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HomeMy WebLinkAboutItem A: Water Quality Waterways ECC UGENE ITY OUNCIL AIS GENDA TEM UMMARY Work Session: - An Ordinance Adding Sections Water Quality Protected Waterways 9.4770 Through 9.4790 to the Eugene Code, 1971 that Establish a Water Quality Overlay Zone; Amending Sections 9.0500 9.1040, 9.7055, 9.7205, 9.7305, 9.7820, 9.8005, 9.8025 9.8030, 9.8055, 9.8215, 9.8220, 9.8320, 9.8325, 9.8415, 9.8470, 9.8472, 9.8474, 9.8515, 9.8520, 9.8855, and 9.8865 of that Code; Repealing Ordinance No. 20194 And Sections 6.650, 6.655, 6.660, 6.665, and 6.670 of that Code; Adopting the Water Quality Waterways Map; Amending the Eugene Overlay Zone Map; Adopting a Severability Clause; and Providing an Effective Date Meeting Date: June 18, 2008 Agenda Item Number: A Department: Public Works Staff Contact: Therese Walch www.eugene-or.gov Contact Telephone Number: 682-8647 ISSUE STATEMENT The purpose of this work session is to consider staff’s response to public testimony received and the concerns and issues raised by the City Council at the public hearing of May 19, 2008, and to begin deliberation on the proposed Water Quality Protected Waterways code amendments and related zone changes. The code amendments would establish a /WQ Water Quality Overlay Zone which will protect the physical integrity and water quality function within and adjacent to otherwise unprotected waterways. BACKGROUND City Council Process On May 14, 2008, in advance of a public hearing on the proposal, the City Council held a work session at which staff provided an overview of the proposed ordinance, map, affected properties, and summarized the public process and the Planning Commission’s recommendation to the City Council. The City Council held a public hearing on May 19 at which three people testified. In addition, 23 pieces of public testimony were received through the public hearing proceedings. Copies of all testimony received have been provided to the council in the following materials: Testimony #1 through #15 – Attachment B of Public hearing AIS for May 19, 2008 · Color copies of #2, #9 and #10 – Attachment A of Staff Memo to Council dated May 19, 2008 · Testimony #16 through #21 - Attachment A of Staff Memo to Council dated May 19, 2008 · Testimony #22 (Written statement for May 19, 2008, City Council public hearing from Barbara · Combs) – Included in May 22, 2008 Council packet Testimony #23 (E-mails to Eugene Water Quality Protected Waterways dated March 21, 2008 and · March 22, 2008 from Doug DuPriest) - Attachment B to this June 18, 2008 AIS Z:\CMO\2008 Council Agendas\M080618\S080618A.DOC Between the verbal testimony received at the May 19 public hearing and the written testimony received through May 19, several major themes emerged, including: why the setback is needed; what other options were considered; expected benefits; the basis for reducing the number of miles proposed for protection compared to the June 2006 proposal; questions about permitted uses including maintenance of fences and lawns; how the map was developed; how the setback measurement points were defined; what the process is for challenging the setback location; and site specific issues. In addition to these themes from the public testimony, concerns were expressed by City Councilors at the May 14 work session and May 19 public hearing. See Attachment A for staff response to public testimony and councilor’s concerns. Item I.B on Attachment A is specifically in response to Councilor Clark’s questions related to whether other options were considered besides the proposed water quality waterway protections, and what the City is doing to address the water quality impact of homeless camps adjacent to waterways. Recommended Revision to Ordinance to Clarify Limit on Creation of New Lots / 33% Issue Staff have been alerted to a problem with one of the amendments proposed in the draft ordinance. The ordinance is intended to prohibit the creation of any new lot in the /WQ overlay zone (i.e. through a subdivision or partition) if the proposed lot would be configured in a way that would immediately be eligible for a setback reduction. Instead, new lots in the /WQ overlay zone should be configured so that they can be developed without the need for a reduction in the setback. Such a prohibition already exists for the Water Resources (/WR) overlay zone (Goal 5). In adding this same prohibition for the /WQ Water Resources overlay zone, the draft ordinance deleted a phrase pertaining to the /WR overlay zone (the deleted phrase is: “making the lot immediately eligible for an adjustment under EC 9.8030(21)(a)”). Based on additional communication with PDD, staff believe that the subject language should not be deleted and that, instead, similar language should be added to pertain to the /WQ overlay zone. Unless the council directs otherwise, staff intend to revise the draft ordinance, for your July 14 action date, so that sections 9.8055 (cluster subdivisions), 9.8215 and 9.8220 (partitions), 9.8320 and 9.8325 (planned unit developments), 9.8515 and 9.8520 (subdivisions) reflect the following code change: or the /WQ Water Quality Overlay Within the /WR Water Resources Conservation Overlay Zone Zone , no new lot may be created if more than 33% of the lot, as created, would be occupied by either: 1.T [t]he combined area of the /WR conservation setback and any portion of the Goal 5 Water Resource Site that extends landward beyond the conservation setback, making the lot or immediately eligible for an adjustment under EC 9.8030(21)(a); 2. The /WQ Management Area, alone or in combination with a /WR Conservation Area, making the lot immediately eligible for an adjustment under EC 9.4778(2) or 9.8030(25)(a). Additional Recommended Revisions to the Ordinance for Council Consideration and Direction In response to public testimony, staff recommends revisions to the ordinance in the following areas: ·9.4780(2)(h)(12) – Uses Permitted within /WQ Management Area: Add new sub-section which would allow maintenance and expansion of existing telecommunication facilities as a permitted use (to address COBI testimony). Note that two alternatives are provided for council consideration. The difference between the two alternatives is whether mitigation of water quality function impact would be required for expansion of telecommunications facilities. Staff recommends