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HomeMy WebLinkAbout09-06-2013 - re: wetland delineation code interpretation , 1L,O.Ai CITY OF ORONO Street Address: Mailing Address: Telephone(952)249-4600 '�� 2750 Kelley Parkway P.O.Box 66 Fax (952)249-4616 OIL t�kFSHO��G Orono,MN 55356 Crystal Bay,MN 55323 www.ci.orono.mn.us September 6, 2013 Timothy&Amy Hubbard 945 Willow View Drive Orono, MN 55356 Re: Wetland Delineation Code Interpretation Dear Mr. and Mrs. Hubbard, The City Council at its August 26 meeting reviewed your expressed concerns regarding interpretation and applicability of the City's wetland ordinances with regard to the Willow View subdivision and other Orono properties in general. Specifically,you had asked for clarification regarding the need for a new wetland delineation for a permit application for a new pool for your residence. Your neighbor, Jay Kanive, also had expressed a concern regarding whether a 1999 wetland delineation is still valid. Per the Council's direction, this letter provides you with the City's position on this matter. In the case of Mr.Kanive,he submitted an application for a permit in 2012 for a sport court in his back yard. While a buffer was not required to be planted, per the City wetland rules in place at the time City staff asked for a wetland delineation to evaluate if the sport court met the required setbacks in order to avoid creating a future nonconformity. Mr. Kanive requested we use a wetland delineation which was performed when the development was created in 1999. We would not accept that, and he proceeded to have Arrowhead Environmental complete a new wetland delineation. The new delineation showed the wetland did not match the 1999 delineation, but had expanded. He submitted this to the MCWD for delineation approval,but withdrew his application to them before their approval process was complete because MCWD staff told him he did not need a delineation. Wetlands will change over time because of environmental factors. In the past, according to the Wetland Conservation Act(WCA),wetland delineations were only valid for 3 years. Recent rule changes now allow for most wetland delineations to be valid for 5 years. The delineation which was approved as part of the original development for Willow View Drive in 1999 is no longer valid. Furthermore,this delineation should not be shown on surveys as an accurate wetland boundary. A copy of these recent rule changes is attached (see 103G.2242 Subd. 2a,Decisions and Appeals, effective 8-1-11, on page 5 of 7). Minnehaha Creek Watershed District(MCWD)complicated matters because MCWD staff originally told Mr.Kanive the 1999 wetland boundary was acceptable and valid. Unfortunately,this is not accurate information or in accordance with WCA regulations. Based on subsequent conversations with MCWD, the information MCWD should have told Mr. Kanive was that the wetland buffer boundary associated with the approved development plan would not have to be changed even though the actual wetland boundary may have changed. To a property owner,this means that once the final plat for a new development(such as Willow View)is approved and a buffer area is designated and approved by MCWD on an approved grading plan or plat,it is a permanent buffer boundary(according to MCWD policies). If in the future, a homeowner proposes significant work on the property and a new wetland delineation shows the wetland increased in size,the homeowner would not be required to now install a new buffer based on the new delineated boundary. MCWD's policy is in place to not penalize future homeowners for a future change in a wetland. Typically these buffer areas are recorded as easements against the properties by MCWD, but MCWD failed to record this against the properties on Willow View Drive. Timothy and Amy Hubbard 9-6-13 Page 2 Also, for all permits with MCWD, MCWD staff visit the site to make a determination if the project is going to affect a wetland. If it appears the proposed project will not affect the wetland based on their visual inspection,then they do not require a wetland delineation. MCWD does not have a setback requirement associated with their wetland regulations;they merely have a buffer requirement. In the case of Willow View, since there was an established buffer associated with the development and because the proposed projects(Kanive and Hubbard)didn't appear to directly impact wetlands, MCWD did not require a wetland delineation. The 2013 revisions to Orono City Code Chapter 78—Wetland Protection (see attached)require a 35' setback from the delineated edge of wetland to any building, structure,hardcover, septic system, or well. A Level 1 or Level 2 delineation shall be required in cases where the wetland exists within 150' of the proposed project. The 945 Willow View Drive survey provided by you references the 1999 delineation. This 1999 delineation is no longer valid, and there is potential the wetlands may have changed over the last 14 years. Therefore, a new wetland delineation is required to establish the wetland boundary in order to measure the required 35' setback from the wetland in accordance with City Code. The intent of the code revision was to fully transfer the authority of wetland buffers to MCWD and to eliminate the need for applicants to obtain wetland delineations for projects located far away from a wetland. The previous rules would have required you to establish a new 16.5' buffer area surrounding the new wetland boundary. It is important to note that from 1975 until adoption of new wetland regulations in 2005,the City of Orono had in place a 26' wetland setback requirement for structures and hardcover. This was revised in 2005 to establish buffer requirements ranging from 16.5 feet to 50 feet,plus a 20' structural setback from the edge of buffer to allow for maintainable yard areas. In 2013 