Chapter 2.7
WETLANDS AND RIPARIAN (/WP) OVERLAY DISTRICT
Sections:
2.7.130 Restrictions on development within wetlands.
2.7.140 Floodplain district and wetlands density calculation.
2.7.170 Riparian corridor – Applicability.
2.7.180 Riparian corridor – Location.
2.7.190 Permitted activities within riparian corridors.
2.7.200 Conditional uses within riparian corridors.
2.7.210 Prohibited activities within riparian corridors.
2.7.220 Riparian corridors, reduction or deviation.
2.7.230 Conservation and maintenance of riparian corridors.
2.7.110 Wetland – Purpose.
The wetlands overlay district is intended to ensure that wetland sites within the city are developed with all due sensitivity for the vital role these areas play in the environment. (Ord. 08-06 § 3, 2008)
2.7.120 Applicability.
The wetland area regulations apply to those areas meeting Division of State Lands criteria for wetland classification. Precise wetland boundaries may vary from those shown on the comprehensive plan map exhibit if on-site inspection and delineation by a recognized authority and/or other city-approved documentation indicate more accurate boundaries. Those more precise boundaries can be identified, mapped, and used for review and development without a change in the comprehensive plan wetlands map exhibit. All developments proposed within a designated wetland area shall be subject to the provisions of conditional use review and the wetland area regulations. If the development area is within the floodplain district, then the floodplain district regulations of Chapter 2.5 SDC shall also apply. (Ord. 08-06 § 3, 2008)
2.7.130 Restrictions on development within wetlands.
No development shall result in the elimination of a wetland area, result in eventual elimination of wetland characteristics, or be located totally within a wetland area without acquiring permit approval from federal and state regulatory agencies and the city of Silverton and, where necessary, amending the open space plan and zoning designation. Development may not infringe upon any designated wetland unless the review authority finds the following criteria have been met:
A. The development cannot be located outside the wetland area, or the wetland is proposed to be reconfigured such that the proposed total area is at least equal in size and quality to the wetland area existing prior to the proposed development. If the wetland area has not been substantially relocated, it is not necessary to remove the open space designation for such a modification.
B. The encroachment within the wetlands is the minimum required to complete the development.
C. Any encroachment or change in drainage which would adversely impact favorable wetland characteristics in the short- or long-term has been mitigated.
D. Development review is coordinated with the Division of State Lands and any other applicable agencies and other required permits have been obtained.
E. The applicable floodway or floodplain requirements of SDC 2.5.100 through 2.5.270 have been met.
F. The open space, vegetation, and wildlife protection policies of the comprehensive plan have been addressed. (Ord. 08-06 § 3, 2008)
2.7.140 Floodplain district and wetlands density calculation.
Residential lands located in a floodplain district or wetland area shall not be used in calculating total project density except as follows:
A. Land which has been approved for development features (structures, roads, required yard areas, etc.) under the provisions of SDC 2.5.190 or 2.7.130.
B. In planned developments, land in a flood fringe or wetland area shall be calculated at 50 percent of the allowed density; provided, that the additional units can be incorporated harmoniously into the planned development and without adverse impacts on adjoining projects; and provided further, that the floodplain lands and wetlands can be effectively utilized within the planned development or dedicated for public use. (Ord. 08-06 § 3, 2008)
2.7.150 Riparian – Purpose.
A. The purpose of establishing a riparian corridor is to protect and restore Silver Creek and its associated riparian areas, and any other waterway specified in the Silverton comprehensive plan as having riparian areas determined to be significant, thereby protecting and restoring the hydrologic, ecologic, and land conservation functions these areas provide for the community.
1. To protect fish and wildlife habitat, enhance water quality, control erosion and sedimentation, and reduce the effects of flooding.
2. To protect and restore the natural beauty and distinctive character of Silver Creek as a community asset.
3. To enhance coordination among local, state, and federal agencies regarding development activities near waterways. (Ord. 08-06 § 3, 2008)
2.7.160 Definitions.
The following definitions shall apply to SDC 2.7.150 to 2.7.230:
“Fish-bearing stream” means a stream inhabited at any time of the year by anadromous or game fish species, or fish that are listed as threatened or endangered species under the federal or state Endangered Species Act.