requiring water quality function mitigation (see Attachment C-1). It is staff’s understanding that COBI would prefer that water quality function mitigation not be required for expansions given space constraints on the property (see Attachment C-2). Z:\CMO\2008 Council Agendas\M080618\S080618A.DOC ·9.4780(2)(c)(6) – Uses Permitted within /WQ Management Area: Add new sub-section to allow the maintenance, repair and reconstruction of existing fences as a permitted use. See Attachment D. ·9.4778(3)(a)2 – Exclusions from the /WQ Management Area: Modify the ordinance to clarify utility facilities (to address EWEB testimony). See Attachment E. COUNCIL OPTIONS Option 1.Direct City Manager to return the ordinance without any of the revisions described in Attachments C through E. Option 2.Direct City Manager to return the ordinance with the revisions described in attachments C-1, D and E. Option 3.Direct the City Manager to return the ordinance with some, but not all, of the revisions described in Attachments C through E (to be specified by maker of the motion). Option 4.Direct City Manager to return the ordinance with other specific revisions. Option 5.No action. CITY MANAGER’S RECOMMENDATION Move to direct City Manager to return the ordinance with the revisions described in Attachments C-1, D and E (Option 2). SUGGESTED MOTION Move to direct the City Manager to return the ordinance with the revisions described in Attachments C-1, D and E of the AIS. ATTACHMENTS A.Staff Response to Public Testimony and City Council B.E-mails to Eugene Water Quality Protected Waterways from Doug Dupriest, dated March 21, 2008, and March 22, 2008, (submitted to the City after the close of the Planning Commission public comment period and therefore included in the Council record), referenced herein as Testimony #23 C1. Add New Sub-Section to /WQ Ordinance to Allow Maintenance and Expansion of Existing Telecommunication Facilities as a Permitted Use With Water Quality Function Mitigation (COBI Alternative 1 – staff recommended) C2. Add New Sub-Section to /WQ Ordinance to Allow Maintenance and Expansion of Existing Telecommunication Facilities as a Permitted Use Without Water Quality Function Mitigation (COBI Alternative 2 – staff understands this to be COBI preferred) D.Add New Sub-Section to /WQ Ordinance to Allow the Maintenance, Repair, and Reconstruction of Existing Fences as a Permitted Use E.Change /WQ Ordinance to Clarify Utility Facilities (EWEB) FOR MORE INFORMATION Staff Contact: Therese Walch Telephone: 682-8647 Staff E-Mail: therese.walch@ci.eugene.or.us Z:\CMO\2008 Council Agendas\M080618\S080618A.DOC Attachment A Staff Response to Public Testimony and City Council 12 Topic/Issue Staff Response (June 18, 2008) I. Proposal A. Why is a setback needed? (T) Several of our local area waterways are impaired, meaning that they do not meet water quality standards for certain pollutants including turbidity, dissolved oxygen, GA temperature, mercury and bacteria. The federal Clean Water Act requires that these waterways be brought back into compliance with water quality standards. Statewide planning Goal 6 requires that local comprehensive plans and implementing measures to be consistent with state and federal regulations on matters such as 3 water pollution. As stated in the Oregon Department of Environmental Quality’s (DEQ) Willamette Basin TMDL Water Quality Management Plan, “water quality improvement requires a comprehensive watershed approach to solving pollution problems. This takes into account the cumulative effects all activities in a watershed have on overall water quality. To solve water quality problems in a stream, river, lake or estuary, we need to consider the cumulative impact from all upstream sources including groundwater. Eight management strategies have been identified by the Center for Watershed Protection in Maryland for watershed protection and restoration. ODEQ believes that the strategies are equally applicable for watershed protection and restoration in Oregon. The eight strategies are: 1) Land Use Planning; 2) Land Conservation; 3) Aquatic Buffers; 4) Better Site Design; 5) Erosion Prevention and Sediment Control; 6) Stormwater Best Management Practices; 7) Non-Stormwater Discharges; and 8) Watershed Stewardship Programs.” The proposed /WQ Waterway setbacks are needed to fill gaps in protections on certain waterways with a significant relationship to those that are water quality impaired. Consistent with a watershed approach, the City conducts 23 best management practices, or BMPs, under its municipal stormwater permit with the aim of protecting and improving water quality. Examples of BMPs include: stormwater development standards (water quality design standards for new development), erosion prevention and construction site management program, stormwater education and volunteer activities, street sweeping, catch basin cleaning, piped system retrofits for water quality, and stream rehabilitation capital projects. See the web site for the full list of 23 BMPs: www.eugene-or.gov/PW > Stormwater > National Pollution Discharge Elimination System > Best Management Practices. These BMPs represent complimentary strategies in the City’s watershed based approach to water quality protection and improvement. Many waterways that have important water quality functions under Statewide Planning Goal 6 are also significant Goal 5 resources. For waterways that have been identified as significant resources under Statewide Planning Goal 5, a significant amount of water quality protection is incidentally provided by the Goal 5 /WR Conservation Overlay Zone. Waterways that have an important water quality function but that do not have this incidental protection are the subject of the proposed /WQ ordinance. This proposal, complimented by Goal 5 protections, will help “hold-the-line” on water quality in our local area waterways. This proposal addresses an important missing element of the City’s watershed approach to water quality protection, which is partially, but not entirely, addressed by Goal 5 natural resources setbacks. Without these protections, future uses and activities within and adjacent to these waterways would very likely increase pollutant loads including sediment, thermal pollution, bacteria, and other urban pollutants. B. What other options were considered? (20, CC); As described in response to I.A. above, this