the City chose to relinquish its authority on buffers to the MCWD,but with full knowledge that MCWD will not apply buffer requirements to existing single-family residential properties, and that MCWD does not have a wetland setback requirement. The result would be that, unless the City re-established a wetland setback requirement, in cases where no buffer exists or is required by MCWD,nothing would stop property owners from building right up to the edge of a wetland. That made it incumbent on the City to re-establish a setback requirement to protect the wetlands as the City has done for decades. It is impossible to administer a wetland setback ordinance without accurate and current wetland boundary information. Please contact Melanie Curtis at 952-249-4627 with any questions you may have regarding your pool permit application. Sincerely, Ci f Orono Michael P. Gaffron Asst. City Administrator encl. cc: Mayor and City Council Jay Kanive A mciAitgArr 2011 WCA STATUTE CHANGES Summary of Key Changes with Explanations -Effective August 1,2011 WETLAND BANKING 103G.005, Subd. 10e. Local government unit. "Local government unit" means: (1) outside of the seven-county metropolitan area, a city council, county board of commissioners, or a soil and water conservation district or their delegate; (2) in the seven-county metropolitan area, a city council, a town board under section 368.01, a watershed management organization under section 103B.211, or a soil and water conservation district or their delegate; and (3) on state land, the agency with administrative responsibility for the land; and (4)for wetland banking projects established solely for replacing wetland impacts under a permit to mine under section 93.481,the commissioner of natural resources. Effect of Change: This change establishes the DNR as an LGU responsible for implementing the WCA wetland banking provisions only for projects that will be used exclusively to replace wetland impacts occurring under a permit to mine. This will increase flexibility for the DNR and mining companies in complying with WCA replacement requirements, while increasing transparency for local governments and other interested parties when banking is proposed to mitigate mine related wetland impacts. 103G.2242, Subd. 14. Fees established. (a)Fees must be assessed for managing wetland bank accounts and transactions as follows: (1) account maintenance annual fee: one percent of the value of credits not to exceed$500; (2) account establishment, deposit, or transfer: 6.5 percent of the value of credits not to exceed$1,000 per establishment, deposit, or transfer; and (3)withdrawal fee: 6.5 percent of the value of credits withdrawn. (b)The board may establish fees at or below the amounts in paragraph(a)for single-user or other dedicated wetland banking accounts. (c)Fees for single-user or other dedicated wetland banking accounts established pursuant to section 103G.005, subd. 10,paragraph(e),clause(4)are limited to establishment of a wetland banking account and are assessed at the rate of 6.5 percent of the value of the credits not to exceed$1,000. Effect of Change: Allowing BWSR to establish fees less than those otherwise required recognizes that certain special account types, specifically including those established per 103G.005, Subd. 10(e) above, may have reduced administrative costs associated with them due to their nature and operation, and thus a reduced fee can be appropriate. BWSR's fee structure will be adjusted accordingly for banking projects approved for mining. Any other reduced fees would be established via board policy. 6-21-11 BWSR Draft 1 } ELECTRONIC COMMUNICATIONS AND NOTICING 103G.005, Subd. lOf. Electronic transmission. "Electronic transmission"means the transfer of data or information through an electronic data interchange system consisting of,but not limited to, computer modems and computer networks. Electronic transmission specifically means electronic mail, unless other means of electronic transmission are mutually agreed to by the sender and recipient. ..,.•.,,,..„,,,_,:...:,-.:„.......,,,..-_-,,-_-_-- 103G.231°ELECTRONIC TRANSMISSION. For purposes of sections 103G.221 to 103G.2372,notices and other documents may be sent by electronic transmission unless the recipient has provided a mailing address and specified that mailing is preferred. ( Effect f nge s Te awe l l tis provides definit y c i .l," :. a+r s pr r sly iefined C was ena ed r X991 nd, l �,. 1 , ::rues , smote shad not apt + wifh '��r nt a nologies. Spec ily mat required .:,Gid F r i g ,. Kapplications, deci+ ns,getc be Sent uu : • m as counter baa t o v �, -people pe er td communicate,Tres' tin `clays w d, hors sed pr ve-tii,06,,,,,E."•: 'Imit::::,,,,,,'"y expenses llow g com l r�trgaa s •' a oticlnpro edures,Mre uc°e char etas �a f costs andnrese�er�cy ;Tis nr► ' ,; .. ,:.1. �r .,it +r�°;Gro`- " i .. F "+ - 3 w�s*.M. ,a statute r lat�°o electro c tra�sm�ssion a r t n will also lowlandowners to ms receive ices via t9 fop c ,:r'mi fi i ' a"'i 3.iYii j ., 103G.2242, Subd.6. Notice of application. (a) _ - = - - - , _ - - - •ecei g an Application for approval of a replacement plan under this section must be reviewed by the local government according to Minnesota Statutes 15.99, subdivision,paragraph(a). Copies of the complete application must be mailed or sent by electronic transmission to the members of the Technical Evaluation Panel, the managers of the watershed district if one exists,and the commissioner of natural resources. Individual members of the public who request a copy shall be provided information to identify the applicant and the ..:,.. : .. . . ::,.::.. - . . ,, : - location and scope of the project. (b • - _ -- • - - ... . -- - . . _ _ immi Effect f Vie. The an i ia) and demon. fparagraph- i%est est • err � �� � re �n for n nafit s �s local gcnr me costes and rovi es` o ns tinformation - e e . als=o el c M£Stat A" r ather riding � u tice (the previous t 0 days" s" 't ,and n at" a' � 1s,� J ._ .. 