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HomeMy WebLinkAboutORD-2003-005 Amend Article 6.23.7 Stream Buffers and Article 22 Definitions. ®~~0 -aoa..~-o~5 1 ~1~3 ORANGE COUNTY BOARD OF COMMISSIONERS and PLANNING BOARD PUBLIC HEARING AGENDA ITEM ABSTRACT Meeting Date: February 24, 2003 Action Agenda Item No. C.1.b SUBJECT: Stream Classification and.Buffer Amendments DEPARTMENT: Planning & Inspections PUBLIC HEARING: (YIN) YES ATTACHMENT(S): INFORMATION CONTACT: Proposed Ordinance P.3 Craig Benedict, Director, Ext. 2592 Stream Classification Checklist p. s Robert P. Davis, Planner III Ext. 2580 Reynolds Ivins, EC Supvr. Ext. 2456 TELEPHONE NUMBERS: Hillsborough 732-8.181 Chapel Hill 968-4501 Durham 688-7331 Mebane 336-227-2031 PURPOSE: To receive citizens comments regarding the proposed Stream Classification amendment within the Stream Buffer Section of the Zoning Ordinance. BACKGROUND: The North Carolina Division of Water Quality (DWQ) in the Department of Environment and Natural Resources is the agency responsible for statewide regulatory programs in groundwater and surface water protection. The DWQ mission is to preserve, protect and enhance North Carolina's water and groundwater resources through quality monitoring programs, efficient permitting, responsible management, fair and effective enforcement and excellence in public service. This charge is carried out through resources at both the state and local levels. The statewide watershed protection program is an example of s#ate and local government regulatory powers. The County's watershed protection program requires stream buffers be established and enforced along all solid and intermittent blue line streams as identified on the United States Geological Survey (USGS) topographic maps. Presently, stream buffers within Orange County's zoning jurisdiction are only required along streams identified on USGS topographic maps. The USGS maps do not protect all water features that are important to water quality. The DWQ estimates that streams represented on USGS topographic maps underestimate the actual presence of streams by approximately 25%. These underrepresented types of streams, which have a high level of impact on water quality, are not protected at all under the County zoning stream buffer regulations. Another major shortcoming of the sole use of USGS maps is that the streams, which are identified on the maps, are based on aerial photography with no field verification. This lack of field verifications by the USGS creates problems, acknowledged by the DWQ, with regard to enforcement of the stream buffer regulations on a lot-by-lot basis. G:currentplanning/eddie/streambuffer/abstract-streamcfassification (Feb24,2003) 014 z- Three common problems encountered include, but are not limited to, disputes as to whether a USGS stream actually exists, disputes as to whether the location of said USGS stream is as shown on the map and disputes concerning whether the floodplain is properly mapped based on the inaccurate location of a USGS stream. The State's original decision to require the use of USGS maps at the time the watershed protection rules were adopted was due to the fact that the USGS maps were available throughout the state while better maps, such as the Soil Survey, were not. Orange County adopted the USGS maps `by reference', as did other jurisdictions throughout the State. Due to the `by reference' adoption of the USGS maps the County's ability to 'relocate' the stream is not available and the procedure for correcting an inaccurate stream location on a USGS map at the Federal level is lengthy and expensive. Furthermore, the correction of one inaccurate stream on a USGS map does not necessarily mean that inaccuracies for other streams on the same map are corrected. There are better methods than the use of static maps to protect stream quality and watersheds, the two most notable being DWQ certification of local governmental personnel and delegated authority. Orange County now has staff members trained in identifying surface water features that have a direct impact on water quality. Prior to receiving delegated authority for enforcement of the Neuse River Buffer rules from DWQ, each member of the Orange County Erosion Control staff received 50 hours of field training and classroom testing under the Surface Water Identification Training and Certification (SWITC) program. House Bill 1257 mandated the SWITC certification program to be taught by DWQ staff. This training, which is intended to ensure the enforcement of rules enacted by the N.C. Environmental Management Commission, is deemed sufficient by DWQ for stream identification use and establishing buffers per state-mandated watershed protection rules. The stream identification checklist that County staff uses to identify streams was developed by DWQ. It is included as an attachment. This proposed amendment will allow usage of available, existing methods to protect streams by broadening language in the zoning ordinance that would allow, in addition to the USGS maps, the use of the