proposal addresses an important missing element of the City’s watershed, system-based approach to water quality MC protection. From a historical perspective, alternative approaches to waterway protection initiated by the stormwater program have included: the Open Waterways ordinance (“no-pipe, no fill”) which was adopted by City Council in 2000 and affected all waterways but is no longer in effect; the 75-ft setback proposal presented in June 2006 for approximately 90 miles of waterways which was modified to become the current proposal; and the current proposal which basically fills the gaps in protections on the original set of 90 miles and recognizes the incidental water quality protections that the Goal 5 protections have. The drivers for each of these proposals have been local adopted policy in the form of the Comprehensive Stormwater Management Plan (CSWMP), and federal water quality regulations. As for alternatives measures which would take the place of any waterway protection proposal, the Public Works (PW) Stormwater Policy team (which is comprised of the PW Director and PW Division Managers) has considered at several times over the last 10 years whether to proceed with waterway protections or not. The opinion from the Policy team has been, and still is, that there is still a significant water quality protection benefit to be gained from a waterway protection proposal, and that the other program measures (BMPs) – described in I.A would not directly address the lack of protection on these “gap” waterways. In other words, preventing adverse water quality impacts from future uses and activities within and adjacent to these waterways is much more effectively addressed by prevention and protection than by, for example, more frequent street sweeping, installation of additional downstream structural treatment devices, or construction of future stream rehabilitation projects once these waterways begin to erode. Specific options recommended (12, 13, 20, 21, CC), such as: MC ?Banning certain chemicals (pesticides, herbicides, fertilizers – “do the State law prevents the City from regulating the private use of pesticides (which include herbicides by definition). The stormwater education program obvious”) on properties near waterways (12) provides information to homeowners on alternatives to chemical usage and the benefits of using native vegetation. Staff also conducts business 1 Parenthetical code means: T(initials) = Verbal testimony provided at public hearing; CC(initials) = City Council comment; XX = Number (from 1-23) corresponding to testimony submitted to City Council (see 6/18/08 Council AIS for references to all testimony). 2 For additional information in response to Planning Commission testimony, see Staff Response to Topics Raised by Planning Commission and Public Testimony Through February 19, 2008 – Provided in Supplemental Information Binders at CMO 3 Willamette Basin TMDL (ODEQ, September 2006), page 14-43. WQ Protected Waterways Attachment A to June 18, 2008 AIS (page 1 of 6) Attachment A Staff Response to Public Testimony and City Council awareness efforts targeted at landscape maintenance enterprises, local nurseries, University of Oregon, large corporations with their own grounds maintenance staff, property management companies, and local school districts on the proper use of pesticides and herbicides. ?Place restrictions on methods used in building structures (12) 4 The proposed setback widths are at the lower end of a spectrum of recommended widths based on the scientific literature. The ordinance includes allowances for small accessory structures in the /WQ Management Area. Beyond that, new structures are limited to certain situations and are subject to specific development standards that ensure water quality protection. ?Apply regulations to future development of raw land, but not Proposed regulations protect water quality function where it exists on certain waterways and does not distinguish between vacant and developed properties in terms of developed properties (12) applicability. For the “gap” waterways, staff’s opinion is that the water quality function is important enough to apply the protections to, and that uses and activities even on developed properties could cause adverse water quality impacts. ?Reduce contamination at its source (13) This proposal is considered a “source control” measure in that it protects a water quality function that exists and that, if not protected, would need to be mitigated somehow in the future through downstream treatment measures and stream restoration measures. This proposal also helps to ensure that these waterways do not themselves become a source of pollution via erosion of streambanks, loss of vegetation and introduction of sediment and other pollutants into downstream waterways. ?Clean and treat water at outfalls (21) Adopted policy in the form of the Comprehensive Stormwater Management Plan (CSWMP) includes policy direction to integrate the beneficial functions of waterways (including water quality) into the City’s stormwater system. Rather than allow water quality degradation through waterway impacts, and then treating the water at its outfall, local policy is aimed more at source control measures and protecting and integrating the function of natural systems into the City’s stormwater system. ?Address homeless camps and related water quality impact (CC) The City addresses homeless camps by using City staff and the Sheriff’s Adult Work Crew on a weekly basis to clean up trash, including syringes and human waste, MC from illegal campsites that have been abandoned on public land in the river corridor. City staff responds to reports of illegal camps in the river corridor and along waterways and cleans up those sites as needed. City staff also works in cooperation with agencies such as ODOT to ensure that trash and other pollutants from illegal campsites on public lands that are near waterways are cleaned up. This can involve reporting campsites, assisting with site inspections, and even providing some logistical support. C. Expected Benefits/Costs (T, CC); quantifiable benefits vs. Water quality setbacks help to address the parameters of concern (including bacteria, turbidity, dissolved oxygen, temperature), with the science indicating a range of DDBB 5 disruption to property owners (22) effectiveness for the various parameters, and a general