4 A 6-21-11 BWSR Draft 2 REPLACEMENT WETLAND SITING 103G.222, Subd.3. Wetland replacement siting. (a) • '-_ ., . . . ••••- Impacted wetlands in a 50 to 80 percent area must be replaced in a 50 to 80 percent area or in a less than 50 percent area. Impacted wetlands in a less than 50 percent area must be replaced in a less than 50 percent area.All wetland replacement must follow this priority order: (1)on site or in the same minor watershed as the affected impacted wetland; (2)in the same watershed as the affected impacted wetland; (3)in the same county or wetland bank service area as the affected impacted wetland; (4) . ._ -•-• . . . .. .. •- - . . .., - : . :.. -- •- ..that impacts in a 50 to 80 percent area must be replaced in a 50 to 80 percent arca and impacts in a less than 50 percent area must be replaced in a less than 50 percent arca; (5)for project specific replacement, in an adjacent watershed to the affected wetland, or for replacement by wetland-bank-int-in an-adijacen another wetland bank service area,except that impacts in a 50 to 80 percent arca must be replaced in a 50 to 80 percent arca and impacts in a less than 50 percent area must be replaced in a less than 50 pe ent a a; and (6)(5)statewide for public transportation projects, except that wetlands affected impacted in less than 50 percent areas must be replaced in less than 50 percent areas, and wetlands affected impacted in the seven-county metropolitan area must be replaced at a ratio of two to one in: (i)the affected county or,(ii)in another of the seven metropolitan counties, or(iii) in one of the major watersheds that are wholly or partially within the seven- county metropolitan area,but at least one to one must be replaced within the seven-county metropolitan area. (b) • - • - . . -. -. .. . , ' •. ., . . . - - - _ - .e . _ - . . - follow the priority order under this paragraph: (1) in the affected county; (2)in another of the seven (d)The exception in paragraph(a), clause(-6)(5), does not apply to replacement completed using wetland banking credits established by a person who submitted a complete wetland banking application to a local government unit by April 1, 1996. (e)(c) When reasonable,practicable,and environmentally beneficial replacement opportunities are not available in siting priorities listed in paragraph(a),the applicant may seek opportunities at the next level. E4 (d)For the purposes of this section, "reasonable, practicable,and environmentally beneficial replacement opportunities" are defined as opportunities that: (1)take advantage of naturally occurring hydrogeomorphological conditions and require minimal landscape alteration; (2)have a high likelihood of becoming a functional wetland that will continue in perpetuity; (3)do not adversely affect other habitat types or ecological communities that are important in maintaining the overall biological diversity of the area; and 6-21-11 BWSR Draft 3 (4)are available and capable of being done after taking into consideration cost,existing technology, and logistics consistent with overall project purposes. (e)Applicants and local government units shall rely on board approved comprehensive inventories of replacement opportunities and watershed conditions,including the Northeast Minnesota Wetland Mitigation Inventory and Assessment(January 2010), in determining whether reasonable,practicable,and environmentally beneficial replacement opportunities are available. Cg)ollaborate f�Regulatory agencies,localgovernmentunits,and other entities involved in wetland restoration shall to identify potential replacement opportunities within their jurisdictional areas. k ok r Y a , gCs h£ b 1�- a in first a F ofsubdivision~ s s � F aY � ���� x �� , � 4 ; clauses t attd�5 aed Y�destandard ` lwetland , ent er r �r-�Gir��.� JLn�" �F allowing_' �,v{+i.7� z�"I4r `C'"���B �'S' W"N�fl�J, toilied.-`M a" 1 3"C i �, ➢ x '‘,„„b",,,,, reas„.,,,m,„,,,-,'•• ,a rer r tla n s, lett o� a„pr ,order t�l e however nd �is chars �c�ese ��$ ,�` � F� � ,. Changing "affected" to ate" clarifies the � e�a$a� p r� t with MN a 20 4a a��` 'outer'`- df "� -ion "wetl l-ba sa.E. -- in paragrap , fse ..;;;',;:::',,-,;:::-,,:-.,77,-res't iting ter g prol•:+ t ,replay � t a ,, replacementthroughh'wetl d ng, c ',',...,,,,_'/;''' w 5 � �• o e t $k ruse € ,� ' a s-...-.4. k 3 ,f,,` yam+j tF ted •� an( ';'-' d li4 t i �t 1. —:":,''F:::'''''.171;.,./'''. ),.Clauses'1 aabove,and - l 'dn 4 4"'t rakes a, a nicalbash; S Y; 06 ddy� 4 ' Xr "fir'+ t r nit". ',D11-,'",e a and i aa'.."d"4 rt4W a � ��9 .X Y"� zt °a' + •'.T!:,p':!'„:,-;,-<:!2.,,,;-,,,-,, an`r d � 7.J1' 9 Am is , �-@ ,Ya' ed ^a`' 'a., lit l e? 19 v �-�y d .on a ,, q�� ,�,�,��,,y�f ,# - ,ter s•• , v ,y� ''., '':-:V.,,,zi,-',i',i-,,-','•‘,4iteati;i11,4:.•:: ' ' ' .`5,rt is i1`ions er . _ � r " a �d '�� fi 3.0 . en a� s .h yy p � t� t � �, e ��`�ar-d e o w �9f intt� es,'� i� tri- a �►r g•dects l�` ti a �� i.„. a as m • s•� r41 +''^ ryrb F a au`^ 2 ,d�. j "'f , e a � � ter at�let+e . . gra' le, ; . r d� ''mow,, rr :,,1:-.,;;;,:',;)::-:`,:, _�,g f ' d' . r r yFM �C h f Ing t w 'r , _ S'.. .. -,:/4;;;(:::,,:.,-__,,',,,''',----- .4—gt- ' Y � end yattershted Lan - . ted su tat. 3 � 1arge f `� yy� -•' h ti � ��,,�,�,�=' .� � gyp � ~x nvestig t la c Y• Yi eGi� 6e, ''.7 0 3 a 9...... a a.d 6 Y� -'' { 4 ti k yxt %+fid P �f"yo-s s. . a .r ,'°'; tire, � u .w reit lty � � fled to �' ' J Wx r.`i k ',,"� x. r �� V rr tr a,r`` ardles.