What is the Critical Areas Ordinance?
October 2, 2008 · Updated 11:58 AM
SNOQUALMIE VALLEY - The process King County is taking to update its comprehensive plan is being watched closely by residents within the county's unincorporated area because of its scope and reach.
Part of that update, known as the Critical Area Ordinance (CAO), could be one of the most contested moves the Metropolitan King County Council has made in recent history. Some residents have remarked, along with the county, that the CAO is a much-needed ordinance that would bring county regulations up to date with other state and federal laws while protecting the Eastside from rapid urbanization. Others have said the laws illegally restrict what people are allowed to do on their land.
Ever since the CAO's introduction, the percentage of land that needs to remain in its natural state has been one of the ordinance's most contested features. Under the proposed law, at least 65 percent of a parcel of land must remain native vegetation.
The remaining 35 percent of the land that can be developed is not open to just any kind of development, either. No more than 10 percent of the total land can be developed with any kind of impervious surface, which is a surface that does not allow the free flow of water such as a concrete driveway.
Dow Constantine, chair of the King County Council's Growth Management and Unincorporated Areas Committee, said the best science the county has says that at least 65 percent of native vegetation is needed to help recharge ground water, avoid dry streams and keep aquifers high.
"This [CAO] has a lot to do with water." he said.
In the proposed CAO, buffers and setbacks - land bordering environmentally-sensitive areas that are prohibited from development - also are increased. The county's definitions for both aquatic areas and wetlands would be rewritten and protected with buffers that are, in some cases, three times larger than current regulations.
Currently, the county has three classes for wetlands with buffers that range from with buffers that range from 25 to 100 feet. The classes are determined by a list of criterion including size, how much open water is on the wetland and the presence of endangered wildlife. A wetland also can be classified as an isolated wetland and not be subject to any buffers at all.
The CAO would put all wetlands into four categories with no isolated wetland category. The criterion would be more stringent, with greater endangered wildlife lists and terms such as "irreplaceable ecological functions" or "wetlands of exceptional local significance" as criterion. Moreover, the buffers would increase to a minimum of 50 feet up to 300 feet.
There would be similar changes to aquatic areas, which are streams, lakes, ponds and state shorelines. Currently, all aquatic areas fall into three classes that are determined by stream flow and the presence of salmon. Buffers range from at least 100 feet for Class 1 streams like the Snoqualmie River, to 25 feet for Class 3 streams, which have no salmon and only seasonal flows.
Under the CAO, all those aquatic areas would fall into four classes that are lettered S, F, N or O. Type S and F areas, which are the high-flow rivers and shorelines of the state (such as the Snoqualmie River) and aquatic areas that have fish or fish habitat (such as Kimball Creek), need a buffer of at least of 165 feet. Type N and O waters, which are all other natural water areas, need buffers of at least 65 feet and 25 feet, respectively.
Those who own property in the floodplain and floodway also will be subject to laws based on existing Federal Emergency Management Agency (FEMA) regulations. The county has stringent laws already in place that prevent the building of structures that may aggravate flooding, but additional FEMA requirements may be added.
"Those changes are largely technical," said Harry Reinert, special projects manager for the King County Department of Development and Environmental Services (DDES). "We wanted to make sure we are using the best and latest data."
As it is presently, development in areas that are habitat to endangered wildlife will continue to be prohibited. The CAO would, however, also prohibit development in areas that are breeding sites for wildlife and areas that are encouraged to be protected under the King County Comprehensive Plan. Ten species also are named specifically for protection, such as the osprey, great blue heron and red-tailed hawk.
The buffers, however, will be smaller for urban areas in most of the wetland and aquatic areas. Wetlands in urban areas, for instance, will need buffers of only 50 to 100 feet, while rural areas need 100- to 300-foot buffers. For aquatic areas, the smaller Type N and O types need the same buffers in both the urban and rural areas, but the Type S and Type F, need only a 115-foot buffer in the urban area while the rural needs 165.
There are exemptions and allowed uses in the CAO. The 65 percent native vegetation requirement, for example, could be reduced to 50 percent if the landowner is developing affordable housing on their property. And the percentage of native vegetation does not include all vegetation. Some plants, such as blackberry bushes, can be removed and not counted as native vegetation. Property owners with lots less than 20,000 square feet can clear as much as 7,000 square feet of their land. The 10-percent limit of land that is impervious surface could be greater if the landowner increases run off from their structures as well. Reinert said the native vegetation area could be open to uses such as trails and even forestry.
"It's not a no-touch area," he said.
Wetland and aquatic areas also have exemptions and allowed uses. Buffers can be reduced if they are "averaged" in a way that results in the total average being equal to or greater than under regular buffers. Exemptions also are allowed if buffers are deemed to have no positive impact.
Allowed uses for both the wetland and aquatic areas include using the land for utility equipment, trails, docks, agricultural buildings or the reconstructing of an existing structure.
Agriculture and horticulture uses of land are expanded under the CAO. Approved agricultural uses also are exempt from the 65-percent native vegetation requirement.
The most comprehensive way to develop land, however, could be the stewardship plan option that the county is developing. Under the plan, some of the regulations could be bent or broken if the landowner develops an overall plan that would work to the benefit of the rural area.
Who will pay for that oversight is unclear. Constantine said his committee is looking into a way to streamline and fund a process that encourages people to take advantages of the incentives a stewardship plan would offer, which include not only ways around CAO regulations, but possible tax breaks as well.
"It [developing a stewardship plan] should be easy, cheap and predictable," he said.
With the kind of reaction the county has received regarding the CAO, DDES spokesperson Paula Adams said her office has been working to clear up some common assumptions about the ordinance.
"This [CAO] only applies to new construction," she said. "That the county is going to come in [and restore land back to its original state] is the number one misconception."
Constantine's committee will continue to take public comment on the CAO before it makes a recommendation to the County Council this July. There is a mandatory 30-day comment period before a vote by the County Council can occur.
"We are still looking for public comment," Constantine said.
* For information on the CAO, visit http://www.metrokc.gov/ddes/cao/.
Ben Cape can be reached at (425) 888-2311 or by e-mail at firstname.lastname@example.org.