This article is adopted by the city, on August 1, 2013, in accordance with the authority as granted in RSA 674:16 and 674:21 and procedurally under the guidance of RSA 675:1, II. The surface water protection overlay district shall be considered as overlaying all other zoning districts. Any use permitted in the portions of the district so overlaid shall only be permitted subject to all provisions of this section.

(Ord. No. O-2012-07-B, 8-1-2013)

It is the purpose of the surface water protection overlay district to protect the functions and values of surface waters and in particular the buffers associated with these resources which reduce the rate and volume of runoff. Given the history of flooding in Keene, an overarching purpose of this district is to prevent the loss or degradation of natural stormwater storage, infiltration and conveyance capacity within the city. Other important purposes include preventing water quality deterioration associated with stormwater runoff, maintaining the health and holding capacity of natural surface and ground waters, and protecting the quality and connectivity of wildlife habitat and corridors. Specific statements of intent of the district include, but are not limited to, the following:

(1)

Promote the health, safety and general welfare of the people in the City of Keene by guiding the use of land to prevent adverse impacts upon the functions and values of surface waters and their surrounding buffers.

(2)

Prevent destruction, filling, or significant changes to surface waters and their surrounding buffers that provide natural storage, remediation, and/or conveyance of stormwater runoff.

(3)

Prevent the degradation of surface water and ground water quality by the direct or indirect introduction of sewage, hazardous substances, silt, or other harmful matter into surface waters and their surrounding buffers.

(4)

Preserve the ability of surface waters and buffer areas adjacent to these areas to provide treatment for water quality improvement purposes.

(5)

Maintain vegetative cover in and around surface waters and the adjacent buffer areas to slow stormwater flow, to facilitate infiltration, to moderate water temperature fluctuations of surface water bodies, and to allow bio-remediation of excess nutrients and introduced pollutants.

(6)

Protect wetland species and the natural biota including fish and wildlife habitat, maintain ecological balances, and enhance ecological values.

(7)

Preserve and enhance the visual, aesthetic, and passive recreational values including recreational corridors associated with surface waters and their buffers, including their contribution to open space, character, and overall scenic value.

(8)

Prevent unnecessary or excessive expenditures of municipal funds for the purpose of providing and/or maintaining essential services and utilities which might be required as a result of misuse, abuse, or degradation of surface waters and their associated buffer.

(9)

Encourage those uses that can be appropriately and safely located within the surface water protection overlay district as listed in section 102-1486.

(10)

Implement the open space and greenway actions listed in the City of Keene 2010 Comprehensive Master Plan.

(Ord. No. O-2012-07-B, 8-1-2013)

For the purposes of the surface water protection overlay district, the following definitions apply:

Alter or alteration means any change or modification of habitat, land, water, or existing structure along surface water resources.

Bank means the transitional slope beginning at the edge of a surface water body, the upper limit of which is defined by a break in slope as defined in Wt. 101.06, N.H. Code of Administrative Rules, as may be amended or updated.

Basal area means the cross sectional area of a tree measured at a height of 4½ feet above the ground, and may also be expressed in square feet per acre of a stand of trees as defined in RSA 483-B:4 III, as may be amended or updated.

Best management practices means the structural, non-structural and managerial techniques that are recognized to be the most effective and practical means to prevent increases in and/or reduce stormwater volumes and rates of flow, reduce point source and non-point source pollution, and improve stormwater quality, and protection of the environment.

(1)

With Respect to Forestry: Best Management Practices for Erosion Control on Timber Harvesting Operations in New Hampshire, NH Department of Resources and Development, 2004 (or later edition, as may be amended or updated), Best Management Practices for Forestry: Protecting New Hampshire's Water Quality, UNH Cooperative Extension, 2006 (or later edition, as may be amended or updated).

(2)

With Respect to Agriculture: Best Management Wetlands Practices for Agriculture in New Hampshire, NH Department of Agriculture, July 1993 (or later edition, as may be updated or amended), the Manual of Best Management Practices for Agriculture in New Hampshire, NH Department of Agriculture, July 2008 (or later edition, as may be amended or updated).

