HomeMy WebLinkAboutOrdinance No. 20194
ORDINANCE NO. 20194
AN ORDINANCE CONCERNING OPEN W A TERW A YS, AND
ADDING SECTIONS 6.650,6.655,6.660,6.665, AND 6.670 TO
THE EUGENE CODE, 1971.
THE CITY OF EUGENE DOES ORDAIN AS FOLLOWS:
Section 1. The following caption and Sections 6.650, 6.655, 6.660, 6.665, and 6.670 are
hereby added to the Eugene Code, 1971, to provide:
OPEN WATERWAYS
6.650 Open Waterways - Purpose. It is the intent of sections 6.650 to 6.670 to establish
interim protection for constructed and natural open waterways that provide multiple
stormwater benefits to the entire community. The protection established in these sections shall
remain in effect until the city completes its Goal 5 process for wildlife habitat values and
incorporates the results, along with the stormwater conveyance and water quality treatment
functions, into a comprehensive set of open waterway protection measures. Open waterways provide
such benefits as storm drainage and flood control, filtration and treatment of stormwater pollutants,
and habitat for aquatic and other wildlife species.
6.655 Open Waterways - Prohibition.
(1) As used in sections 6.650 to 6.670, "open waterways" shall mean a natural or
human-made swale, creek, stream, open channel, ditch or other similar water feature, that has a
defined and identifiable channel with slopes, that is predominantly of earthen material, and that has
the specific function of conveying and/or storing stormwater runoff. Notwithstanding anything in
the previous sentence to the contrary, Amazon channel, including the concrete-lined portions, shall
be considered an open waterway.
(2) Except as provided in section 6.660, open waterways shall remain open for
the purposes of conveying and/or filtering stormwater runoff. No foreign materials, including earth,
lumber, concrete, asphalt, aggregates, pipes, plastic, yard debris or any other similar material, shall
be placed in or over the channel of an open waterway. Except for construction exempt under section
6.660, no construction shall take place in or over the channel.
(3) The prohibitions in subsection 6.655(2) apply to the channel area of all open
waterways as measured from top-of-bank to top-of-bank. The top-of-bank is the highest point at
which the bank meets the grade of the surrounding topography, characterized by an abrupt or
noticeable change from a steeper grade to a less steep grade, and/or where natural conditions prevail,
by a noticeable change from topography primarily shaped by the presence and/or movement of the
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water to topography not primarily shaped by the presence of water. Where there is more than one
such break in the grade, the uppermost shall be considered the top of the bank. If the top-of-bank
is not identifiable, or if it has been significantly altered through channel reconfiguration or other
enhancements consistent with the provisions of sections 6.650 through 6.670, the prohibitions in
subsection 6.655(2) apply to the line of ordinary high water, which is the line on a bank to which
seasonal high water rises annually.
6.660
Open Waterways - Exemptions.
(1) The prohibitions in subsection 6.655(2) shall not apply under the following
circumstances:
(a) The piping or filling is pursuant to a land use approval or building
permit specifically authorizing the piping or filling if the approval was final at the
local level prior to the effective date of sections 6.650 to 6.670, is required by state
law, or is in a waterway that is part of a wetland site designated for development by
the West Eugene Wetlands Plan; and
(b) The owner of the property or pem~.ittee has submitted to the city, and
the city has approved, a plan for minimizing and mitigating negative impacts to the
waterway as a result of the filling or piping.
(2) The following uses or activities are exempt from the prohibitions of section
6.655:
(a) Construction of bridges, culverts, and other similar infrastructure
needed to cross open waterways in order to provide vehicular, bicycle and/or
pedestrian access to existing lots of record and connectivity for new development and
regional transportation systems;
(b ) Temporary crossings needed to provide access across open waterways
in case of emergencies and/or temporary use conditions;
(c) Repair and/or replacement of:
1. Existing street crossings,
2. Channel and stream bank stability problems,
3. Habitat conditions,
4. Existing utilities such as water mains, wastewater and
stormwater pipes, electrical transmission lines, and telephone and cable
systems.
(d) Construction of stormwater-related private and public projects for
purposes of restoring or enhancing natural resource values including riparian and
wetland habitat.
