Chapter 8.06
POLLUTION CONTROL

Sections:

8.06.010  Purpose.

8.06.020  Definitions.

8.06.030  Establishment of significant wetlands, riparian corridors and protection zones.

8.06.040  Prohibition on alteration of site without prior site-specific determination of significant wetland, significant riparian corridor and protection zone boundaries or sworn statement.

8.06.050  Prohibitions within significant wetlands, significant riparian corridor and protection zones.

8.06.060  Prohibition on alteration of site without prior sworn statement, verification of federal, state and local permit compliance.

8.06.070  Exempt activities and uses within a significant wetland, riparian corridor and protection zone.

8.06.080  Resource and protection zone exceptions or other land use approvals pursuant to CDC 1.091.

8.06.090  Claims requirement.

8.06.100  Enforcement/penalties.

8.06.010 Purpose.

The purpose of this chapter is to prevent pollution and contamination of the city’s drinking water supply and the pollution of waters of the state, to prevent commonly and traditionally recognized nuisances, i.e., pollution and contamination of the ground, the city drinking water supply and waters of the state, and to comply with federal law requiring the protection of endangered and threatened species. This chapter establishes prohibitions and restrictions for sensitive areas, such as significant wetlands and riparian corridors and associated protection zones.

The standards and restrictions of this chapter shall apply independently and in addition to other regulations of the city such as land use regulations contained in the St. Helens community development code, including Goal 5 regulations and the applicable standards of the underlying zoning classification of lands within significant wetlands, riparian corridors, and protection zones. (Ord. 2925 Att. A § 1, 2005)

8.06.020 Definitions.

The following definitions are in addition to definitions found in existing St. Helens city ordinances. In the event of a conflict the definitions herein control.

"Alter" or "alteration" means any human-induced physical change to the existing condition of land or improvements thereon including but not limited to clearing, grubbing, draining, removal of vegetation (chemical or otherwise), excavation, grading, placement of fill material, placement of structures or impervious surfaces or other construction. "Permit to be altered" means allowing or failing to prevent the alteration.

"City" means the city of St. Helens.

"Clearing" means the removal, redistribution or disturbance to vegetation, soil or substrate that may include trees, brush, grass, groundcover, or other vegetative matter from a site.

"Enhancement" means the actions performed to improve the condition or functions and values of a wetland area riparian corridor or fish and wildlife habitat area, or their associated protection zone. Enhancement actions include but are not limited to increasing plant diversity, increasing fish and wildlife habitat, installing environmentally compatible erosion controls, and removing invasive plant species.

"Environmental assessment" means at a minimum that the property owner contract with a registered engineer and/or wetlands biologist as appropriate to determine the precise location of the top of bank, steep slopes, wetland, riparian corridor and protection zone on a property. A licensed surveyor must then conduct a boundary survey that shows the locations of the tops of bank, steep slopes, wetlands, riparian corridors, and the protection zone setback locations on the subject property. The EA and supporting field investigation shall be performed by a qualified biologist or other environmental professional with experience in performing wetland/riparian corridor identification, delineation and evaluation. Minimum requirements for an EA are set forth in SHMC 8.06.040.

"Filling" means the act of placing fill material in any amount, including the temporary stockpiling of fill material.

"Fill material" means a deposit of earth or other natural or manmade material placed by artificial means.

"Mitigation" means actions designed to replace project-induced sensitive area losses or impacts, including, but not limited to, restoration, creation or enhancement.

"Mitigation plan" means a plan that outlines the activities that will be undertaken to alleviate project impacts to sensitive areas.

"Nonnative species" means a plant species which is not indigenous to the local area.

"Noxious, invasive and/or nonnative vegetation" means Poison Oak, Tree-of-heaven, Garlic Mustard, Lesser Celandine, Canada Thistle, Common Thistle, Western Clematis, Traveler’s Joy, Field Morning-glory, Lady’s-nightcap, Pampas Grass, Hawthorn, except native species, Scot’s Broom, Queen Anne’s Lace, South American Waterweed, Common Horsetail, Giant Horsetail, Crane’s Bill, Robert Geranium, English Ivy, St. John’s Wort, English Holly, Yellow Flag, Duckweed, Water Lentil, Fall Dandelion, Purple Loosestrife, Eurasian Watermilfoil, Reed Canarygrass, Annual Bluegrass, Water Smartweed, Climbing Bindweed, Giant Knotweed, English, Portuguese Laurel, Himalayan Blackberry, Evergreen Blackberry, Tansy Ragwort, Blue Bindweed, Hairy Nightshade, Common Dandelion, Common Bladderwort, Periwinkle (large leaf), Periwinkle (small leaf), Spiny Cocklebur, Bamboo, and Blackberry.

