up-to-date and accurate map of the shoreline area, delineating the environmental designations, is maintained at the Planning and Community Development Department. 2. A list of shoreline properties, identified by Skagit County Tax Assessor Parcel Number, with their environmental designations, is maintained at the Planning and Community Development Department. 3. In the event of a mapping error, the designation criteria in conjunction with specific locational descriptions contained in this Section shall prevail. The environmental designation boundaries, physical features, explicit criteria, or “common” boundary descriptions that define and distinguish the environments are included in Section 18.07.040. 18.07.040 Shorelines Area Designations A. Urban Conservancy Environment 1. Purpose The purpose of the Urban Conservancy Environment is to protect and restore ecological functions of open space, floodplain, and other sensitive lands where they exist in developed shoreline settings, while allowing for compatible uses and public access. 2. Designation Criteria The Urban Conservancy environmental designation has been assigned to the shorelines that meet the following criteria: a. Existing open space within the floodplain including riverfront levees; b. Existing and/or restored shoreline habitat including wetland sites; c. Potential for ecological restoration; d. Existing or potential for water-related recreation and public access. ---PAGE BREAK--- SHORELINE MASTER PROGRAM – City of Burlington MASTER PROGRAM FOR GAGES SLOUGH AND THE SKAGIT RIVER SHORELINES BURLINGTON MUNICIPAL CODE TITLE 18 42 3. Location of Environment a. Skagit River Shoreline Management Zone upland from ordinary high water. b. Gages Slough delineated wetland corridor extending from the east City Limits to Goldenrod Bridge west of Interstate 5. 4. Management Guidelines a. Uses that preserve the natural character of the area or promote preservation of open space, floodplain, or sensitive lands either directly or over the long term should be the primary allowed uses. b. Public utilities, including the City of Burlington Wastewater Treatment Plant, are allowed in the Urban Conservancy environmental designation. c. Where levees are located within the Urban Conservancy environmental designation, additional new flood risk reduction measures may be constructed. d. New residential, commercial, or industrial uses should not be allowed in the Urban Conservancy environmental designation. e. Public access and public recreation objectives should be implemented whenever feasible and where significant ecological impacts can be mitigated. f. During development and redevelopment, all reasonable efforts should be taken to restore ecological functions. B. Natural Environment 1. Purpose The purpose of the Natural Environment is to protect those shoreline areas that either currently provide intact ecological functions or represent opportunities where these functions can be largely restored. 2. Designation Criteria The Natural Environment has been assigned to those shoreline areas that meet the following criteria: a. The shoreline is relatively undeveloped with structures and roads; b. The shoreline has not historically been in recreation or urban uses, and; c. There is existing, or the potential for restoration of ecological functions and connectivity to the adjacent floodplain and associated wetlands. 3. Location of Environment The Natural Environment applies to the following location - Gages Slough wetland area west of Goldenrod Bridge, extending to the City Limits. ---PAGE BREAK--- SHORELINE MASTER PROGRAM – City of Burlington MASTER PROGRAM FOR GAGES SLOUGH AND THE SKAGIT RIVER SHORELINES BURLINGTON MUNICIPAL CODE TITLE 18 43 4. Management Guidelines a. Residential, commercial, industrial, and active recreation (sport fields) uses should not be allowed. b. Passive recreation uses such as trails and viewpoints and low-intensity water dependent recreational access may be allowed where feasible and ecological impacts can be mitigated. c. Scientific, historical, cultural, educational, and research uses may be allowed, provided that no significant ecological impact on the area would result. d. Additional wetland areas may be reclassified to Natural as restoration projects are implemented, monitored and maintained. C. Aquatic environment 1. Purpose The purpose of the Aquatic Environment is to protect, restore, and manage the unique characteristics and resources of the area waterward of the ordinary high water mark (OHWM) in the Skagit River corridor. 2. Designation Criteria The Aquatic environment designation has been assigned to shoreline areas waterward of the OHWM. 3. Location of Environment In Burlington the Aquatic Environment is applicable only to the main stem of the Skagit River waterward of the OHWM. The city limit line is the midpoint of the river, and the Shoreline Management Zone extends to that line. 4. Management Guidelines a. New over-water structures should be prohibited except for water-dependent uses, recreation, public access, critical infrastructure or ecological restoration. b. The size of new over-water structures should be limited to the minimum necessary to support the structure’s intended use. c. Provisions for the Aquatic Environment should be directed towards maintaining and restoring habitat for priority aquatic species. d. Uses that cause significant ecological impacts to Skagit River habitats should be discouraged. e. Shoreline uses and development should be designed and managed to prevent degradation of water quality and alteration of existing hydrographic conditions. f. All developments and activities using navigable waters or their beds should be located and designed to minimize interference with surface navigation, to minimize adverse visual impacts, encourage multiple uses and to allow for the safe, unobstructed passage of fish whose life cycles are dependent on such migration. ---PAGE BREAK--- SHORELINE MASTER PROGRAM – City of Burlington MASTER PROGRAM FOR GAGES SLOUGH AND THE SKAGIT RIVER SHORELINES BURLINGTON MUNICIPAL CODE TITLE 18 44 CHAPTER 18.08 – REGULATIONS Sections: 18.08.010 Shoreline Use and Development Tables 18.08.015 Shoreline Modifications 18.08.020 Agriculture 18.08.030 Boating Facilities 18.08.040 Commercial and Industrial Development 18.08.050 In-stream structures 18.08.060 Mining 18.08.070 Recreational Development 18.08.080 Residential 18.08.090 Transportation and Parking - existing corridors 18.08.100 Transportation and Parking- new corridors 18.08.110 Utilities including Wastewater Treatment Plant 18.08.120 Wetlands - Restoration and Maintenance 18.08.010 Shoreline Use and Development Tables The following tables indicate the allowable uses and shoreline development and some of the standards applicable to those uses and development. Where there is a conflict between the chart and the written provisions in this master program, the written provisions shall apply. Please note that the severely limited list of uses is a result of the shoreline fronted by levees and the fact that the land has been and continues to be acquired in public ownership for flood hazard mitigation. The charts are coded according to the following legend: P = May be permitted although a shoreline permit may not be required C = May be permitted as a conditional use only X = Prohibited; the use is not permitted nor is it eligible for a variance or conditional use permit N/A = Not applicable See also Notes to Tables following Table 3. ---PAGE BREAK--- SHORELINE MASTER PROGRAM – City of Burlington MASTER PROGRAM FOR GAGES SLOUGH AND THE SKAGIT RIVER SHORELINES BURLINGTON MUNICIPAL CODE TITLE 18 45 TABLE 1 - SHORELINE USE Shoreline Use Shoreline Environment Aquatic Natural Urban Conservancy Agriculture X X P-1 Boating facilities P -2,3 X C -2,3 Commercial: Water-dependent X-9 X X-9 Water-related, Water-enjoyment X X X Non-water-oriented X X X Flood Hazard Reduction P X-11 P - 2 Industrial: Water-dependent X X X Water-related, Water-enjoyment X X X Non-water-oriented X X X Mining C - 3 X X Parking (primary) X X X Parking (accessory) X X P Residential Development X X X Transportation- existing corridors P - 2 P – 2 P - 2 Transportation - new corridors C - 4 C - 4 C - 4 Utilities (accessory) P P P Utilities including Wastewater Treatment Plant P-10 P-10 P-10 Wetland Restoration and Maintenance P - 2 P - 2 P - 2 ---PAGE BREAK--- SHORELINE MASTER PROGRAM – City of Burlington MASTER PROGRAM FOR GAGES SLOUGH AND THE SKAGIT RIVER SHORELINES BURLINGTON MUNICIPAL CODE TITLE 18 46 TABLE 2 – SHORELINE MODIFICATIONS Shoreline Modification Shoreline Environment Aquatic Natural Urban Conservancy Shoreline Stabilization: Beach or buffer restoration/enhancement P - 5 P P Bioengineering P - 5,6 X P-5,6 Revetments P - 5,6 X P-1,5,6 Bulkheads P - 5,6 X P-1,5,6 Breakwaters/ jetties/ rock weirs/ groins P - 5,6 X P-1,5,6 Levees P X P-1 Dredging C - 5 X X Hazardous Waste Cleanup P P P Fill C – 5,6 X P-1,6 Piers, docks, buoys, floats P - 7 X P TABLE 3 – DEVELOPMENT STANDARDS Development Standard Shoreline Environment Aquatic Natural Urban Conservancy Boating Facilities Water-dependent setback N/A N/A 0 Water-related building setback N/A N/A 50 – 8 Recreational Development (See note 9) Water-dependent setback N/A N/A 0 Water-related, water- enjoyment setback N/A N/A 70 - 8 Non-water-oriented setback N/A N/A 70 - 8 Building height limit N/A N/A 45 – 8 Parking (Accessory) Setback N/A 70 - 8 70 - 8 NOTES to TABLES 1, 2, 3 above: 1. The use or development is prohibited in Gages Slough Urban Conservancy, except as part of a transportation improvement, utility installation or water quality enhancement project with mitigation as prescribed in Appendix A and B. ---PAGE BREAK--- SHORELINE MASTER PROGRAM – City of Burlington MASTER PROGRAM FOR GAGES SLOUGH AND THE SKAGIT RIVER SHORELINES BURLINGTON MUNICIPAL CODE TITLE 18 47 2. Public access, as approved by the City, is a condition of development and substantial development. 3. The use may be allowed provided it does not cause significant ecological impacts that cannot be mitigated onsite. 4. The use may be allowed providing there is no other feasible route or location. 5. The shoreline modification may be allowed only for environmental restoration/mitigation or if the City determines that there will be a net increase in desired shoreline ecological functions. 6. Development for which a floodplain approval is required is prohibited in the floodway, other than utility outfall structures authorized by the Corps of Engineers and levee construction to maintain the structural integrity of critical infrastructure. 7. Piers or docks may be allowed only for public access or hand-carried vessels and only if significant adverse ecological impacts are avoided. 8. The setback space shall include a 50-foot minimum strip of shoreline restoration measures and/or native vegetation plantings as approved by the City plus a 20-foot-wide public access easement running parallel with the shoreline. 9. Commercial recreation facilities may be allowed as a water-dependent use or in support of recreational facilities such as concession stands. 10. New utility production and processing facilities are prohibited unless it can be demonstrated that no other practical option is available. The existing wastewater treatment plant and future expansion is a permitted facility. 11. Only flood control physical elements such as levees or fill are prohibited. Other forms of flood hazard reduction such as planning, monitoring and warning systems are allowed. 18.08.015 Shoreline Modifications A. Implementation Policy Shoreline modifications are generally related to construction of a physical element such as a dike, breakwater, dredged basin, or fill, but they can include other actions such as clearing, grading, application of chemicals, or significant vegetation removal. Shoreline modifications usually are undertaken in support of or in preparation for a shoreline use; for example, fill (shoreline modification) required for a cargo terminal (industrial use) or dredging (shoreline modification) to allow for a marina (boating facility use). Shoreline modifications in Burlington are limited. B. Regulations 1. All new shoreline modifications must be in support or protection of an allowable shoreline use or development that is in danger of loss or substantial damage or is necessary for mitigation or enhancement and conforms to the provisions of this master program. Except as otherwise noted, all shoreline modifications not associated with a legally existing or an approved shoreline use are prohibited. ---PAGE BREAK--- SHORELINE MASTER PROGRAM – City of Burlington MASTER PROGRAM FOR GAGES SLOUGH AND THE SKAGIT RIVER SHORELINES BURLINGTON MUNICIPAL CODE TITLE 18 48 18.08.020 Agriculture A. Implementation Policy Agricultural activities on agricultural land are not regulated by this shoreline master program. Only new agricultural activities on land not meeting the definition of agricultural land, conversion of agricultural lands to other uses, and other development on agricultural land that does not meet the definition of agricultural activities is regulated by this shoreline master program. Existing and ongoing agriculture shall be required to implement applicable standards and practices through an individual farm plan based on the Field Office Technical Guides (FOTG) administered by the Natural Resources Conservation Service of USDA. An accountability and monitoring program shall be included in each plan. The farm management plan shall be consistent with the Washington State Agricultural Strategy to insure agricultural practices are not negatively affecting water quality, quantity or salmon habitat. New development in support of agricultural activities shall be designed to minimize impacts to shoreline environments, specifically, to prevent livestock intrusion into the water; bank erosion; degradation of water quality from fertilizers, pesticides, and manure into the water; and loss of shoreline vegetation. Standards or best management practices, setbacks and vegetation management areas shall be addressed through individual farm plans as above. B. Regulations by environment for new Agricultural activities on land currently not meeting the definition of agricultural land. 1. Urban Conservancy Environment - Agriculture is prohibited in the Gages Slough Urban Conservancy. Agriculture is permitted in the Skagit River Urban Conservancy subject to the following requirements: • fencing livestock out of Skagit River, associated wetlands and all buffers, • prohibit the practice of spraying liquid manure, the use of pesticides, herbicides and organic fertilizers, and the cultivation of land within the buffers of the Skagit River, associated wetlands and their buffers. 2. Natural Environment - Agriculture is prohibited. 3. Aquatic Environment - Agriculture is prohibited. 18.08.030 Boating facilities A. Implementation Policy - Provisions shall be included to address potential impacts while providing the public boating opportunities. Facilities shall be restricted to existing locations with suitable environmental conditions, shoreline configuration, access, and neighboring uses. Sewage pumpouts and wash- off stations shall be required where appropriate to meet health requirements. Mitigation of visual and ecological impacts shall be required. Parking impacts shall be mitigated. Live-aboards and covered moorage are prohibited. ---PAGE BREAK--- SHORELINE MASTER PROGRAM – City of Burlington MASTER PROGRAM FOR GAGES SLOUGH AND THE SKAGIT RIVER SHORELINES BURLINGTON MUNICIPAL CODE TITLE 18 49 At the time of adoption of the SMP, boating facilities in Burlington consist of one floating dock moored by pilings that abuts the shoreline and is used as a landing or moorage place for small water craft utilized for recreational purposes (e.g. private angling club facility), and one public boat launch ramp. Pier and dock construction should be restricted to the minimum size necessary to meet the needs of the proposed use. Multiple-use and expansion of legally existing piers and docks should be encouraged over the addition of new facilities. Joint-use facilities are preferred over new single- use piers, docks, and floats. Piers and docks should be sited and designed to avoid or minimize potentially significant ecological impacts, including impacts on sediment movement, water circulation and quality, and fish and wildlife habitat. The proposed size of the structure and intensity of use or uses of any pier or dock should be compatible with the surrounding environment and land and water uses. B. Regulations 1. Marinas are prohibited 2. Live-aboards and covered moorage is prohibited. 3. Sewage pumpouts, restrooms and wash-off stations shall be required where appropriate to meet health requirements. 4. Pier and dock construction shall be restricted to the minimum size necessary to meet the needs of the proposed use. Piers and docks shall be sited and designed to avoid or minimize potentially significant ecological impacts, including impacts on sediment movement, water circulation and quality, and fish and wildlife habitat. C. Regulations by Environment 1. Urban Conservancy Environment - Boating facilities are a shoreline conditional use permit along the Skagit River. Boating facilities are prohibited in Gages Slough. 2. Natural Environment - Boating facilities are prohibited. 3. Aquatic Environment - Boating facilities are permitted subject to compliance with applicable state and federal regulations and standards and the implementation policies and regulations of this section. 18.08.040 Commercial and Industrial development A. Implementation Policy No significant development other than critical infrastructure is allowed along the Skagit River, and no development is allowed in the Gages Slough wetland. Levee maintenance and ---PAGE BREAK--- SHORELINE MASTER PROGRAM – City of Burlington MASTER PROGRAM FOR GAGES SLOUGH AND THE SKAGIT RIVER SHORELINES BURLINGTON MUNICIPAL CODE TITLE 18 50 improvement and transportation upgrades such as replacing bridges are the only potential development activity and mitigation would be required. As stated in the regulations by environment, there is existing guide service that may utilize the boat launch ramp, but there is no location available for commercial and industrial development along the riverfront. B. Regulations by Environment 1. Urban Conservancy Environment – Commercial and industrial development is prohibited except for commercial services related to recreational facilities. 2. Natural Environment - Commercial and industrial development is prohibited. 3. Aquatic Environment – Water-dependent commercial and industrial development is prohibited except for water-taxi or guide service. 18.08.050 In-stream structures A. Implementation policies The Guidelines define an in-stream structure as a structure placed by humans within a stream or river waterward of the ordinary high-water mark that either causes or has the potential to cause water impoundment or the diversion, obstruction, or modification of water flow. In-stream structures may include those for hydroelectric generation, irrigation, water supply, flood control, transportation, utility service transmission, fish habitat enhancement, or other purpose. In-stream structures are defined to include structures in wetlands and shall provide for the protection and preservation of natural and cultural resources, including but not limited to, fish, wildlife, and water resources; critical areas; geohydrological processes; and natural scenic vistas. The location and planning of in-stream structures shall give due consideration to the full range of public interests, watershed functions and processes, and environmental concerns, with special emphasis on protecting and restoring priority habitats and species. The only likely installations in the Skagit River shoreline area would be associated with a transportation facility, data collection, flood control, or fish enhancement. The only likely installations in the Skagit River shoreline area would be associated with a transportation facility, data collection, flood control, or fish enhancement. B. Regulations 1. In-stream structures shall provide for the protection and preservation of safe surface navigation, ecosystem-wide processes, ecological functions and cultural resources, including, but not limited to fish and fish passage, wildlife and water resources, shoreline critical areas, hydrogeologic processes, and natural scenic vistas. ---PAGE BREAK--- SHORELINE MASTER PROGRAM – City of Burlington MASTER PROGRAM FOR GAGES SLOUGH AND THE SKAGIT RIVER SHORELINES BURLINGTON MUNICIPAL CODE TITLE 18 51 2. The location and planning of in-stream structures shall give due consideration to the full range of public interests, watershed functions and processes, and environmental concerns, with special emphasis on protecting and restoring priority habitats and species. C. Regulations by Environment 1. Urban Conservancy Environment - In-stream structures including culverts and similar structures are permitted to be located in Gages Slough. 2. Natural Environment - In-stream structures are permitted as a shoreline conditional use. 3. Aquatic Environment- In-stream structures are permitted. 18.08.060 Mining A. Implementation Policies Mining shall not be allowed in unique and fragile areas and excavation of sand, gravel and other minerals shall be done as required by the Washington State Surface Mining Reclamation Act, chapter 78.44 RCW. B. Regulations 1. Mining is prohibited in unique and fragile areas. When allowed it shall be in compliance with the Washington State Surface Mining Reclamation Act, Chapter 78.44 RCW. C. Regulations by Environment 1. Urban Conservancy Environment - Mining is prohibited. 2. Natural Environment - Mining is prohibited. 3. Aquatic Environment - Mining is prohibited except for gravel extraction as a shoreline conditional use for specific quantities and specified locations. The removal of gravel from the Skagit River shall be done only after a biological and geohydrological study shows that sustainable extraction can take place without altering the natural processes of gravel transport and there is no net loss of ecological functions. Fish and wildlife resources shall be protected consistent with the Endangered Species Act and all disturbed areas shall be reclaimed. Removal of gravel for flood management purposes shall be consistent with the flood hazard mitigation plan. 18.08.070 Recreational development A. Implementation Policies ---PAGE BREAK--- SHORELINE MASTER PROGRAM – City of Burlington MASTER PROGRAM FOR GAGES SLOUGH AND THE SKAGIT RIVER SHORELINES BURLINGTON MUNICIPAL CODE TITLE 18 52 The public shall be allowed to enjoy the waters of the State through water oriented recreation. Shoreline recreational facilities should be linked to other recreational attractions by pedestrian and bicycle trails. In order to provide for a spectrum of recreational needs and opportunities, recreational development must be consistent with the Parks and Recreation Comprehensive Plan. Location and design shall minimize environmental damage, and shall be designed to improve natural habitat, whether on the shoreline or upland, to maximize the diversity of habitat opportunities. B. Regulations by Environment 1. Urban Conservancy Environment - Recreational development is permitted. All non- water-oriented recreational developments shall make provision for public access to the shoreline. 