Soil Survey of Orange County and field identification of water features by County staff. By using these three methods of water feature identification in combination with each other, virtually all streams that affect water quality will be protected. Another derived benefit is that the availability of County staff to do field determinations of streams will provide a service to property`owners, more accurate and without cost, that will help them maintain a high quality of stream preservation. A visual presentation of portions of the Cane Creek, Upper Eno and University Lake watersheds showing the difference between the USGS maps and Soil Survey will be presented at the Public Hearing. FINANCIAL IMPACT: There is no public financial impact with this decision. RECOMMENDATION(S): Planning Staff recommends APPROVAL of the proposed amendments. The Administration recommends that the amendments be referred to the Planning Board to return a recommendation to the BOCC no sooner than May 20, 2003. G:can'entplanning/eddie/streambuffer/abstract-streamclassification (Feb24,2003) Public Hearing Ordinance An Ordinance Amending the Zoning Ordinance Of Orange County Be it ordained by the Board of Commissioners of Orange County that the Orange County Zoning Ordinance is hereby amended as follows: Section 1. ZONING ORDINANCE. Amend Article 22 definition for Stream Buffer to read as follows: Stream Buffer--A stream buffer is an area of land adjacent to a ^°~°^^;°~ °^,~ ;^*°rm;tt°nt streams or aFEMA-identified floodplains, whichever is greater, which, except as permitted in Article 6.23.7 of this Ordinance, must remain undisturbed in its natural state. °°~~r' Streams are sbew+~ identified as by any of the following means: 1) shown as solid blue lines a~ or as broken blue lines on the USGS Quadrangle maps, 2) shown as a water feature. in the Orange County Soil Survey, or 3) a field determination by County staff trained by the North Carolina Division of Water Quality (NCDWQ?. The stream buffer shall extend around the perimeter of all water bedtes features including ponds, lakes and reservoirs if any portion of the stream buffer of a ^°r°^^;°' ^,- ;^+°~^~;++°~ stream touches the water y feature. Disputes pertaining to water feature decisions by County staff shall be filed directly to the NCDWQ. Section 2. ZONING ORDINANCE. Amend Stream Buffers definition in Article 6.23.7definition to read the same as that in Article 22 as follows: Stream Buffer--A stream buffer is an area of land adjacent to a streams or aFEMA-identified floodplains, whichever is greater, which, except as permitted in Article 6.23.7 of this Ordinance, must remain undisturbed in its natural state. °°,--~,~;ni~l Streams are sgew+~ identified as by any of the following means: 1) shown as solid blue lines aad or as broken blue lines on the USGS Quadrangle maps, 2) shown as a water feature in the Orange County Soil Survey, or 3) a field determination by County staff trained by the North Carolina Division of Water Quality (NCDWQ. The stream buffer shall extend around the perimeter of all water bed~e-s features including ponds, lakes and reservoirs if any portion of the stream buffer of a stream touches the water y feature. Disputes pertaining to water feature decisions by County staff shall be filed directly to the NCDWQ. 015 o~~ Public Hearing Ordinance 4 Section 3. ZONING ORDINANCE. Amend Article 22 to add a new definition for Water Feature to read as follows: Water Feature-A prominent aspect or characteristic of a geographic area that exhibits verifiable evidence of a naturally occurring presence of water in the soil. Examples of water features include, but are not limited to, perennial and intermittent streams, lakes, ponds, reservoirs, springs, artesian wells, irrigation wells, marshes or swamps, wetlands, and natural drainage ditches (non-ephemeral). Section 4. This ordinance is effective upon its adoption. NOW THEREFORE BE IT RESOLVED by the Board of Orange County Commissioners that this ordinance entitled "An Ordinance Amending the Zoning Ordinance of Orange County" be adopted. Upon motion of Commissioner seconded by Commissioner ,the foregoing ordinance was adopted this day of , 2003. I, Donna S. Baker, Clerk to the Board of Commissioners for Orange County, DO HEREBY CERTIFY that the foregoing is a true copy of so much of the proceedings of said Board at a meeting held on , ZUU3 as re~ates in any way to the adoption of the foregoing and that said proceedings are recorded in the minutes of the said Board. WITNESS my hand and the seal of said County, this day of 2003. SEAL Clerk to the Board of Commissioners ~~~ NCDWO Stream Classification Form Project Name: Rives Basin: County: Evaluator. DWQ Project Number. Nearest Named Stream: Latitude: Signature: Date: USGS QUAD: Longitude: Location/Directions: *PLEASE NOTE: Ijevaluator and landowner agree that the feature is aman-atade ditch, then use ojthis form is not necessa{µ Also, ijin the best professional judgement ojdie evaluato>: the feature is a man-made ditch and not a modified natural stream-this rating system shoald not be used* Primary Field Indicators: (Circle One Numbv Per Line) I. Geomorpbolot=_y Absent Weak Moderate Stron¢ 1) Is There A Riffle-Pool Sequence? 