water quality benefit. Since this is primarily a water quality “protection” proposal (as opposed to water quality “enhancement” proposal), the expected outcome of implementing the /WQ Water Quality Overlay – all other things being equal - is no decline in water quality conditions. It is through other efforts including for example waterway enhancement and water quality capital projects, increased efficiencies in operations and maintenance of the stormwater system, stormwater development standards, tree planting along streams, and stormwater education that we would expect to see improved water quality conditions over time. The number of variables within a watershed, including the variability in storm events, and the location and intensity of activities within a watershed, typically preclude a direct measure of impact (i.e. water quality benefit) of one specific program element on receiving water quality. However, staff will continue to conduct surface water quality monitoring to assess trends in water quality conditions over time. Monitoring is conducted at eleven locations, including four sites on the Willamette River, one near the Delta Ponds outlet, and six in the Amazon Basin. Staff will also track quantitative surrogate measures of effectiveness – for example, the number and types of trees planted on publicly controlled parcels including those within the Water Quality Management Area and the Goal 5 Water Resources Conservation Area, which could be used to determine effectiveness with respect to temperature reduction. As expressed in the testimony from DEQ (18), it is far easier to protect what you have in place than to reverse the damage once it has occurred. The ordinance is structured to provide significant flexibility to owners enabling the development of a parcel for its intended use. D. Basis for reducing miles of protections from 90 to 15 (CC) The initial (June 2006) WQ Waterways proposal, based upon a review of the scientific literature related to water quality buffers, and an understanding of the status of BT Eugene’s waterways with respect to their water quality condition and federal and state water quality regulations, identified nearly 90 miles of waterways for protection. The 90 miles of waterways initially identified for protection included all waterways identified as “water quality impaired” pursuant to the Clean Water Act, waterways that are tributaries to water quality impaired waterways, and sensitive headwater streams that drain to water quality impaired waterways. The initial proposal included 75-foot setbacks along each side of all waterways proposed for protection. Significant input was received on the initial proposal from property owners, interested persons, and other city staff including Planning and Development staff involved 4 See Supplemental Information binder, Section XII. Scientific Review. 5 See Supplemental Information binder, Section XII. Scientific Review, Summary of the Science (Document #23) and referenced source documents. WQ Protected Waterways Attachment A to June 18, 2008 AIS (page 2 of 6) Attachment A Staff Response to Public Testimony and City Council in implementing the Goal 5 /WR Conservation Overlay Zone. Issues raised included that: Goal 5 setbacks provide significant water quality protection benefits; that two sets of regulations (Goal 5 and Goal 6) on the same property would be onerous for the property owners and complex to administer; and that the one-size-fits-all 75 foot setback proposed for all approximately 90 miles did not take into account the different waterway characteristics and potential impacts. As a result of the issues raised, significant revisions were made to the proposal. Water Quality Protections would be proposed only for those water quality waterways that have no existing protections or for which established waterway protection policy decisions have been made. Of the 89.6 miles of waterways identified for water quality protection, 71 are also significant Goal 5 resources, and a significant amount of water quality protection is incidentally provided by the Goal 5 /WR Conservation Overlay Zone. An additional 3 of the 89.6 miles reside within the boundaries of the West Eugene Wetland Plan area and the Royal Node Special Area Zone. Under the current proposal, where waterways that have an important water quality function but do not have this incidental protection the miles of WQ Waterways was reduced to 15.6. This is the number of miles affected by the proposal that was presented to the Planning Commission earlier this year. In response to Planning Commission testimony regarding specific properties and recent development, staff has made additional modifications to the Water Quality Waterways map, and the number of miles affected by this proposal is now 13.6. Setback widths were revised from the initial proposal (75 feet) to match existing wildlife habitat setback distances. Specifically, the proposed setback distances are 40 feet measured from centerline on each side of the waterway for headwater streams, and 25 feet measured from the top of a high bank on each side of the stream for all other identified waterways. The rationale for proceeding with this approach includes the acknowledgement that, when viewed as a component of the broader, big-picture set of protections (including Goal 5), the 13.6 miles of waterways recommended for protection fill a significant gap in addressing the City’s water quality issues. E. The approach is flawed: staff relied on studies conducted in other part Oregon DEQ, in its Willamette Basin TMDL, references some of the same resources used by City staff to develop the Water Quality Protected Waterways proposal of the country; tree planting required but shading of intermittent (see response to I.A.). Tree planting is required only under certain circumstances: for certain Uses Subject to Standards Review (9.4780(3)) and when the Water streams would not be effective; setback width of 25 ft. too narrow and Quality Function Rating System is used (9.4782). Even for seasonal streams, tree planting adjacent to waterways would provide a seasonal cooling affect.. The would make the water quality situation worse not better. (13) proposed setback width of 25 feet for non-headwater streams is on the lower end of the spectrum but without any setback at all, stream bank stability and other water quality impacts would result. F. Not