(e) Construction of stormwater-related facilities for the purpose of
correcting existing or anticipated flooding and/or water quality problems, such as:
1. Channel widening, relocation or realignment to increase
conveyance capacity,
2. Outfalls that discharge runoff into waterways,
3 . Water quality best management practices for filtering and
settling-out pollutants and for preventing and/or minimizing channel down-
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cutting and/or streambank erosion, such as: vault-filters, check-dams, settling
bays, ponds and vegetative filters, and in-stream bio-engineering devices
designed to reduce velocity of flow.
(f) Roadside ditches constructed for the specific purpose of providing
drainage for the roadway.
(3) Where the prohibitions of subsection 6.655(2) would result in preventing all
viable economic use of the property, or would prohibit the use of more than 33 percent of the
property, the city manager may grant a site specific exemption to allow some viable economic use
of the property, or the use of not less than 67 percent of the property.
( 4) Where the city manager determines that relocation and/or realignment of an
open waterway can be accomplished in a manner that is consistent with the purpose of section 6.650,
the city manager may authorize that relocation or realignment. If the city manager does so, the city
manager shall impose such conditions as he or she deems necessary to ensure that the relocated or
realigned open waterway is comparable in functions to the existing open waterway. The city
manager shall not approve such relocation or realignment unless the proposal, in addition to being
consistent with the purpose of section 6.650, meets the following criteria:
(a) All required state and federal permits have been approved,
(b) The proposal is consistent with existing local plans and policies,
(c) The proposal is consistent with applicable city stormwater
development requirements and design specifications including drainage, flood
control, water quality treatment, related natural resources protection and maintenance
access needs, and
(d) Any requirements imposed by administrative rules adopted pursuant
to section 2.019 of this code.
(5) No use or activity under subsections (2) - (4) of this section shall commence
until the proposed use or activity is approved by the city manager.
(a) Except for decisions based on subsection (2), the city manager shall
not issue a decision under this section without first providing public notice and an
opportunity for public comment consistent with the requirements to be adopted by
administrative rules under section 6.665(3).
(b) The city manager shall deny approval unless the proposal
demonstrates that any potential negative impacts to the waterway have been avoided
and minimized to the maximum extent practicable. To the extent there are remaining
impacts, they are to be mitigated in accordance with adopted city administrative rules
which shall require rehabilitation of the degraded hydrological, ecological, and water
quality treatment functions, or alternatively, payment to a mitigation fund at an
amount determined by the city manager sufficient to secure rehabilitation of lost
functions. As part of the administrative rules to be adopted under section 6.665(3),
the city manager also shall provide guidance for making determinations on avoidance
and minimization.
6.665 Open Waterways - Enforcement.
(1) Failure to comply with the provisions of sections 6.650 to 6.660 of this code
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or rules issued thereunder may result in:
(a) The issuance of a stop work order or compliance order by the city;
(b) The issuance of a citation into municipal court for violation of this
code;
(c) The imposition of an administrative civil penalty pursuant to the
provisions of section 2.018 of this code;
( d) An order to investigate all of the impacts caused by the violation;
and/or
(e) Abatement of the unlawful actions as a nuisance as provided in
sections 6.005 to 6.115 of this code, including complete restoration of all impacts to
open waterways resulting from the unlawful actions.
(2) For purposes of subsections (1)(b) and (1)(c), each day that the unlawful
condition exists shall constitute a separate violation.
(3) The city manager shall adopt administrative rules to implement and assist with
enforcement of the provisions of sections 6.650 to 6.670 of this code, including specifying public
notice procedures for actions taken pursuant to section 6.660 of this code.
6.670 Open Waterways - Appeals.
(1) Any person aggrieved by a decision of the city manager under 6.660 or the
rules issued hereunder, may appeal that decision to a hearings official in accordance with the
provisions of section 2.021 of this code. If the hearings official concludes that the city manager
made an erroneous decision, the hearings official shall remand the decision to the city manager for
a new decision.
(2) Any person to whom an order is issued under subsection (1)(a) or (d) of
section 6.665 of this code may appeal that order in accordance with the provisions of section 2.021
of this code. The filing of an appeal shall not stay the effect of an order issued under subsection
(1)(a).
Section 2. The City Recorder, at the request of, or with the concurrence of the City Attorney,
is authorized to administratively correct any reference errors contained herein or in other provisions
of the Eugene Code, 1971, to the provisions added, amended or repealed herein.
Passed by the City Council this
Approved by the Mayor this
24th day of April, 2000
24th day of April, 2000
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City Recorder
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