Power Assisted Equipment or Machinery.

(1)  "Non-power assisted equipment" means equipment or machinery operated by hand or operated by electricity or battery power.

(2)  "Power assisted equipment" means equipment or machinery other than non-power assisted equipment.

"Protection zone" means the wetland/riparian protection zone of varying width, located adjacent to all significant wetlands and all significant riparian corridors and established in SHMC 8.06.030(3).

"Resource" or "resources" means significant wetlands and/or significant riparian corridors as distinguished from protection zone, which extends upland from the resource area.

"Restoration" means efforts performed to re-establish the functional values and characteristics of a critical area that have been destroyed or degraded by past alterations (e.g., filling, grading or draining).

"Riparian area" or "significant riparian area" means the area adjacent to a river, lake, or stream, consisting of the area of transition from an aquatic ecosystem to a terrestrial ecosystem. These areas are part of significant riparian corridors identified in the PHS riparian area report to the city, designated in SHMC 8.06.030(2).

"Significant riparian corridor" or "riparian corridor" means the resource identified in the PHS riparian area report to the city, designated in SHMC 8.06.030(2). A riparian corridor includes the water areas, fish habitat, adjacent riparian areas, and wetlands within the riparian area boundary.

"Significant wetland" means a wetland that has been identified by the city as a resource in SHMC 8.06.030(1).

"Site" means any legal parcel, lot, or right-of-way, or combination of contiguous lots or parcels under the applicant’s ownership.

"Top of bank" means the stage or elevation at which water overflows the natural banks of streams or other waters of this state and begins to inundate the upland. In the absence of physical evidence, the two-year recurrence interval flood elevation may be used to approximate the bank full stage.

"Utility line" means pipe, conduit, cable or other similar instrument by which services are conveyed to the public or individual recipients. Such services shall include, but are not limited to, water supply, electric power, natural gas, communications and sanitary sewer.

"Wetland functions" are wildlife habitat, fish habitat, water quality, and hydrological control. (Ord. 2925 Att. A § 2, 2005)

8.06.030 Establishment of significant wetlands, riparian corridors and protection zones.

(1)  Wetlands. With the modifications and additions noted herein, the wetlands protected by this chapter shall be those identified in Exhibit 1, attached to the ordinance codified in this chapter.

(a)  The following significant wetlands are hereby established as Type I:

(b)  The following significant wetlands are hereby established as Type II:

(2)  Riparian Corridors. With the modifications and additions noted herein, the significant riparian corridors protected by this chapter shall be those identified in Exhibit 2, attached to the ordinance codified in this chapter.

(a)  Significant riparian corridors are established in waterways within the city limits of the city of St. Helens as follows: Scappoose Bay, Multnomah Channel, Columbia River, Milton Creek, McNulty Creek, and North Fork of McNulty Creek.

(b)  The following additional reaches or portions of streams together with their associated riparian areas are also listed as significant riparian corridors:

(c)  The significant riparian corridors, including those with associated riparian areas, are more specifically defined as those waterways identified as fish habitat by Oregon Department of Fish and Wildlife and also those associated riparian areas identified by Pacific Habitat Services, Inc., report dated February 4, 2000, and amended March 24, 2000, as having two or more assessed functions that have been rated as High.

(3)  Protection Zone. There is hereby established a wetland/riparian protection zone (hereinafter "protection zone" or "PZ") adjacent to all significant wetlands and all significant riparian corridors to protect their integrity, function and value. The protection zone shall be measured from the wetland edge, the riparian corridor edge, or the top of the bank of the waterway when no riparian area is included in the corridor. The width of the protection zone shall vary according to the type of wetland/riparian corridor as listed below:

(a)  The required protection zone for Type I wetland shall extend 75 feet upland from the delineated wetland edge.

(b)  The required protection zone for Type II wetland shall extend 50 feet upland from the delineated wetland edge.

(c)  The required protection zone for riparian corridor streams with an annual average stream flow greater than 1,000 cubic feet per second shall extend 75 feet upland from the top of bank. This provision concerns all portions of Scappoose Bay, Multnomah Channel, and the Columbia River.