opposed to applying the ordinance to raw (vacant) land, but Construction related activities are addressed by the City’s erosion prevention program. While it is true that the most construction-related impacts of any existing applying the regulations to developed private property is too “big development would have likely occurred, this proposal would limit future development within the setback area so as to prevent long-term adverse water quality impacts brother.” Unfairly impacts land already developed. Once including lost water quality function through vegetation removal and long-term stream bank stability problems caused by development adjacent to the waterway. development has occurred, construction-related impact to water quality has occurred, so what is gained by this proposal? (12) G. We support improving water quality but a setback that impacts Comment is noted. Ordinance includes allowances for maintenance, repair and replacement of existing fences, maintenance of existing landscaped areas, and AISAttachment D improvements on my property (fences, etc.) is unnecessary and construction of minor accessory structures. See also II.C for proposed ordinance revision related to maintenance and replacement of fences ( ). objectionable. (2, 7) H. Provide maximum leeway for owners to address regulations if Staff acknowledges that the ordinance is long and complex. It is so in part because staff has aimed to achieve a balance between water quality protection and flexibility adopted. (20) There are pages and pages of exceptions and for property owners to utilize their property for its intended use. adjustments; if you know someone and have a lot of $$ you can get around it by getting exceptions and adjustments. (12) Concerned about code allowances for expansion in the regulated area (CC) BT I. Water quality data should be obtained for waterways in River Road The proposal protects waterways with a significant relationship to those that water quality data indicates are not meeting state standards (i.e. the “303(d)” waterways). area prior to applying the proposed regulations (13) While data does not exist for every tributary to the listed waterways, if a waterway has a water quality function and drains to a water quality impaired waterway, it would not have to be impaired itself in order to warrant protection under this proposal. It is performing a function that is beneficial to water quality and in order to hold-the-line on downstream receiving water quality that function should be retained and future impacts should be prevented. The DEQ is taking a “watershed approach” to addressing the Willamette Basin TMDL which means that all sources within a contributing watershed should be addressed. J. Proposal is one piece of an extensive program that the City has in Comment noted. Staff concurs. place to address water quality concerns. It addresses a gap that exists to provide protection for streams that have direct relevance to those not meeting WQ standards. Streams perform an important WQ function. Easier to protect what you have in place than to reverse the damage once it has occurred. (18) WQ Protected Waterways Attachment A to June 18, 2008 AIS (page 3 of 6) Attachment A Staff Response to Public Testimony and City Council K. Presence of a WQ Waterway would significantly alter the design and Yes, the proposed ordinance will affect the location of a future building unless it is designed to be in the footprint of an existing structure. However, there is flexibility location of a building; lots will be rendered smaller with respect to within the ordinance that would allow certain improvements that would not adversely affect water quality. In addition, adjustments are allowed for uses and activities buildable acres (21) within the WQ Management Area for situations where the WQ Management area affects the parcel by more than 33%, or where the parcel is physically constrained. L. Who maintains the setback? (T, CC) This proposal would not change the current responsibility for maintenance. If the City (or Lane County or ODOT) owns the /WQ Management Area, the City (or Lane GAJS County or ODOT, respectively) would be responsible for maintenance. If it is privately owned, the homeowner would maintain it. If it is a mix of ownership, then each portion is maintained according to ownership. If the City has a stormwater conveyance easement, the City would maintain the conveyance function (make sure the waterway conveys runoff, does not flood, or cause property damage) but the City does not provide vegetation maintenance beyond the conveyance function in this case. In general, the conditions of an easement would determine the responsibility for maintenance. II. Ordinance A. Would the ordinance require existing development located within the No. The proposed ordinance does not require existing non-conforming uses to be removed if they were legally created prior to the adoption of the proposed /WQ regulated area to be removed if the use is not otherwise permitted regulations. These uses include lawns, fences, patios, and decks to name a few. Minor repairs and routine maintenance are permitted, and are subject to standards under the proposed /WQ regulations? (CC) contained in EC 9.1200 through 9.1240. BB B. For existing structures, what if they are damaged or need repairs See response to II.A above. Provided the existing structure meets the definition of and qualifies as a legal non-conforming structure, the proposed /WQ ordinance requiring permits.... would this ordinance affect our ability to get a would not prevent the routine maintenance and minor repair of the structure as outlined in EC.9.1200 through 9.1240. building permit? (15) If a setback would impact what we can do with our property or that requires us to make changes to our property (fences, decks, etc) then we object. (7) C. Existing fences – can they be maintained, repaired, replaced? (T, Yes. Fences located within the regulated area that were legally established prior to the effective date of the ordinance are considered legal nonconforming uses or JM CC) structures and are subject to EC 9.1200 through 9.1240. In general, minor repairs and routine maintenance can be made to legal nonconforming uses and structures. AZ Replacing a nonconforming use or structure is permitted but only if the cause of the replacement was due to catastrophic circumstances outside the control of