Chapter 18.170
WETLAND PROTECTION AREAS
Sections:
18.170.030 Determination of locally significant wetlands.
18.170.040 Wetland protection areas, applicability, and application submittal requirements.
18.170.060 Allowed activities within wetland protection areas.
18.170.070 Prohibited activities within wetland protection areas.
18.170.080 Notification and coordination with State agencies.
18.170.010 Purposes.
The purposes of establishing wetland protection areas are:
(1) To implement the goals and policies of the Monmouth Comprehensive Plan;
(2) To satisfy the requirements of Statewide Planning Goal 5;
(3) To protect Monmouth’s wetland areas, thereby protecting the hydrologic and ecologic functions these areas provide for the community;
(4) To protect fish and wildlife habitat;
(5) To protect water quality and natural hydrology, to control erosion and sedimentation, and to reduce the adverse effects of flooding;
(6) To protect the amenity values and educational opportunities of Monmouth’s wetlands as community assets;
(7) To improve and promote coordination among local, State, and Federal agencies regarding development activities near wetlands. (Ord. 1380 § 4 (Exh. 3), 2018.)
18.170.020 Definitions.
The following definitions shall apply to this chapter, Wetland Protection Areas:
“Jurisdictional delineation” means a delineation of the wetland boundaries that is approved by the Oregon Department of State Lands (DSL). A delineation is a precise map and documentation of actual wetland boundaries on a parcel, whereas a determination may only be a rough map or a presence/absence finding. (See OAR 141-90 et seq. for specifications for wetland delineation or determination reports.)
“Local Wetlands Inventory (LWI)” means maps and report certified by DSL and adopted by the City of Monmouth entitled Local Wetland Inventory Report and any subsequent revisions as approved by the Oregon Department of State Lands.
“Locally significant wetland” means a wetland that is determined to be significant under the criteria of OAR 141-86-0300 et seq. These criteria include those wetlands that score a high rating for fish or wildlife habitat, hydrologic control, or water quality improvement functions.
“Nonconforming uses” means a structure or use that does not conform to the standards of the underlying zone but has been in continuous existence from prior to the date of adoption of the ordinance codified in this chapter up to the present. Nonconforming uses are not considered violations and are permitted to continue until removed or abandoned. Nonconforming uses are subject to the requirements of MCC 18.05.120.
“Upland” means any area that does not qualify as waters or wetland because the associated hydrologic regime is not sufficiently wet to elicit development of vegetation, soils, and/or hydrologic characteristics associated with wetlands.
“Wetland” means an area inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and which, under normal circumstances, does support, a prevalence of vegetation typically adapted for life in saturated soil conditions.
“Wetland protection area” means an area subject to the provisions of this chapter that includes all wetlands determined to be locally significant as shown on the Local Wetland Inventory.
“Wetland resource map” means the locally adopted map used as the basis for this chapter, which incorporates the DSL-approved LWI map and identifies locally significant wetlands. (Ord. 1380 § 4 (Exh. 3), 2018.)
18.170.030 Determination of locally significant wetlands.
The City of Monmouth determines which wetlands are locally significant in accordance with rules adopted by Department of State Lands (OAR 141-086-0300 et seq.). Locally significant wetlands are identified on the Monmouth Local Wetland Inventory Maps. (Ord. 1380 § 4 (Exh. 3), 2018.)
18.170.040 Wetland protection areas, applicability, and application submittal requirements.
(1) Wetland protection areas consist of locally significant wetlands identified on the Monmouth Local Wetland Inventory Maps. The provisions of this chapter shall be applied to any property or parcel containing wetlands identified as locally significant. These provisions do not provide any exemption from State or Federal regulations.
(2) Unless otherwise stated, the City shall apply the provisions of this chapter in conjunction and concurrently with the requirements of any other development permit being sought by an applicant. If no other permit is being sought, the City Planner shall serve as the approving authority.
(3) Applications for plan approvals, development permits, building permits, or plans for proposed public facilities on parcels containing a wetland protection area or a portion thereof shall include the following:
(a) A delineation of the wetland boundary completed by a professional wetland scientist, or similar expert, qualified to delineate wetlands in accordance with Oregon Department of State Lands. If the proposed project is designed to avoid wetlands, a wetland determination report may be provided in place of the delineation.