�s political houndai�'` �`:%rP' yr �\ r • ifr -� `.,-,'''','''''';', :f- F J ri P 'i c. �z d. r :,-,.,,,,i..,,,"‘",,', 6-21 11 BWSR Draft 4 DECISIONS AND APPEALS 103G.2242,Subd. 2a. Wetland boundary or type determination. (d)Appeals of decisions made by designated local government staff must be made to the local government unit. within 30 days from the date of the filing of the appeal. Effect of Change: This deletion removes a mandate for a localiappeatsprocess for decisions=made by designated local government staff. Now'aril designated staff decisions are final unlesS.the local government choosestto establish a°local appeals process'under the r wn'author y. Appeals go-,to BWSR when no local appeals pocess is establisAid 'Atuidance on local appeals Will be developed and ovided to IGUs. :t;iii1w f 'nt r.: kid (e)The local government unit decision is valid for three five years unless the Technical Evaluation Panel determines that natural or artificial changes to the hydrology,vegetation,or soils of the area have been sufficient to alter the wetland boundary or type. Effect of Change: Increasing the timeframe that decisions are valid provides consistency with federal wetland regulations, increased flexibility and simplification for landowners, and slight workload reductions for local,governments. .J 103G.2242, Subd. 9. Appeal Appeals to the board. (a)Appeal of a replacement plan, sequencing,exemption, wetland banking,wetland boundary or type determination, or no-loss decision,or..esteratien order may be obtained by mailing a petition and payment of a filing fee,which shall be retained by the board to defray administrative costs,to the board within 30 days after the postmarked date of the mailing or date of sending by electronic transmission specified in subdivision 7. If appeal is not sought within 30 days,the decision becomes final. If the petition for hearing is accepted,the amount posted must be returned to the petitioner. Appeal may be made by: (1)the wetland owner; (2) any of those to whom notice is required to be mailed or sent by electronic transmission under subdivision 7; or (3) 100 residents of the county in which a majority of the wetland is located. (b) Within 30 days after receiving a petition,the board shall decide whether to grant the petition and hear the appeal. The board shall grant the petition unless the board finds that: (1)the appeal is meritlesa without sufficient merit,trivial, or brought solely for the purposes of delay; (2)the petitioner has not exhausted all local administrative remedies; (3)expanded technical review is needed; (4)the local government unit's record is not adequate;or (5)the petitioner has not posted a letter of credit, cashier's check, or cash if required by the local government 6-21-11 BWSR Draft 5 unit. (c) In determining whether to grant the appeal,the board,executive director, or dispute resolution committee shall also consider the size of the wetland, other factors in controversy,any patterns of similar acts by the local government unit or petitioner,and the consequences of the delay resulting from the appeal. (d)All appeals If an appeal is granted,the appeal must be heard by the committee for dispute resolution of the board,and a decision must be made by the board within 60 days of filing the local government unit's record and the written briefs submitted for the appeal and the hearing. The decision must be served by mail en or by electronic transmission to the parties to the appeal, and is not subject to the provisions of chapter 14.A decision whether to grant a petition for appeal and a decision on the merits of an appeal must be considered the decision of an agency in a contested case for purposes of judicial review under sections 14.63 to 14.69. TO 43e Effect a h ba a S bd. llyallow� �I_fii e r wzasregarding •sequencing, deele'tes"restoration order" is 7 (•rM , allows 4 IS yyyl Y'i 4' � ,�� y�}��+ ,�/. �( }! �'' '1y y,� made< tcl noticed vial ect i q ion coni fii nge"�1i }�D,re io �f Jt �'r w )w i '�F.. II{.lA ether e processing of 9, authority "to makefir► 1s they are without sufficient Brit: s det,,"4.."1"7 eview of theappeal petition andte` J'recto' filmset statute Chang �improve e� trth current�� v i,r ' �a vit 103G.2242, Subd. 9a. Appeals of Restoration or Replacement Orders. A landowner or other responsible party may appeal the terms and conditions of a restoration or replacement order within 30 days of receipt of written notice of the order. The time frame for the appeal may be extended beyond 30 days by mutual agreement,in writing,between the landowner or responsible party,the local government unit,and the enforcement authority. If the written request is not submitted within 30 days,the order is final. The board's executive director must review the request and supporting evidence and render a decision within 60 days of receipt of a petition. A decision on an appeal must be considered the decision of an agency in a contested case for purposes of judicial review under sections 14.63 to 14.69. erect n : Th n + G r +esta it to s a r y l of restoration Comers titans different fo cal �o tion:or�'s are aq �� � are 6 t d�y v•s kp � 55�y� -.g4 yy' - c rw yyyr�yy�y� � k e Y k 'ts teat t� 'd�Li.. ent d d Rd N U s.y is Is.`j{t{ ��w 'ate during�eA� � �x . 1�. s r � a�ry made n, 00.° a to cr timeframes 'was pr ided Glntie 2� 2007Wetland erg n pct a ar isvlth the E tom„ lie oes not�ect h'Ie�curren : f 6 6-21-11 BWSR Draft WETLAND PRESERVATION FOR REPLACEMENT CREDIT 103G.2251 STATE CONSERVATION EASEMENTS; WETLAND BANK CREDIT. In greater than 80 percent areas,preservation of wetlands owned by the state or a local unit of government, protected by a permanent conservation easement asdefined under section 84C.01 and held by the board, may be eligible for wetland replacement or mitigation credits,according to rules adopted by the board.To be eligible for credit under this section,a conservation easement must be established after May 24,2008, and approved by the board. Wetland areas preserved under this section are nervot aetliiognibplreofgorramresp. s Pn .r aam-in.r rieib, ,`x} lacem.4�ent or mitigation credit i ftthe h e area has received financial assistance from public cor atir' � a 9 9" ' I; � -� i* hak 111110: .