2. Natural Environment – Only low intensity, water-oriented recreational development such as public access trails is permitted. 3. Aquatic Environment - Recreational development is permitted. 18.08.080 Residential A. Implementation Policies Existing residential development shall be allowed, subject to 18.02.040 Nonconforming Uses and Structures. Floating homes, houseboats and live-aboard vessels are not permitted. B. Regulations by Environment 1. Urban Conservancy Environment – Residences, floating homes, houseboats and live- aboard vessels are prohibited. 2. Natural Environment – Residences, floating homes, houseboats and live-aboard vessels are prohibited. 3. Aquatic Environment – Residences, floating homes, houseboats and live-aboard vessels are prohibited. 18.08.090 Transportation and Parking - existing corridors A. Implementation Policies Existing transportation corridors shall be upgraded as feasible, to comply with the latest edition of the Department of Ecology’s Surface Water Manual, for both quantity and quality, and shall ---PAGE BREAK--- SHORELINE MASTER PROGRAM – City of Burlington MASTER PROGRAM FOR GAGES SLOUGH AND THE SKAGIT RIVER SHORELINES BURLINGTON MUNICIPAL CODE TITLE 18 53 further be required to improve public nonmotorized access opportunities when improvements are constructed. Transportation and parking plans and projects should support circulation system planning for pedestrians, bicycles, and public transportation that in turn support existing and proposed shoreline uses. B. Regulations 1. Existing transportation corridors shall be upgraded as feasible to comply with the latest edition of the Department of Ecology’s Surface Water Manual, for both quantity and quality, and shall further be required to improve public nonmotorized access opportunities when improvements are constructed. C. Regulations by Environment 1. Urban Conservancy Environment - Existing transportation corridors and related improvements are permitted. 2. Natural Environment - Existing transportation corridors and related improvements are permitted. 3. Aquatic Environment - Existing transportation corridors and related improvements are permitted. 18.08.100 Transportation and Parking - new corridors A. Implementation Policies New transportation corridors shall only be established when a clear regional need is demonstrated. Proposed transportation and parking plans and projects need to be planned, located and designed where they will have the least possible adverse effect on unique or fragile shoreline features, and will not result in a net loss of shoreline ecological functions. They shall comply with the latest edition of the Department of Ecology’s Surface Water Manual, for both quantity and quality, and shall further be required to provide public nonmotorized access opportunities when improvements are constructed. Parking is the temporary storage of automobiles or other motorized vehicles. Except as noted the following provisions apply only to parking that is "accessory" to a permitted shoreline use. Parking as a "primary" use and parking which serves a use not permitted in the shoreline jurisdiction is prohibited. Parking should be planned to achieve optimum use. Where possible, parking should serve more than one use (e.g. serving recreational use on weekends, commercial uses on weekdays). Where feasible, parking for shoreline uses should be provided in areas ---PAGE BREAK--- SHORELINE MASTER PROGRAM – City of Burlington MASTER PROGRAM FOR GAGES SLOUGH AND THE SKAGIT RIVER SHORELINES BURLINGTON MUNICIPAL CODE TITLE 18 54 outside shoreline jurisdiction. Low-impact parking facilities, such as permeable pavements, are encouraged. Parking as a primary use or that serves a use not permitted in the applicable shoreline environment designation shall be prohibited over water and within shoreline jurisdiction. Parking in shoreline jurisdiction must directly serve a permitted shoreline use. Parking facilities shall be designed and landscaped to minimize adverse impacts upon the adjacent shoreline and abutting properties. Landscaping shall consist of native vegetation and/or plant materials approved by the City and planted before completion of the parking area in such a manner that plantings provide effective screening within three years of project completion. Parking facilities serving individual buildings on the shoreline shall be located landward from the principal building being served, EXCEPT when the parking facility is within or beneath the structure and adequately screened, or in cases when an alternate location would have less environmental impact on the shoreline. Parking facilities for shoreline activities shall provide safe and convenient pedestrian circulation within the parking area and to the shorelines. Parking facilities shall provide adequate facilities to prevent surface water runoff from contaminating water bodies, using best available technologies and include a maintenance program that will assure proper functioning of such facilities over time. B. Regulations, general 1. New transportation corridors and related improvements are permitted when there is no feasible route or location outside shoreline jurisdiction, when a clear regional need is demonstrated and as a shoreline conditional use permit. 2. Proposed transportation and parking plans and projects shall be planned, located and designed where they will have the least possible adverse effect on unique or fragile shoreline features, and will not result in a net loss of shoreline ecological functions. 3. Transportation and parking shall comply with the latest edition of the Department of Ecology’s Surface Water Manual, for both quantity and quality, and shall further be required to provide public nonmotorized access opportunities when improvements are constructed. 4. Transportation and parking shall comply with the latest edition of the Department of Ecology’s Surface Water Manual, for both quantity and quality, and shall further be required to provide public nonmotorized access opportunities when improvements are constructed. 5. Parking as a primary use or that serves a use not permitted in the applicable shoreline environment designation shall be prohibited within shoreline jurisdiction. ---PAGE BREAK--- SHORELINE MASTER PROGRAM – City of Burlington MASTER PROGRAM FOR GAGES SLOUGH AND THE SKAGIT RIVER SHORELINES BURLINGTON MUNICIPAL CODE TITLE 18 55 6. Parking facilities shall be designed and landscaped to minimize adverse impacts upon the adjacent shoreline and abutting properties. Landscaping shall consist of native vegetation and/or plant materials approved by the City and be planted before completion of the parking area in such a manner that plantings provide effective screening within three years of project completion. 7. Parking facilities serving individual buildings on the shoreline shall be located landward from the principal building being served, EXCEPT when the parking facility is within or beneath the structure and adequately screened, or in cases when an alternate location would have less environmental impact on the shoreline. 8. Parking facilities for shoreline activities shall provide safe and convenient pedestrian circulation within the parking area and to the shorelines. 9. Parking facilities shall provide adequate facilities to prevent surface water runoff from contaminating water bodies, using best available technologies and include a maintenance program that will assure proper functioning of such facilities over time. C. Regulations by Environment 1. Urban Conservancy Environment - Parking areas shall be designed to minimize the environmental and visual impacts. 2. Natural Environment - Parking areas are prohibited in the natural environment. 3. Aquatic Environment - Parking areas are prohibited in the aquatic environment. 18.08.110 Utilities including Wastewater Treatment Plant and Accessory Utilities A. Implementation Policies Design and location of utilities shall minimize harm to the shoreline, preserve the natural landscape, and minimize conflicts with present and planned land and shoreline uses. B. Regulations 1. The existing wastewater treatment plant and future expansion is a permitted facility; new utility production and processing facilities are prohibited unless it can be demonstrated that no other practical option is available. ---PAGE BREAK--- SHORELINE MASTER PROGRAM – City of Burlington MASTER PROGRAM FOR GAGES SLOUGH AND THE SKAGIT RIVER SHORELINES BURLINGTON MUNICIPAL CODE TITLE 18 56 2. Transmission facilities for the conveyance of services, such as pipelines and power wires, shall be located to assure no net loss of shoreline ecological functions, cause minimum harm to the shoreline and be located outside the shoreline area where feasible, and shall be consistent with the master program environment designation. Locate utilities in existing rights-of-way and corridors wherever possible. C. Regulations by Environment 1. Urban Conservancy Environment - Utilities are permitted. Transmission facilities for the conveyance of services, such as pipelines and power wires, shall be located to assure no net loss of shoreline ecological functions, cause minimum harm to the shoreline and be located outside the shoreline area where feasible. 2. Natural Environment - Utilities are permitted. Transmission facilities for the conveyance of services, such as pipelines and power wires, shall be located to assure no net loss of shoreline ecological functions, cause minimum harm to the shoreline and be located outside the shoreline area where feasible. 3. Aquatic Environment - Utilities are permitted. Transmission facilities for the conveyance of services, such as pipelines and power wires, shall be located to assure no net loss of shoreline ecological functions, cause minimum harm to the shoreline and be located outside the shoreline area where feasible. 18.08.120 Wetlands and Skagit River Shoreline Buffer Areas - Restoration and Maintenance A. Implementation Policies The plans and implementation of restoration and maintenance of wetlands and shoreline buffers shall be designed, installed, monitored and maintained in accordance with best available science practices. B. Regulations by Environment 1. Urban Conservancy Environment - Wetland and Skagit River shoreline buffer restoration and maintenance is permitted and shall be designed, installed, monitored and maintained in accordance with best available science practices. 2. Natural Environment - Wetland and Skagit River shoreline buffer restoration and maintenance is permitted and shall be designed, installed, monitored and maintained in accordance with best available science practices. 3. Aquatic Environment - - Wetland and Skagit River shoreline buffer restoration and maintenance is permitted and shall be designed, installed, monitored and maintained in accordance with best available science practices. ---PAGE BREAK--- SHORELINE MASTER PROGRAM – City of Burlington MASTER PROGRAM FOR GAGES SLOUGH AND THE SKAGIT RIVER SHORELINES BURLINGTON MUNICIPAL CODE TITLE 18 57 CHAPTER 18.13 – DEFINITIONS Sections: 18.13.005 Application of definitions. 18.13.010 18.13.020 18.13.030 18.13.040 18.13.045 18.13.050 18.13.060 18.13.070 18.13.080 18.13.110 18.13.120 18.13.130 18.13.140 18.13.150 18.13.160 18.13.170 18.13.180 18.13.190 18.13.200 18.13.210 18.13.005 Application of definitions. These definitions are adapted and/or taken from the Shoreline Management Act (RCW 90.58), from the Washington Administrative Code Regulations (WAC 173-22, 173-26, and 173-27), and from the Skagit County Shoreline Master Program. In addition to these definitions, the definitions and concepts set forth in RCW 90.58.030, as amended and implementing rules shall also apply as used herein. 18.13.010 Accessory development or use means any structure or use incidental and subordinate to a primary shoreline development or use. Act means the Shoreline Management Act of 1971 (Chapter 90.58 RCW), as amended. Adjacent lands means lands adjacent to the shorelines of the state, located outside of shoreline jurisdiction. Administrator means the City of Burlington Planning Director or his/her designated representative. ---PAGE BREAK--- SHORELINE MASTER PROGRAM – City of Burlington MASTER PROGRAM FOR GAGES SLOUGH AND THE SKAGIT RIVER SHORELINES BURLINGTON MUNICIPAL CODE TITLE 18 58 Agricultural activities means agricultural uses and practices including, but not limited to: Producing, breeding, or increasing agricultural products; rotating and changing agricultural crops; allowing land used for agricultural activities to lie fallow in which it is plowed and tilled but left unseeded; allowing land used for agricultural activities to lie dormant as a result of adverse agricultural market conditions; allowing land used for agricultural activities to lie dormant because the land is enrolled in a local, state, or federal conservation program, or the land is subject to a conservation easement; conducting agricultural operations; maintaining, repairing, and replacing agricultural equipment; maintaining, repairing, and replacing agricultural facilities, provided that the replacement facility is no closer to the shoreline than the original facility; and maintaining agricultural lands under production or cultivation; Agricultural equipment and agricultural facilities includes, but is not limited to: The following used in agricultural operations: Equipment; machinery; constructed shelters, buildings, and ponds; fences; upland finfish rearing facilities; water diversion, withdrawal, conveyance, and use equipment and facilities including, but not limited to, pumps, pipes, tapes, canals, ditches, and drains; (ii) Corridors and facilities for transporting personnel, livestock, and equipment to, from, and within agricultural lands; (iii) Farm residences and associated equipment, lands, and facilities; and (iv) Roadside stands and on-farm markets for marketing fruit or vegetables; Agricultural land means those specific land areas on which agricultural activities are conducted as of the date of adoption of a local master program pursuant to these guidelines as evidenced by aerial photography or other documentation. After the effective date of the master program, land converted to agricultural use is subject to compliance with the requirements of the master program. Agricultural products includes, but is not limited to, horticultural, viticultural, floricultural, vegetable, fruit, berry, grain, hops, hay, straw, turf, sod, seed, and apiary products; feed or forage for livestock; Christmas trees; hybrid cottonwood and similar hardwood trees grown as crops and harvested within twenty years of planting; and livestock including both the animals themselves and animal products including, but not limited to, meat, upland finfish, poultry and poultry products, and dairy products. Aquaculture means the culture or farming of fish, shellfish, or other aquatic plants and animals excluding upland finfish. Aquaculture does not include the harvest of wild geoduck associated with the state managed wildstock geoduck fishery. Aquatic means pertaining to those areas waterward of the ordinary high-water mark. Archeologic, historic, and cultural resources means having to do with the scientific study of material remains of past human life and activities. ---PAGE BREAK--- SHORELINE MASTER PROGRAM – City of Burlington MASTER PROGRAM FOR GAGES SLOUGH AND THE SKAGIT RIVER SHORELINES BURLINGTON MUNICIPAL CODE TITLE 18 59 Associated wetlands means those wetlands which are in proximity to and either influence or are influenced by tidal waters or a lake or stream subject to the Shoreline Management Act. Average grade level means the average of the natural or existing topography of the portion of the lot, parcel, or tract of real property which will be directly under the proposed building or structure: in the case of structures built over water, average grade level shall be the elevation of the ordinary high water mark. Calculation of the average grade level shall be made by averaging the ground elevation at the midpoint of all exterior walls of the proposed building or structure. 18.13.020 Best available science means that the policies and development regulations designed to protect the functions and values of critical areas are in conformance with RCW 90.58.100(1) and RCW 36.70A.172 and the procedural criteria established in Part Nine, Best Available Science, WAC 365-195-900 through WAC 365-195-925. Boating facilities for the purpose of this shoreline master program means publicly accessible launch sites for hand-carried watercraft (kayak, canoe, etc.) or boats hauled by trailers; piers and docks suitable for temporary moorage of small watercraft; boat storage or rental facilities; vehicle and trailer parking areas; accessory structures such as maintenance buildings and public restrooms. Such facilities may include auxiliary, related functions such as swimming, fishing, and observation of wildlife. May also include commercially run facilities for larger vessels, such as tour boats, cruise ships, ferries, and special-interest watercraft. Breakwaters are offshore structures generally built parallel to shore and may or may not be connected to land. They are built to protect harbors, moorages, navigation, and shorelines to retard or prevent wave action. Breakwaters may be fixed, i.e., made of quarry rock, floating, or submerged. Buffer area means a parcel or strip of land that is designed and designated to permanently remain vegetated in an undisturbed and natural condition to protect an adjacent aquatic or wetland site from upland impacts, to provide habitat for wildlife and to afford limited public access. Building means any structure designed for or used for the support, shelter, or enclosure of persons, animals, or personal property, and which is used in a fixed location on land, shorelines, or tidelands. Bulkheads are wall-like structures generally constructed parallel to shore and near the high water mark and are for protecting the shore and uplands form erosion by current and wave action; they may also be for retaining uplands and fills that are prone to sliding, mass movement, or erosion. ---PAGE BREAK--- SHORELINE MASTER PROGRAM – City of Burlington MASTER PROGRAM FOR GAGES SLOUGH AND THE SKAGIT RIVER SHORELINES BURLINGTON MUNICIPAL CODE TITLE 18 60 18.13.030 Channel migration zone (CMZ) means the area along a river within which the channel(s) can be reasonable predicted to migrate over time as a result of natural and normally occurring hydrological and related processes when considered with the characteristics of the river and its surroundings. Channelization is the straightening, deepening or lining of stream channels, and/or prevention of natural meander progression of streamways, through artificial means such as relocation of channels, dredging, and/or placement of continuous levees or bank revetments along significant portions of the stream. Dredging of sediment or debris alone is excluded. Conditional use means a use, development, or substantial development which is classified as a conditional use or is not classified within the master program. (WAC 173-27-030) Current deflector is an angled “stub-dike”, groin, or sheet-pile structure which projects into a steam channel to divert flood currents from specific areas, or to control current alignment; can be used as an alternative to direct streambank riprap. 18.13.040 Department means the Burlington Planning Department, unless otherwise noted. Department of Ecology is the Washington State Department of Ecology. Development means a use consisting of the construction or exterior alteration of structures; dredging; drilling; dumping; filling; removal of any sand, gravel, or minerals; bulkheading; driving of piling; placing of obstructions; or any project of a permanent or temporary nature which interferes with the normal public use of the surface of the waters overlying lands subject to this chapter at any state of water level. (RCW 90.58.030) Development regulations means the controls placed on development or land uses by a county or city, including but not limited to, zoning ordinances, critical areas ordinances, all portions of a shoreline master program other than goals and policies approved or adopted under Chapter 90.58RCW, planned unit development ordinances, subdivision ordinances, and binding site plan ordinances together with any amendments thereto. Director means the Planning Director. Dock means a structure which abuts the shoreline and is used as a landing or moorage place for craft. A dock may be built either on a fixed platform or float on the water. See also “development” and “substantial development”. Dredging is the removal or displacement of earth such as gravel, sand, mud, or silt and/or other materials or debris from any stream, river, lake, or marine water body and associated shorelines and wetlands. Dredging is normally done for specific purposes or uses such as for constructing ---PAGE BREAK--- SHORELINE MASTER PROGRAM – City of Burlington MASTER PROGRAM FOR GAGES SLOUGH AND THE SKAGIT RIVER SHORELINES BURLINGTON MUNICIPAL CODE TITLE 18 61 and maintaining canals, navigation channels, turning basins, harbors and marinas, submarine pipeline or cable crossings, for obtaining material for fill or construction, as part of an aquacultural operation, or dike repair and maintenance. Dredge spoil is the material removed by dredging. 18.13.045 Ecological functions or shoreline functions means the work performed or role played by the physical, chemical, and biological processes that contribute to the proper maintenance of the aquatic and terrestrial environments that constitute the shoreline’s natural ecosystem. Ecosystem-wide processes means the suite of naturally occurring physical and geologic processes of erosion, transport, and deposition and specific chemical processes that contribute to the maintenance of the aquatic and terrestrial environments that constitute the shoreline’s natural ecosystem. Exempt developments are those set forth in WAC 173-27-040 and RCW 90.58.030(3)(e), 90.58.147, 90.58.147, 90.58.355 and 90.58.515 which are not required to obtain a substantial development permit but which must otherwise comply with applicable provisions of the act and the master program. 