(d)  The required protection zone for riparian corridor streams with an average annual stream flow less than 1,000 cubic feet per second shall extend 50 feet upland from the top of bank or from the upland edge of the significant riparian area, whichever is greater. This provision concerns portions of Milton Creek, McNulty Creek and the North Fork of McNulty Creek as well as the following sections of streams and their associated riparian areas:

(Ord. 2925 Att. A § 3, 2005)

8.06.040 Prohibition on alteration of site without prior site-specific determination of significant wetland, significant riparian corridor and protection zone boundaries or sworn statement.

(1)  Except pursuant to an exemption or exception as referenced in this chapter, it is a violation of this chapter for any person to conduct land clearing, alteration, construction or use on a site within 200 feet of a resource, without having submitted to the city an environmental assessment (EA) prepared and certified by a qualified environmental professional showing the boundaries of the significant wetland, significant riparian corridor and protection zones on the property. The EA shall be prepared at the owner’s sole cost and expense. Assistance from state and federal agencies is encouraged. Alternatively, the property owner may submit a sworn statement from a qualified environmental professional that no significant wetlands, significant riparian corridors or protection zones exist on the site. Environmental assessments must comply with minimum requirements set forth in subsection (3) of this section.

(2)  It is a defense to violation of the above EA or sworn statement requirement if the owner produces a final city land use decision which waives the EA requirements pursuant to 1.091.015.C of the community development code.

(3)  The EA shall include at a minimum the following information: (1) vicinity map; (2) Exhibit 1 or Exhibit 2 identification of the site; (3) the wetland/riparian corridor boundary must be accurately drawn at an appropriate engineering scale of one inch equals 400 feet or larger. Existing features must be distinguished from proposed features. The map must show: (1) site boundary, property lines and roads; (2) property lines, rights-of-way, easements, etc.; (3) existing physical features of the site including buildings, fences, and other structures, roads, parking lots, utilities, water bodies, etc.; (4) contours at the smallest readily available intervals, preferably at two-foot intervals; (5) delineated boundaries of wetlands, tops of bank, steep slopes, and protection zone; (6) hydrologic mapping showing patterns of surface water movement into, through, and out of the site area; (7) location of all test holes and vegetation sample sites, numbers to correspond with flagging in the field and field data sheets; (8) an aerial photo with overlays displaying the site boundaries and wetland and protection zone/delineation may also be provided. Generally, an orthophotograph at a scale of one inch equals 400 feet or greater should be used. If an orthophotograph is not available, a smaller scale aerial photograph enlarged to one inch equals 400 feet may be used. In addition, the required EA narrative shall describe the following: (1) location information including legal description and address; (2) methodology used for delineation of wetlands, tops of bank, steep slopes, and protection zone; (3) general site conditions, including topography, acreage, and surface areas of wetlands and water bodies; (4) specific descriptions of plant communities, soils, and hydrology; and wetland field data sheets, numbered to correspond with sample site locations as staked and flagged in the field.

The EA may include an analysis of significant adverse impacts to the wetland and riparian corridor functions and values. The impact analysis is based on the resource functions and values identified in the Exhibit 1 and Exhibit 2 supporting reports. Potential impacts may include (but are not limited to) loss of flood storage potential, loss of wildlife habitat, loss of species diversity or quantity, changes in water quality, any increase in human intrusion, and impacts on associated wetland or water resources. To the extent that the wetlands and/or riparian corridors are part of a larger natural system such as a watershed, the evaluation must also consider the cumulative impacts on that system. An impact analysis shall include: identification, by characteristics and quantity, of the resources and the resource functions and values found on the site. The EA may also contain an evaluation of alternative locations, design modifications, or alternative methods of development that avoid significant adverse impacts to identified resource functions and values. Such measures to avoid or reduce impacts may include:

(a)  Limiting the degree or magnitude of the proposed activity;

(b)  Limiting the implementation of the proposed activity;

(c)  Using appropriate and best available technology;

(d)  Taking affirmative steps to avoid or minimize impacts; and

(e)  Design, siting, or construction of proposed activities so as to avoid potential impacts to wetlands, riparian corridors, and steep slopes.