� � n` k t 1 ) ' *iahy S�a a ' r ;a$ 9 lCaQ a_ .yt � 41 tu �iousy -iNiilt:-' , ' te 1 xai a a "mt1�,1� r e � here its : ^ n i Pfit�' � diiql � "aor. 1wet n . a , T i z lto s t, t'Xa � a s u ! o e s s v �y �� � a F +2 v �1 ,„ .�i�e giNE e',4e t v � l j Ih 4' Cgcov�1 p u �rr id mtr aaiaIt�. a ` e kc' ` z ,d ea oa. w �ta . s h . , tr xa x • a e ,prot e� & o iq. , lak :tvs 6-21-11 BWSR Draft 7 AT7he v -qvr 2- ORDINANCE NO. 103 , THIRD SERIES CITY OF ORONO HENNEPIN COUNTY, MINNESOTA AN ORDINANCE AMENDING SECTIONS 78-1601, 78-1605,78-1606,78-1607,78-1608,78-1610,78-1611 AND 78-1612 OF THE ORONO CITY ZONING CODE REGARDING WETLAND PROTECTION THE CITY COUNCIL OF THE CITY OF ORONO,MINNESOTA ORDAINS: SECTION 1. Orono City Code Chapter 78, Section 78-1601, is amended by deleting and adding the following language: "Sec. 78-1601.- Purpose and intent. (a) The purpose of this section is to recognize, preserve and protect the environmental, aesthetic and hydrologic functions of the city's wetlands by regulating the use of wetlands and their adjacent properties in conjunction with the goals of the environmental protection plan within the community management plan. These functions include, but are not limited to, sediment control, pollution control, filtration, fish and wildlife habitat and aquifer recharge. The surface water management plan will provide guidance for stormwater treatment requirements and wetland restoration opportunities in order to protect the integrity of wetlands. (b) The intent of this section is to protect wetlands to the maximum extent possible while allowing a reasonable use of the property. This section adopts the regulations and standards of the Wetland Conservation Act of 1991 (WCA), Laws of Minnesota 1991, chapter 354, as amended, and the rules adopted pursuant to the WCA. It also establishes a wetland overlay district. This overlay district further regulates the underlying land use as allowed by other districts or the WCA. (c) This article applies to, and wetland buffer areas must be created or existing buffer _.. .. ._ . .,.. .. .. _. ., ....., . . __ _. _ .,. . ._. _. .., ..,. ...:, (1) When the wetland is required to be replaced or restored, or when the (2) When new development occurs. For purposes of this subsection, new development-means: a. Any subdivision that creates a new lot that has no principal structure on it; b. Construction of a principal structure on an oxisting vacant parcel of land; Page 1 of 13 (3) When redevelopment occurs that has the potential to adversely impact a wetland. For purposes of this subsection redevelopment moans the ' V- requirement does not apply if construction is the result of less than 75 percent of the building being damaged by an involuntary force, such as (1) When any construction or land alteration activity that does not fall within the meaning of "redevelopment" has the potential to adversely impact a wetland .„ Y- b. The amount of grading exceeds 50 cubic yards or the construction --- o. The redevelopment activity results in a net increase in the square to drainage patterns (slopes, meander patterns, etc.) that the city engineer determines will increase the velocity or rate of runoff to the-wetland, For n©w development, all wetlands on the property shall be subject to the buffer shall-be-subject to the buffer requirement. In the event that the wetland is on an adjacent property but near enough to the subject property so that buffers to said SECTION 2. Orono City Code Chapter 78, Section 78-1605, is amended by deleting and adding the following language: "Sec. 78-1605. -Wetland buffer areas and setbacks. (a) This subsection establishes requirements authority for wetland buffer areas around protected wetlands. Buffer areas are necessary and beneficial to maintain the health of wetlands. Buffer areas protect the edge of wetlands from erosion while filtering sediment, chemicals and other nutrients from runoff that drains into wetlands. Buffer areas can improve the biological diversity and health of a wetland environment while reducing the adverse impacts of human activities. (b) All wetlands within the City of Orono are within the Minnehaha Creek Watershed District (MCWD), which has rules and regulations for the establishment and maintenance of wetland buffers. In an effort to avoid overlapping or conflicting Page 2of13 regulations, the City defers jurisdiction for the establishment and maintenance of wetland buffers to the Minnehaha Creek Watershed District. If application of MCWD buffer regulations is in conflict with City regulations, the more restrictive requirements shall apply. (c) In order to provide for a minimum level of wetland protection where Minnehaha Creek Watershed District buffer rules do not provide for adequate separation between wetlands and buildings or other structures or surfaces, the City shall require setbacks from the delineated edge of a protected wetland as follows: Minimum distance setback from delineated edge of wetland to any building(principal or accessory)or other structure,ihardcover,septic systems or wells: Where no formal buffer exists and where 35 feet MCWD does not require a buffer Where a formal buffer exists or where 35 feet or established buffer width MCWD buffer is required plus 10 feet,whichever is greater Areas withm the required setback area subject to filling, grading or excavation as part of a construction project shall be revegetated immediately upon completion of such earthwork. Setbacks must be verified with wetland delineation information. The determination of whether a Level 1 Delineation or Level 2 Delineation is required shall be at the discretion of the Planning Director. Level 2 delineation information shall be provided on a certified certificate of survey. The requirement for delineation shall be applied