18.13.050 Feasible means, for the purpose of this chapter, that an action, such as a development project, mitigation, or preservation requirement, meets all of the following conditions: The action can be accomplished with technologies and methods that have been used in the past in similar circumstances, or studies or tests have demonstrated in similar circumstances that such approaches are currently available and likely to achieve the intended results; The action provides a reasonable likelihood of achieving its intended purpose; and The action does not physically preclude achieving the project’s primary intended legal use. In cases where these guidelines require certain actions unless they are infeasible, the burden of proving infeasibility is placed on the applicant. In determining an action’s infeasibility, the reviewing agency may weigh the action’s relative public costs and public benefits, considered in the short- and long-term time frames. Fill means the addition of soil, sand, rock, gravel, sediment, earth retaining structure, or other material to an area waterward of the OHWM, in wetlands, or on shorelands in a manner that raises the elevation or creates dry land. Float is an anchored, buoyed object. ---PAGE BREAK--- SHORELINE MASTER PROGRAM – City of Burlington MASTER PROGRAM FOR GAGES SLOUGH AND THE SKAGIT RIVER SHORELINES BURLINGTON MUNICIPAL CODE TITLE 18 62 Flood control works and flood protection means all structures and works on streams designed to retard bank erosion, to reduce flooding of adjacent lands, to control or divert stream flow, or to create a reservoir, including but not limited to revetments, dikes, levees, channelization, dams, vegetative stabilization, weirs, flood and tidal gates. Excluded are water pump apparatus. Flood protection includes the above structural devices but may also include various techniques of floodplain, river basin, and watershed management which may be applied in lieu of or complementary to structural measures. Flood Hazard Reduction means the City of Burlington’s program to reduce flood damages to life and property and to minimize public expenses due to floods through a comprehensive system of planning, development regulations, building standards, structural works, and monitoring and warning systems. Floodplain is synonymous with one hundred-year floodplain and means that land area susceptible to inundation with a one percent chance of being equaled or exceeded in any given year. The limit of this area shall be based upon the Burlington Critical Areas Code BMC 15.15 and FEMA flood regulations maps. Floodway means the area, as identified in a master program, that either: has been established in Federal Emergency Management Agency (FEMA) Flood Insurance Rate Maps (FIRM) or floodway maps; or (ii) consists of those portions of a river valley lying waterward from the outer limits of a watercourse upon which flood waters are carried during periods of flooding that occur with reasonable regularity, although not necessarily annually, said floodway being identified, under normal conditions, by changes in surface soil conditions or changes in types or quality of vegetative ground cover condition, topography, or other indicators of flooding that occurs with reasonable regularity, although not necessarily annually. Regardless of the method used to identify the floodway, the floodway shall not include those lands that can reasonably be expected to be protected from flood waters by flood risk reduction devices maintained by or maintained under license from the federal government, the state, or a political subdivision of the state. 18.13.060 Gabions are shore defense works made up of rock, rubble, masonry or other suitable material such as vinyl enclosed to form massive blocks to act as walls on shorelines to prevent wave erosion, as foundations for breakwaters or jetties, or as a form of bank stabilization. Geotechnical report or "geotechnical analysis" means a scientific study or evaluation conducted by a qualified expert that includes a description of the ground and surface hydrology and geology, the affected land form and its susceptibility to mass wasting, erosion, and other geologic hazards or processes, conclusions and recommendations regarding the effect of the proposed development on geologic conditions, the adequacy of the site to be developed, the impacts of the proposed development, alternative approaches to the proposed development, and measures to mitigate potential site-specific and cumulative geological and hydrological impacts of the proposed development including the potential adverse impacts to adjacent and down- current properties. Geotechnical reports shall conform to accepted technical standards and must ---PAGE BREAK--- SHORELINE MASTER PROGRAM – City of Burlington MASTER PROGRAM FOR GAGES SLOUGH AND THE SKAGIT RIVER SHORELINES BURLINGTON MUNICIPAL CODE TITLE 18 63 be prepared by professional engineers (or geologists) who have professional expertise about the regional and local shoreline geology and processes. Grading means the movement or redistribution of the soil, sand, rock, gravel, sediment, or other material on a site in a manner that alters the natural contour of the land. 18.13.070 Habitat means the place or type of site where a plant or animal naturally or normally lives and grows. Hearing Board means the State Shoreline Hearings Board established by the Act in RCW 90.58.170. Height is measured from average grade level to the highest point of a structure: Provided that television antennas, chimneys, and similar appurtenances shall not be used in calculating height, except where such appurtenances obstruct the view of the shoreline of a substantial number of residences on areas adjoining such shorelines. Historic site includes both archeological and historic sites, structures, or development which provide knowledge about our cultural heritage, including but not limited to Indian and pioneer settlements, old buildings forts, trails, landings, bridges, or the sites thereof together with interpretative facilities. Hydrophytic vegetation is the sum total of macrophytic plant life growing in water or on a substrate that is a least periodically deficient in oxygen as a result of excessive water content. When hydrophytic vegetation comprises a community where indicators of hydric soils and wetland hydrology also occur, this area has wetland vegetation. Hydric soil means soil that formed under conditions of saturation, flooding, or ponding long enough during the growing season to develop anaerobic conditions in the upper part. 18.13.080 In-stream structure is placed by humans waterward of the ordinary high water mark and either causes or has the potential to cause water impoundment or the diversion, obstruction, or modification of water flow. 18.13.110 Launch ramp is an enclosed slab, set of pads, planks, or graded slope used for launching boats with trailers or occasionally by hand; extensive parking and turn around areas are usually accessory to launch ramps. Levee means a natural or man-made embankment on the bank of a stream for the purpose of keeping floodwaters from inundating adjacent land. Some levees have revetments on their sides. ---PAGE BREAK--- SHORELINE MASTER PROGRAM – City of Burlington MASTER PROGRAM FOR GAGES SLOUGH AND THE SKAGIT RIVER SHORELINES BURLINGTON MUNICIPAL CODE TITLE 18 64 18.13.120 Master program means the comprehensive use plan for the Skagit River and Gages Slough Shorelines, and the use regulations together with maps, diagrams, charts, or other descriptive material and text, a statement of desired goals and standards developed in accordance with the policies enunciated in RCW 90.58.020. (RCW 90.58.030) May means the action is acceptable, provided it conforms to the provisions of this chapter. Mitigation or "mitigation sequencing" means the following sequence of steps listed in order of priority, with of this subsection being top priority. Avoiding the impact altogether by not taking a certain action or parts of an action; Minimizing impacts by limiting the degree or magnitude of the action and its implementation by using appropriate technology or by taking affirmative steps to avoid or reduce impacts; Rectifying the impact by repairing, rehabilitating, or restoring the affected environment; Reducing or eliminating the impact over time by preservation and maintenance operations; Compensating for the impact by replacing, enhancing, or providing substitute resources or environments; and Monitoring the impact and the compensation projects and taking appropriate corrective measures. (WAC 173-26-020) Must means a mandate; the action is required. 18.13.130 Natural or existing topography means the topography of the lot, parcel, or tract of real property immediately prior to any site preparation or grading, including excavation or filling; Nonconforming development or use, for the purpose of this program means a development in lawful use at the effective date of adoption or amendment as appropriate, of this program, and which no longer conforms to the applicable shoreline provisions. Non-point pollution means pollution that enters any water of the state from any dispersed land- based or water-based activities, including, but not limited to, atmospheric deposition, surface water runoff from agricultural lands, urban areas, or forest lands, subsurface or underground sources or discharges form boats or marine vessels not otherwise regulated under the National Pollutant Discharge Elimination System program. Non-water-oriented uses mean those uses that are not water-dependent, water-related, or water- enjoyment. ---PAGE BREAK--- SHORELINE MASTER PROGRAM – City of Burlington MASTER PROGRAM FOR GAGES SLOUGH AND THE SKAGIT RIVER SHORELINES BURLINGTON MUNICIPAL CODE TITLE 18 65 18.13.140 Open space means public and private land and natural wetlands which retain their natural or semi-natural character because they have not been developed with structures and paving. It may include lands in agricultural use, outdoor recreation land, or other land that may be required to be reserved in open space as part of a development project under this Master Program. Ordinary high water mark on all lakes, streams and tidal water is that mark that will be found by examining the bed and banks and ascertaining where the presence and action of waters are so common and usual, and so long continued in all ordinary years, as to mark upon the soil a character distinct from that of the abutting upland, in respect to vegetation as that condition exists on June 1, 1971, as it may naturally change thereafter, or as it may change thereafter in accordance with permits issued by a local government or the department of ecology. Where the ordinary high water mark cannot be found on a stream, it shall be the line of mean high water. 18.13.150 Permit means any substantial development, variance, conditional use permit, or revision authorized under chapter 90.58 RCW. Planning Commission means the Burlington Planning Commission. Planning Department means the City of Burlington Department of Planning and Community Development. Priority habitat means a habitat type with unique or significant value to one or more species. An area classified and mapped as priority habitat must have one or more of the following attributes: • Comparatively high fish and wildlife density; • Comparatively high fish and wildlife species diversity; • Fish spawning habitat; • Important wildlife habitat; • Important fish and wildlife seasonal ranges; • Important fish and wildlife movement corridors; • Rearing and foraging habitat; • Important marine mammal haul-out; • Refugia habitat; • Limited availability; • High vulnerability to habitat alteration; • Unique or dependent species; or • Shellfish bed. A priority habitat may be described by a unique vegetation type or by a dominant plant species that is of primary importance to fish and wildlife (such as oak woodlands or eelgrass meadows). A priority habitat may also be described by a successional stage old growth and mature forests). Alternatively, a priority habitat may consist of a specific habitat element ---PAGE BREAK--- SHORELINE MASTER PROGRAM – City of Burlington MASTER PROGRAM FOR GAGES SLOUGH AND THE SKAGIT RIVER SHORELINES BURLINGTON MUNICIPAL CODE TITLE 18 66 consolidated marine/estuarine shorelines, talus slopes, caves, snags) of key value to fish and wildlife. A priority habitat may contain priority and/or non-priority fish and wildlife. Priority species means fish and wildlife species requiring protective measures and/or management guidelines to ensure their persistence at genetically viable population levels. Priority species are those that meet any of the criteria listed below. Criterion 1. State-listed or state proposed species. State-listed species are those native fish and wildlife species legally designated as endangered (WAC 232-12-014), threatened (WAC 232-12-011), or sensitive (WAC 232-12-011). State proposed species are those fish and wildlife species that will be reviewed by the department of fish and wildlife (POL-M- 6001) for possible listing as endangered, threatened, or sensitive according to the process and criteria defined in WAC 232-12-297. Criterion 2. Vulnerable aggregations. Vulnerable aggregations include those species or groups of animals susceptible to significant population declines, within a specific area or statewide, by virtue of their inclination to congregate. Examples include heron colonies, seabird concentrations, and marine mammal congregations. Criterion 3. Species of recreational, commercial, and/or tribal importance. Native and non- native fish, shellfish. and wildlife species of recreational or commercial importance and recognized species used for tribal ceremonial and subsistence purposes that are vulnerable to habitat loss or degradation. Criterion 4. Species listed under the Endangered Species Act as either threatened or endangered. Provisions mean policies, regulations, standards, guideline criteria or environment designations. 18.13.160 Recreation development is the development of the natural or existing environment to accommodate commercial and public recreation facilities. This includes clearing land, earth modifications, structures and other facilities such as parks, camps, campgrounds, camping clubs, golf courses, and other outdoor recreation areas. Residential development includes single-family residences, multifamily development, the creation of new lots through subdivision and floating homes and live-aboard vessels. Restore, Restoration or ecological restoration means the reestablishment or upgrading of ecological shoreline functions through measures such as revegetation, removal of intrusive shoreline structures and removal or treatment of toxic materials. Restoration does not necessarily imply returning the shoreline area to aboriginal or pre-European settlement conditions Revetments are sloped walls constructed of riprap or other substantial material, placed on stream banks to retard bank erosion from high velocity currents. ---PAGE BREAK--- SHORELINE MASTER PROGRAM – City of Burlington MASTER PROGRAM FOR GAGES SLOUGH AND THE SKAGIT RIVER SHORELINES BURLINGTON MUNICIPAL CODE TITLE 18 67 Riprap means hard, angular quarry rock used for stream bank stabilization or other flood control works. Riverine means pertaining to a river or stream system, including associated lakes and wetlands. River delta means those lands formed as an aggradational feature by stratified clay, silt, sand and gravel deposited at the mouths of streams where they enter a quieter body of water. The upstream extent of a river delta is that limit where it no longer forms distributary channels. 18.13.170 Shorelands or shoreland areas (RCW 90.58.030) means those lands extending landward for two hundred feet in all directions as measured on a horizontal plane from the ordinary high water mark; floodways and contiguous floodplain areas landward two hundred feet from such floodways; and all wetlands and river deltas associated with the streams, lakes, and tidal waters which are subject to the provisions of this chapter; the same to be designated as to location by the department of ecology. Any county or city may determine that portion of a one-hundred-year- flood plain to be included in its master program as long as such portion includes, as a minimum, the floodway and the adjacent land extending landward two hundred feet therefrom. In the City of Burlington, the shorelands include the Skagit River and an area extending two hundred feet landward from the floodway. The floodway being the waterward top of levee until established on a case by case basis. Shoreline areas and "shoreline jurisdiction" means all "shorelines of the state" and "shorelands" as defined in RCW 90.58.030. Shoreline Management Zone (SMZ) In the City of Burlington, this includes the Skagit River and an area extending two hundred feet landward from the floodway. The floodway being the waterward top of levee until established on a case by case basis. The SMZ also include Gages Slough but not its buffer. Shoreline master program or "master program" means the comprehensive land use plan for a described area, and the use regulations together with maps, diagrams, charts, or other descriptive material and text, a statement of desired goals, and standards developed in accordance with the policies enunciated in RCW 90.58.020; As provided in RCW 36.70A.480, the goals and policies of a shoreline master program for a county or city approved under chapter 90.58 RCW shall be considered an element of the city's comprehensive plan. All other portions of the shoreline master program for a city adopted under Chapter 90.58 RCW, including use regulations, shall be considered a part of the county or city's development regulations. Shoreline modifications means those actions that modify the physical configuration or qualities of the shoreline area, usually through the construction of a physical element such as a dike, breakwater, pier, weir, dredged basin, fill, bulkhead, or other shoreline structures. They can include other actions, such as clearing, grading, or application of chemicals. ---PAGE BREAK--- SHORELINE MASTER PROGRAM – City of Burlington MASTER PROGRAM FOR GAGES SLOUGH AND THE SKAGIT RIVER SHORELINES BURLINGTON MUNICIPAL CODE TITLE 18 68 Shoreline stabilization structural and nonstructural methods to address erosion impacts to property and dwellings, businesses, or structures caused by natural processes, such as current, flood, tides, wind, or wave action. Definition of new stabilization measures include enlargement of existing structures. Shorelines means all of the water areas of the state, including reservoirs, and their associated shorelands, together with the lands underlying them; except shorelines of state-wide significance; (ii) shorelines on segments of streams upstream of a point where the mean annual flow is twenty cubic feet per second or less and the wetlands associated with such upstream segments; and (iii) shorelines on lakes less than twenty acres in size and wetlands associated with such small lakes; (RCW 90.58.030) Shorelines of the state are the total of all “shorelines” and “shorelines of state-wide significance” within the state. Shorelines of Statewide Significance includes any natural river or segment thereof west of the crest of the Cascade range of a point where the annual flow is measured at one thousand cubic feet per second or more. In the City of Burlington this means the Skagit River shoreline and an area extending landward two hundred feet from the floodway and the Gages Slough wetlands. Should means that the particular action is required unless there is a demonstrated, compelling reason, based on policy of the Shoreline Management Act and this chapter, against taking the action. Significant ecological impact means an effect or consequence of a human caused action if any of the following apply: The action degrades or changes an ecological function or ecosystem-wide process to such a degree that the ecosystem can no longer perform the function at levels within its natural range of variability or that the performance of the function falls outside the range needed to maintain the integrity of other ecological processes in shoreline areas. As used in this definition, the normal range of variability does not include alterations caused by catastrophic events. Scientific evidence or objective analysis indicates that the action could cause degradation or change to those ecological functions or ecosystem-side processes described in of this subsection under foreseeable conditions. Scientific evidence indicates that the action could contribute to degradation or change to ecological functions or ecosystem-wide processes described in of this subsection as part of cumulative impacts, due to similar actions that are occurring or are likely to occur. Significant ecological impacts do not include impacts that are inconsequential to attaining the objectives of the act or to the protection and restoration of shoreline ecological functions or ecosystem-wide processes. ---PAGE BREAK--- SHORELINE MASTER PROGRAM – City of Burlington MASTER PROGRAM FOR GAGES SLOUGH AND THE SKAGIT RIVER SHORELINES BURLINGTON MUNICIPAL CODE TITLE 18 69 Significant vegetation removal means the removal of trees, shrubs, and/or ground cover by clearing, grading, cutting, burning, chemical means, or other activity that causes significant ecological impacts to functions provided by such vegetation. The removal of invasive or noxious weeds does not constitute significant vegetation removal. Tree pruning, not including tree topping, where it does not affect ecological functions, does not constitute significant vegetation removal. Stream is a naturally occurring body of periodic or continuously flowing water where: The mean annual flow is greater than twenty cubic feet per second; and The water is contained within a channel. A channel is an open conduit either naturally or artificially created. This definition does not include artificially created irrigation, return flow, or stockwatering channels. Structure means a permanent or temporary edifice or building, or any piece of work artificially built or composed of parts joined together in some definite manner, whether installed on, above, or below the surface of the ground or water, except for vessels. Substantial development shall mean any development of which the total cost or fair market value exceeds $5781 effective September 1, 2007, or any development which materially interferes with the normal public use of the water or shorelines of the state. (See RCW 90.58.030(3.e.) for details.) See BMC 18.02.020 for exemptions from substantial development permits. Substantially degrade means to cause significant ecological impact. Surface or open-pit mining involves either the removal of surface material (overburden) to enable the underlying mineral resources to be exposed and extracted (quarried) or the direct extraction of naturally occurring surface minerals and materials such as rock, sand, gravel, and aggregate. Removal of sand from river bars is considered a surface mining activity. 18.13.180 Threatened and endangered species or T&E species means those native species that are listed in rule by the Washington state department of fish and wildlife pursuant to RCW 77.12.020 as threatened (WAC 232-12-011) or endangered (WAC 232-12-014), or that are listed as threatened or endangered species under the federal Endangered Species Act, 16 U.S.C. 1533. Transportation facilities are those structures and developments that aid in land and water surface movement of people, goods, and services, including roads, trails, bikeways, parking areas, bridges and rail transportation. 18.13.190 Upland means those shoreline areas landward of the Ordinary High Water Mark except backshores, natural wetlands, and floodplains. ---PAGE BREAK--- SHORELINE MASTER PROGRAM – City of Burlington MASTER PROGRAM FOR GAGES SLOUGH AND THE SKAGIT RIVER SHORELINES BURLINGTON MUNICIPAL CODE TITLE 18 70 18.13.200 Variance is a means to grant relief from the specific bulk, dimensional or performance standards set forth in the applicable master program and not a means to vary a use of a shoreline. 