(3)

With Respect to General Regulations: Best Management Practices for Urban Stormwater Runoff, NH Department of Environmental Services, 1996, (or later edition as may be amended or updated.) Innovative Stormwater Treatment Technologies Best Management Practices Manual, NH Department of Environmental Services, May 2002, (or later edition as may be amended or updated). Environmental Protection Agency Websites "Construction Site Stormwater Control" and "Post-Construction Stormwater Management in New Development and Redevelopment", http://cfpub.epa.gov/npdes/stormwater/menuofbmps/index.cfm.

(4)

With Respect to Golf Courses: Manual of Best Management Practices for Agriculture in New Hampshire, NH Department of Agriculture, July 2008 (or later edition, as may be amended or updated), the Best Management Practices to Control Nonpoint Source Pollution: A Guide for Citizens and Town Officials, NH Department of Environmental Services, January 2004 (or later edition, as may be amended or updated).

(5)

With Respect to Trails: Best Management Practices for Erosion Control During Trail Maintenance and Construction, NH Department of Resources and Economic Development, Division of Parks and Recreation, Bureau of Trails 1994, updated in 2004 (or later edition, as may be amended or updated).

Bog means a wetland area distinguished by stunted evergreen trees and shrubs, peat deposits, poor drainage and/or highly acidic soil and/or water conditions per Wt. 101.10, N.H. Code of Administrative Rules, as may be amended or updated.

Buffer for purposes of this article means an area that is designed to remain vegetated in an undisturbed and natural condition to protect adjacent surface water functions and values from adverse impacts and provide habitat for wildlife. The buffer shall be measured on a horizontal plane from the top of the bank of a stream, or from the ordinary high-water mark of a river, or from the reference line of a lake or pond, or from the delineated edge of a wetland or change in soil type.

Certified wetland scientist means a person qualified to delineate wetland boundaries and prepare wetland maps who is certified by the State of New Hampshire Board of Natural Scientists from RSA 310-A:76, II-a.

Dredge means to dig, excavate, or otherwise disturb the contour or integrity of sediments in the bank, bed, or buffer of a wetland or surface water body per Wt. 101.32, N.H. Code of Administrative Rules, as may be amended or updated.

Fen means a wetland area distinguished by sedge, reed, shrub or forest, peat deposits, poor drainage, which has neutral pH and moderate to high nutrients.

Hydrologically connected means two or more surface waters that occur in a relatively close proximity, that share a common ground water table, or that are connected by virtue of receiving water from or releasing water to another surface water by surface or subsurface flow.

Intermittent stream means a stream that flows for sufficient time to develop and maintain a defined channel, but which might not flow during dry portions of the year or during long-term periods of drought as defined in Wt. 101.47, N.H. Code of Administrative Rules, as may be amended or updated.

Ordinary high-water mark means the line on the shore, running parallel to the main stem of the river, established by the fluctuations of water and indicated by physical characteristics such as a clear, natural line impressed on the immediate bank, shelving, changes in the character of the soil, destruction of terrestrial vegetation, the presence of litter and debris, or other appropriate means that consider the characteristics of the surrounding areas as defined in RSA 483-B:4 XIa, as may be amended or updated.

Perennial stream means a stream that flows year-round in a defined channel.

Pond means any year round standing body of water one acre or more in area, as measured from the mean annual high water mark.

Reference Line means (a) for natural fresh water bodies without artificial impoundments, the natural mean high water level as determined by the Department of Environmental Services; (b) for artificially impounded fresh water bodies with established flowage rights, the limit of the flowage rights; (c) for water bodies without established flowage rights, the waterline at full pond as determined by the elevation of the spillway crest; (d) for rivers, the ordinary high water mark as defined in RSA 483-B:4 XVII, as may be amended or updated.

Slough means wetland channels or series of shallow lakes. Water is stagnant or may flow slowly on a seasonal basis.

Streambed means, for the purposes of this article, a scoured natural or artificial channel indicating periods of concentrated water flow.