the owner, such as a fire or storm, and the cost of the replacement is at least 50% of the value of the nonconforming structure. Because the current version of the proposed ordinance is not clear on this issue, staff has prepared edits to subsection 9.4780(2) to ensure clarity. See AIS Attachment D. ? D. For existing development including walls, fences, retaining walls – See responses to II.A, II.B, and II.C above. give reasonable consideration to properties developed prior to proposed regulations, and development that does not adversely affect the functioning of the waterway. (17) E. Can existing lawns be mowed? (CC) Yes. See draft ordinance 9.4780(2)(a)2. JS F. Expansion of existing telecommunication facilities in /WQ This topic is directly related to the COBI property. The existing ordinance classifies telecommunication facilities as areas to be “excluded” if they exist within the /WQ management area should be permitted due to federal requirements to area prior to the adoption of /WQ. Preference expressed by Council to staff at the public hearing was to enable the expansion via “use” and not as an excluded area. expand services. (10) Staff has prepared proposed changes to subsection 9.4780(2) that would enable it as a permitted use within /WQ area. Two alternatives are provided for Council consideration and direction, as described in the AIS (with the only difference between the alternatives being whether or not the impacts water quality function must be mitigated). See AIS Attachment C-1 and C-2. ? G. Clarify terminology related to utility facilities (14) Testimony suggested alternate verbiage to clarify terms related to utility facilities. Staff concurs and proposes modification to the ordinance. See AIS Attachment E. ? H. Clarify the “disturbance within 50 feet of WQ Management Area” The purpose of this provision is to clearly establish the physical location of the outer limits of the /WQ boundary so that any proposed new development located provision. (12) adjacent to but outside the regulated area does not unintentionally encroach into and impact the /WQ area. Once the demarcation has been established and verified by the City, the proposed new development may proceed. WQ Protected Waterways Attachment A to June 18, 2008 AIS (page 4 of 6) Attachment A Staff Response to Public Testimony and City Council I. 9.4780(2)(b)2.c. – “adding straw mulch” could violate fill/removal Section 9.4774 indicates that consistency with the provisions of Section 9.4780 (Permitted and Prohibited Uses) does not exempt the property owner from state or regulations. (13) federal laws or regulations. J. For properties identified outside of the city limits, the ordinance Waterways that have a significant water quality function do not simply end at the City limits. The City’s regulations, however, do end at the City limits. The City has applies laws retroactively, as if the City of Eugene laws apply to these identified those important waterways that are located between the City limits and the UGB and provided a list of the properties that contain the critical area for those properties even before annexation (13) waterways. The ordinance simply states that, if a property on the list is annexed, at the same time it receives a City base zone it will also receive the /WQ overlay zone. The ordinance’s references to the date the /WQ provisions were adopted will allow such property owners some beneficial grandfathering with respect to the uses that were established on or before the date the ordinance was adopted. There is no other retroactive effect. III. /WQ Map A. How was map developed? (CC) The /WQ Map was developed as follows. For areas within the UGB, 1) the three protection criteria: 303(d) waterway; directly draining tributary to 303(d) waterway; MC and headwater stream, were applied to the city of Eugene’s open waterways layer termed “DOPEN.” This included waterways adjacent to but outside of the UGB that could be impacted by adjoining lots located within the UGB; 2) Definition of water quality function was applied to all waterways and noncomplying segments were removed; 3) Definition of Headwater Stream was applied to headwater streams and noncomplying stream were removed; 4) Definition of directly draining was applied to all tributaries and noncomplying waterways were removed; 5) From this set of waterways, all waterways containing an existing zoning (/WP, /WB, /WR, NR) or policy protection (within WEWP; Royal Node) were removed. The resulting set constitutes the proposed WQ waterways. Next, the setback measurement points were selected and identified. For headwater streams, the DOPEN waterway line work is the stream centerline and it became the measurement point for headwater streams for which 40-foot wide setback on either side were applied. For non-headwater streams, the Top-of-High Bank (THB) was identified using the 1999 2-foot elevation contours, the 2004 aerial photography, and Lane County’s parcel layer was applied. Cross-referencing the contour data with the aerials enabled the location and digitization of THB for both sides of the waterway channel. Next, 25 foot setbacks were applied to both THB and these plus the channel area constituted the /WQ Management Area. These polygons were overlaid onto the parcel layer for which tax lots and rights-of-way affected were identified. The accuracy of the map was field checked in response to concerns expressed by property owners. Changes to the map were made only for concerns that were validated in the field. These layers were combined into one GIS file that shows city limits, urban growth boundary, parcels, rights-of-way, /WQ waterways, and /WQ management area. B. How /WQ elements are located on the ground (T, T, CC) The setback measurement points for both stream categories: non-headwater and headwater streams, were identified per III.A. The Lane County parcel file location is GADDMC assumed to be accurately located with regard to aerial photography coordinates. Using the proposed adoption map, property owners can scale the distance from parcel lot lines to the /WQ elements, i.e. setback measurement point and the /WQ management area. These points can be identified on the ground using either the 2004 photography or corner survey markers. C. Are setback locations permanent? (21) What is the process for A property owner can accept the location and move forward with land use