18.13.210 Water-dependent use means a use or portion of a use which cannot exist in a location that is not adjacent to the water but is dependent on the water by reason of the intrinsic nature of its operations. Examples of water-dependent uses include ship cargo terminal loading areas, fishing, ferry and passenger terminals, barge loading facilities, ship building and dry docking, marinas, aquaculture, float plane facilities, hydroelectric dams, surface water intake, and sewer outfalls. Water-enjoyment use means a recreational use, or other use that facilitates public access to the shoreline as a primary characteristic of the use; or a use that provides for recreational use or aesthetic enjoyment of the shoreline for a substantial number of people as a general characteristic of the use and which through the location, design, and operation assures the public’s ability to enjoy the physical and aesthetic qualities of the shoreline. In order to qualify as a water- enjoyment use, the use must be open to the general public and the shoreline-oriented space within the project must be devoted to the specific aspects of the use that fosters shoreline enjoyment. Primary water-enjoyment uses may include, but are not limited to: Water-oriented use means a use that is water-dependent, water-related, or water-enjoyment uses, or a combination of such uses. Water quality means the physical characteristics of water within shoreline jurisdiction, including water quantity, hydrological, physical, chemical, aesthetic, recreation-related, and biological characteristics. Where used in this chapter, the term “water quantity” refers only to development and uses regulated under this chapter and affecting water quantity, such as impermeable surfaces and storm water handling practices. Water quantity, for purposes of this chapter, does not mean the withdrawal of ground water or diversion of surface water pursuant to RCW 90.03.250 through 90.03.340. Water-related use means a use or portion of a use which is not intrinsically dependent on a waterfront location but whose economic viability is dependent upon a waterfront location because: The use has a functional requirement for a waterfront location such as the arrival or shipment of materials by water or the need for large quantities of water; or, The use provides a necessary service supportive of the water-dependent activities and the proximity of the use to its customers makes its services less expensive and/or more convenient. Water-related uses include manufacturers of ship parts large enough that transportation becomes a significant factor in the product’s cost, professional services serving primarily water-dependent ---PAGE BREAK--- SHORELINE MASTER PROGRAM – City of Burlington MASTER PROGRAM FOR GAGES SLOUGH AND THE SKAGIT RIVER SHORELINES BURLINGTON MUNICIPAL CODE TITLE 18 71 uses and storage of water-transported foods. Other examples of water-related uses include the warehousing of goods transported by water, seafood processing plants, hydroelectric generating plants, gravel storage when transported by barge, oil refineries where transport is by tanker, and upland log storage for waterborne transportation. Wetlands or wetland areas means areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs and similar areas. Wetlands do not include those artificial wetlands intentionally created from nonwetland sites, including, but not limited to, irrigation and drainage ditches, grass-lined swales, canals, 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. Wetlands may include those artificial wetlands intentionally created from nonwetland areas to mitigate the conversion of wetlands. ---PAGE BREAK--- SHORELINE MASTER PROGRAM – City of Burlington MASTER PROGRAM FOR GAGES SLOUGH AND THE SKAGIT RIVER SHORELINES BURLINGTON MUNICIPAL CODE TITLE 18 72 Appendix A SHORELINE WETLAND, FISH AND WILDLIFE HABITAT, AND GENERAL CRITICAL AREA REGULATIONS ---PAGE BREAK--- SHORELINE MASTER PROGRAM – City of Burlington MASTER PROGRAM FOR GAGES SLOUGH AND THE SKAGIT RIVER SHORELINES BURLINGTON MUNICIPAL CODE TITLE 18 73 Appendix A SHORELINE WETLAND, FISH AND WILDLIFE HABITAT, AND GENERAL CRITICAL AREA REGULATIONS I. Introduction and overview The City of Burlington is somewhat unique in that the entire Skagit River shoreline is fronted by a levee. There are few identified or delineated wetlands located on the waterward side of the levee system. Limited development such as recreation and restoration are allowed waterward of the levees which establish the floodway. Gages Slough is a series of connected wetlands that cross the city and the wetland area itself is subject to the Shoreline Master Program. As allowed by RCW 90.58.030(2.d.ii.) the City has chosen not to place the wetland buffer into shoreline jurisdiction. The Gages Slough wetland buffer area is established through the City’s Critical Area Ordinance and is gradually being restored through implementation of a series of buffer restoration, maintenance and monitoring projects that do not extend into the wetland itself. There may be the need to obtain a shoreline permit for upgrades to the wetlands themselves in the future if it is determined that sediment buildup has an effect on flood hazard mitigation. For these reasons, standards for wetland buffers and widths are handled by direct reference to the appropriate literature, rather than providing details that are unlikely to be utilized. If, at a future date, decisions are made to remove riverine levees, because of installation of planned setback levees to increase the channel migration zone, there may be the potential for wetlands to form, and the appropriate best available science standards will already be addressed in the Shoreline Master Program. II. Purpose The purpose of these regulations is to ensure no net loss of ecological functions in wetlands and riparian corridors, including Gages Slough and wetlands along the Skagit River. Wetlands serve many important ecological and environmental functions and help to protect public health, safety and welfare by providing flood storage and conveyance, erosion control, fish and shellfish production, fish and wildlife habitat, recreation, water quality protection, water storage, education, scientific research and other public benefits. It is the purpose of this shoreline master program to protect these functions to prevent the continual loss of wetlands, and where practical to enhance or restore wetlands functions and values. It is also the purpose of these regulations to protect, restore where practical, and enhance fish and wildlife populations and their associated habitats. In addition to their intrinsic value, certain species of fish and wildlife represent important historic, cultural, recreational and economic resources. Many species serve as indicators of the condition of the environment and the quality of life that local residents have invested in, enjoy and respect. ---PAGE BREAK--- SHORELINE MASTER PROGRAM – City of Burlington MASTER PROGRAM FOR GAGES SLOUGH AND THE SKAGIT RIVER SHORELINES BURLINGTON MUNICIPAL CODE TITLE 18 74 III. Definitions. “Habitats of local importance” include a seasonal range or habitat element with which a given species has a primary association, and which, if altered, may reduce the likelihood that the species will maintain and reproduce over the long term. These might include areas of high relative density or species richness, breeding habitat, winter range, and movement corridors. These might also include habitats that are of limited availability or high vulnerability to alteration, such as cliffs, talus, and wetlands. “Priority species” require protective measures for their survival due to their population status, sensitivity to habitat alteration, and/or recreational, commercial, or tribal importance. Priority species include State Endangered, Threatened, Sensitive, and Candidate species; animal aggregations heron colonies, bat colonies) considered vulnerable; and species of recreational, commercial, or tribal importance that are vulnerable. In the case of the Skagit River, these include Chinook Salmon, Native Cutthroat, and Native Steelhead fish. “Priority habitats” are habitat types or elements with unique or significant value to a diverse assemblage of species based on the current and updated definitions by the Washington Department of Fish and Wildlife (WDFW). A priority habitat may consist of a unique vegetation type shrub-steppe) or dominant plant species juniper savannah), a described successional stage old-growth forest), or a specific habitat feature cliffs). In the case of the Skagit River, priority habitats include areas for migration, nesting, rearing of juveniles. “Wetland” or “wetlands” means areas that are inundated or saturated by surface water or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas. Wetlands do not include those artificial wetlands intentionally created from nonwetland sites, including, but not limited to, irrigation and drainage ditches, grass-lined swales, canals, 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. Wetlands may include these artificial wetlands intentionally created from nonwetland areas created to mitigate conversion of wetlands. (EHB 1653.PL) IV. Wetlands A. Wetlands designations. 1. Identification of wetlands and delineation of their boundaries pursuant to this Shoreline master program shall be done in accordance with the approved federal wetland delineation manual and applicable regional supplement, as specified in WAC 173-22-035. All areas within the City meeting the wetland designation criteria in that procedure are hereby designated critical areas and are subject to the provisions of this shoreline master program. Wetland delineations shall be valid for a period of five years and should be field-verified by agency staff prior to beginning site work. ---PAGE BREAK--- SHORELINE MASTER PROGRAM – City of Burlington MASTER PROGRAM FOR GAGES SLOUGH AND THE SKAGIT RIVER SHORELINES BURLINGTON MUNICIPAL CODE TITLE 18 75 2. Wetlands shall be classified as Category I, II, III or IV using the Washington State Department of Ecology’s Wetland Rating System for Western Washington, Publication #04-06-025, or as amended hereafter. B. Wetlands initial project review. 1. A site visit shall be conducted to confirm the presence of wetland indicators listed in the critical areas checklist or identified on critical areas map references as being within 200 feet of a proposed project or activity. A positive confirmation by the director that site indicators are present or that the proposed project may impact the wetland area will then require a professional site assessment, including a wetland delineation and classification. 2. The director shall use current federal, state and local maps, and current wetland delineations to assist in making a determination. C. Wetlands site assessment requirements. If a wetlands site assessment is required, it shall meet the following requirements: 1. A wetland reconnaissance shall be performed by a qualified wetlands professional. The reconnaissance shall identify the presence of wetlands within 200 feet of the project or activity area. If this wetland reconnaissance demonstrates no wetlands within 200 feet of the activity area, then no further study is required. 2. A wetland delineation shall be performed as part of a site assessment where a wetland reconnaissance confirms the presence of a wetland or the applicant chooses to perform a delineation instead of a wetland reconnaissance. The delineation shall be performed by a qualified wetland professional trained in conducting delineations in accordance with the approved federal wetland delineation manual and applicable regional supplement. 3. Wetlands Site Assessment. The site assessment shall be prepared by a qualified expert wetland professional consistent with the approved federal wetland delineation manual and applicable regional supplement. The site assessment shall include the following: a. Site plan prepared in accordance with the requirements of this shoreline master program indicating the presence of wetlands within 200 feet of the project or activity area. This site plan information may be prepared by the applicant with review by the qualified wetlands professional. If the applicant together with assistance from the director cannot obtain permission for access to properties within 200 feet of the activity area then an approximation of the extent of off-site wetlands within 200 feet of the area may be completed based on aerial interpretation and/or visual observation from nearby vantage points; b. Wetland community description including Cowardian classification and wetland rating based upon Washington State Department of Ecology’s Wetland Rating ---PAGE BREAK--- SHORELINE MASTER PROGRAM – City of Burlington MASTER PROGRAM FOR GAGES SLOUGH AND THE SKAGIT RIVER SHORELINES BURLINGTON MUNICIPAL CODE TITLE 18 76 System for Western Washington, Publication #04-06-025 or subsequent revisions; c. Delineation report including a site map indicating wetland boundaries, applicable buffers and the locations of all data points; d. Values and functions assessments shall include but not be limited to discussion of water quality, fish and wildlife habitat, flood and stream flow attenuation, recreation and aesthetics; e. Project description and impact assessment shall include a detailed narrative describing the project, its relationship to the wetland and its potential impact to the wetland; and f. Any proposed mitigation plan shall include a discussion on how the project has been designed to avoid and minimize adverse impacts to wetlands and their buffers. Mitigation for unavoidable impacts shall follow the standards specified in Wetland Mitigation in Washington State – Part 1: Agency Policies and Guidance (Version 1) (Ecology Publication #06-06-011a), or subsequent revisions and shall be consistent with the Gages Slough Management Plan adopted as part of the comprehensive plan. D. Alteration of wetlands. 1. A regulated wetland or its required buffer can only be altered if the applicant can demonstrate that all feasible measures have been taken to avoid and minimize impacts and the wetlands site assessment shows that the proposed alteration does not degrade the quantitative and qualitative functioning of the wetland, or any degradation can be adequately mitigated to protect the wetland function. Any alteration approved pursuant to this section shall include mitigation necessary to mitigate the impacts of the proposed alteration on the wetland as described in wetland mitigation standards. 2. Storm water discharges to wetlands shall be controlled and treated to provide all known and reasonable methods of prevention, control, and treatment as mandated in the State Water Quality Standards, Chapter 173-201A WAC, as required by state law and implemented in Burlington Municipal Code Title 14, Surface Water Management. E. Wetland mitigation standards. 1. Mitigation Plan Requirements. Along with the other provisions of the other subsections below, the mitigation plan shall include a description of project or activity and the impact assessment shall include a detailed narrative describing the project or activity, its relationship to the wetland and its potential impact to the wetland. Best available science shall be utilized as laid out in Wetlands in Washington State, Volume I: A of the Science (Ecology Publication #05-06-006). 2. Any proposed mitigation plan shall include a discussion on how the project or activity has been designed to avoid and minimize adverse impacts to wetlands and shall follow ---PAGE BREAK--- SHORELINE MASTER PROGRAM – City of Burlington MASTER PROGRAM FOR GAGES SLOUGH AND THE SKAGIT RIVER SHORELINES BURLINGTON MUNICIPAL CODE TITLE 18 77 the standards specified in Wetlands & CAO Updates: Guidance for Small Cities, Western Washington Version (Ecology Publication No. 10-06-002) (hereafter, Small Cities Guidance), or subsequent revisions. 3. Standard Wetland Buffers and Increased Buffer Requirements. Buffers are necessary in order to avoid potential project generated impacts. Buffers help maintain water quality and habitat diversity while stabilizing hydrology and minimizing direct human disturbance to wetlands. Buffer widths are based on the wetland rating, the functions that the buffer is expected to perform, and the intensity of the proposed land use. The required buffers shall be established based on the standards set in Wetlands in Washington State, Volume 2: Managing and Protecting Wetlands (Publication #05- 06-008).4. If an applicant does not propose to alter the required buffer, then no additional wetland impact mitigation shall be required. 4. If an applicant proposes to alter a required buffer or alter a wetland, the applicant shall demonstrate why such buffer and/or wetland modification, together with measures to avoid and minimize impacts and mitigation proposed in the wetland area assessment is sufficient to adequately protect the wetland functions and values. 5. Allowed Uses in Buffers. Low impact uses and activities which are consistent with the purpose and function of the habitat buffer and do not detract from its integrity may be permitted within the buffer depending on the sensitivity of the habitat involved provided, that such activity shall not result in a decrease in wetland functional values and shall not prevent or inhibit the buffer’s recovery to at least pre-altered condition or function. Examples of uses and activities which may be permitted in appropriate cases, as long as the activity does not retard the overall recovery of the buffer, include removal of noxious vegetation, and passive recreation facilities designed and in accordance with an approved critical area report, including walkways, trails, interpretative signs and wildlife-viewing structures. 6. Establishment of Limits of Clearing. The location of the outer extent of the wetland buffer and the limits of the areas to be disturbed shall be marked in the field and be included as a condition of a permit or approval. Such field markings may be field- approved by the director prior to the commencement of permitted activities. Markings shall be maintained throughout the duration of any construction activities. 7. Exceptions to Mitigation Requirements. Requirements for mitigation do not apply when a wetland alteration is intended exclusively for the enhancement or restoration of an existing regulated wetland and the proposal will not result in a loss of wetland function and value, subject to the following conditions: a. The enhancement or restoration project is not compensatory wetland mitigation. b. An enhancement or restoration plan shall be submitted for site plan review. The restoration or enhancement plan must include the information required for Wetlands site assessments. ---PAGE BREAK--- SHORELINE MASTER PROGRAM – City of Burlington MASTER PROGRAM FOR GAGES SLOUGH AND THE SKAGIT RIVER SHORELINES BURLINGTON MUNICIPAL CODE TITLE 18 78 c. The applicant has obtained all required state and federal approvals for work within wetlands or in-water. 8. Compensatory Mitigation. Except under subsection 8, any person who alters or proposes to alter regulated wetlands shall restore or create areas of wetland in order to compensate for wetland losses, following the standards specified in Wetlands & CAO Updates: Guidance for Small Cities, Western Washington Version (Ecology Publication No. 10-06-002) (hereafter, Small Cities Guidance), or subsequent revisions. F. Resource information and maps. 1. Wetland critical areas defined and identified in this shoreline master program shall be mapped whenever possible. These maps shall be advisory and used by the director to provide guidance in determining applicability of the standards to a property. Sites which include wetlands or other critical areas which are not mapped shall be subject to the provisions of this shoreline master program. 2. Recognizing the necessity for accurate geographic information, a comprehensive inventory identifying the location, size, and other characteristics of wetland critical areas shall be compiled as new data is available. 3. The results of the inventory shall be transferred to maps and published. These maps shall be available at the Permit Center for public inspection. 4. When completed, wetland critical area maps shall serve as guides to the location and extent of such critical areas. 5. Wetland critical area maps are provided only as a general guide to alert the user to the possible distribution, location and extent of critical areas. Map identification of critical areas provides only approximate boundaries and locations. The actual locations and boundaries of critical areas, as well as their quality and quantity, shall be based upon the presence of the features applicable to each critical area element in this shoreline master program. Maps shall not be considered a regulatory standard or substitute for site specific assessments. The application of definitions, methodologies and performance standards pursuant to the site specific assessment requirements provided in this shoreline master program is the controlling factor in determining the actual presence and extent of critical areas. 6. The wetland critical area maps utilize the best information currently available and will be updated on a continual basis. 7. On a regular basis, formal requests shall be made for updated information to the resource agencies responsible for updating their respective map information. Incorporation of such updated information into the critical areas maps shall be made. 8. Wetland critical areas mapped under the site assessment requirements of this shoreline master program shall be compiled in a database and incorporated into critical area ---PAGE BREAK--- SHORELINE MASTER PROGRAM – City of Burlington MASTER PROGRAM FOR GAGES SLOUGH AND THE SKAGIT RIVER SHORELINES BURLINGTON MUNICIPAL CODE TITLE 18 79 maps. This map information shall be utilized to facilitate tracking of compliance with the requirements of this shoreline master program to ensure long-term protection of wetland critical areas. V. Fish and Wildlife Habitat Conservation Areas. A. Fish and wildlife habitat conservation area designations. 1. Fish and wildlife habitat conservation areas (HCAs) shall be designated and classified. The Skagit River is the primary focus because of the actual presence of listed and priority species and habitat. 2. Species and habitats of local importance may be designated by the director based on declining populations, sensitivity to habitat manipulation or special value including but not limited to commercial, game or public appeal. 3. In order to nominate an area or a species to the category of habitats and species of local importance, an individual or organization must: a. Demonstrate a need for special consideration based on: i. Declining population, ii. Sensitivity to habitat manipulation, or iii. Commercial or game value or other special value, such as public appeal; b. Propose relevant management strategies considered effective and within the scope of this shoreline master program; c. Provide species habitat location(s) on a map (scale 1:24,000). Submitted proposals will be reviewed by the director and forwarded to the Departments of Fish and Wildlife, Natural Resources, and/or other county and state agencies or experts for comments and recommendations regarding accuracy of data and effectiveness of proposed management strategies. A public hearing will be held for proposals found to be complete, accurate, potentially effective and within the scope of this shoreline master program. Approved nominations will become designated “Habitats/Species of Local Importance” and will be subject to the provisions of this shoreline master program. 4. The following species and habitats have been designated on a site-specific basis according to the official Species and Habitats of Local Significance Map.
