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Flexibility in Environmental Regulation

This page provides information on flexibility in environmental regulations for local governments in Washington State, including examples of code provisions.

It is part of MRSC's series on the Growth Management Act.

Overview

All Washington cities and counties are required to adopt critical areas (environmentally sensitive areas) regulations (RCW 36.70A.060). Critical areas include wetlands, aquifer recharge areas, fish and wildlife habitat conservation areas, frequently flooded areas, and geologically hazardous areas. The GMA was amended in 1995 to require counties and cities to include the best available science when creating policies and development regulations. That amendment was intended to ensure that cities and counties consider reliable scientific information when adopting critical areas policies and regulations to protect the functions and values of critical areas (RCW 36.70A.172).

Under the same statute, counties and cities are required to give special consideration to conservation or protection measures necessary to preserve or enhance anadromous fisheries, including salmon, steelhead and bull trout fisheries. See MRSC's page on Critical Areas for more information.

In addition, the National Marine Fisheries Service (NOAA Fisheries) has listed 28 population groups of salmon and steelhead on the west coast as "endangered" or "threatened" under the Endangered Species Act. A variety of mechanisms including erosion and stormwater controls, setbacks or buffers around streams, wetlands, and shorelines can protect anadromous fish habitat from activities that contribute to erosion, surface water runoff, and pollution.

Because setbacks and other protective measures can significantly restrict new land uses and activities on constrained lands, critical areas ordinances implementing the new requirements have been controversial in some communities. Wide stream setbacks and buffer requirements, often bolstered by best available science documents, have been particularly difficult to accommodate on small urban lots or for farming operations that require access to water for cattle and irrigation.

The following information and examples illustrate approaches for using incentives or adding flexibility to regulations to ease difficulties for property owners, while continuing to protect important resources.

Increased Visibility for Flexible Options Offered

Many local governments have incorporated added flexibility into critical areas codes, but these provisions do not always stand out, especially in lengthier codes. Some jurisdictions have added sections that highlight the many incentives and opportunities for increased flexibility and choice available within the code. There are also incentive options outside of regulation, such as transfer of development rights, conservation districts, or open space tax incentives.

Examples of Codes with Incentives

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Reasonable Use Exceptions

Reasonable use exceptions are a mechanism by which a local jurisdiction may grant relief from code requirements where compliance leaves no reasonable use of the property.  Both the federal and Washington State constitutions provide that the government may not take private property unless it is for a public use and just compensation is paid. A regulatory takings occurs when a governmental agency regulates or limits the use of property under the government's police power authority in such a way as to destroy one or more of the fundamental attributes of ownership (the right to possess, exclude others, and to dispose of property), deny all reasonable economic use of the property, or require the property owner to provide a public benefit rather than addressing some public impact caused by a proposed use. To avoid this issue, local governments would include a reasonable use exception in their zoning code(s). For more information, see our page on Property Rights and Regulatory Takings.

Examples of Codes

Exemptions, Alterations and Flexible Uses / Activities within Critical Areas

Many communities have anticipated a number of specific situations under which strict application of new environment regulations may create difficulties for existing property owners such as:

  • Routine structure or utilities maintenance
  • Agricultural and forest operations
  • Other uses and related activities

Examples of Codes

The following codes exempt some uses and activities from critical areas regulation, and often specify conditions under which these activities may be conducted. Many communities have provisions that allow minor alterations within critical areas provided that the values and functions of the critical areas are protected.

”Clustering" / Onsite Density Transfer for Critical Areas

Many Washington communities have adopted provisions that allow density to be transferred from a constrained portion of a site to an unconstrained area on the same site. Such density transfers achieve protection of critical areas while permitting the property owner to retain some or all development rights. These provisions generally include some criteria to assure that density in receiving areas don't exceed what that area can accommodate. Some jurisdictions use a sliding scale that specifies how much density may be transferred, based on the percentage of the site that is constrained.