Surface water means, for the purposes of this article, a surface water means:

Surface waters of the state pursuant to RSA 485-A:2.XIV including: perennial and seasonal streams, lakes, ponds, and tidal waters within the jurisdiction of the state, including all streams, lakes, or ponds bordering on the state, marshes, water courses, and other bodies of water, natural or artificial, and

Wetlands as defined in RSA 482-A:2.X and NH Code of Administrative Rules Env-wt 100-900 including: Bogs, ephemeral stream, intermittent streams, marshes, surface water bodies, swamp, wetlands, wet meadows; and

Surface waters as defined in this article: vernal pool, fens, sloughs, and wetlands complex.

Vernal pool means a seasonal or intermittent pool of water providing essential breeding habitat for certain amphibians and invertebrates and does not support fish. Vernal pool status can be confirmed by but not limited to evidence of breeding by at least one vernal pool indicator species such as wood frogs, spotted salamanders, blue spotted/Jefferson salamanders, and/or the presence of fairy shrimp. Evidence of breeding includes calling wood frogs, salamander spermatophores, egg masses, and/or larvae of wood frogs or salamanders. (Identification and Documentation of Vernal Pools in New Hampshire, NH Fish & Game Department, 2004) as may be amended or updated.

Wetlands means those areas that are inundated or saturated by surface or ground waters at a frequency and duration sufficient to support, and under normal conditions do support, a prevalence of vegetation adapted for life in saturated soil conditions, as defined by the Field Indicators for Identifying Hydric Soils in New England, New England Interstate Water Pollution Control Commission (as may be amended or updated) and the Corps of Engineers Wetlands Delineation Manual, Technical Report Y-87-1, Environmental Laboratory, Department of the Army, 1987 as may be amended or updated.

Wetlands complex means a series of small wetland areas that are hydrologically connected by a common water table.

(Ord. No. O-2012-07-B, 8-1-2013)

(a)

The Surface Water Protection Overlay District shall be defined as all surface waters and all lands within a 75-foot buffer zone surrounding these surface waters. The width of the buffer zone is reduced in certain zoning districts. See section 102-1493 of this article.

(1)

In determining the size of a wetland, any portion of the wetland that may be located on an adjacent parcel or in an adjacent municipality shall be included based on best available information.

(2)

Roads, drainage culverts, or other man-made features shall not constitute an interruption in the delineation of the size of a wetland area.

(3)

Areas identified as vernal pools, regardless of size, shall be included in this category.

(b)

Verification of surface water boundaries.

(1)

For all new subdivisions and new or modified site plans, where maps or field investigations indicate that surface water may be present on a proposed development site, the location, area, and limits of all surface waters shall be field determined and delineated by a New Hampshire Certified Wetland Scientist. Said delineations may be conducted at any time of year; however, any such delineation completed without clear evidence of vegetation, from the current or prior growing season, shall be verified during the subsequent growing season at the owner's expense. Revisions to surface water delineations and to any required buffer zones shall be submitted to the city as a revision to the original plan. Any proposed development shown on the revised plan shall be modified to bring the plan into compliance with this article.

(2)

All information pertaining to delineating the location, area, and limits of surface waters, along with the associated buffers as specified in this article, shall be clearly shown on the proposed subdivision or site plan and on an existing condition plan.

(3)

The boundaries of any required buffer areas, as specified in this article, shall also be marked as such on the site with stakes and flagging, or permanent markers along the buffer perimeter. Such demarcation shall remain in place until all construction is complete and has been inspected and approved by the City of Keene's Code Enforcement Department.

(4)

Where an area is not designated on the plan as a surface water and the planning board, after consultation with the planning department and/or the conservation commission, believes it to be a surface water, the planning board may require the applicant to supply the findings of a New Hampshire Certified Wetland Scientist as to the character of the area. The applicant shall be responsible for bearing the costs of the New Hampshire Certified Wetland Scientist.

(5)

When an area has been designated as surface water and an applicant believes that the area is, in fact, not a surface water area, then the applicant may supply the findings of a certified wetlands scientist attesting to the character of the area. The applicant shall be responsible for bearing the costs of the New Hampshire Certified Wetland Scientist. The planning board will issue a finding on wetlands identification and may request alternative reports from the applicant, at the expense of the applicant.