Great blue heron nest sites;
Vauxs swifts communal roosts;
Pileated woodpecker nest sites;
Osprey nest sites;
Townsend big-eared bat communal roosts;
Cavity nesting ducks breeding areas; ---PAGE BREAK--- SHORELINE MASTER PROGRAM – City of Burlington MASTER PROGRAM FOR GAGES SLOUGH AND THE SKAGIT RIVER SHORELINES BURLINGTON MUNICIPAL CODE TITLE 18 80
Trumpeter swan concentrations;
Harlequin duck breeding areas;
Waterfowl concentrations. B. Fish and wildlife habitat conservation areas initial project review. 1. A site visit shall be conducted by the director to determine whether HCAs identified on a critical area checklist or on available map resources or whether HCAs not previously identified are present within 200 feet of the project or activity site. 2. Habitat Conservation Areas are referenced as follows: a. An area with which anadromous fish, endangered, threatened or sensitive species have a primary association and/or their habitat such as those designated and mapped by the Washington State Department of Fish and Wildlife, Priority Habitats and Species Program; b. A water of the state as defined under WAC 222-16-030; c. A Critical Biological Area as designated and mapped by the Department of Ecology Coastal Zone Atlas dated June 1978 and/or the maps; d. Designated species and habitats of local importance pursuant to habitat conservation area designations. e. Naturally occurring ponds under 20 acres and their submerged aquatic beds that provide fish or wildlife habitat; f. Lakes, ponds, streams, and rivers planted with game fish by a government or tribal entity; g. Areas with which anadromous fish species have a primary association; h. State Natural Area Preserves and Natural Resource Conservation Areas; and i. Areas critical for habitat connectivity. 3. If the director determines through the site visit that a HCA may be present within 200 feet of the proposed project or activity area, then a site assessment/habitat management plan as described in Site Assessment Requirements shall be required as part of the complete application. ---PAGE BREAK--- SHORELINE MASTER PROGRAM – City of Burlington MASTER PROGRAM FOR GAGES SLOUGH AND THE SKAGIT RIVER SHORELINES BURLINGTON MUNICIPAL CODE TITLE 18 81 C. Fish and wildlife habitat conservation area site assessment requirements. Site assessment/habitat management plans shall be prepared by a qualified fish and wildlife biologist with experience assessing the relevant species and habitats and include at a minimum, the following requirements: 1. Site plan prepared in accordance with the permit requirements indicating all fish and wildlife habitat conservation areas falling within 200 feet of the subject property. This site plan may be prepared by the applicant subject to review by the qualified fish and wildlife biologist; 2. Project narrative describing the proposal including, but not limited to, associated grading and filling, structures, utilities, adjacent land uses, description of vegetation both within and adjacent to the habitat conservation area, and when deemed necessary by the administrative officer, surface and subsurface hydrologic analysis; 3. Impact analysis identifying and documenting the presence of all habitat conservation areas and discussing the project’s affects on the fish and wildlife habitat conservation areas; 4. Regulatory analysis including a discussion of any federal, state, tribal, and/or local requirements or special management recommendations which have been developed for species and/or habitats located on the site; 5. Mitigation report including a discussion of proposed measures of mitigating adverse impacts of the project and an evaluation of their potential effectiveness. Measures may include but are not limited to: establishment of buffer zones, preservation of critically important plants, and trees, limitation of access to habitat areas, seasonal restrictions of construction activities, establishment of a timetable for periodic review of the plan and/or establishment of performance or maintenance bonds; 6. Management and maintenance practices including a discussion of ongoing maintenance practices that will assure protection of all fish and wildlife habitat conservation areas on-site after the project has been completed. This section should include a discussion of proposed monitoring criteria, methods and schedule; 7. Approval of any activity that can adversely affect fish and wildlife habitat conservation areas shall conform to the requirements set forth in Protected Critical Area Requirements. D. Fish and wildlife habitat conservation area mitigation standards. Fish and wildlife habitat conservation areas shall be protected in accordance with local determination of appropriate conditions considering the site-specific recommendations from agencies with jurisdictions over the specific area, which may include but not be limited to the Washington State Department of Fish and Wildlife, Department of Ecology, federally recognized ---PAGE BREAK--- SHORELINE MASTER PROGRAM – City of Burlington MASTER PROGRAM FOR GAGES SLOUGH AND THE SKAGIT RIVER SHORELINES BURLINGTON MUNICIPAL CODE TITLE 18 82 Indian tribes located within Skagit County, WDFW Management Recommendations for Washington Priority Habitats and Species, and site-specific information supplied by the applicant. Development proposals shall be reviewed for potential impacts to fish and wildlife habitat conservation areas. The determination of potential impacts shall be dictated by site conditions and made by the director in consultation with the Washington State Departments of Ecology, Fish and Wildlife and Natural Resources and federally recognized Indian tribes located in Skagit County. If it is determined that a proposed project may have an adverse effect on a fish and wildlife habitat conservation area, the applicant shall implement a habitat management plan including mitigation measures in conformity with the performance standards outlined below. 1. Riparian Performance Standards. Riparian buffer areas shall be established from the ordinary high water mark as determined by a site investigation. The intent of riparian buffers is to protect five basic riparian forest functions that influence in-stream and near-stream habitat quality. These are: a. Recruitment of large woody debris (LWD) to the stream: LWD recruitment creates habitat structures necessary to maintain salmon/trout productive capacity and species diversity. b. Shade. Shading by the forest canopy maintains cooler water temperatures and influences the availability of oxygen for salmon/trout. c. Bank Integrity (Root Reinforcement). Bank integrity helps maintain habitat quality and water quality by reducing bank erosion and creating habitat structure and instream hiding cover for salmon and trout. d. Runoff Filtration. Filtration of nutrients and sediments in runoff (surface and shallow subsurface flows) helps maintain water quality. e. Wildlife Habitat. Functional wildlife habitat for riparian-dependent species is based on sufficient amounts of riparian vegetation to provide protection for nesting and feeding and provide nutrient input to the aquatic system through litterfall, etc. 2. Standard Riparian Buffers. Riparian areas have the following standard buffer requirements (Note: Riparian areas do not extend beyond the toe of the slope on the landward side of existing dikes or levees unless specifically exempt from Federal Vegetation Management requirements. See also the section application of standards for list of activities allowed within critical areas, including riparian areas.): Water Type Riparian Buffer Type 200 feet Type 150 feet Type ”Np” and "Ns" 50 feet ---PAGE BREAK--- SHORELINE MASTER PROGRAM – City of Burlington MASTER PROGRAM FOR GAGES SLOUGH AND THE SKAGIT RIVER SHORELINES BURLINGTON MUNICIPAL CODE TITLE 18 83 Once buffers are established, they shall not be altered except as allowed below. Riparian buffers not currently meeting the minimum standards shall be restored; provided, that such restoration does not conflict with other provisions of this shoreline master program. In implementing buffer widths other than the standard riparian buffers identified above, the director shall provide opportunity for review and comment from appropriate federal, state or tribal natural resource agencies to ensure the use of best available science. These comments shall be included in the public record along with the basis and rationale for requirement or approval of any such non- standard buffers. 3. Increasing Buffer Widths. The director has the authority to increase the standard buffer widths on a case-by-case basis, or to establish non-riparian buffer widths, when such buffers are necessary to protect priority fish or wildlife great blue heron nesting colonies, osprey or cavity nesting ducks) using the HCA. This determination shall be supported by appropriate documentation from the Departments of Ecology and Fish and Wildlife, showing that the increased buffer width is reasonably related to the protection of the fish and/or wildlife using the HCA. 4. Decreasing Buffer Widths. Decreasing standard buffers will be allowed only if the applicant demonstrates that all of the following criteria are met: a. A decrease is necessary to accomplish the purposes of the proposal and no reasonable alternative is available; and b. Decreasing width will not adversely affect the fish and wildlife habitat functions and values; and c. If a portion of a buffer is to be reduced, the remaining buffer area will be expanded so that the total area of the buffer after averaging is equal to the area required without averaging. d. The area of buffer width shall not be reduced by more than 25 percent of the standard buffer width without a variance. 5. Allowed Uses in HCAs or Buffers. a. Docks. Docks designed to facilitate low-impact uses, such as education and/or private, non-commercial recreation may be permitted within fish and wildlife HCAs under the following conditions: i. The activity will have minimum adverse impact to the fish and wildlife habitat conservation area; ii. The activity will not significantly degrade surface water or groundwater; iii. The intrusion into the fish and wildlife habitat conservation area and its buffers is fully mitigated; iv. The director shall provide opportunity for review and comment by a federal, state and tribal natural resource agencies; and v. The applicant obtains all required state and federal authorizations. ---PAGE BREAK--- SHORELINE MASTER PROGRAM – City of Burlington MASTER PROGRAM FOR GAGES SLOUGH AND THE SKAGIT RIVER SHORELINES BURLINGTON MUNICIPAL CODE TITLE 18 84 b. Limited park or recreational access to a fish and wildlife habitat area or its required buffer, provided that all of the following are satisfied: i. The access is part of a public park or a recreational resort development that is dependent on the access for its location and recreational function; ii. The access is limited to the minimum necessary to accomplish the recreational function; iii. The access and the balance of the development is consistent with other requirements of the Burlington Municipal Code and the Skagit County Shoreline Management Master Program; iv. The proponent obtains a written approval from the city council for the limited access and associated mitigation; and v. The applicant obtains all required state and federal authorizations. c. Low impact uses and activities which are consistent with the purpose and function of the habitat buffer and do not detract from its integrity may be permitted within the buffer depending on the sensitivity of the habitat involved provided, that such activity shall not result in a decrease in buffer area and riparian functional values and shall not prevent or inhibit the buffer’s recovery to at least pre-altered condition or function. Examples of uses and activities which may be permitted in appropriate cases, as long as the activity does not retard the overall recovery of the buffer, include removal of noxious vegetation, pedestrian trails, viewing platforms, and storm water dispersion outfalls and bioswales. d. In the riparian buffer, removal of hazardous trees that pose a threat to existing structures, as determined by a certified arborist, may be permitted with prior written approval. Any removed tree or vegetation shall be replaced with appropriate species. Replacement shall be performed consistent with accepted restoration standards for riparian areas within one calendar year. The director may approve alternative native tree species to promote fish and wildlife habitat. Prior to commencement of tree or vegetation removal and/or replacement, the landowner must obtain written approval from the director. 6. Bald eagle habitats shall be protected pursuant to the Washington State Bald Eagle Protection Rules (WAC 232-12-292), a cooperative habitat management plan shall be developed in coordination with the Department of Fish and Wildlife whenever activities that alter habitat are proposed near a verified nest territory or communal roost. 7. All other fish and wildlife habitat conservation area, including Habitats/Species of Local Significance, shall be protected on a case by case basis by means of a habitat management plan based on the PHS program, as set forth in the Initial Project Review and site assessment/habitat management plan. ---PAGE BREAK--- SHORELINE MASTER PROGRAM – City of Burlington MASTER PROGRAM FOR GAGES SLOUGH AND THE SKAGIT RIVER SHORELINES BURLINGTON MUNICIPAL CODE TITLE 18 85 8. Approval of any activity that can adversely affect fish and wildlife habitat conservation areas shall conform to the requirements set forth in the protected critical area (PCA) requirements. VI. Critical Area Standards A. General requirements and authorizations required. 1. All proposals located in critical areas or associated buffers that are in the jurisdiction of this shoreline master program shall meet the following general requirements: a. Site. Complete stabilization of all portions of a site which are disturbed or impacted by the proposed development, including all development coverage and construction activity areas, shall be required. Complete stabilization of all portions of a site refers to the process and actions necessary to ensure that existing and proposed site improvements are stabilized, and that all on-site areas and adjacent properties which are disturbed or impacted are stabilized. The proposed development shall be limited and controlled to avoid adverse impacts and potential harm and ensure safe, stable and compatible development appropriate to site conditions. Other reasonable and appropriate solutions to solve site stability problems may be required by the director. b. Adjacent Site, Surrounding Area, and Drainage Basin. The proposed development shall ensure safe, stable and compatible development which avoids adverse environmental impacts and potential harm to adjacent sites, the surrounding neighborhood, and the drainage basin. Detailed analysis of impacts of the development upon wetlands, riparian corridors, native vegetation and wildlife habitats, water quality, natural water temperature, slope and soil conditions, and surface water drainage may be required at the request of the director when site and area conditions indicate the need for this analysis. Supplemental technical reports may be required by the director to specify measures to preserve, protect, and maintain adjacent sites and the drainage basin and ensure safe, stable and compatible development. c. With the exception of activities identified as exempt, any land use activity that can impair the functions and values of critical areas or their buffers through a development activity or by disturbance of the soil or water, and/or by removal of, or damage to, existing vegetation shall require critical areas review and written authorization pursuant to this shoreline master program. Vegetation destruction or removal, other than the normal maintenance of existing landscaping identified as exempt, shall be prohibited within a critical area or its required buffer, unless there is an approved buffer management plan pursuant to the requirements of the particular critical area that demonstrates there will be no adverse impact to the critical area with the proposed vegetation removal and disturbance of the soil or water and includes any mitigation or buffer enhancement necessary to address critical areas impacts. Authorizations required under this shoreline master program overlay other permit and approval requirements of the Burlington ---PAGE BREAK--- SHORELINE MASTER PROGRAM – City of Burlington MASTER PROGRAM FOR GAGES SLOUGH AND THE SKAGIT RIVER SHORELINES BURLINGTON MUNICIPAL CODE TITLE 18 86 Municipal Code. Regardless of whether a permit or approval is required, any proposed alteration that can adversely affect a critical area or its standard buffers’ functions must comply with the substantive and procedural requirements of this shoreline master program. Critical areas review pursuant to this shoreline master program shall be conducted as part of the underlying permit or approval, where applicable. It is the responsibility of the landowner, or designee, who conducts or proposes to undertake land use activities that can adversely impact critical areas or their buffers to obtain authorization prior to commencing such activities. In some cases, the typical thresholds that trigger review and permits have been reduced to zero for any development activity located within a critical area or its required buffer. d. Procedures. No land use development permit, land division, shoreline permit, or other authorization required shall be granted until the applicant has demonstrated compliance with the applicable provisions of this shoreline master program. i. The applicant shall demonstrate that the proposal submitted conforms to the purposes and standards of this shoreline master program, assesses impacts on the critical area from activities and uses proposed, and identifies protective mechanisms adequate to meet the requirements of this shoreline master program. ii. The director or designee shall review each proposal and determine if the proposal is consistent with applicable regulations of this shoreline master program and if the protective mechanisms proposed are sufficient to protect the critical area, public health, safety and welfare, and if so, shall condition approval accordingly. If not, the director shall specify conditions of approval. If the director determines that there are no conditions under which the proposal could be approved, then the director shall deny the proposal. Any proposed development or land division shall be conditioned as necessary to mitigate impacts to critical areas as required by this shoreline master program and any project that cannot adequately mitigate its impacts to critical areas shall be denied. If any provision of this shoreline master program conflicts with any other applicable code provision, the more restrictive shall apply unless specifically excepted in this shoreline master program. iii. Satisfaction of the requirements of this shoreline master program shall also be sufficient to satisfy the requirement for critical areas analysis and mitigation pursuant to shoreline master program 43.21C RCW, State Environmental Policy Act and shoreline master program 15.12 BMC, Environmental Policy. iv. SEPA Compliance. The goals, policies and purposes set forth in this shoreline master program shall be considered policies of the State ---PAGE BREAK--- SHORELINE MASTER PROGRAM – City of Burlington MASTER PROGRAM FOR GAGES SLOUGH AND THE SKAGIT RIVER SHORELINES BURLINGTON MUNICIPAL CODE TITLE 18 87 Environmental Policy Act. When applicable the applicant must meet SEPA requirements. v. Other Permits Required. It is recognized that many local, state, and/or federal permit conditions may apply to the proposed action, and that compliance with the provisions of the shoreline master program may not necessarily constitute compliance with other such requirements. B. Application submittal requirements. In addition to the application submittal requirements specified in other codes, all development proposals subject to this shoreline master program shall include the following additional information: 1. Surveyed Site Plan. A surveyed site plan shall be prepared by a state of Washington licensed surveyor and shall include the following, when required by the director: a. Existing topography at two-foot contour intervals on site within 25 feet of the site’s abutting boundaries, and within the full width of abutting public and private rights-of-way and easements; b. Terrain and drainage flow characteristics within the site, within 25 feet of the site’s abutting boundaries, and within the full width of abutting public and private rights-of-way and easements; c. Proposed location and boundaries of all required undisturbed fenced areas and buffers on-site and on adjacent lands; d. Location of all vegetation, including location and description of all trees over six inches in diameter measured five feet above the base of the trunk, shrubs over eight feet tall or six feet wide, and noting their species; e. Location and boundaries of all existing and proposed site improvements on the site and within 25 feet of the site’s property boundaries, and the full width of abutting public and private rights-of-way and easements. This shall include the limits of development coverage, impervious surfaces and construction activity areas (noting total square footage and percentage of site occupied); f. Location of all grading activities in progress or proposed, and all drainage control facilities or systems in existence in progress or proposed within 25 feet of the site’s property boundaries, and the full width of abutting public and private rights- of-way and easements; g. Location of all existing and proposed utilities (water, sewer, gas, electric, phone, cable, etc.), both above and below ground, on-site, on adjacent lands within 25 feet of the site’s property lines, and in the full width of abutting public rights-of- way, and proposed methods and locations for the proposed development to hookup to these services; ---PAGE BREAK--- SHORELINE MASTER PROGRAM – City of Burlington MASTER PROGRAM FOR GAGES SLOUGH AND THE SKAGIT RIVER SHORELINES BURLINGTON MUNICIPAL CODE TITLE 18 88 h. Such other additional site plan information as necessary to complete review of a project or waive specific submittal requirements when not necessary for project review. 2. Technical Reports. Technical reports shall be prepared as required by the director detailing geological, hydrological, drainage, and other site conditions, to comply with the critical area standards and pursuant to BMC Title 14, Surface Water Management. The reports shall be used to condition development to prevent potential harm and to protect the critical nature of the site, adjacent properties, and the drainage basin. C. Administration. 1. The planning director, in consultation with the city engineer and the building official, shall be responsible for the administration of this shoreline master program, including: a. Review applications for development in the city limits to verify compliance with this shoreline master program; b. Reviewing applications for development in the city limits to assure that all necessary permits have been obtained from those federal, state or local government agencies from which prior approval is required; c. Issuance of required permits, before construction or development begins within the city limits; d. Maintain for public inspection all records pertaining to the provisions of this code. e. Critical Areas Determination and Conditions of Approval. Based on the critical areas site assessment report and other available critical areas information, the director shall make a determination on the proposed activity. A determination to approve a proposed activity shall include designation of protected critical areas (PCAs) and stipulation of binding conditions and required mitigation, monitoring, maintenance or other conditions of approval pursuant to this shoreline master program. If the director determines that there are no conditions under which the proposed activity could be approved, then the director shall deny the proposal. D. Critical areas checklist, site assessment and conditions of approval. 1. Critical Areas Checklist. Every application for an activity that might alter or adversely affect a critical area or associated buffer shall include a critical area checklist on a form provided by the director. The checklist shall identify all critical area indicators and/or all known critical areas within 200 feet of the proposed activity or within a distance otherwise specified in this shoreline master program. The checklist shall be signed by the applicant and shall inform the applicant that if the information on the checklist is later determined incorrect, then any permit or approval issued based on misinformation could be rescinded and the site required to be restored to its original condition prior to disturbance. ---PAGE BREAK--- SHORELINE MASTER PROGRAM – City of Burlington MASTER PROGRAM FOR GAGES SLOUGH AND THE SKAGIT RIVER SHORELINES BURLINGTON MUNICIPAL CODE TITLE 18 89 2. Site Assessment Required. If, after the site visit, the director determines that the proposed activity area is within 200 feet, or within a distance otherwise specified in this shoreline master program, of an area that may contain critical area indicators, or if the director determines that the proposed activity will adversely impact a critical area or its associated buffer, then a complete critical areas site assessment shall be required. Critical areas site assessments, as described in more detail in the various sections for each type of critical area, shall be submitted as part of a complete application for a development permit or other approval of land use activities having the potential to impact critical areas or their buffers, by a qualified expert. 