in cases where the wetland exists within 150 feet of the proposed project. (b) Buffer areas regulated by this section are areas of vegetative cover that are upland not mowed, fertilized or manicured in any manner. Mowing, fertilizing, (1) Acceptable buffer areas shall have the following qualities: a. A continuous dense layer of perennial grasses that have been b. An over story of trees and/or shrubs with at least 80 percent ten consecutive years, or Page 3 of 13 c. A mixture of the plant communities described in a. and b. above, which have been unoultivatod or unbroken for at least ten meds),, or b. Lacking a layer of organic thatch or duff; or c. Topography which tends to channelize the flow of surface runoff, OF d. Is characteristically unlikely to retain nutrients and sediment. consecutive years must be restored to a condition consistent with an acceptable buffer area defined in section 78 1605(b)(1), a restoration or landscape plan must be submitted to the planning director, which a. Buffer areas shall be planted with a seed mix containing 100 percent perennial native plant species, except for a ono time b. The seed mix to be used shall consist of at least 12 pounds pure respeeti-vely. ,.,. _ . __ _ - _. ... ... -_ pounds-per--aefe, d. Native shrubs and or trees may be used in addition to forbs and grasses. Shrubs shall be distributed so as to provide a natural c. Native prairie grasses and forbe shall be planted by a qualified eentroetor f. No fertilizer shall be used in establishing new buffer zones, except a rate of one and one half tons per acre. Muleh shall be anchored Page 4 of 13 h. Buffer areas (both natural and created), shall be protected by silt fence during construction and the fence shall remain in place until removed. (edd} : . :. . : ,.,, :_ .. .. The City of Orono has established wetland protection strategies established in the Orono Surface Water Management Plan (SWMP) (December 2002 January 2011). A protection classification has been assigned to each wetland in Orono based on the stormwater susceptibility and functional assessment for each wetland. The City has also established additional protection requirements for each classification. The four protection classifications are described as follows: Protection Susceptibility Description Additional Protection Requirements Classification Rating B=Bounce=Change in water level due to runoff event) (P=Phosphorus) "Preserve" Highly Highly susceptible to both quantity and B:Maintain bounce at or below existing Susceptible quality impacts from runoff; have the conditions highest degree of protection P:Limit loadings to predevelopment loading(0.14 Lbs./Ac/Yr) "Manage 1" Moderately Moderately susceptible to quantity and B: Maintain bounce at or below existing Susceptible quality impacts;protection is less conditions plus 0.5 foot stringent than Preserve,provides P: Limit loadings to predevelopment protection to maintain their loadings times 2(0.28 Lbs/Ac/Yr) characteristics "Manage 2" Slightly Less stringent protection than Manage B: Maintain bounce at or below existing Susceptible 1 wetlands;maintenance of conditions plus 1.0 foot characteristics is desirable P: Limit concentration to predevelopment concentrations(200 ppb) "Manage 3" Least Wetlands are significantly degraded B:No quantity requirement Susceptible (e.g., cultivated or canary grass P:Limit concentration to 225 ppb monotype)or lack of wetland characteristics;not typically impacted by runoff;no quantity and only limited quality treatment of runoff is required • The protection classification for each wetland will be found on the "Wetland Management Classification Map & List" which is hereby adopted by reference, a copy of which shall be kept on file in the office of the city clerk and shall be available for public review during all normal office hours. The Minnehaha Creek Watershed District required buffer area widths are based on the four protection classifications. The following are the required buffer area widths for each Page 5 of 13 Protection Width-of Additional-Proteetion-Requirements Glassifietition Buffer-Area ': — : . . . — . . _ '. • . • from (41 sphorus) Wetland Boundary „Preserve" 5.0 feet •: .;.. .' - . _ .: . - - _ -_•. ... P: Limit loadings to predevelopment loading(0.11 Lbs./Ao/Yr) "Manage 1" 35 feet ': " • .. .. . . :_ . _ -.. .. . .. e. •- Lbs/Ac/Yr) "Manage 2" 25 feet ': _ . ._ . 3 ••-•.:: • . .. ' .. "Manage 3" 16.5 feet P: Limit concentration to 225 ppb (d) In cases of new development er redevelopment the city shall require that d buffer be installed prior to the issuance of the certificate of occupancy. The city may waive this requirement in lieu of a cash escrow or (e) The city may allow the disturbance of an existing buffer area during the course of of allowable disturbance. The city may require a cash escrow or letter of credit {f) The city may require buffer area planting and maintenance when the city percent of the estimated coat of the vegetation and installation. The escrow or replace any vegetation that dies. (g) The affected property owner or homeowner association that is responsible for the (1) Maintain and repair damage to buffer areas from such activities as .. . _, _. . _ ... . _ - -. .. . ....• __ .. . - , .... . _ . obtained from the city before implementing buffer management plans, . . . all noxious weeds and invasive, non native species such as European Page 6of13 buckthorn, upon obtaining a vegetation removal permit from the city in • in erosion. (1) Ensure that livestock or other domesticated animals which have the potential to pormanontly disturb the _ . _. . .. .. (h) The final upslope edge of the buffer shall be provided to the city in a hard copy • follewingi (1) At such time that this article requires establishment of a buffer, applicant (2) Applicant shall submit a buffer management plan for city council providing for alternative methods of wetland protection equivalent to an uhmewed €fer." SECTION 3. Orono City Code Chapter 78, Section 78-1606, is amended by deleting and adding the following language: "Sec. 78-1606.