proposal or, if desired, challenge the location by following the submittal requirements and challenging accuracy of the map? (20, 21, CC) approval criteria contained in subsection 9.4786. MC IV. Water Quality Considerations A. Non-maintained waterways are sources of water quality pollution, Comment noted. Maintenance of WQ Waterways including removal of invasive plants and maintenance of existing landscaped areas is allowed under the draft potential fire hazards (6), attract nuisance animals and students from a ordinance. There are mechanisms in place to vegetation maintenance issues related to public property (call 682-4800), and on private property through the City’s nearby school (9), and are a bad influence on the neighborhood (11) Vegetation Management Program (see: www.eugene-or.gov/PW > Stormwater > Open Waterways > Vegetation Management). B. What is the water quality benefit of a /WQ management area with Existing lawn areas, while not as functional from a water quality perspective when compared to a shaded riparian area with a mix of tree, shrub and groundcover existing with lawns? (CC) species, does provide some water quality function in the form of filtration for surface runoff, infiltration with associated treatment and groundwater recharge, some JS degree of soil stabilization, and a separation between development uses/activities and the waterway itself. V. Other Issues A. This will cause a reduction in the value of my property; owners There is no evidence that the regulations will cause a reduction in property value. should be compensated. (4, 6, 9, 11, 12, 15 ) B. There should be a (quick, fee free) regulation-exception review Section 9.4780(2) lists the uses permitted outright in the /WQ Management Area including small accessory structures, small decks, pervious paths. Beyond these types process – there are ways to build near waterways and still protect of development activities, for certain other allowed uses and activities, meeting development standards and going through a review process is required to ensure water water quality. (4) quality protection. C. Concerned about the affect on remaining build able land within the See findings under Statewide Planning Goal 10. (Attachment A to May 19, 2008 City Council Public Hearing AIS) UGB. (19) WQ Protected Waterways Attachment A to June 18, 2008 AIS (page 5 of 6) Attachment A Staff Response to Public Testimony and City Council VI. Site Specific Issues A. COBI site with existing telecommunication facilities (10, T) See Item II.F. DD See AIS Attachment C-1 and C-2. ? B. Coca-Cola (1) - Existing ODOT wildlife habitat conservation Staff confirmed the presence of a conservation easement in the general location of the proposed /WQ management area. The primary function of the easement is to easement makes it unnecessary and inappropriate to impose local provide wildlife habitat, and it is acknowledged that the dimension and vegetative character of the easement will also provide water quality benefits. However, staff waterway protection in an area where easement is already in place. does not recommend removing the parcel from the /WQ map for the primary reason that there would be no guarantee that the physical condition and use of the easement would remain beneficial to water quality purposes over time as there is no third-party to monitor and oversee enforcement needs as there would be with the proposed /WQ regulations. Having local authority to oversee and enforce the application of water quality regulations on a consistent and fair basis provides greater certainty the City’s water quality program policies will be achieved. State easement pre-empts local regulation. The State easement does not pre-empt the City’s authority to apply the overlay zone to the site or to enforce its requirements. Remove from the map areas that are already developed. Areas that are already developed are excluded from the /WQ Management Area as described in 9.4778(3). Existing data and staff resources are inadequate to confirm up-front all development that may be excluded as per 9.4778(3) and the ordinance is clear about what is excluded. C. Combs (13, 22) - Property drains to A3 Channel, which is water The property in question drains to Upper Flat Creek which drains to the A1 Channel, which drains to Amazon Creek. The A3 Channel is located in west Eugene’s quality limited for industrial pollutants not related to residential uses industrial area. – does not make sense. Map is inaccurate for the waterway on my lot (13) Aerial photos (2004) and City’s waterway location data shows the waterway alignment along the property line between lots 400 and 500. D. Herold (3) – Property is technically still in Goal 5 and should not be The Goal 5 process included the following steps: 1) inventory of sites; 2) determination of these sites that are “significant” and are to be further evaluated under the included in the WQ waterways proposal. Setbacks are inconsistent ESEE assessment. If not significant, no further analysis occurs and the site is not protected for Goal 5 purposes; 3) For significant resource sites, the ESEE analysis along the waterways with neighboring properties; “slough” is results in a determination that the site either merits protection or development or a combination of both; 4) In Eugene, sites recommended for development are seasonal, dry 8-9 months of the year. designated “Not designated for protection” on the Goal 5 map and no protections are applied, i.e. do receive /WR overlay protection; sites recommended for protection or protection/development are shown on the Goal 5 map as designated for protection with a specific setback distance varying from “no setback” to 20’, 25’, 40’, 50’, 60’, and 100.’ The protected sites are then rezoned to include the /WR protection overlay zone. Protections recommended by /WQ apply only to waterways that did not meet the Goal 5 resource definition (these appear on the Goal 5 map as “Non-Goal 5 Streams & Channels”) or for Goal 5 inventory sites that were determined either to be “not significant” or determined not to merit protection. Thus, none of the /WQ waterways recommended for protection are already protected by Goal 5. However, it is possible that some of the /WQ affected tax lots are affected by /WR due to the presence of another nearby Goal 5 resource site. E. Schmaedick (8) – Property may be impacted by relocation of north Staff received drawings from ODOT of the new alignment and it does not appear that the property in question has been affected by the I-5/Beltline flyover project and Beltline floodway/I-5 flyover project. The impact of the relocated associated waterway re-alignment. The waterway re-alignment begins further to the east than the subject property. ditch and new setback requirements would constitute a takings. Consider modifying the regulations to mitigate the situation for properties along this ditch. F. Murphy Company (LaFranchi, 16) – Reclamation projects to redesign Water quality improvement projects, such as is described in the testimony and follow up voicemail message from Mr. LaFranchi, including reconfiguration of channels drainage ditch to a more natural state with native vegetation and and pond banks are permitted subject to certain development standards. reclamation of adjacent wood waste landfill sites are planned. Access roads from Prairie Rd to the east are proposed for future access to The ordinance includes allowances to construction of a private street under certain circumstances (9.4780(3)(e). The degree to which these provisions would address the NE end of the site reducing traffic flow accessing the site from Irving, Murphy Company’s plans would depend on the specific situation, including alternatives for site access outside of the /WQ Management Area. which is the only access at present. G. Wilson (9), Blakley (11) – Drainage ditch was relocated in 1980 and The issue expressed by some property owners is the unfairness of relocating waterways to a different location causing lots to become impacted that otherwise wouldn’t closer to my property, and as a result the 25 ft setback affects my be, or to become more impacted. North Beltline Floodway at the I-5 intersection is an example of this occurrence. While it is unfortunate that previous waterway property. I should not inherit a setback because of what was done on relocations have caused impact or greater impact to lots as a result of /WQ proposal, the proposal is to protect water quality in existing waterways in their current an adjacent property. location. Steps have been taken in the proposed ordinance to prevent this occurrence in the future. See subsection 9.4780(3)(b)2. H. T, CC – Why are the lots to the south of Cody Avenue along the These lots are not included because the waterway to the south of Cody Avenue does not appear to provide a drainage function, based upon topographic and stormwater JMJS same waterway not included on the map of protected waterways? system information, and confirmed by staff’s site visit. WQ Protected Waterways Attachment A to June 18, 2008 AIS (page 6 of 6) ATTACHMENT C-1 Add New Sub-Section to /WQ Ordinance to Allow Maintenance and Expansion of Existing Telecommunication Facilities as a Permitted Use (COBI) With Water Quality Function Mitigation [changes to draft shown in double underline]: 9.4780 /WQ Water Quality Overlay Zone - Permitted and Prohibited Uses. (2) Uses Permitted Within /WQ Management Areas. Subject to any applicable development permits, the following uses are the only uses permitted outright within the /WQ Management Area: (h) Other Activities. 12. Maintenance, repair, replacement, upgrading and expansion of telecommunications facilities, including towers, satellite dishes and related support structures such as foundations, footings, platforms, and wiring, that were legally established prior to (effective date of this ordinance) provided that for any expansion, the applicant has submitted a certification signed by a professional referenced in EC 9.4782(2) that, based on the city’s Water Quality Function Rating System, the expansion will result in a water quality function rating equal to or greater than previously existed; and ATTACHMENT C-2 Add New Sub-Section to /WQ Ordinance to Allow Maintenance and Expansion of Existing Telecommunication Facilities as a Permitted Use (COBI) Without Water Quality Function Mitigation [changes to draft shown in double underline]: 9.4780 /WQ Water Quality Overlay Zone - Permitted and Prohibited Uses. (2) Uses Permitted Within /WQ Management Areas. Subject to any applicable development permits, the following uses are the only uses permitted outright within the /WQ Management Area: (h) Other Activities. 12. Maintenance, repair, replacement, upgrading and expansion of telecommunications facilities, including towers, satellite dishes and related support structures such as foundations, footings, platforms, and wiring, that were legally established prior to (effective date of this ordinance); and ATTACHMENT D Add New Sub-Section to /WQ Ordinance to Allow the Maintenance, Repair, and Reconstruction of Existing Fences as a Permitted Use [changes to draft shown in double underline]: 9.4780 /WQ Water Quality Overlay Zone - Permitted and Prohibited Uses. (2) Uses Permitted Within /WQ Management Areas. Subject to any applicable development permits, the following uses are the only uses permitted outright within the /WQ Management Area: (c) Maintenance, Repair and Reconstruction Activities 6. Maintenance, repair, and reconstruction of a fence that was legally established prior (the effective of this ordinance) provided that for any reconstruction it occurs in the same location and to the same dimensions as the pre-existing fence. ATTACHMENT E Change /WQ Ordinance to Clarify Utility Facilities (EWEB) [changes to draft shown in double underline]: 9.4778 /WQ Water Quality Overlay Zone – /WQ Management Area. (3) As part of the city’s consideration of an application for a development permit or land use approval, the city shall exclude from the /WQ Management Area: (a) Those areas which the applicant has shown to have been developed prior to [effective date of this ordinance]. For purposes of this subsection, “developed areas” are those within the physical ground surface footprint of a legally constructed: 1. Structure (including a manufactured dwelling) with a permanent foundation, constructed or sited pursuant to an approved permit; 2. Utility facility (such as a transmission pole, vault, utility transmission box, or pump station), telecommunication tower, telecommunication platform, satellite dish, sign and or billboard; 3. Permanent deck or patio that is attached to a structure listed in subsection 1. above; or 4. Paved parking area, street, driveway, bike path, or pedestrian path.