(Ord. No. O-2012-07-B, 8-1-2013)

(a)

All uses and structures in this overlay district shall at a minimum comply with the provisions of this article and if applicable, RSA 482-A, Fill and Dredge in Wetlands, and RSA 483-B, the Shoreland Water Quality Protection Act and any other applicable state and federal law.

(b)

All applications for a building permit for a new structure or a modification or expansion of an existing structure that expands the footprint of the existing structure, on-site wastewater discharge permit, subdivision approval, site plan approval, and/or a conditional use permit approval for uses and/or structures on land located within the Surface Water Protection Overlay District shall be subject to the provisions of this article. Any applicant seeking such an approval and/or issuance of a permit for any activity and/or use shall be required to provide information specified in section 102-1491 before the approval or the issuance of a permit can be granted.

(c)

A conditional use permit approved by the Keene Planning Board may be required as specified in this article for uses within the Surface Water Protection Overlay District. Note that state and/or federal permits may be required for uses not requiring a conditional use permit under this article. When state and federal permits are required, local conditional use permits shall only be required for those areas within the overlay district that are not covered by the state and/or federal permits.

(d)

Standards and requirements established herein shall be superimposed over all other zoning districts, or portions thereof, within the City of Keene. Any use permitted in the portions of the zone so overlaid shall only be permitted, subject to all provisions of this article.

(e)

The provisions herein shall apply in addition to all other applicable ordinances and regulations. When the standards contained herein are different from standards listed in other sections of the zoning ordinance or planning board regulations, those standards which provide a greater level of protection of the surface water functions and values shall apply.

(Ord. No. O-2012-07-B, 8-1-2013)

The following surface water areas shall not be included in the Surface Water Protection Overlay District:

(1)

Man-made ditches and swales.

(2)

Man-made sedimentation/detention/retention basins or ponds constructed to manage stormwater from a development project and/or streets, roads and highways.

(3)

Man-made agricultural/irrigation ponds.

(4)

Fire ponds and cisterns.

(5)

Septage or manure lagoons.

(6)

Silage pits.

(7)

Ditches, streams or waterways that have been constructed or altered to manage drainage and/or flooding and that are under a management, use and maintenance agreement with state and/or federal agencies (commonly referred to as "tax ditches").

(Ord. No. O-2012-07-B, 8-1-2013)

The uses listed in this section are permitted without a conditional use permit within the district, subject to any provisions specified in this article.

(1)

Agricultural activities and operations as defined in RSA 21-34-a and governed by RSA 430 subject to i) Best Management Practices for agriculture as defined in this article; ii) compliance with all related state and local laws; and exceptions listed below.

(2)

Forestry, tree farming, and logging operations, subject to Best Management Practices as defined in this article, and compliance with all related state and local law.

(3)

Water impoundments, when required state and/or federal permits have been issued.

(4)

Ground water withdrawal well for an individual, single residential dwelling, or duplex facilities and wells for the City of Keene drinking water supply.

(5)

Geothermal heating and cooling systems including but not limited to groundwater wells and subsurface heat exchange installations.

(6)

Trails constructed and maintained in accordance with best management practices as defined in this article.

(7)

Wildlife or fisheries management activities.

(8)

Educational activities and scientific research consistent with the purpose and intent of this article.

(9)

Open space, in accordance with the subdivision regulations, site plan review regulations, and other sections of City Code.

(10)

New residential driveways subject to the following provisions:

a.

The proposed driveway serves to access uplands on a lot(s) of record that existed at the time this article is adopted.

b.

The driveway provides access for no more than two existing lots on a shared driveway.

c.

There is no reasonable alternative location to site the development on the lot that would avoid the disturbance of lands within the Surface Water Protection Overlay District.

d.

The driveway is designed to minimize any disruption to lands within the Surface Water Protection Overlay District.

e.

All applicable NH Wetlands Bureau permits have been acquired for any proposed disturbance of surface waters regulated by the State.

f.

All surface water resources and applicable buffer areas have been delineated by a Certified Wetland Scientist and are shown as part of a permit application.

(11)

All normal maintenance of existing roadways and utilities including winter maintenance.

