Critical areas

Key Takeaways

• Washington's Growth Management Act fixes the list of critical areas at wetlands, areas with a critical recharging effect on aquifers used for potable water, fish and wildlife habitat conservation areas, frequently flooded areas, and geologically hazardous areas.
• Every county and city in Washington must designate critical areas under RCW 36.70A.170 and adopt development regulations that protect them under RCW 36.70A.060, not just the jurisdictions that plan fully under the act.
• A critical area designation is an exercise of the police power, so an owner whose buildable area shrinks is regulated rather than condemned and is owed no compensation.
• The statutory Washington seller disclosure statement asks whether there are shorelines, wetlands, floodplains, or critical areas on the property, so the topic reaches the transaction in writing.

What It Means

Critical areas are the environmentally sensitive lands Washington law singles out for protection, and the phrase is a legal category rather than a description. Under the Growth Management Act the list is closed: wetlands, areas with a critical recharging effect on aquifers used for potable water, fish and wildlife habitat conservation areas, frequently flooded areas, and geologically hazardous areas. A steep unstable slope, a salmon-bearing creek, and a seasonal wetland all land in the same bucket.

The designation does not take the property, it restricts what can be built on part of it. Local critical areas ordinances typically set a buffer measured out from the sensitive feature, require a study by a qualified biologist or geologist before a permit issues, and then condition or deny work inside that buffer. That is Police Power regulation, so an owner whose buildable footprint shrinks is not owed Just Compensation. For a broker the practical consequence is usable acreage rather than legal theory. A five-acre parcel with a wetland and its buffer running through the middle may support one house site instead of four, and the listing price should reflect that before a buyer's consultant finds it.

How It Works in Washington

In Washington, critical areas come from the Growth Management Act, chapter 36.70A RCW. RCW 36.70A.030 defines critical areas to include "(a) Wetlands; (b) areas with a critical recharging effect on aquifers used for potable water; (c) fish and wildlife habitat conservation areas; (d) frequently flooded areas; and (e) geologically hazardous areas." RCW 36.70A.170 requires each county and city to designate critical areas where appropriate, and RCW 36.70A.060 states that "Each county and city shall adopt development regulations that protect critical areas that are required to be designated under RCW 36.70A.170." That duty reaches every county and city in the state, with earlier deadlines for those planning under RCW 36.70A.040 and later ones for the rest.

RCW 36.70A.172 adds that counties and cities "shall include the best available science in developing policies and development regulations to protect the functions and values of critical areas," which is why local rules lean on delineations and geotechnical reports rather than eyeballing. Disclosure closes the loop at the deal level. The seller disclosure statement set out in RCW 64.06.020 asks in its environmental section, "Are there any shorelines, wetlands, floodplains, or critical areas on the property?", so a Washington seller answers it in writing on Form 17. A broker who knows the answer has a duty under RCW 18.86.030 to disclose all existing material facts known to the broker and not apparent or readily ascertainable to a party.

Example

Priya Raman lists a two-acre parcel in Marysville at $560,000. City zoning allows four homes to the acre, so her flyer describes eight lots. Her buyer, Ken Duarte, opens a 45-day feasibility period and orders a wetland delineation. The biologist maps a 0.3-acre Wetland near the back line, and the city planner tells Ken the critical areas ordinance requires a 75-foot buffer around a wetland of that rating.

The wetland and its buffer together pull roughly 0.9 acres out of play, leaving about 1.1 buildable acres and four lots instead of eight. Ken underwrote $70,000 of land value per finished lot, so four lots support about $280,000 rather than $560,000. He asks Priya to cut the price to $295,000 and terminates under the feasibility contingency when she declines. Nothing in this story is a taking. The city never bought anything, it simply regulated where the houses may sit, and Priya still owns all two acres.

Common Mistakes and Exam Traps

• The critical areas list is closed. Wetlands, aquifer recharge areas, fish and wildlife habitat conservation areas, frequently flooded areas, and geologically hazardous areas are in it; agricultural, forest, and mineral lands are designated separately as natural resource lands under RCW 36.70A.170.
• A critical area designation is police power regulation, not a taking, so the owner is not paid. Compensation belongs to eminent domain and condemnation questions.
• Critical areas protection is not limited to the counties and cities that plan fully under the Growth Management Act. RCW 36.70A.060 requires protective development regulations statewide.
• The state sets the categories and the best available science standard, but the buffer widths and permit conditions come from the local critical areas ordinance, so the answer to how wide a buffer is depends on the county or city.