-Permitted uses. (a) Within the wetland overlay districts no land may be used except for one or more of the following uses: (1) Native wetland vegetation, provided that no change is made to the ground elevation; (2) Wildlife and nature preserves; (3) Overhead utility lines and poles that are less than two feet in diameter; (4) Docks which provide reasonable access to the lakeshore and do not exceed eight feet in width; (5) Public and private flood control structures, ponding and drainage facilities and associated accessory appurtenances as approved by the city; or (6) Environmental monitoring or control facilities, including those related to water quality and wildlife regulation. Page 7 of 13 (b) Within wetland buffer areas no land may be used except for one or more of the f,,owing (1) Native vegetation, provided that no change is made to the ground elevation; (2) Wildlife and nature preserves; (3) Boardwalks, docks or other reasonable acce©s to the wetland not to be used for boardwalks and bridges; ('I) Public and private flood control structures, ponding and drainage faeilitios (5) Environmental monitoring or control facilities, including those related to (6) Overhead utility poles and lines that are less then two feet in diameter, signals, traffic regulatory signs, mailboxes and other equipment that provides an essential public service; (7) Retaining walls if the city determines that the retaining wall will protect (Ord. No. 28 3rd series, §1, 8-22-2005) SECTION 4. Orono City Code Chapter 78, Section 78-1607, is amended by deleting and adding the following language: "Sec. 78-1607. -Conditional uses. (a) Within the wetland overlay districts no land may be used for the following except by conditional use permit and except in conformance with the standards specified in section 78-1608 of this article: (1) Private and public recreational uses, including golf courses, impervious trails,picnic grounds and boat ramps; (2) Public utilities, including necessary structures; (3) Other non-structural facilities similar to those permitted by this section which also meet the intent of this section, as determined by the city; or (4) Public structures associated with recreational uses permitted by this section or by section 78-1606 of this section that are designed in an environmentally sensitive manner and will withstand periodic flooding, except for structures designed or used for habitation or the storage of equipment. (5) Unpaved hiking, skiing and horseback riding trails which comply with WCA standards. Page 8 of 13 (b) No conditional use permit will be granted unless its approval will not adversely impact wetlands, the wetland buffer areas where they exist or are required, and surrounding properties, the intent of this article or the goals and policies of the community management plan. If applicable, granting of a conditional use permit will be conditioned upon approval of the request by all other appropriate regulatory governmental agencies, including but not limited to the Minnehaha Creek Watershed District (MCWD), the Lake Minnetonka Conservation District (LMCD),or the Minnesota Department of Natural Resources." (Ord. No. 28 3rd series, §1, 8-22-2005) SECTION 5. Orono City Code Chapter 78, Section 78-1608, is amended by deleting and adding the following language: "Sec.78-1608.-Standards. The following standards apply to all land within the wetland overlay districts, existing and MCWD-required wetland buffer areas, and to neighboring lands: (1) Protection of wetlands and wetland buffer areas. a. Except as modified or regulated by the standards of this subsection, all requirements of the underlying zoning district apply. b. No structures are allowed in the wetland overlay districts wetland buffer area except those allowed as of right or by • conditional use permit by sections 78-1606 or 78-1607 of this article. c. Activities including, but not limited to, building (other than a boardwalk or dock), paving, mowing, vegetation removal, filling, dumping, yard waste disposal or fertilizer application are prohibited, except that certain such activities may be permitted when approved by the city as a buffer management plan. Invasive non-native vegetation, such as European buckthorn and noxious weeds, may be removed by obtaining a vegetation removal permit from the city. d. Before grading or construction near a wetland overlay district er buffer area, the owner or contractor must place erosion control fencing on the upland side of the perimeter of the wetland overlay district or wetland buffer area, whichever is more restrictive, or as required by the city. This fencing must remain in place until all development activities that may affect the wetland buffer area have been finished and adequate vegetative cover has been established at which time the fencing must be removed. e. All structures must have a minimum basement floor elevation not less than one foot above the 100-year flood elevation. Page 9 of 13 f. All hard-surface runoff must be treated in accordance with the requirements of the city and the appropriate watershed district. Treatment may include site retention, skimmers, weirs or sedimentation ponds of appropriate scale. Structures and ponds serving this purpose must be properly maintained and serviced by the property owner. g. Discharge into the wetlands must occur at a rate no greater than allowed by the city engineer in accordance with the city's surface water management plan and the appropriate MCWD requirements. !2) Protection of wetland buffer areas. Existing and MCWD-required wetland buffers shall be maintained and protected per the requirements of existing covenants as well