(12)

Repair, repaving, replacement, and reconstruction of existing roads, bridges, culverts and drainage systems and utilities.

(13)

Construction of compensatory flood storage excavation under City Code Chapter 54 - Natural Resources as long as no part of the compensatory flood storage excavation is within a wetland as defined in this article and subject to issuance of a floodplain development permit according to section 54-29.

(Ord. No. O-2012-07-B, 8-1-2013)

The following uses are expressly prohibited from the Surface Water Protection Overlay District:

(a)

Subsurface wastewater disposal systems.

(b)

Salt storage including the storage of road salt or sand treated with road salt.

(c)

Automobile junk yards/salvage yards, service and/or repair shops.

(d)

Hazardous waste facilities.

(e)

Bulk storage in amounts greater than those for household use or agricultural use of chemicals, petroleum products or hazardous materials.

(f)

Earth excavation operations as defined in the city zoning ordinance.

(g)

Off-site dumping or disposal of snow and ice collected from roadways or parking areas. This does not include snowplowing of existing roadways located within the Surface Water Protection Overlay District.

(h)

Storage or disposal of solid waste, liquid or leachate waste, animal wastes or byproducts, landfills, solid waste transfer stations, recycling facilities, incinerators, and composting facilities.

(i)

Animal feedlot operations.

(Ord. No. O-2012-07-B, 8-1-2013)

(a)

A conditional use permit (CUP) issued by the planning board shall be required for a proposed use listed in section 102-1489 when the proposed use is located on land within the Surface Water Overlay Protection District.

(b)

A conditional use permit shall not be required for impacts to areas within the district that are under the jurisdiction of the New Hampshire Department of Environmental Services when a state wetlands permit or when a state Shoreland Water Quality Protection Act permit has been issued. However, when the state has issued a wetlands permit, a conditional use permit may also be required for proposed disturbance to those land areas within the overlay district that are not under the jurisdiction of the state, including, but not limited to, buffer zones, and vernal pools.

(c)

Conditional use permits shall not be granted for uses expressly prohibited by this article, or for uses that are not otherwise permitted within the underlying zoning district.

(Ord. No. O-2012-07-B, 8-1-2013)

The following uses are allowed subject to the issuance of a conditional use permit:

(a)

Creation of new lots by subdivision that would require the disturbance of or crossing of lands within the Surface Water Protection Overlay District.

(b)

Construction of a new structure or expansion of an existing structure that expands the footprint of that structure within the Surface Water Protection Overlay District.

(c)

Construction of new roads, driveways for non-residential uses, and parking lots within the Surface Water Protection Overlay District.

(d)

Construction of new stormwater management facilities and structures or improvements, including but not limited to, sedimentation/detention/retention ponds, drainage swales, and erosion control devices.

(e)

Construction of compensatory flood storage excavation under City Code Chapter 54 - Natural Resources which requires the issuance of a wetland permit.

(Ord. No. O-2012-07-B, 8-1-2013)

A conditional use permit shall be granted for allowed uses within the buffer zone when all of the following criteria have been met.

(a)

The proposed use and/or activity cannot be located in a manner to avoid encroachment into the overlay district.

(b)

Encroachment into the buffer zone has been minimized to the maximum extent possible, including reasonable modification of the scale or design of the proposed use.

(c)

The nature, design, siting, and scale of the proposed use and the characteristics of the site including but not limited to topography, soils, vegetation, and habitat are such that when taken as a whole, will avoid the potential for adverse impacts to the surface water resource.

(d)

The buffer zone shall be maintained in a natural state to the maximum extent possible. In granting a conditional use permit, the planning board may establish conditions of approval regarding the preservation of the buffer including the extent to which trees, saplings and ground cover shall be preserved.

(1)

Dead, diseased, unsafe, or fallen trees, saplings, shrubs, or ground cover may be removed.

(2)

Stumps and their root systems shall be left intact in the ground, unless removal is specifically approved in conjunction with a Conditional Use Permit granted by the planning board.

(3)

Exotic, invasive trees, saplings, shrubs, or ground covers, as defined by NHDES, may be removed. The stumps and root balls of exotic, invasive species may also be removed by hand digging and/or hand cutting.