3. Site Assessment Preparation. The critical area site assessment shall be prepared by a qualified expert for the type of critical area or areas involved and shall contain the information specified for each type of critical area. In general, the site assessment shall include critical area inventory, assessment of impacts and, where applicable, proposed mitigation, land-use restrictions and landowner management, maintenance and monitoring responsibilities. The qualified expert may consult with the director prior to or during preparation of the site assessment to obtain approval of modifications to the contents of the site assessment where, in the judgment of the qualified expert, more or less information is required to adequately address the critical area impacts and required mitigation. The director shall allow for peer review and receipt of recommendations from qualified resource agency personnel as part of the process for approval of qualified experts. 4. Any site plans required by this shoreline master program may be combined into a single site plan wherever possible. 5. Critical Areas Determination and Conditions of Approval. Upon receipt of a properly completed site assessment report, the director shall make a formal determination on the proposed activity as to whether it meets the requirements of this shoreline master program and under what conditions. In making this determination, the director shall utilize the information provided in the site assessment report and all other resource information available. If the director determines that additional technical information or input is necessary or warranted, the director shall contact appropriate federal, state or tribal agencies to provide review and comment on the proposed activity. Formal determinations made by the director shall include the basis and rationale for the determination, as well as detailed specification of related conditions of approval, land use prohibitions, and required landowner mitigation, management, monitoring and/or maintenance. All such requirements shall be clearly shown on plans filed with the director. 6. Complete Record. A complete record of all formal determinations by the director, along with related critical areas checklists, site assessments, binding agreements, conditions of approval, land use prohibitions, required mitigation and a full record of comments received from federal, state or tribal agencies, shall be maintained and made available to the public upon request. ---PAGE BREAK--- SHORELINE MASTER PROGRAM – City of Burlington MASTER PROGRAM FOR GAGES SLOUGH AND THE SKAGIT RIVER SHORELINES BURLINGTON MUNICIPAL CODE TITLE 18 90 E. Application of standards. The standards of this shoreline master program shall apply to all public and private proposals for new structures, proposed additions to structures, short subdivisions and subdivisions, and grading and drainage activity located on either public or private property. Projects may be exempted from the detailed critical area review requirements of this shoreline master program when the following situations and/or conditions apply: 1. Emergencies that threaten the public health, safety and welfare. An emergency is an unanticipated and imminent threat to the public health or safety or to the environment which requires immediate action within a period of time too short to allow full compliance with this shoreline master program. Emergency actions that create an impact to a critical area or its buffer shall use reasonable methods that can address the emergency but also that have the least possible impact to the critical area or its buffer. The responsible party shall restore the critical area and buffer after the emergency to the extent feasible and fully mitigate for unavoidable impacts. The person or agency undertaking such action shall notify the director within one working day or as soon as practical following commencement of the emergency activity. Following such notification, the director shall determine if the action taken was within the scope of the emergency actions allowed in this subsection. If the director determines that the action taken or any part of the action taken was beyond the scope of allowed emergency actions, then the enforcement provision shall apply. 2. Normal and routine maintenance or repair of existing structures, utilities, sewage disposal systems, potable water systems, drainage facilities, ponds, or public and private roads and driveways associated with pre-existing residential or commercial development, provided any maintenance or repair activities shall not expand the existing footprint and shall use reasonable methods with the least amount of potential impact to the critical areas and any impact to a critical area or its buffer shall be restored after the maintenance to the extent feasible. 3. Normal maintenance, repair, or operation of existing structures, facilities, and improved areas accessory to a single-family residential use, provided any maintenance or repair activities shall not expand the existing footprint and shall use reasonable methods with the least amount of potential impact to the critical area and any impact to a critical area or its buffer shall be restored after the maintenance to the extent feasible. 4. Modification of an existing single-family residence that does not change the use from residential, does not expand the building footprint or increase septic effluent, and does not adversely impact critical areas or their buffers. 5. Modification of other than a single-family use which does not expand the building footprint, alter the use or increase septic effluent, pursuant to the requirements of the nonconforming use and structure provisions, and does not adversely impact critical areas or their buffers. ---PAGE BREAK--- SHORELINE MASTER PROGRAM – City of Burlington MASTER PROGRAM FOR GAGES SLOUGH AND THE SKAGIT RIVER SHORELINES BURLINGTON MUNICIPAL CODE TITLE 18 91 6. Outdoor recreational activities which do not adversely impact critical areas or their buffers. 7. The harvesting of wild crops in a manner that is not injurious to natural reproduction of such crops and provided the harvesting does not require tilling soil, planting crops, or changing existing topography, water conditions or water sources and provided further that the activity does not adversely impact critical areas or their buffers. 8. The operation, maintenance, and normal repair of diking and drainage systems which protect life and property along the Skagit River. 9. Education and scientific research activities which do not adversely impact critical areas or their buffers. 10. Construction or modification of navigational aids and channels markers. 11. Site investigation work necessary for land use applications such as surveys, soil logs, percolation tests and other related activities which do not adversely impact critical areas or their buffers. In every case, critical area impacts shall be minimized and disturbed areas shall be immediately restored. 12. Maintenance activities such as mowing and normal pruning, provided that such maintenance activities are limited to existing landscaping improvements and do not expand into critical areas or associated buffers, do not expose soils, do not alter topography, do not destroy or clear native vegetation, and do not diminish water quality or quantity. 13. Fish, wildlife, wetland and/or riparian enhancement activities not required as mitigation provided that the project is approved by the U. S. Department of Fish and Wildlife, the Washington State Department of Fish and Wildlife or the Washington State Department of Ecology. All such activities shall be carried out in ways that avoid and minimize impacts to critical areas and their buffers to the greatest extent feasible. If any damage is caused to a critical area or buffer in connection with such activity, that damage must be mitigated. To be exempt does not give permission to destroy a critical area or ignore risk. Proponents of such activities shall be responsible for notifying the director if any damage occurs and shall provide all necessary restoration or mitigation. For information on identifying, protecting or mitigating adverse impacts to critical areas, refer to sections in this shoreline master program on wetlands, aquifer recharge areas, geologically hazardous areas, fish and wildlife habitat conservation areas, and flood hazard areas. F. General construction and maintenance standards. All proposals located in critical areas shall meet the following general construction and maintenance standards: ---PAGE BREAK--- SHORELINE MASTER PROGRAM – City of Burlington MASTER PROGRAM FOR GAGES SLOUGH AND THE SKAGIT RIVER SHORELINES BURLINGTON MUNICIPAL CODE TITLE 18 92 1. All buffer areas and other designated protected areas shall be fenced with a highly visible and durable protective barrier during construction to prevent access and protect critical areas. 2. All disturbed areas on the site, including development coverage and construction activity areas, shall be controlled in a manner sufficient to control drainage and prevent erosion during construction, and revegetated to promote drainage control and prevent erosion after construction. In cases where erosion potential is severe, the director may require a vegetation and revegetation report to be prepared by a qualified professional with landscaping, plant ecology and botany education and experience. All revegetation shall consist of native trees, shrubs, and groundcover that is suitable for the location and does not require permanent irrigation systems for long-term survival. 3. When development is proposed in critical areas, grading activities shall be strictly limited to areas located on the most environmentally suitable portion of the site, as determined by the director in consultation with qualified experts. 4. All drainage associated with the development shall be connected to approved drainage control systems with approved discharge points in compliance with standards set by the city engineer, as specified in BMC Title 14. 5. When calculating detention requirements, all disturbed area on the site shall be calculated as development coverage, including revegetated areas. 6. A development proposal’s design shall account for a one-in-100-year seismic and flood event, unless a design for a greater event is required by other applicable codes. The International Building Code’s construction standards for seismic design shall constitute compliance with this section. 7. All grading in critical areas shall not occur between November 1st and March 31st and shall be stabilized by October 31st unless demonstrated to the satisfaction of the director based on approved technical analysis that no environmental harm or safety issues would result from grading between November 1st and March 31st. 8. Construction activity shall adhere to a prepared schedule to be approved by the director prior to issuance of a building permit. This schedule shall include, but not be limited to a schedule for compliance with project conditions, limits of construction and work activities, equipment to be used, start and duration of each phase, and work sequencing. 9. The director may require additional construction practices and methods and requirements, including, but not limited to best management practices and limitations on construction equipment permitted on the site, to protect critical areas on-site, on adjacent sites, and within the drainage basin. ---PAGE BREAK--- SHORELINE MASTER PROGRAM – City of Burlington MASTER PROGRAM FOR GAGES SLOUGH AND THE SKAGIT RIVER SHORELINES BURLINGTON MUNICIPAL CODE TITLE 18 93 10. Dumping or filling is prohibited in wetlands and special flood risk areas. Dumping includes deposit of yard waste, trash, litter, refuse, dirt, concrete, asphalt, rocks or similar materials, but shall not include work authorized by approved plans and permits. G. Critical area and buffer mitigation requirements – General provisions. 1. Buffers. a. As described in more detail in each relevant section, buffers have in some cases been determined necessary and appropriate to protect critical areas and their functions or to prevent risk from a critical area hazard. In those sections of this shoreline master program where specific buffers are identified, those buffers are deemed “required” or “standard” buffers. If a project or activity does not propose any alteration of those buffers or of the associated critical area and the director determines that these buffers are adequate to protect the critical area or to prevent risk of a hazard from the critical area, no additional mitigation will be required. Once the critical area and its buffer have properly been delineated through a critical areas assessment and any conditions of approval have been established to ensure protection of the critical area function, no further critical areas mitigation assessment is required, except as necessary to ensure that long-term protection of critical areas and buffers is met in practice through compliance with this code. The applicant shall ensure the protection of critical area by performing a site assessment on the entire parcel. b. If, however, based on a site assessment by a qualified expert, unique features of the particular critical area or its buffer or of the proposed development, the qualified expert determines that additional buffers and/or mitigation measures beyond these buffers are necessary to adequately protect the function of the critical area, the director may impose such additional mitigation requirements, provided the qualified expert can demonstrate, based on best available science, why that additional mitigation or buffering is required to adequately protect the critical area function. c. Further, if the applicant proposes to reduce these buffers or to alter the critical area or its required buffer, then the applicant shall demonstrate, based on best available science, why such buffer and/or critical area modification, together with such mitigation proposed in the critical areas assessment, is sufficient to provide equal or better protection of the critical area function. For wetland and HCA buffers, buffer averaging and not outright buffer reduction shall be required. d. The critical areas assessment and the conditions of approval shall make adequate provision for long-term protection related to critical areas and buffers. However, critical areas and/or buffers identified as protected critical areas (PCAs) as defined in this shoreline master program do not require any provisions for public access, and appropriate restrictions may be included in the easement or title ---PAGE BREAK--- SHORELINE MASTER PROGRAM – City of Burlington MASTER PROGRAM FOR GAGES SLOUGH AND THE SKAGIT RIVER SHORELINES BURLINGTON MUNICIPAL CODE TITLE 18 94 documents. Critical areas and/or buffers identified as PCAs are however subject to periodic inspection by the director, upon prior notification to the landowner, to ensure long-term protection. e. Protected Critical Areas (PCAs). i. For proposed land divisions, critical areas and their associated buffers identified through the site assessment and city review process shall be designated as PCAs and placed in separate tracts or easements and protected through protective covenants shown on the face of the recorded plat. ii. For development projects or land use activities not involving a new land division, the critical area and its associated buffer identified through the site assessment process shall instead be identified as a PCA by either easement, open space designation or permit conditions, all including restrictive covenants and recorded with the auditor on a site plan to insure long-term protection. Critical areas and/or buffers identified as PCAs are subject to periodic inspection, upon prior notification to the landowner, to ensure long- term protection. f. Open Space – Protected Area. If a portion of a parcel contains a proposed development project that triggers a development permit, and has not had its critical areas and associated buffers delineated because it was outside the project or area affected by the project, then further critical areas assessment may be required in the future prior to any change of use, or new development permit for that portion of the site. 2. Mitigation. All proposed alterations to critical areas or associated buffers shall require mitigation sufficient to provide for and maintain the functional values of the critical area. Mitigation of one critical area impact should not result in unmitigated impacts to another critical area. Mitigation may include, but is not limited to: buffers, setbacks, limits on clearing and grading, best management practices for erosion control and maintenance of water quality, compensatory mitigation to offset critical area impacts, or other conditions appropriate to avoid or mitigate identified adverse impacts. 3. Preferred Mitigation Sequence. Mitigation includes avoiding, minimizing or compensating for adverse impacts to regulated critical areas or their buffers. The preferred sequence of mitigation is defined below: a. Avoid the impact altogether by not taking a certain action or parts of an action; b. Minimize the impacts by limiting the degree or magnitude of the action and its implementation by using appropriate technology, or by taking affirmative steps to avoid or reduce impacts; c. Rectify the impact by repairing, rehabilitating or restoring the affected environment to the conditions existing at the time of the initiation of the project or activity; ---PAGE BREAK--- SHORELINE MASTER PROGRAM – City of Burlington MASTER PROGRAM FOR GAGES SLOUGH AND THE SKAGIT RIVER SHORELINES BURLINGTON MUNICIPAL CODE TITLE 18 95 d. Reduce or eliminate the impact over time by preservation and maintenance operations during the life of the action; e. Compensate for the impact by replacing, enhancing, or providing substitute resources or environments; f. Monitoring the impact and taking appropriate corrective measures. 4. The director shall make the final determination regarding required mitigation. All proposed mitigation shall be included in the critical areas assessment. Required mitigation shall be included in an approved mitigation plan. The critical areas mitigation shall include the following: a. Description of proposed mitigations (critical areas lost/critical areas gained); b. Analysis of avoidance, minimization, reduction, and compensation; c. Functional analysis of mitigation/analysis of prevention of risk hazard; d. Proposed applicant or landowner monitoring or inspection measures and schedule, including specification of method and timing of report submittal; i. For wetland and HCA mitigation, monitoring reports shall include measurable performance standards on plant survival/cover and hydrology and establish permanent monitoring points. ii. The Applicant shall submit the first monitoring report (Year 0) no later than 12 months after completing the mitigation site construction and planting. iii. Monitoring shall be conducted for a minimum of five years (Year 0, 1, 2, 3 and 5) for mitigation of emergent communities and ten years (Year 0, 1, 2, 3, 5, 7 and 10) for scrub-shrub and forested communities. e. Contingency plan. 5. Financial Assurance. The director or his/her designee shall require the complete mitigation proposed in the site assessment to be completed prior to final approval of the development permit. For all projects with an estimated mitigation cost of $4,000 or over, the director shall require financial assurance that will assure compliance with the mitigation plan if the complete mitigation proposed in the site assessment cannot be completed prior to final approval of the development permit. Financial assurance shall be in the form of either a surety bond, performance bond, assignment of savings account or an irrevocable letter of credit guaranteed by an acceptable financial institution with terms and conditions acceptable to the city attorney, shall be in the amount of 125 percent of the estimated cost of the uncompleted actions or construction, and shall be assigned in favor of the city of Burlington. The term of the financial assurance shall remain in place until the required mitigation is complete. ---PAGE BREAK--- SHORELINE MASTER PROGRAM – City of Burlington MASTER PROGRAM FOR GAGES SLOUGH AND THE SKAGIT RIVER SHORELINES BURLINGTON MUNICIPAL CODE TITLE 18 96 6. Monitoring of Critical Areas Mitigation. On a regular basis, but no longer than once every two years, the director shall make a significant sampling of projects and activities for which critical area site assessments were required, including mitigation plans, potentially impacting fish-bearing streams and/or Category I, II or III wetlands. The sample shall be taken from permits or approvals issued more than 10 months prior to the sampling date. The selected sites shall be inspected for critical area and buffer size and condition and for compliance with any required mitigation or other conditions of approval. Results of such sampling shall be included in the permanent record for the project or activity, shall be reported to the city council, and shall also be utilized for enforcement purposes. H. Protected critical area (PCA) requirements. 1. PCA Identification and Recording. a. PCA Identification. Approval of development projects which trigger a development permit and other land-use activities that can cause adverse impacts to critical areas and/or their buffers shall require the identification and designation of PCAs by the director. This section is intended to apply to critical area and required buffers or unique features such as wellhead protection areas that can cause adverse impacts; location in the floodplain unless adjacent to a wetland or riparian corridor does not require recording of a PCA. PCAs shall include all critical areas and associated buffers on the proposed project site which have been identified through the site assessment process. b. PCA Recording. All PCAs shall be recorded with the county auditor in accordance with the procedures established under this section. The applicant shall be responsible for all fees and other costs associated with recording of PCAs. c. Binding Agreements. For each project or activity that requires recording of PCAs, the following information shall be recorded with the auditor as part of a binding agreement between the landowner and the city which shall run with the land and be readily available to the public upon request: i. Binding agreement signed by the landowner and the director or designee which stipulates any special conditions of approval, protective covenants, binding conditions, or other requirements such as use restrictions, required mitigation, and/or landowner maintenance or monitoring requirements established at the time of approval; ii. Required final plat map or site plan clearly showing the locations of PCAs, existing vegetation and permanent buffer edge markers; iii. Additional information necessary to document the critical areas inventory at the time of approval, including descriptions of identified critical areas, their locations, functions and values, and existing critical areas or buffer vegetation; ---PAGE BREAK--- SHORELINE MASTER PROGRAM – City of Burlington MASTER PROGRAM FOR GAGES SLOUGH AND THE SKAGIT RIVER SHORELINES BURLINGTON MUNICIPAL CODE TITLE 18 97 iv. Identification of any local responsibilities beyond those required by this shoreline master program; v. Reference to the file containing the complete record of information pertaining to approval of the project or activity. d. Permanent Buffer Edge Markers. Except as provided under subsection i below, the outer edges of all PCAs, with the exception of aquifer recharge areas, shall be clearly marked on-site by the applicant or landowner with permanent rebar stakes and critical area markers. Critical area markers may be either approved critical area signs or inexpensive steel posts painted a standard color approved by the director that is clearly identifiable as a critical area marker. Installation of permanent markers shall be the responsibility of the landowner. i. The director may waive or modify the requirement for permanent buffer edge markers provided that any such decision shall be based on a site-specific determination that future verification of PCA locations will not be substantially more difficult without the placement of permanent markers and that such waiver or modification will not result in reduced long-term protection of critical areas. The determination shall be included in the permanent record and made available to the public upon request. ii. Where such permanent markers are required, the director shall specify their frequency of placement and general location. Permanent markers shall be placed to locate the edge of the PCA to an approximate accuracy of within five percent of the specified buffer width or within five feet, whichever is larger. The spacing intervals of the markers shall be such as to provide comparable accuracy of line-of-sight determination of buffer edges. The locations of all required stakes/markers shall be shown on the plat map or site map recorded with the auditor. 