0 1 2 3 2) Is The USDA Texture In Streambed Different From Surroundine Terrain? 0 I 2 3 3) Are Natural Levees Present? 0 1 2 3 4) Is The Channel Sinuous? 0 1 2 3 5) Is There An Active (Or Relic) Floodplain Present? 0 1 2 3 6) Is The Channel Braided? 0 I 2 3 7) Are Recent Alluvial Deposits Present? 0 I 2 3 8) Is There A Bankfull Bench Present? 0 1 2 3 9) [s A Continuous Bed & Bank Present? /'NOTE: /l Bed & Bank Caused By Ditehina And WITH 0 L OUT Sinuosity Then Score=0.1 2 3 10) Is A 2" Order Or Greater Channel (As Indicated On Topo Map And/Or In Field) Present? Yes=3 Nrs=O PRIMARY GEOMORPHOLOGY INDICATOR POINTS: II. HvdroloQV Absent Weak Moderate Stron¢ 1) Is There A Groundwater Flow/Discharee Present? 0 1 2 3 PRIMARYHYDROLOGYINDICATOR POINTS: III. Biolo~y Absent Weak Moderate Strone 11 Are Fibrous Roots Present In Streambed7 3 2 1 0 2) Are Rooted Plants Present In Streambed7 3 2 1 0 3) [s Periphvton Present? 0 1 2 3 4) Are Bivalves Present? 0 I __ 2 - - _ _____ _3 _____. ____ _ _ PRIMARYBIOLOGY INDICATOR POINTS: Secondary Field Indicators: (CirdeOneNumberPerLine) I. Geomoroholot=y Absent Weak Moderate Strong I) Is There A Head Cut Present In Channel? 0 .5 1 1.5 21 [s There A Grade Control Point In Channel? 0 .5 1 1.5 3) Does Topography Indicate A Natural Drainaee Wav7 0 .5 l 1.5 SECONDARY GEOMORPHOLOGYINDICATOR POINTS: II. Hvdrolot>'v Absent Weak Moderate Stron¢ I) Is This Year's (Or Last's) Leaflitter Present In Streambed? I.5 l .5 0 2) Is Sediment On Plants (Or Debris) Present? 0 .5 1 1.5 3) Are Wrack Lines Present? 0 .5 I 1.5 4) Is Wazer In Channel And >48 Hrs. Since I~8$t Rnown Rain? I'NOTE: !(Ditch Indicated !n #9 A 0 .5 bove Skin 7Tris Sten And #S Below'1 1 1.5 5) Is There Water In Channel During Dry Conditions Or In Growine Season)? 0 .5 1 1.5 6) Are Hvdric Soils Present In Sides Of Channel (Or In Headcut)? Yes=1.5 No=O SECONDARYHYDROLOGYINDICATOR POINTS: III. BioloQV Absent Weak Moderate Strone 1) Are Fish Present? 0 .5 I 1.5 2) Are Amphibians Present? 0 .5 1 1.5 3) Are AauazicTurtles Present? -0 .5 1 1.5 4) Are Crayfish Present? 0 .5 1 1.5 51 Are Macrobenthos Present? 0 .5 1 1.5 6) Are Iron Oxidizine Bacteria/Funeus Present? 0 .5 I 1.5 7) Is Filamentous Aleae Present? 0 .5 1 1.5 8) Are Wetland Plants In Streambed? (' NOTE: ljTaral Absence OjAll Plants !n Streambed As Noted Above Skin ?Iris Stw UNLESS SAV PresenPl. SAV Mostly OBL 2 1 Mostly FACW Mostly FAC .75 .$ _ Mostly FACU Mostly UPL 0 0 SECONDARYBIOLOGYINDlCATOR POINTS: TOTAL POINTS (Primary +Secondary}= (If Greater Than Or Equal To 19 Points The Stream Is At Least Intermittent] ~D~FJ-~o3.-oos b. Amend Article 6.23.7 Stream Buffers and Article 22 Definitions to broaden the methods for identification of streams that require stream buffers. The specific change is to include a provision allowing use of the Soil Survey of Orange County and field identification by County staff to identify streams subject to stream buffers. Anew definition for Water Feature is added as a part of the amendment. Craig Benedict made this presentation. He said that this is a change from the existing zoning code that talks about the identifying streams. The streams are identified on United States Geologic Survey maps (USGS). The suggestion is to increase the opportunities to identify streams with two additional methods. The first method is to use the Orange County Soil Survey maps. The Department of Water Quality has also put together a certification program where people can identify streams or identify that something is not a stream based on a list of criteria. The recommendation is to add this provision to the zoning code so that when subdivisions are analyzed, they can take into consideration all of the aspects of a stream. It has also been a goal of Orange County to protect the headwaters because 85% of all areas drained in the County are headwaters. An implication of this provision is that there will be additional stream miles that will be protected. Commissioner Jacobs asked if Mr. Feathers has seen a copy of this and Planner Robert Davis said that he was aware of it. Commissioner Gordon would like to have an estimate of the impact of this provision. She wants to protect streams as much as possible, but she wonders what the impact would be on people's properties since so much of Orange County might be in this classification. There were no Planning Board comments. Public Comment There was no one signed up to speak to this item, but Chair Gooding-Ray asked if anyone would like to speak. Robert Nichols, a retired dairy farmer, said that he went to the Planning Department today to ask about this provision. He said that Craig Benedict said in the presentation that the stream buffer would be from 130-170 feet. On his property this would take about 37 acres of his 175 acres. He would like to know what he can and cannot do with this property. He asked if he could harvest the timber. Craig Benedict