“Riparian area” means lands adjacent to rivers, streams, lakes, ponds, and other water bodies. They are transitional between aquatic and upland zones, and as such, contain elements of both aquatic and terrestrial ecosystems. They have high water tables because of their close proximity to aquatic systems, soils that are usually made up largely of water-carried sediments, and some vegetation that requires free (unbound) water or conditions that are more moist than normal.
“Riparian vegetation” means native ground cover, shrubs, trees, and other vegetation predominately influenced by their association with water.
“Top-of-bank” means the first major change in the slope of the incline from the ordinary high water level of a water body. A major change is a change of 10 degrees or more. If there is no major change within a distance of 50 feet from the ordinary high water level, then the top of bank will be the elevation two feet above the ordinary high water level. (Ord. 08-06 § 3, 2008)
2.7.170 Riparian corridor – Applicability.
A. The provisions of SDC 2.7.150 through 2.7.230 shall be applied to Silver Creek and any other waterway specified in the Silverton comprehensive plan as having riparian areas determined to be significant. The provisions shall apply regardless of whether or not a building permit, development permit, or plan authorization is required, and do not provide any exemption from state or federal regulations. When a locally significant wetland is located within or adjacent to a riparian corridor, the riparian corridor setback will be applied, and shall be measured from the boundary of the wetland.
B. Applications for plan authorizations (except annexations), development permits, or building permits, and plans for proposed public facilities on parcels containing a riparian corridor, or a portion thereof, shall contain a to-scale drawing that clearly delineates the top-of-bank and riparian corridor boundary on the entire parcel or parcels.
C. When reviewing plan authorization or development permit applications for properties containing a riparian corridor, or portion thereof, the approving authority shall consider the purpose statements in SDC 2.7.150 in determining the extent of the impact on the riparian corridor.
D. The planning commission shall be the approving authority for applications for exceptions to the provisions herein pertaining to riparian corridors and said applications shall be processed as Type III applications in accordance with SDC 4.1.400. In addition, said request shall be submitted to the Oregon Department of Fish and Wildlife for habitat mitigation recommendation pursuant to OAR 635-415, Fish and Wildlife Habitat Mitigation Policy. (Ord. 08-06 § 3, 2008)
2.7.180 Riparian corridor – Location.
The riparian corridor boundary shall extend 25 feet measured horizontally from the top-of-bank, as defined herein, or both sides of those waterways defined in SDC 2.7.170(A) and having an average annual stream flow of less than 1,000 cubic feet per second (cfs), unless a request to reduce the setback has been approved according to SDC 2.7.220. Where the top-of-bank has been relocated as part of an approved waterway restoration project, at the request of affected property owners, the riparian corridor boundary shall extend 25 feet from the original top-of-bank. (Ord. 08-06 § 3, 2008)
2.7.190 Permitted activities within riparian corridors.
A. Any use, sign, or structure, and the maintenance thereof, lawfully existing on the date of adoption of the provisions herein is permitted within a riparian corridor. Such use, sign, or structure may continue at a similar level and manner as existed on the date of adoption of the provisions herein. The maintenance and alteration of pre-existing ornamental landscaping is permitted within a riparian corridor as long as no additional riparian vegetation is disturbed. The provisions of this section shall not be affected by any change in ownership of properties containing a riparian corridor.
B. The following activities, and maintenance thereof, are permitted within a riparian corridor, subject to obtaining applicable permits, if any, from the Oregon Department of State Lands and the U.S. Army Corps of Engineers. All plans for development and/or improvements within a riparian corridor shall be submitted to the Oregon Department of Fish and Wildlife for a habitat mitigation recommendation pursuant to OAR 635-415, Fish and Wildlife Habitat Mitigation Policy.
1. Waterway restoration and rehabilitation activities such as channel widening, realignment to add meanders, bank grading, terracing, reconstruction of road crossings, or water flow improvements.
2. Restoration and enhancement of native vegetation, including the addition of canopy trees; cutting of trees which pose a hazard due to threat of falling if the tree is left in the riparian area after felling; or removal of nonnative vegetation if replaced with native plant species at the same amount of coverage or density.
3. Normal farm practices, other than structures, in existence at the date of adoption of the provisions herein, on land zoned for farm use.
4. Normal flood control channel maintenance practices within a waterway, other than structures, necessary to maintain flow.
5. Replacement of a permanent legal nonconforming structure in existence at the date of adoption of the provisions herein with a structure in the same location, if it does not disturb additional riparian area, and in accordance with the provisions of Chapter 5.2 SDC, Nonconforming Uses and Development.