2. Protected Critical Area (PCA) Designations for New Land Divisions. a. For land divisions where site assessments have occurred, all PCAs shall be placed into separate tracts or easements, whose uses shall be regulated by the provisions of this shoreline master program and any conditions of approval, including protective covenants and binding agreements as provided for under subsection 1 of this section. Area within a PCA can be included in total acreage for development purposes and may be used in lot area or density calculations. PCAs may be owned and maintained by the owner of the lot of which they are a part or transferred to the homeowners association or land trust. Wetlands and buffers in the Gages Slough corridor may be donated to the city in exchange for park impact fee credit. b. Recording. PCA designations shall be recorded with the auditor as part of the plat approval process. ---PAGE BREAK--- SHORELINE MASTER PROGRAM – City of Burlington MASTER PROGRAM FOR GAGES SLOUGH AND THE SKAGIT RIVER SHORELINES BURLINGTON MUNICIPAL CODE TITLE 18 98 The auditor file number referencing the agreement shall be on the face of the plat and its provisions shall run with the land. c. PCA Descriptions. The location of PCAs shall be clearly identified on site plans and on preliminary and final plat maps. PCAs shall be labeled using the letters A through Z, or another labeling system approved by the director. Where more than one lot is involved, each lot shall carry independent labeling. d. Ingress, Egress and Use. Owners of PCAs shall grant ingress and egress by the director or his or her agent for monitoring and evaluation of compliance with established conditions of approval, binding conditions or any required mitigation. As part of an approved land division, the use limitations required of a designated and regulated critical area according to the provisions of this shoreline master program, including the conclusions of the critical areas site assessment report and any conditions of approval, protective covenants and other binding conditions, shall be clearly stated on the face of the recorded plat. 3. PCAs on Pre-Existing Lots. a. For development proposals and other land use activities that can adversely impact critical areas on pre-existing lots, not part of a proposed land division or other form of multiple lot development, PCAs shall be identified on a scaled site plan showing the location of the PCA, structures (existing and proposed) and their distances from the PCA and lot lines to show relative location within the subject parcel(s). The project or activity shall be conditioned for critical area protection and the resulting information recorded with the auditor. The site plan may be prepared by the applicant and all distances and locations of structures may be measured from the established PCA boundary to within plus or minus five feet. b. Ingress and Egress. Owners of PCAs shall grant ingress and egress by the director or designee for monitoring and evaluation of compliance with established conditions of approval, binding conditions or any required mitigation. 4. PCA Mapping, Labeling, and Area Calculations. a. All PCAs shall be mapped. The area shall be delineated on the final plat map or on a site plan to an accuracy of plus or minus five feet horizontal and monumented in the field by a qualified expert. If a survey was not used to map the critical area, a note on the final plat map shall be recorded stating that a legal survey was not performed to delineate the critical area and that the surveyor is not incurring liability for the exact boundaries of the critical area on the plat map. b. During construction phases of development, clear temporary marking using flagging and staking shall be maintained along the outer limits of the delineated PCA or the limits of the proposed site disturbance outside of the PCA. Prior to the start of construction activity, and as necessary during construction, temporary markings shall be inspected and approved by the director or designee. The person responsible for inspecting the temporary flagging shall provide written ---PAGE BREAK--- SHORELINE MASTER PROGRAM – City of Burlington MASTER PROGRAM FOR GAGES SLOUGH AND THE SKAGIT RIVER SHORELINES BURLINGTON MUNICIPAL CODE TITLE 18 99 confirmation to be included in the record as to whether or not the flagging has been installed consistent with the permit requirements prior to commencement of the permitted activity. c. All PCAs shall include the necessary labeling to show calculated area (in square feet or acreage), and type and/or class of critical area within each lot. This information shall be noted on the face of the approved plat or site plan. d. Signs or fencing required as part of critical area mitigation. The director shall require permanent signs or fencing where the director determines that it is a necessary component of a mitigation plan. Examples include situations where variances to the dimensional requirement of this shoreline master program have been granted and the development will occur within a PCA; or where the sensitivity of the PCA will be impacted unless access to the PCA is limited (such as changes of use to farming where livestock is involved). The intent is to provide clear and sufficient notice, identification and protection of critical areas on-site where damage to a critical area or buffer by humans or livestock is probable due to the proximity of the adjacent activity. 5. Sign, Marker and Fence Maintenance. It is the responsibility of the landowner, or any subsequent landowner, to maintain the required PCA markers, signs or fences in working order throughout the duration of the development project or land use activity. Maintenance includes any necessary replacement. Removal of required signs, markers or fences without prior written approval of the director shall be considered a violation of this shoreline master program. I. Incentives. The following incentives are intended to minimize the burden to individual property owners from application of the provisions of this shoreline master program and assist the city in achieving the goals of this shoreline master program: 1. Open Space. Any property owner on whose property a critical area or its associated buffer is located and who proposes to put the critical area and buffer in a separate open space tract may apply for current use property tax assessment on that separate tract pursuant to shoreline master program 84.34 RCW. 2. Conservation Easement. Any person who owns an identified critical area or its associated buffer may place a conservation easement over that portion of the property by naming a qualified designee under RCW 64.04.130 as beneficiary of the conservation easement. This conservation easement can be used in lieu of the creation of a separate critical areas tract to qualify for open space tax assessment. The purpose of the easement shall be to preserve, protect, maintain, restore and limit future use of the property affected in perpetuity. The terms of the conservation easement may include prohibitions or restrictions on access and shall be approved by the property owner and the qualified designee. ---PAGE BREAK--- SHORELINE MASTER PROGRAM – City of Burlington MASTER PROGRAM FOR GAGES SLOUGH AND THE SKAGIT RIVER SHORELINES BURLINGTON MUNICIPAL CODE TITLE 18 100 Appendix B SHORELINE RESTORATION REPORT ---PAGE BREAK--- SHORELINE MASTER PROGRAM – City of Burlington MASTER PROGRAM FOR GAGES SLOUGH AND THE SKAGIT RIVER SHORELINES BURLINGTON MUNICIPAL CODE TITLE 18 101 Appendix B SHORELINE RESTORATION REPORT I. Shoreline Management Act Restoration Principles The Shoreline Management Act makes protection of shoreline environments an essential statewide goal, with an emphasis on maintenance, protection, restoration, and preservation.1 Local Shoreline Master Programs include goals and policies for restoration of impaired shoreline ecological functions that are consistent with the principles embodied in WAC 173-26-186(8)(c ) and 2 These principles include the following:
For cities containing any shorelines with impaired ecological functions, master programs shall include goals and policies that provide for restoration of such impaired ecological functions.
These master program provisions shall identify existing policies and programs that contribute to planned restoration goals and identify any additional policies and programs that local government will implement to achieve its goals.
These master program elements regarding restoration should make real and meaningful use of established or funded nonregulatory policies and programs that contribute to restoration of ecological functions.
These components should appropriately consider the direct or indirect effects of other regulatory or nonregulatory programs under other local, state, and federal laws, as well as any restoration effects that may flow indirectly from shoreline development regulations and mitigation standards.
Local master programs shall evaluate and consider cumulative impacts of reasonably foreseeable future development on shoreline ecological functions and other shoreline functions fostered by the policy goals of the act. The Act also recognizes that restoration planning will vary dramatically between jurisdictions based on the jurisdiction’s size, extent and condition of its shorelines, availability of funding and restoration tools, and the nature of the ecological functions to be restored. A. Opportunities for Protection and Restoration In Burlington, potential areas of meaningful restoration are organized as follows: 1. Shorelines fronted by an extensive levee system along the Skagit River.
Locations where there is significant open space between the levee and the river’s edge on land owned by the City or Dike District #12, including land outside the City Limits. Johnson Bar is the major site as identified in the Skagit River Big Bend Reach Habitat Restoration Feasiblity Study.3 ---PAGE BREAK--- SHORELINE MASTER PROGRAM – City of Burlington MASTER PROGRAM FOR GAGES SLOUGH AND THE SKAGIT RIVER SHORELINES BURLINGTON MUNICIPAL CODE TITLE 18 102
Future locations where the Dike District plans to build setback levees farther from the shoreline. 2. Gages Slough Wetland corridor
Wetland Buffer restoration sites identified through scientific study; 15 sites identified, three restored and in maintenance and monitoring phase, as spelled out in the Gages Slough Management Plan and related technical studies.4
Opportunities for public access.
Locations for water quality enhancement projects to achieve the result of clean water coming out of Gages Slough into the Skagit River to protect priority habitats and species.
Listing ID 7124 (Bacteria - Category 4A) for Gages Slough was moved "off" the 303(d) List on September 1, 2000 when EPA approved the cleanup plan known as a TMDL.5 Category 4A indicates that EPA has approved a cleanup plan that is thought to be capable of returning the waters to Category 1 (meets tested standard). The water is still considered "impaired" until effectiveness monitoring shows the conditions have been resolved. The TMDL is very broad and does not include any specific program for Gages Slough Management and cleanup. The adopted Gages Slough Management Plan will be evaluated and work program components prioritized to enhance efforts to meet standards.
The Gages Slough Management Plan calls for getting the Slough into public ownership from Anacortes Street to the Skagit River. The Gages Slough Survey 2012 reinforces the need to make this happen as property owners are for the most part not interested in granting easements. Condemnation action is likely necessary. B. Shoreline Management Program Restoration and Enhancement Goals 1. Reestablish, rehabilitate, and/or otherwise improve impaired shoreline ecological functions and/or processes through actions that are consistent with this Master Program and guidelines provided in other local and regional restoration plans. 2. Encourage and facilitate cooperative restoration and enhancement programs between the City and state and federal public agencies, tribes, non-profit organizations, developers, and landowners to address shorelines with impaired ecological functions and/or processes. 3. Restore and enhance shoreline ecological functions and processes as well as shoreline features through voluntary and incentive-based public and private programs. 4. Target restoration and enhancement with the goal of improving habitat requirements of priority and/or locally important wildlife species. ---PAGE BREAK--- SHORELINE MASTER PROGRAM – City of Burlington MASTER PROGRAM FOR GAGES SLOUGH AND THE SKAGIT RIVER SHORELINES BURLINGTON MUNICIPAL CODE TITLE 18 103 5. Ensure restoration and enhancement is consistent with and, where practicable, prioritized based on the biological recovery goals for salmon populations and other species and/or populations for which a recovery plan is available. 6. Integrate restoration and enhancement with parallel natural resource management efforts such as the 2005 Skagit Chinook Recovery Plan6 and Department of Ecology Water Resource Inventory Area (WRIA) #3 watershed planning activities. C. Biological Goals and Objectives These are the goals for the habitat conservation plan of the City so that any proposed activity does not appreciably reduce the likelihood of survival and recovery of the listed species under the Endangered Species Act7, and that the plan minimizes and mitigates the impact of the taking of any listed species or habitat to the maximum extent practical. 1. Preservation means acquiring a site, using conservation easements, donations, etc., to protect its current values. Land acquisition is in process for both the Skagit River and Gages Slough corridors. 2. Enhancement of a habitat means improving an existing site in some way that will encourage and retain fish and wildlife, such as increasing pond size or improving buffer. Following land acquisition, habitat enhancement is feasible. Public education is in process for encouraging land owners to use Best Management Practices on their own property and to enhance habitat areas and values in their own backyards. Along the Skagit River, enhancement areas are Johnson Bar with potential for a major project, and the forested buffer at Whitmarsh fields, where evergreen trees and maples are being planted to improve the buffer. 3. Restoration means a damaged or degraded site will in some manner be improved. a. The Gages Slough corridor is the prime target for restoration projects. There are a total of 15 sites in the Gages Slough corridor that have been identified and a reconnaissance level plan has been prepared for each one, including locations for installation of bioswales adjacent to the wetlands for water quality enhancement. The Wetland Restoration Demonstration project in the Jack Doyle Memorial Neighborhood Park is the first example. The Goldenrod Bridge restoration project is in the fifth year of maintenance and monitoring, located west of Interstate 5 in a very visible location. The Unit 10 former city dump restoration site is in year two of monitoring and maintenance. Public/private partnerships are strongly encouraged. b. Along the Skagit River, the three-bridge corridor levee setback area is a long term future restoration project opportunity. 1. Long-term management of priority habitat sites includes strategies to protect the habitat values of the sites. Every site in the Urban Wildlife Habitat designation has a monitoring and management plan that is tailored to the specific requirements of the location. This work includes removal of invasive species and replanting as necessary in a timeline based on the season. ---PAGE BREAK--- SHORELINE MASTER PROGRAM – City of Burlington MASTER PROGRAM FOR GAGES SLOUGH AND THE SKAGIT RIVER SHORELINES BURLINGTON MUNICIPAL CODE TITLE 18 104 2. Not appreciably reduce the likelihood of survival and recovery is the statutory goal for permit issuance under the Endangered Species Act. In Burlington, this includes a strategy that will keep floodwaters out of the developed urban area so that pollution from the city does not enter the Skagit River, and prevent fish stranding in polluted areas with no potential for survival. The City and Dike District #12 are working together to develop a plan for levee certification and accreditation by FEMA, to prevent or at least severely restrict urban flooding in flood events up to the 100-year base flood. This project is the topic of an environmental impact statement8. D. Restoration and Enhancement Policies 1. The City of Burlington has determined priority restoration sites. 2. This Master Program recognizes the importance of restoration of shoreline ecological functions and processes and encourages cooperative restoration efforts and programs between the City, county, state, and federal public agencies, tribes, non-profit organizations, and landowners to address shorelines with impaired ecological functions and/or processes. 3. Additional opportunities for restoration may be created when Dike District #12 completes plans to construct a set back levee along the Skagit River through the three bridge corridor. 4. Restoration actions should restore shoreline ecological functions and processes as well as shoreline features and should be targeted towards meeting the needs of sensitive and/or locally important plant, fish, and wildlife species as well as the biological recovery goals for early Chinook, bull trout populations, and other salmonid species and populations. 5. Restoration should be integrated with other natural resource management efforts such as the 2005 Skagit Chinook Recovery Plan and the Skagit River Big Bend Reach Habitat Restoration Feasibility Study 2004. 6. Priority should be given to restoration actions that: a. Create dynamic and sustainable ecosystems. b. Restore connectivity between river channels, floodplains, and hyporheic zones. c. Restore historic back-channels to create refugia for migrating fish. d. Mitigate peak flows and associated impacts caused by high stormwater runoff volume. e. Reduce sediment input to the Skagit River and associated impacts. f. Improve Skagit River water quality through stormwater facility upgrades. g. Restore native vegetation and natural hydrologic functions of degraded and former wetlands to the extent practical. h. Replant native vegetation in shoreline areas to restore functions where such actions are meaningful and consistent with this SMP and Dike District guidelines. i. Where practical restore riverine ecosystem processes, such as sediment transport and creation of sand bars and accumulation of large woody debris that create and sustain fish habitat. ---PAGE BREAK--- SHORELINE MASTER PROGRAM – City of Burlington MASTER PROGRAM FOR GAGES SLOUGH AND THE SKAGIT RIVER SHORELINES BURLINGTON MUNICIPAL CODE TITLE 18 105 The Skagit is the only river system in Washington that supports all five species of salmon, containing some of the largest and healthiest wild Chinook salmon runs in Puget Sound and the largest pink salmon stock in the state. In all, there are ten species of salmonids within the Skagit River basin. These include six Chinook stocks (spring, summer, and fall), pink salmon, chum salmon, sockeye salmon, summer and winter run steelhead, sea run cutthroat trout, Dolly Varden, and bull trout. Three of these, Puget Sound Chinook salmon, Puget Sound steelhead, and Coastal Puget Sound bull trout, are Endangered Species Act (ESA) listed.9 As a result, restoration planning in the Skagit River watershed has had a focus on policies and actions intended to aid in the recovery of migratory fish populations, in particular ESA listed species. E. Adaptive Management Plan An adaptive management strategy is used to address significant uncertainty associated with a particular habitat conservation plan, but it is not practicable (or possible) to require that all adaptive management strategies impose an elaborate experimental design, but rather to overcome data gaps. As foreseeable circumstances change, a contingency plan must be in place to address the issues. An example here might be changes in the Corps of Engineers Levee Vegetation Maintenance standards, or a flood event that changes a planned restoration project. F. Monitoring program Monitoring types include compliance monitoring, effect monitoring, and effectiveness monitoring. Today, water quality monitoring is a TMDL and NPDES II requirement and there is ongoing monitoring at the Sewer Plant and at Stormwater outfall locations, as well as in the Gages Slough corridor. Restoration planting projects have an initial five-year intense maintenance and monitoring program, with less frequent visits as the sites mature. Mitigation projects will each have a specific monitoring plan. II. Watershed Planning In 1998, the State legislature passed Chapter 90.82 RCW, which sets forth a framework for developing local solutions to water resource issues on a watershed basis. Chapter 90.82 RCW states: “The legislature finds that the local development of watershed plans for managing water resources and for protecting existing water rights is vital to both state and local interests. The development of such plans serves the state’s vital interests by ensuring that the state’s water resources are used wisely, by protecting existing water rights, by protecting in-stream flows for fish and by providing for the economic well-being of the state’s citizenry and communities.” ---PAGE BREAK--- SHORELINE MASTER PROGRAM – City of Burlington MASTER PROGRAM FOR GAGES SLOUGH AND THE SKAGIT RIVER SHORELINES BURLINGTON MUNICIPAL CODE TITLE 18 106 RCW 90.82 recognizes that watersheds are the logical planning unit for addressing water resource issues and the protection and restoration of fish and wildlife habitats. The RCW establishes general criteria and guidelines for state agencies and local jurisdictions to follow in developing and implementing watershed plans. The primary purpose of these plans is to equitably manage water resources between the competing demands of human use, protection of existing water rights, and the maintenance of in-stream flows for resident fish. Habitat restoration is an optional element in the development of local watershed plans under the RCW. However, given the requirements of the GMA relative to the SMA for shorelines, restoration would be an expected component for those watersheds that have experienced significant development and historically supported significant fish populations and riparian habitats. Watershed planning is necessarily hierarchical in nature. Each major watershed is composed of smaller sub-basins that may differ substantially in the intensity of development, level of water resource use, types and extent of habitats, and functional characteristics. Federal and state agencies, tribes, and local governments have varying degrees of authority over watershed issues, resulting in a hierarchy of plans and regulations. Major watershed boundaries and tributaries also cross jurisdictional boundaries, requiring coordination between local communities, tribes, and private parties engaged in planning and restoration activities. A. Watershed Resource Inventory Area #3 The State’s major watersheds have been mapped into sixty-two Water Resource Inventory Areas (WRIA), with each further divided into sub-basins based on the physical extent of primary tributaries. Burlington is located within WRIA #3 – Lower Skagit River. As a planning unit, the boundaries of WRIA #3 represent the upper tier of the watershed hierarchy for the Lower Skagit. The Department of Ecology (DOE) is the agency responsible for coordinating and overseeing the development of watershed plans under RCW 90.82. The DOE further supports these efforts by conducting research and preparing studies on specific watershed issues, reporting on watershed planning activities, and maintaining a database of information specific to each WRIA. B. Skagit Chinook Recovery Plan 2005 The Skagit Chinook Recovery Plan (Plan) was completed in 2005 as a joint effort between the Skagit River System Cooperative (SRSC) and the Washington Department of Fish and Wildlife (WDFW). The process began in 1994, in response to the listing of Puget Sound Chinook salmon as threatened under the Endangered Species Act and during its development included the involvement of a variety of interested and affected parties. The Plan document is intended to provide the basis for the Skagit Basin chapter of the Greater Puget Sound Chinook recovery effort. The purposes of the Plan are to:
Define biologically-based recovery goals.