Examples of Codes

Flexible Buffer Widths

Buffers are designated areas around the perimeter of critical areas that provide a margin of safety or buffer for critical areas from the impacts of adjacent uses. Because of variations in slopes, soils, vegetative cover, mitigation measures or other conditions, buffers may sometimes be reduced without compromising the buffer functions. Variations in buffer widths may also be possible. These provisions address buffer modifications, including averaging of buffer widths, and reduction of standard buffer widths; in all cases, buffer functions are maintained and certain criteria are met. In most scenarios, the flexibility that is allowed serves to improve overall critical area protection, such as increasing the buffer width in more sensitive areas while decreasing the buffer width in less sensitive areas.

Examples of Codes

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Voluntary Stewardship Plans

Some communities provide property owners with the option to develop an individual stewardship or conservation plan, in place of standard critical area requirements when developing their property. Similarly, farm or forest management plans allow the flexibility to choose critical areas protection techniques that work well for individual farming and forestry operations.

The Voluntary Stewardship Program (VSP) was created in 2011 and allows participating counties to develop local work plans that use voluntary and incentive-based tools, as an alternative to regulation, to protect critical areas and agricultural lands (see RCW 36.70A.710). Counties had to opt in by early 2012, and 28 counties chose to participate. Counties participating in VSP create a work plan that is approved by the Washington State Conservation Commission and then implement the plan by recruiting local landowners to participate in incentive-based stewardship activities. Counties report their progress to the Conservation Commission.

Examples of Programs

Below are a few VSP examples from Washington State. For additional examples, see the Washington State Conservation Commission's VSP County Directory page.

Mitigation Banking

Some communities allow a developer to create or restore wetlands off-site on another property to compensate for unavoidable loss or damage of wetlands on the site that will be developed. To better assure that the created wetland is viable for the long term, some local jurisdictions have purchased property which is then converted to a wetland mitigation bank, under the jurisdiction's management. A private developer or another agency may then purchase credits from the jurisdiction (or "buy in" to the created wetland bank) to compensate for wetland damage when a property is developed. A positive outcome that is associated with mitigation banking is that having one larger wetland can be more ecologically valuable than several wetland sites that are dispersed through a geographic area.

Examples of Codes and Ordinances

Resources

Conservation Easements

Conservation easements are used by landowners to designate areas for conservation within their property while still maintaining private ownership of the property. A common easement type in Washington State are those designated for agriculture, historical preservation, or preservation of critical areas.

Examples of Codes

Resource

Wetland Replacement Studies

These studies examine data and cases to evaluate how effective wetland replacement projects are at restoring habitats. Replacing wetlands has its own set of challenges, primarily that it is difficult to replicate an original wetlands' natural ecological functions through construction of a new, man-made wetland.

Examples of Studies

In-Lieu Fee Mitigation

In-lieu fee (ILF) mitigation is another method used to offset unavoidable impacts to critical areas by allowing a permittee to pay a fee to a third party, likely a municipality or nonprofit, as opposed to implementing their own mitigation project. The fee is a one-time payment that goes towards a site or project that is certified under state and federal regulations. This form of compensatory mitigation differs from mitigation banking as it does not apply strictly to wetlands.

One example of an ILF program would be the Hood Canal Coordinating Council (HCCC) ILF Program, which provides an alternate mitigation option for authorized, unavoidable impacts to freshwater and marine aquatic resources. Under this program, landowners or developers may make a one-time payment to the ILF Program instead of implementing their own mitigation project. The payment funds are used by HCCC to implement mitigation projects that are strategically sited with respect to a watershed's ecological needs. The primary purpose of the ILF Program is to meet the goal for no net loss of aquatic resource functions.

Examples of Codes and Programs

Transfer of Development Rights (TDR) / Land Exchange to Preserve Critical Areas

TDRs are designed to conserve critical areas and open spaces by transferring development to another area of planned development. Developers receive compensation for moving their development projects.

Examples of Codes

Example of Program

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Last Modified: June 11, 2024