(b) A scale drawing that clearly depicts the wetland boundary, the surface water source, existing trees and vegetation, property boundaries, and proposed site alterations including proposed excavation, fill, structures, and paved areas.
(c) Verification that the application packet has been submitted to the Oregon Department of Fish and Wildlife for review and comment.
(4) No delineation is required under subsection (3)(a) of this section, if the proposed development is located 25 feet or more from a wetland identified on the LWI map or from a DSL-approved wetland determination, but not an approved delineation. This is not a buffer or setback, but an allowance for LWI map inaccuracy when the expense of a precise delineation may not be warranted. Compliance with State and Federal wetland regulations for all wetlands, mapped or unmapped, remains the legal responsibility of the landowner. (Ord. 1380 § 4 (Exh. 3), 2018.)
18.170.050 Approval criteria.
The approving authority shall base its decision on the following criteria in addition to the required criteria for any other permit or approval that is being sought. Approvals shall be based on compliance with all of the following criteria:
(1) The proposed project complies with the provisions of MCC 18.170.060 through 18.170.080.
(2) Except as otherwise allowed in MCC 18.170.060, the proposed project will not result in excavation or filling of a wetland or reduction of wetland area on a parcel that has been identified as containing a wetland.
(3) Except as otherwise allowed in MCC 18.170.060, the proposed project will not result in development, including excavating, drainage, grading, filling, or native vegetation removal of land within 25 feet of the boundary of a wetland identified on the LWI map or from a DSL-approved wetland determination, but not an approved delineation. (Ord. 1380 § 4 (Exh. 3), 2018.)
18.170.060 Allowed activities within wetland protection areas.
(1) The following activities and continuation and/or maintenance thereof are exempted from all wetland protection area regulations; provided, that any applicable State or Federal permits are secured:
(a) Continuation of any use, sign, or structure, including bank stabilization and flood control structures, and the maintenance thereof, that was lawfully existing on the date of adoption of the ordinance codified in this chapter (May 1, 2018), may continue within a wetland protection area. Such use, sign, or structure may continue at a similar level and manner as existed on the date of adoption of the ordinance codified in this chapter.
(b) Maintenance and alteration of preexisting ornamental landscaping is permitted within a wetland protection area so long as no additional native vegetation is disturbed. The provisions of this section shall not be affected by any change in ownership of properties containing a wetland protection area.
(2) The following activities and maintenance thereof are allowed within a wetland protection area; provided, that any applicable State or Federal permits are secured:
(a) Wetland restoration and rehabilitation activities;
(b) Restoration and enhancement of native vegetation;
(c) Cutting and removal of trees which pose a hazard to life or property due to threat of falling as determined by a certified arborist, upon submitting a report to the City Planner;
(d) Removal of nonnative vegetation, if replaced with native plant species at appropriate plant densities for a native wetland plant community that provides the environmental functions of a wetland;
(e) Normal farm practices such as grazing, plowing, planting, cultivating, harvesting, and other practices under the review authority of Oregon Department of Agriculture. Normal farm practices do not include new or expanded structures, roads, or other facilities involving placement of fill material, excavation, or new drainage measures;
(f) Maintenance of existing drainage ways, ditches, or other structures, to maintain flow at original design capacity and mitigate upstream flooding; provided, that management practices avoid sedimentation and impact to native vegetation, any spoils are placed in uplands, and applicable State permits are obtained;
(g) Replacement of permanent, legal, nonconforming structures in existence on the date of adoption of the ordinance codified in this chapter with a structure on the same building footprint, if it does not disturb additional area, and in accordance with best management practices and the provisions of MCC 18.05.120, Nonconforming uses;
(h) Emergency stream bank stabilization to remedy immediate threats to life or property;
(j) Maintenance and repair of existing roads and streets, including repaving and repair of existing bridges, and culverts; provided, that such practices avoid sedimentation and other discharges into the wetland or waterway.
(3) New fencing may be permitted by the City Planner where the applicant demonstrates that the following criteria are satisfied:
(a) The fencing does not affect the hydrology of the site;
(b) The fencing does not present an obstruction that would increase flood velocity or intensity;
(c) Fish habitat is not affected by the fencing;
(d) The fencing is the minimum necessary to achieve the applicant’s purpose.