Identify what is known or assumed about factors that limit production of Skagit River Chinook. ---PAGE BREAK--- SHORELINE MASTER PROGRAM – City of Burlington MASTER PROGRAM FOR GAGES SLOUGH AND THE SKAGIT RIVER SHORELINES BURLINGTON MUNICIPAL CODE TITLE 18 107
Propose scientifically-based actions that will restore Skagit River Chinook to optimum levels, including fisheries management, artificial production, habitat protection, habitat restoration, effectiveness monitoring, and applied research. The Plan is built around the identification of four different juvenile Chinook salmon life history strategies in the Skagit: yearlings, parr migrants, tidal delta rearing migrants, and fry migrants. Due to the differences in habitat use, yearlings and parr migrants depend more on freshwater habitat, while tidal delta rearing migrants and fry migrants depend more on estuarine habitats. This difference in habitat utilization by individual life history strategies shapes the habitat recovery actions proposed in the Plan. Habitat recovery actions are recommended that benefit each life history strategy in an effort to maintain and strengthen Chinook population diversity and ensure spatial connectivity and abundance. The restoration strategy for the Plan is based on an understanding of the limiting factors for each of the Skagit Chinook salmon stocks and the specific location of existing or potentially restorable habitat. Relevant to Burlington, are the Plan’s recommended restoration actions for freshwater rearing habitat in large river floodplains, tributaries, and non-tidal deltas. Large river floodplain restoration actions in the Plan seek to improve freshwater conditions for all Chinook salmon fry, but in particular for those life history strategies that depend on freshwater habitat for extended rearing. Intact floodplain areas are especially important for freshwater rearing because the availability of complex main-stem edge habitat, backwaters, and off-channel habitat is essential for the foraging and refugia of all phases of freshwater life history. For example, stream type Chinook salmon spend over one year in freshwater habitat before migrating further C. Burlington Wetland Restoration Program Part of the flood hazard mitigation plan includes improving Gages Slough so that water can flow more readily during and after a flood event, specifically considering sediment removal and culvert installations. This planning effort will be more focused over the next few years and will comply with the Shoreline Master Program. Technical studies have been completed for Gages Slough with important information about the existing conditions. These include water quality monitoring as part of the Lower Skagit River Water Quality Study completed in 1993, the Comprehensive Surface Water Management Plan adopted in 1992, and the Surface Water Management Plan Update and Facilities Pre-design Report completed in 1996. Out of these initial studies, three major actions took shape. A Coastal Zone Management Grant provided funding for in-depth technical studies of Gages Slough in 1998, to set up a long range management plan to facilitate removal of Gages Slough from its current listing as a 303 site, in violation of the Clean Water Act. Gages Slough was moved "off" the 303(d) List on September 1, 2000 when EPA approved the cleanup plan known as a TMDL. Category 4A indicates that EPA has approved a cleanup plan that is thought to be capable of returning the waters to Category 1 (meets tested standard). Concurrently, a new pump station was designed and constructed to provide for storm water management as the city grows and to facilitate management of the hydroperiod of Gages Slough, in response to the clear need for wetland restoration activities and the forecast demands of the Comprehensive Surface Water ---PAGE BREAK--- SHORELINE MASTER PROGRAM – City of Burlington MASTER PROGRAM FOR GAGES SLOUGH AND THE SKAGIT RIVER SHORELINES BURLINGTON MUNICIPAL CODE TITLE 18 108 Plan. A Citizen’s Advisory Committee was formed to develop the Shoreline Master Program for Gages Slough and the Skagit River Shorelines. The problems associated with the degraded series of connected wetlands, Gages Slough, that crosses the community, and concerns about the need for very costly stormwater management facilities in the floodplain, became the focus of every Neighborhood meeting in the 1990’s. Gages Slough had become a combination sewer and garbage dump. City staff was not aware of the history of Gages Slough and made the assumption that the upriver end of Gages Slough had some sort of direct connection via culvert into Hart Slough, and reported that as a fact to the technical consultants. However, the culvert connects only to Brickyard Creek, which is the ditched stream connected to the culvert/fish passage. There are no piped connections to Gages Slough. The recent history of the area began with the construction of the Sterling Dam blocking any above grade connections to Gages Slough in 1899, because there were numerous floods that were affecting the Railroad tracks. The Sterling Dam is owned and maintained by Dike District #12. It is located north of SR 20 adjacent to Holtcamp Road. In 1998, a wetlands ecological study was completed for Gages Slough including delineation, a functional assessment using the Department of Ecology Hydrogeomorphic modeling approach, along with a water level and water quality analysis, and a management and restoration plan has been designed and integrated into this Master Program. Existing uses along Gages Slough include single family residential, commercial, agriculture and industrial use. The first survey of all the property owners along Gages Slough (both in and outside the City Limits) was taken in the winter of 1995-96, and the results were mailed to all property owners in March of 1996. Grave concerns about the future of the wetlands were expressed, particularly in light of the fact that there was a significant flood event on the Skagit River in the winter of 1995 and there was a lot of discussion about turning Gages Slough into a backup flood control channel. These activities and issues led to creation of the Citizen’s Advisory Committee and to the request for the grant funding to get the essential elements of the long range management plan established. A second survey of Gages Slough property owners was conducted in the Spring of 2012. Preliminary results have been tallied, but results will still be coming in following publication of this report. Today, the Gages Slough Management Plan has been adopted as part of the overall Comprehensive Plan, the Parks and Recreation Comprehensive Plan and the Comprehensive Surface Water Management Plan.10 The plan was completed in the Spring of 1999, updated September 1999, August 2006, February 2007, and followed by a 2009 Gages Slough Reconnaissance report identifying a series of restoration project sites. There are two wetland buffer restoration projects that are five years or older and there is one wetland buffer restoration project that was planted in 2011, at the site of an old city burn dump. As a participant in the NPDES II municipal permit system, the Public Works Department is actively increasing the focus on improvements to the Gages Slough corridor that enhance its ability to process stormwater and return clean water to the Skagit River system. New improved ---PAGE BREAK--- SHORELINE MASTER PROGRAM – City of Burlington MASTER PROGRAM FOR GAGES SLOUGH AND THE SKAGIT RIVER SHORELINES BURLINGTON MUNICIPAL CODE TITLE 18 109 water level monitoring instruments have been installed in Gages Slough. water quality monitoring is completed by the Public Works Department. In addition, the Skagit Conservation District Stream Team has a committed team of volunteers that also does regular water quality monitoring in Gages Slough for temperature, turbidity, and fecal coliform, the TMDL standards. III. RESTORATION OPPORTUNITIES AND ACTIONS A. Big Bend Reach Habitat Restoration Feasibility Study, 2004 The primary goal of the Skagit River Big Bend Reach Habitat Restoration Feasibility Study, prepared for the City of Mount Vernon in 2004, was to identify opportunities for improving the quality and quantity of rearing habitat available to juvenile salmon at various opportunity sites located in the Big Bend Reach of the Skagit River. There are remnant pockets of habitat to be found between the river and the existing levees. Some of these are actively engaged with the river. Most are currently isolated from river actions, except during high water events. Thirteen opportunity sites were identified and analyzed for their existing habitat values and their ability to provide additional habitat benefits, extending from Johnson Bar to Britt Slough. Johnson Bar is mostly owned by the City of Burlington, and this is the only significant restoration site along the Skagit River that the City has the potential to restore. B. Gages Slough Restoration Plans, 2009 Update This report provides an update on the identified restoration sites and sets a priority ranking for each site. Most of the sites have lots of invasive species including Himalayan Blackberry and Reed Canary Grass, the need for shade and water quality improvement. The drainage utility is committed to funding the five year and on-going monitoring and maintenance program since 80- 90% of the city’s stormwater enters Gages Slough. The sites are available as mitigation sites to compensate for decreased wetland buffers and for offsite mitigation under the critical areas standards. C. Implementation timelines, benchmarks and strategies Identify timelines and benchmarks for implementing restoration projects and programs and achieving local restoration goals: 1. The NPDES II stormwater cleanup program is focused on public education, water quality monitoring, source control through annual maintenance. This program is partially funded by the Drainage Utility and through State administered Grant funds, along with a dedicated team of volunteers from the Conservation District. The overall water quality is monitored by the Department of Ecology as part of the TMDL that includes Gages Slough. Program is a permanent component; whether or not the water quality meets standards at some point, the need for education and source control is critical. As part of the FEMA Community Rating System program, every drainage facility has annual inspection and maintenance ---PAGE BREAK--- SHORELINE MASTER PROGRAM – City of Burlington MASTER PROGRAM FOR GAGES SLOUGH AND THE SKAGIT RIVER SHORELINES BURLINGTON MUNICIPAL CODE TITLE 18 110 requirements. The city is committed to deliver clean water to Puget Sound; the benchmarks are set, timelines are on-going. 2. Construction of water quality treatment bioswales in Gages Slough corridor for increased capacity to treat stormwater. This program is a top priority for stormwater grant applications. Grant match funds are from the Drainage Utility. The restoration sites have been prioritized based on water pollution and the first key location has a pending grant application. All projects include 5-10 years of monitoring and maintenance; once mature, maintenance needs decrease, but there is on-going maintenance and removal of invasive species. 3. Wetland buffer restoration projects – 15 sites identified; 3 have been constructed and the remaining sites are available for public and private restoration opportunities. This includes land development that requires wetland mitigation anywhere in this area. Two sites were constructed using donations to the Burlington Parks Foundation. The Drainage Utility has committed funds for the 5-10 year maintenance and monitoring program. To date, restoration activity has occurred at the rate of approximately one site every five years. The commitment to permanent maintenance and monitoring is funded by the Drainage Utility. 4. Skagit River – Johnson Bar restoration project – This is a regional project located adjacent to the City Limits on the waterward side of the levee. It is a high priority by Police, Fire and Parks, to get rid of a place that is an on-going problem site used to dump trash, stolen cars, junk, and allowing on and off road vehicles to speed around and tear up the dirt road. The plan of action is to coordinate the project with levee upgrade work in process by Dike District #12. Additional land acquisition is in process by the Dike District; schedule to be set in the next year. 5. Skagit River – Levee upgrades and maintenance – Burlington levees are in the Corps of Engineers PL 84-99 maintenance program and levee vegetation standards have been set through an ESA Section 7 consultation. This program is on-going with annual inspection by the Corps of Engineers.11 Provide for mechanisms or strategies to ensure that restoration projects and programs will be implemented according to plans and to appropriately review the effectiveness of the projects and programs in meeting the overall restoration goals: 1. Uniquely situated in the Floodplain adjacent to the Skagit River on the south and east, with long term Agricultural Resource lands to the north and west, Burlington has a comprehensive plan in place that is monitored not only by the city, but by the FEMA Community Rating System program where everyone in the city now receives a 25% reduction in flood insurance rates through the continued monitoring, maintenance and protection of environmentally sensitive sites and critical areas. This program has intensive federal monitoring. 2. Burlington is required to participate in NPDES II, a national pollution discharge elimination system program that applies citywide, focused on clean water. ---PAGE BREAK--- SHORELINE MASTER PROGRAM – City of Burlington MASTER PROGRAM FOR GAGES SLOUGH AND THE SKAGIT RIVER SHORELINES BURLINGTON MUNICIPAL CODE TITLE 18 111 3. As a result of concerns over how the National Flood Insurance Program is managed, every project in Burlington is reviewed for compliance with the Endangered Species Act Biological Opinion that is focused on habitat restoration.12 4. Burlington is also a participant in the Skagit County Natural Hazards Mitigation Plan that is updated every five years countywide.13 ---PAGE BREAK--- SHORELINE MASTER PROGRAM – City of Burlington MASTER PROGRAM FOR GAGES SLOUGH AND THE SKAGIT RIVER SHORELINES BURLINGTON MUNICIPAL CODE TITLE 18 112 REFERENCES 1 Washington State Shoreline Management Act RCW 90.587. 2 Washington Administrative Code Regulations; Chapter 173-26 WAC Shoreline Master Program Guidelines. 3 Skagit River Big Bend Reach Habitat Restoration Feasibility Study, Prepared by Miller Consulting, Skagit River System Cooperative, Pentec Environmental, and Wildlands of Washington, Inc., December 20, 2004. 4City of Burlington, Shoreline Analysis Report and Shoreline Inventory 2012 - Appendix D. Gages Slough Management Plan including history of Sterling Dam, history of the Gages Slough Management Plan, technical studies, restoration sites, Puget Sound Partnership Watershed Characterization, and Water Quality monitoring data. 5 Lower Skagit River Fecal Coliform Total Maximum Daily Load Submittal Report Water Cleanup Plan, Publication Number 00-10-010, June 2000 6Skagit Chinook Recovery Plan, 2005, Prepared by Skagit River System Cooperative and Washington Department of Fish and Wildlife; and Appendix C Linking Freshwater Rearing Habitat to Skagit Chinook Salmon Recovery, November 4, 2005, Prepared by Eric M. Beamer, Bob Hayman, and Devin Smith. 7 Endangered Species Act (ESA) of 1973 as Amended. 8 City of Burlington Draft EIS February 2009, and Final EIS July 16, 2010, to Adopt a Strategic Program for Comprehensive Flood Hazard Mitigation in the Burlington Urban Area and Adjacent Land with a Range of Structural and Non-Structural Components. 9 Department of Commerce National Oceanic and Atmospheric Administration 50 CFR Part 226 Designated Critical Habitat: Critical Habitat for 19 Evolutionarily Significant Units of Salmon and Steelhead in Washington, Oregon, Idaho, and California, Federal Register February 16, 2000, and Federal Register September 2, 2005. 10 City of Burlington 2005 Comprehensive Plan, 2009 Parks and Recreation Comprehensive Plan with Urban Wildlife Habitat Plan, 2005 Comprehensive Surface Water Management Plan and related planning documents. 11 Biological Opinion, Consultation for Skagit River Levee Repair Projects, Skagit County WA: Flood Damage Repairs to Numerous Levees in Diking Districts 1,3,12,17, and 22, Prepared by U.S. Fish and Wildlife Service Reference Number 13410-2010-F-0254, Agency U.S. Army Corps of Engineers Seattle District, May 27, 2011. AND ---PAGE BREAK--- SHORELINE MASTER PROGRAM – City of Burlington MASTER PROGRAM FOR GAGES SLOUGH AND THE SKAGIT RIVER SHORELINES BURLINGTON MUNICIPAL CODE TITLE 18 113 Endangered Species Act (ESA) Section 7(a)(2) Biological Opinion and Magnuson-Stevens Fishery Conservation and Management Act Essential Fish Habitat (EFH) Consultation, Skagit River – Diking Districts 1,3,12,17 and 22 Levees Rehabilitation of Flood Control Works Project in Skagit County Washington; NMFS Consultation Number: 2011/0033, October 24, 2011. 12 Endangered Species Act – Section 7 Consultation Final Biological Opinion and Magnuson- Stevens Fishery Conservation and Management Act Essential Fish Habitat Consultation, September 22, 2008 regarding National Flood Insurance Program and FEMA. 13 Skagit County Natural Hazards Mitigation Plan September 2008. ---PAGE BREAK--- SHORELINE MASTER PROGRAM – City of Burlington MASTER PROGRAM FOR GAGES SLOUGH AND THE SKAGIT RIVER SHORELINES BURLINGTON MUNICIPAL CODE TITLE 18 114 Appendix C SHORELINE JURISDICTION MAP ---PAGE BREAK--- ---PAGE BREAK--- City of Burlington – Shoreline Analysis Report – June 2012 Shoreline Grant No. G1000073 38 APPENDIX C Skagit River Big Bend Reach Habitat Restoration Feasibility Study Excerpts Relating to Johnson Bar, major site in vicinity ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- City of Burlington – Shoreline Analysis Report – June 2012 Shoreline Grant No. G1000073 39 APPENDIX D Gages Slough Management Plan including history of Sterling Dam, history of the Gages Slough Management Plan, technical studies, restoration sites, and Water Quality monitoring data. ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- 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---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- City of Burlington – Shoreline Analysis Report – June 2012 Shoreline Grant No. G1000073 40 APPENDIX E Biological Opinion Checklist and Puget Sound Partnership Characterization Maps ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- City of Burlington – Shoreline Analysis Report – June 2012 Shoreline Grant No. G1000073 41 APPENDIX F Public Involvement Process - Notice to agencies and the public ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- City of Burlington – Shoreline Analysis Report – June 2012 Shoreline Grant No. G1000073 42 APPENDIX G REFERENCES ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- City of Burlington – Shoreline Analysis Report – June 2012 Shoreline Grant No. G1000073 43 APPENDIX H ADOPTION OF EXISTING ENVIRONMENTAL DOCUMENTS ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK---