What’s Riddled With More Holes Than Cheese?
All the exemptions, exceptions, conditional and allowed activities inside critical area habitat conservation areas (The CAO [Critical Areas Ordinance]).
You may not realize all the activities that are allowed when we are protecting biodiversity because they are found in two locations, the specific Article provisions for that type of critical area, and in Article 2, which applies generally to all critical areas. And let me say that each of these loopholes has protective sounding language and requirements for mitigation, which would actually mean something if they were objective,quantifiable standards that started from baseline standards and involved monitoring and review, and if terrestrial buffers were already established.
I am going to list all the allowed activities, whether permitted, exempted or conditioned, so you can evaluate the totality of activity and decide how protective our habitat conservation areas are.
The general standards for habitat conservation areas in Art 7 of the CAO requires that development minimize impacts through vague, subjective mitigation requirements, often under the planner’s discretion, but allows the following under WCC 16.16.720:
1. Variances and reasonable use permits
2. Relocation of streams
3. Stream crossings
5.Access to private development
6. construction/reconstruction/remodeling/maintenance of any structure associated with agricultural use,
7.storm water detention/retention ponds
8.storm water conveyance or discharge facilities.
9. Clearing and grading
10. Stream banks stablization and shoreline protection
11. Construction of trails and roadways.
12. Public trails of up to 10 feet and private trails of up to 5 feet.
13. New utility lines and facilities
14. New public flood protection measures and expansion of existing ones.
15. In stream structures such as dams and weirs, as part of watershed restoration project
16. Construction, reconstruction, repair and maintenance of docks and public launching ramps.
17. On-Site sewage disposal systems (OSS)
19. Domestic wells serving single-family developments
20. Single-family developments may be permitted to encroach into stream buffers.
21.All other development may be allowed in shellfish protection districts outside of actual shellfish habitats with a valid development permit.
20. Alteration or removal of beaver built structures more than 2 years old
And similarly, here are additional activities allowed, again subject to undefined standards of protection and mitigation, under Art 2.
Regulated activities, which means they are subject to the critical area review process and may be permitted if approved per WWC 16.16.225:
1. Clearing, grading, dumping, excavating, discharging, or filling with any material.
2. Constructing, reconstructing, demolishing or altering the size of any structure or infrastructure,subject to the provisions for a nonconforming structure.
3. Any other activity for which a County permit is required.
Alteration of critical areas and/or buffers is prohibited except when:
1. Alteration is approved pursuant to the reasonable use or variance provisions.
2. Alteration is necessary to accommodate an essential public facility or public utility.
3. Alteration is necessary to accommodate an approved water-oriented use and any associated development/activity and/or when permitted in the SMP.
4. Alteration is part of an essential element of an activity allowed by this chapter.
5. Alteration is associated with an exempt low impact activity.
6. Alteration is associated with an alternative mitigation plan or watershed-based management plan.
7. Alteration is associated with a conservation farm plan.
Under WCC 16.16.230, activities exempt from critical area review:
1.Class I, II, III, and IV special (not Class IV general) forest practices, subject to a couple of technical restrictions
2. Maintenance of lawfully established vegetation, landscaping, and gardens by mowing, cutting, pruning, planting, etc.
3.Low impact activities that do not cause adverse impacts, such as hiking, canoeing, viewing, nature study, photography, hunting, fishing, education, or scientific research. (Science shows these all have big impacts.)
4. Activities undertaken for an EPA Superfund site or DOE Model Toxics Control Act, or a Department of Homeland Security Order that specifically preempts local regulations in the findings of the Order.
5. Maintenance and/or repair of lawfully established single-family residences and appurtenant features.
6. Fish and Wildlife restoration under state or federal law.
Activities which allowed with notification and a completed form, under WCC 16.16.235 include:
1. Emergency construction or activity for immediate preservation of public health, safety and welfare, as determined by the planning director.
2. Maintenance, repair and operation of existing infrastructure improvements, including dikes, ditches, rights of way, trails, roads, fences, utilities
3. Select removal or pruning of non-native vegetation
4.felling of hazard trees
5.clearing, pruning and revegetation of buffer for view purposes.
6. The installation of navigation aids and boundary markers or the installation of mooring buoys
7.Site investigation such as geotechnical borings, groundwater monitoring wells, soil test pits etc.
8. Household fertilizers or household herbicides to address noxious weed infestation in critical area buffers.
9.Routine maintenance of drainage channels with on-going agricultural land when certain conditions are met.
10. Alternation or removal of beaver built devices less than 2 years old. (This is a repeat from the Art 7 list.).
What do you think, Whatcom County? Sound protective enough to ensure no net loss of ecosystem functions and values?
By the way, the Wildlife Advisory Committee is looking at and making recommendations for Art 7 of the CAO and they are refusing to include review of Art 2 of the CAO, although it contains the meaningful loopholes noted above, or CARA (critical area aquifer recharge areas) although they involve in stream flows for fish and wildlife in the Nooksack. And the new Wildlife Advisory Committee president is a private consultant who will be basically helping to create the rules that will regulate her industry. Does that strike you as a conflict?