said that if his property is a bona fide farm and forestry operations is what is planned for the property, then he would be following forestry regulations as sanctioned by the State and it would not fall under these zoning regulations. Bona fide farms are exempt from zoning regulations. Robert Nichols made reference to article 6.23.7 in the zoning ordinance and asked what this refers to. Craig Benedict said that article 6.23.7 gives a definition of blue line streams and it offers how to determine stream buffers. Chair Gooding-Ray made reference to 6.23.7 and read, "A stream buffer is an area of land adjacent to a stream or a FEMA identified flood plain, whichever is greater, except as permitted in article 6.23.7." She asked about the exception. Robert Davis said that the exceptions would be utilities, private road crossings, etc. Robert Nichols made reference to rainwater and said that this does not address rainwater. He said that there would be no financial cost to the public for this, but that he would have a large financial cost to take out 37 acres. He asked why his land could not be grandfathered. Chair Brown said that this provision would not apply to bond fide farms. Commissioner Jacobs said that we should make it clear that this does not apply to bona fide farms. County Attorney Geoff Gledhill said that no County zoning regulations apply to bona fide farming operations. z -z~-d ~ G . ~ r ~j Commissioner Halkiotis noted that 17 years ago he and Commissioner Carey had the opportunity to protect Mr. Nichols' dairy cows when a former tax collector went after them as manufacturing units under the North Carolina Machinery Act. John Link said that the staff should respond to Commissioner Cordon's comment about full disclosure and that they pursue due diligence about the impacts on citizens. Under Section 2, where it says, "The stream buffer shall extend around the perimeter of all water bodies including ponds and lakes." He said that there may be someone without a bona fide farm that has 10 acres of land and they want to build a house and this will eliminate the possibility. This could affect small landowners. A motion was made by Commissioner Jacobs, seconded by Commissioner Carey to receive the Planning Staff's Recommendation and to refer the proposed amendment and to refer the proposed amendment to the Planning Board for a recommendation to be returned to the BOCC no later than May 20, 2003. VOTE: UNANIMOUS c. Amend Article 23 (Enforcement) to streamline the citation procedure for zoning violations, to establish procedural guidelines for violation notifications, to allow the Zoning Officer to process civil penalties. An increase in the civil penalty from $100.00 to $500.00 per violation is also a part of the amendment. 2. Orange County Subdivision Regulations Text Amendments a. Amend Section VII (Legal Status Provision), Sub-section VII-E (Penalties for Violation), to identify the citation procedure for violations, and establish procedural guidelines for violation notification, to allow the Planning Director to make assessments for civil penalties, and increases the civil penalty from $50.00 to $500.00 per violation. Craig Benedict said that within this ordinance is how the County identifies with recurring violations and how to provide notices. The County still plans to have personal delivery with registered and certified mail. Civil penalties are suggested to increase from $100 to $500 per day. Presently the demand for payment occurs from the County Commissioners. The recommendation is that the demand for payment occurs with the staff and the courts. The definition of a violation and a violator has been enhanced. The attorney's office has worked closely with the zoning staff to examine the ways to bring violations to a faster conclusion that is fair with full notification and disclosure. He showed a procedural chart of the process of civil penalties. He said that presently there is a backlog of zoning compliance issues because they do not proceed past a certain point and there is no expeditious manner to bring them to a conclusion. John Link assured the Board that before the matters are carried to court that the person involved will know exactly what is involved. Commissioner Jacobs made reference to 23.2.2 and said that the person can be given notice in person or by certified mail. He would like to be assured that there is a personal documented visit first. He made reference to 23.2.3 and read, "a notice of violation is not required where a notice of the same violation has been issued to the same violator at the same property within the previous two years." He asked if someone could have 700 days of $500 a day fines accrue and not get another notice. Craig Benedict said that if a violation is resolved and then the violation is reactivated within the two year timeframe, then a notice is not required to have the repeat violation. Geoff Gledhill said. that the idea is that this is not a continuing violation, but the previous one had been stopped and the violator has later resumed the violation.