Applications for new fencing within a wetland protection area shall contain a scale drawing that clearly depicts the wetland area boundary. (Ord. 1380 § 4 (Exh. 3), 2018.)
18.170.070 Prohibited activities within wetland protection areas.
Except as allowed in MCC 18.170.060, Allowed activities within wetland protection areas, the following activities are prohibited within a wetland protection area:
(1) Placement of new structures or impervious surfaces.
(2) Excavation, drainage, grading, fill, or removal of vegetation except for fire protection purposes or removing hazardous trees.
(3) Expansion of areas of landscaping with nonnative species, such as a lawn or garden, into the wetland protection area.
(4) Disposal or temporary storage of refuse, yard debris, or other material.
(5) Discharge or direct runoff of untreated stormwater.
(6) Uses not allowed in the list of permitted uses for the underlying zone.
(7) Any use not specifically allowed in MCC 18.170.060. (Ord. 1380 § 4 (Exh. 3), 2018.)
18.170.080 Notification and coordination with State agencies.
(1) All State jurisdictional wetlands, mapped or not, are subject to the State Removal-Fill Law administered by DSL. All wetlands are “potentially jurisdictional wetlands.” Wetlands on the Local Wetland Inventory Map which are not identified as locally significant are considered “Other Potentially Jurisdictional Wetlands.” These wetlands are not subject to City of Monmouth wetland protection area standards, but, like all wetland areas, are subject to DSL notice/review and potentially subject to DSL and the U.S. Army Corps of Engineers permitting.
(2) The City shall notify the Oregon Department of State Lands in writing of all applications for development activities – including development applications, building permits, and other development proposals – that may affect any wetland identified in the Local Wetlands Inventory. This applies for both significant and nonsignificant wetlands. The Department provides a wetland land use notification form for this purpose.
(3) When reviewing wetland development permits authorized under this chapter, the approving authority shall consider recommendations from the Oregon Department of Fish and Wildlife (ODFW) regarding OAR 635-415, “Fish and Wildlife Habitat Mitigation Policy.” Recommendations from ODFW are advisory only. (Ord. 1380 § 4 (Exh. 3), 2018.)
18.170.090 Variances.
(1) The Planning Commission shall review applications for variances to the wetland protection areas in accordance with the provisions for variances in Chapter 18.20 MCC, Variances. The major variance procedures as specified shall be followed for approval of a variance except that the variance criteria of this section shall apply.
(2) Hardship Variances. The Planning Commission may grant a variance to the provisions of this chapter only when the applicant has shown that all of the following conditions exist:
(a) Through application of this chapter, the property has been rendered not buildable;
(b) The applicant has exhausted all other options available under this chapter to relieve the hardship;
(c) The variance is the minimum necessary to afford relief;
(d) No significant adverse impacts on water quality, erosion, or slope stability will result from approval of this hardship variance, or these impacts have been mitigated to the greatest extent possible; and
(e) Loss of vegetative cover shall be minimized.
(3) Variance Applications.
(a) The applicant shall provide sufficient information regarding the proposed development and potential impact to wetland resources and the proposed mitigation plan to allow the Oregon Department of State Lands to determine whether the proposal has minimized impacts to wetland protection areas and whether the proposed mitigation will provide equal or better protection of wetland resources. This information includes, but is not necessarily limited to:
(i) A plot plan showing wetland protection areas, any significant riparian corridors, and any applicable setbacks;
(ii) The extent of development within wetland protection areas;
(iii) Uses that will occur within the wetland protection areas and potential impacts (for example: chemical runoff, noise, etc.);
(iv) The extent of vegetation removal proposed;
(v) Characteristics of existing vegetation (types, density);
(vi) Any proposed alterations of topography or drainage patterns,
(vii) Existing uses on the property and any potential impacts they could have on wetland resources, and
(viii) Proposed mitigation. (Ord. 1380 § 4 (Exh. 3), 2018.)
18.170.100 Map corrections.
The City Planner may correct the location of the wetland protection area when the applicant has shown that a mapping error has occurred and the error has been verified by DSL. Delineations verified by DSL shall be used to automatically update and replace LWI mapping. No formal variance application or amendment to the Comprehensive Plan is needed for map corrections where approved delineations are provided. (Ord. 1380 § 4 (Exh. 3), 2018.)