The report may contain an analysis of recommended measures to avoid significant adverse impacts to wetlands/riparian corridors and their associated protection zones and an identification of impacts that cannot be avoided or reduced. The report may also contain recommended measures to mitigate unavoidable adverse impacts to wetlands/riparian corridors and their associated protection zones. A mitigation plan shall include, at a minimum: (1) a description of the resources and the resource functions and values to be restored, created, or enhanced on the mitigation site; (2) a plan showing proposed disturbance limits; location, species, and size of proposed plantings; location, size, and details of other proposed mitigation measures; storm water management and erosion control features; and construction management measures; (3) documentation of coordination with appropriate local, regional, special district, state, and federal regulatory agencies; (4) construction timetables; (5) operations and maintenance practices; (6) monitoring and evaluation procedures; and (7) remedial actions for unsuccessful mitigation. (Ord. 2925 Att. A § 4, 2005)

8.06.050 Prohibitions within significant wetlands, significant riparian corridor and protection zones.

(1)  Except as set forth in the exemption, exception, or other approval referenced in this chapter, no person or entity shall alter or allow, or permit or cause to be altered any real property designated as a significant wetland, significant riparian corridor, or a wetland/riparian protection zone.

(2)  Except as set forth in the exemption, exception, or other approval referenced in this chapter, no person or entity shall use or allow, or permit or cause to be used property designated as a significant wetland, significant riparian corridor, or wetland/riparian protection zone. (Ord. 2925 Att. A § 5, 2005)

8.06.060 Prohibition on alteration of site without prior sworn statement, verification of federal, state and local permit compliance.

(1)  Sworn Statement, Verification of Federal, State, and Local Permit Compliance. Except pursuant to an exemption or exception as referenced in this chapter, it is a violation of this chapter for any person to conduct land clearing, alteration, construction or use on a site (other than survey work or environmental testing) without having first executed and submitted to the city a sworn statement by the property owner, under penalty of perjury and false swearing, that the owner/developer has obtained all required federal, state, and local authorizations, permits and approvals for the proposed development, including any proposed use, or alteration of the site, including also any off-site improvements. The owner/developer shall be solely responsible for obtaining all approvals, permits, licenses, insurance, and authorizations from the responsible federal, state and local authorities, or other entities, necessary to use the property in the manner contemplated, including all authorizations necessary to perform land clearing, construction and improvement of property in the location and manner contemplated. This provision includes, specifically, a permit or statement from the National Marine Fisheries Service and/or Fish and Wildlife Service that the owner’s proposed use and/or development will not take or harm any "endangered or threatened species" as that term is defined in applicable federal statutes and administrative rules. The city of St. Helens has no duty, responsibility or liability for requesting, obtaining, ensuring, or verifying the owner/developer’s compliance with the applicable state and federal agency permit or approval requirements. Any permit or authorization granted by the city, including any exemption, exception, permit, approval or variance pursuant to the city of St. Helens ordinance, including the community development code, shall not in any way be interpreted as a waiver, modification, or grant of any state or federal agency permits or authorizations or permission to violate any state or federal law or regulation. The owner/developer shall be held strictly liable, and shall hold the city of St. Helens harmless for administrative, civil and criminal penalties for any violation of federal and state statutes, including but not limited to the Clean Water Act, Endangered Species Act and regulations implementing such laws. Nothing herein shall be interpreted as restricting or limiting the city from bringing an enforcement action pursuant to city ordinance. (Ord. 2925 Att. A § 6, 2005)

8.06.070 Exempt activities and uses within a significant wetland, riparian corridor and protection zone.

(1)  The following activities are exempt from the prohibitions in this chapter and do not require a permit or authorization from the city to be conducted or to continue in a significant wetland, riparian corridor or protection zone:

(a)  Public and private conservation areas for water, soil, open space, forest, and wildlife resources.

(b)  Nonimpact, nonalteration, nondevelopment recreational uses such as but not limited to sport fishing, bird watching, scientific or educational study.

(c)  Noxious Vegetation Control.

(i)  Alteration or removal of noxious, invasive and/or nonnative vegetation with electric or handheld (non-power assisted) equipment.

(ii)  Alteration or removal of noxious, invasive and/or nonnative vegetation by state-licensed governmental, utility and transportation carrier personnel when performed with power or non-power assisted equipment or chemical control, provided any chemicals used are authorized and approved for such use by the Oregon Department of Agriculture or DEQ, and provided the alteration or removal is performed only in existing rights-of-way or on other public property and is limited to areas previously altered by such means.