as MCWD regulations as administered by MCWD. (2) Setbacks. a. All buildings (principal and accessory),muot be setback at lcagt 20 structures (includitit sport eeiift , .. _ . .,.,. .,.. .., ._ . b. A setback from the buffer area is not required for overhead utility public service. c. A setback from the buffer area i3 not required for fences or (3) Nonconformities. a. Effect of wetland boundary expansion. An existing structure, driveway or parking area meeting the required setback from a city- designated wetland boundary or existing established buffer area is considered a legal nonconforming development if a later wetland delineation or implementation of a wetland buffer shows that the wetland or its buffer is closer than the required setback. b. Existing nonconformities. An existing structure, driveway or parking area that does not meet the required setback from a city- designated wetland boundary or buffer area, is considered a legal nonconforming development. future nonconformities, in situations where development, 1. All new buildings shall maintain a setback from a Page 10 of 13 buffer area per the chart in section 78-1-60-5(-e)—plus—the required 20 foot buffer setback. structures listed as exceptions in Section 78 1608(2)(a) boundary equivalent to the width of the buffer area per the chart in [Section] 78 1605(c). d. Buffer flexibility. Where existing Gtruotures or surfaces are located impacts on the existing use of a property. Such methods may cisterns or rain barrels, etc." SECTION 6. Orono City Code Chapter 78, Section 78-1610, is amended by deleting and adding the following language: "Sec. 78-1610.-Alteration of wetlands. (a) No alteration of land within a wetland overlay district or an existing established wetland buffer is allowed without a wetlands alteration permit, subject to recommendation by the planning commission and approval of the city council. The planning commission must hold a public hearing after notifying the property owners within 350 feet of the property on which the proposed alteration will occur. Activities that constitute an alteration regulated by this section include changes to the size, depth or contour of the wetlands or its existing established buffer, dredging, or alterations of wetlands or buffer vegetation. Alterations do not include wetland planting or the selective clearing or pruning of trees or vegetation that are dead, diseased, noxious weeds or similar hazards. A wetland alteration permit is not required when a wetland district is rezoned to another zoning classification. (b) Alteration of land within a wetland overlay district will only be allowed if water storage is provided in an amount compensatory to that removed. Unless otherwise approved by the city council, compensatory wetland area must be provided within the same subwatershed district as the wetland being altered. hi determining the appropriateness of an alteration request, the city council will consider the size of the total wetland district, the magnitude of the area proposed for alteration, the aesthetic, hydrological and ecological effect, the type and function of wetlands involved, and such other factors as may be appropriate in order to provide the maximum feasible protection to the wetlands. Application for a wetlands alteration permit must be accompanied by such information as required by the city, including: Page 11 of 13 (1) A copy of the wetland replacement plan application submitted to the MCWD; (2) A concept plan showing the ultimate use of the property; (3) A grading plan, in hard copy format and a CAD or GIS format in Hennepin County coordinates, with appropriate drainage calculations and erosion controls prepared by a registered engineer; (4) A landscaping or revegetation plan; (5) Such other information as may be necessary or convenient to evaluate the proposed permit; and (6) A MnRAM assessment approved by the MCWD." (Ord. No. 28 3rd series, § 1, 8-22-2005) SECTION 7. Orono City Code Chapter 78, Section 78-1611, is amended by deleting and adding the following language: "Sec. 78-1611.-Public control of wetlands. (a) The city council may require that the owner of any property affected by this article must establish wetland ea easements or restrictive covenants to be recorded within the property's chain of title. These easements or covenants must describe the boundaries of the wetland and buffer area; document tho -- _ - - --- - ,• - ,_ -, _ - ,•- . _ ., _ .. _• ; and prohibit any building, paving, mowing -- --- - _. .., .. _ .. ., . _. _ . .,. , cutting, filling, dumping, yard waste disposal or fertilizer application within the wetland . The owner or developer must record these easements or covenants with the final plat, with deeds from a lot division or, if no subdivision is involved,before the city issues a grading permit or building permit for an affected property. The applicant must submit evidence that the easement or covenant has been submitted to the county for recording. (b) If the city council does not require an easement or covenant, the city may record a notice of the wetland a requirements against the property. The property owner must still comply with the requirements of this section." (Ord. No. 28 3rd series, §1, 8-22-2005) SECTION 8. Orono City Code Chapter 78, Section 78-1612, is amended by deleting and adding the following language: . , . . . • ,• . - buffer edge at least every 200 feet, subject to city approval. The developer must submit a Page 12 of 13 installation. " SECTION 9. Effective date. This ordinance shall be effective upon adoption and publication according to law. ADOPTED this 28thday of May , 2013 by the Orono City Council. by a vote of 5 ayes and 0 nayes. CITY OF ORONO jeri 6ejtji, Lili Tod McMi 11 an Mayor ATTEST: Rachel Dodge, City Clerk Published in The Pioneer and The Laker newspapers the week of June 15, 2013. Page 13 of 13