6. Expansion of a permanent legal nonconforming structure in existence at the date of adoption of the provisions herein, if the area of the expansion is not within the riparian corridor, and in accordance with the provisions of Chapter 5.2 SDC.
7. Perimeter mowing and other cutting necessary for hazard prevention.
C. New fencing may be permitted subject to consideration by the community development director or his/her designee in consultation with the director of public works and applicable state and federal agencies. An application for new fencing within a riparian corridor shall contain a to-scale drawing that clearly delineates the top-of-bank and riparian corridor boundary on the entire parcel or parcels, and shall indicate why the proposal is necessary and how it minimizes intrusion into the riparian corridor. (Ord. 08-06 § 3, 2008)
2.7.200 Conditional uses within riparian corridors.
The following activities, and maintenance thereof, are allowed within a riparian corridor if compatible with SDC 2.7.150 and if designed to minimize intrusion. Such activities shall be subject to approval of a conditional use, which may be considered separately or in conjunction with another application review. The approving authority must determine that the proposal complies with at least one of the conditional use review criteria found in Chapter 4.4 SDC. Application permits, if any, from the Oregon Department of State Lands and the U.S. Army Corps of Engineers shall subsequently be obtained. All development and improvement plans shall be submitted to the Oregon Department of Fish and Wildlife for a habitat mitigation recommendation pursuant to OAR 635-415, Fish and Wildlife Habitat Mitigation Policy.
A. Water-related or water-dependent uses, such as drainage facilities and irrigation pumps.
B. Utilities or other public improvements.
C. Streets, roads, or bridges where necessary for access or crossings.
D. Multi-use paths, access ways, trails, picnic areas, or interpretive and educational displays and overlooks, including benches and outdoor furniture. (Ord. 08-06 § 3, 2008)
2.7.210 Prohibited activities within riparian corridors.
The following activities are prohibited within a riparian corridor, except as permitted in SDC 2.7.190 and 2.7.200:
A. Placement of new structures or impervious surfaces.
B. Excavation, grading, fill, stream alteration or diversion, or removal of vegetation except for perimeter mowing for fire protection purposes.
C. Expansion of areas of pre-existing nonnative ornamental landscaping such as lawns, gardens, etc.
D. Dumping, piling, or disposal of refuse, yard debris, or other material. (Ord. 08-06 § 3, 2008)
2.7.220 Riparian corridors, reduction or deviation.
A request to reduce or deviate from the riparian corridor boundary provisions of this section may be submitted to the community development director or his/her designee for consideration. A deviation request may be approved as long as equal or better protection of the riparian area will be ensured through a plan for a conservation easement, restoration, enhancement, or similar means. Such a plan shall be submitted to the Oregon Department of Fish and Wildlife for habitat mitigation recommendation pursuant to OAR 635-415, Fish and Wildlife Habitat Mitigation Policy. In no case shall activities prohibited in SDC 2.7.210 be located any closer than 25 feet from the top-of-bank. The planning commission shall be advised of the outcome of the deviation or reduction requests. Any decision of the community development director may be appealed to the planning commission as provided in Article 4 of this title. (Ord. 08-06 § 3, 2008)
2.7.230 Conservation and maintenance of riparian corridors.
When approving applications for the following: land divisions, planned developments, conditional uses, and variances, or for development of properties containing a riparian corridor or portion thereof, the approval authority shall assure long-term conservation and maintenance of the riparian corridor through one of the following methods:
A. The area shall be protected in perpetuity by a conservation easement recorded on deeds and plats prescribing the conditions and restrictions set forth in SDC 2.7.150 through this section and any imposed by state or federal permits; or
B. The area shall be protected in perpetuity through ownership and maintenance by a private nonprofit organization by conditions, covenants, and restrictions (CC&Rs) prescribing the conditions and restrictions set forth in SDC 2.7.150 through this section and any imposed by state or federal permits; or
C. The area shall be transferred by deed to a willing public agency or private conservation organization with a recorded conservation easement prescribing the conditions and restrictions set forth in SDC 2.7.150 through this section and any imposed by state or federal permits; or
D. The area shall be protected through other appropriate mechanisms acceptable to the city of Silverton which ensure long-term protection and maintenance. (Ord. 08-06 § 3, 2008)