(d)  Planting of native vegetation with non-power assisted equipment.

(e)  Minimal site investigative work required by a city, state, or federal agency, such as surveys, soil logs, percolation tests, and other similar tests.

(f)  Emergency Activities. Emergency repair or other remedial actions performed by governmental or public utility workers or authorized contractors or volunteers which must be undertaken immediately, or for which there is insufficient time for full compliance with this chapter, when it is necessary to:

(i)  Prevent an imminent threat to public health or safety; or

(ii)  Prevent imminent danger to public or private property; or

(iii)  Prevent an imminent threat of serious environmental degradation.

(g)  Hazard Prevention – Tree Removal or Flood Prevention. Emergency remedial action to remove a tree or portion thereof or sandbagging for flood prevention by a property owner which must be undertaken immediately, or for which there is insufficient time for full compliance with this chapter when it is necessary to:

(i)  Prevent an imminent threat to public health or safety; or

(ii)  Prevent imminent danger to public or private property; or

(iii)  Prevent an imminent threat of serious environmental degradation.

(h)  Legally Established Nonconformities. It is a defense to a violation of the prohibitions of this chapter if the activity is a "legally established nonconformity" as that term is defined and detailed in Ordinance 2890 (1.091.035(A)(8)); provided, however, that without a binding nonconformity determination from the city pursuant to the land use processes of the community development code, a property owner may be subject to enforcement action if the use or structure is not in compliance with the nonconformities article.

(i)  Preexisting Approvals and Vested Rights. It is a defense to a violation of the prohibitions of this chapter if the activity is a "preexisting approval or vested development" as that term is defined and detailed in Ordinance No. 2890 (1.091.035(a)(9)(b)); provided, however, that without a binding vested rights determination from the city pursuant to the land use processes of the community development code, a property owner may be subject to enforcement action.

(j)  Dredging and channel maintenance conducted under permit from the state of Oregon.

(k)  Placement of signs, markers, or other similar navigation aids by a public agency.

(l)  Activities conducted to protect, conserve, enhance, and maintain public recreational, scenic, historical and natural uses of public lands, including, but not limited to, installation and maintenance of educational and interpretative signage and trail improvements, including elevated boardwalks no greater than necessary to comply with ADA requirements, on public property by volunteers or city employees or contractors.

(m)  Alterations of buildings or structures that do not increase building coverage.

(n)  Measures taken by private property owners or governmental agencies to abate identified public health or safety hazards, public nuisances, and code violations as part of informal or formal resolution of violation proceedings. (Ord. 2925 Att. A § 7, 2005)

8.06.080 Resource and protection zone exceptions or other land use approvals pursuant to CDC 1.091.

It is a defense to violation of the prohibitions in this chapter if the owner produces a final city land use decision which grants an exception or other approval pursuant to Ordinance 2890 (Chapter 1.091, including but not limited to Sections 1.091.040, 1.091.045, 1.091.050, 1.091.055, and such other general requirements of the community development code as are applicable), and the owner or other person is acting in accordance with the approval, including all conditions. (Ord. 2925 Att. A § 8, 2005)

8.06.090 Claims requirement.

(1)  Takings. The regulations of this chapter shall not be construed or applied so as to prevent all reasonable use of property and constitute a taking of property without just compensation. Any property owner who believes the regulations in this chapter as applied or facially constitute a taking shall petition the city council for relief as part of a timely appeal of any city action in which this chapter is applied. Any relief granted in an individual case shall constitute the minimum necessary to allow reasonable use of and to avoid a taking of the affected property. (Ord. 2925 Att. A § 9, 2005)

8.06.100 Enforcement/penalties.

A violation of the prohibitions contained in this chapter, including activities conducted inconsistent with exemptions or exceptions to the prohibitions contained herein shall be considered an "A" violation with the penalties defined for that term in ORS Chapter 153 adopted by reference by the city. Notwithstanding this penalty, knowing or intentional violations of the provisions of this chapter shall be class C misdemeanor offenses with the penalties defined for that term in ORS Chapter 161 adopted by reference by the city. Restoration shall be required in addition to any other sanction. A violation of any provision of this chapter shall be considered a separate offense for each day the violation continues. In addition to city police, city employees designated as enforcement officers, pursuant to city nuisance code or other health and safety ordinance, may issue citations to municipal court for the violations described herein. (Ord. 2925 Att. A § 10, 2005)