(4)

Preservation of dead and living trees that provide dens and nesting places for wildlife is encouraged. Planting of native species of trees, shrubs, or ground cover that are beneficial to wildlife is encouraged.

(5)

Where there has been disturbance or alteration of this buffer during construction, excavation, or grading, re-vegetation with native species may be required by the planning board.

(e)

With the exception of state permitted wetlands crossings, and in zoning districts listed in section 102-1493, a non-disturbance buffer zone shall be maintained to at least 30 feet from the delineated edge of the surface water.

(f)

In determining whether or not a conditional use permit should be granted, the planning board shall consider the following to determine whether allowing the proposed encroachment will result in an adverse impact on the surface water resource:

(1)

The size, character, and quality of the surface water and the buffer being encroached upon.

(2)

The location and connectivity of the surface water in relation to other surface waters in the surrounding watershed.

(3)

The nature of the ecological and hydrological functions served by the surface water.

(4)

The nature of the topography, slopes, soils, and vegetation in the buffer that encompasses the surface water.

(5)

The role of the buffer in mitigating soil erosion, sediment and nutrient transport, groundwater recharge, flood storage, and flow dispersion.

(6)

The extent to which the buffer serves as wildlife habitat or travel corridor.

(7)

The rate, timing and volume of stormwater runoff and its potential to influence water quality associated with the affected surface water or any associated downstream surface waters.

(8)

The sensitivity of the surface water and the buffer to disruption from changes in the grade or plant and animal habitat (biotic structure) in the buffer zone.

(Ord. No. O-2012-07-B, 8-1-2013)

(a)

Submission requirements: All applications for a conditional use permit under this section of the article shall be made to the planning board following the submission requirements and procedures set forth in the planning board regulations, as they may be amended. Submission requirements shall include the location of the buffer area, details showing the proposed encroachment into the overlay district, and any information necessary to demonstrate that the proposed encroachment will not cause adverse impacts to the surface water resource, or design details that demonstrate that proposed mitigation will prevent adverse impacts to the surface water resource.

(b)

Referral to the conservation commission: Upon receipt by the planning department, all applications for a conditional use permit, under this section of the ordinance, shall be forwarded by the planning department to the conservation commission a minimum of five business days prior to the commission's next regularly scheduled meeting.

(c)

Upon receipt of a referral from the planning department, the conservation commission may conduct an evaluation of the application and provide advisory comments to the planning board. Such evaluation shall be based on the conditional use permit criteria set forth in this article.

(Ord. No. O-2012-07-B, 8-1-2013)

This article shall not prohibit the construction of single-family and two-family residential structures and associated accessory structures on legally existing unimproved lots or the expansion of a legally pre-existing use on a lot that existed before the adoption of this article, provided that:

(a)

It is not feasible to place the structure on a portion of the lot that is located outside of the Surface Water Protection Overlay District.

(b)

The structure is set back as far as reasonably possible from the edge of the surface water.

(c)

Applicable erosion control measures are in place prior to and during construction.

(d)

Any disturbance to the surrounding buffer is repaired and restored upon completion of construction.

(e)

A minimum 30-foot buffer is maintained from the surface waters, as required by the planning board development standards in effect at the time this article was adopted.

(f)

Any alteration to a surface water is made in accordance with all applicable state and federal laws, administrative rules, and regulations.

(g)

There is no increase in runoff volume and rate.

(Ord. No. O-2012-07-B, 8-1-2013)

In the Central Business, Central Business Limited, Office, High Density, High Density 1, Medium Density, Low Density, Industrial, Industrial Park, Commerce, Commerce Limited, Low Density 1, Corporate Park, and Health Care Zoning Districts, the 75-foot minimum buffer zone width established in section 102-1483 is reduced to 30 feet. In the districts listed in this section, the buffer width may be reduced to ten at the discretion of the planning board if the applicant for a conditional use permit provides extraordinary mitigation, replication, and/or restoration of surface waters and wetlands, and/or open space preservation measures.

(Ord. No. O-2012-07-B, 8-1-2013)

(a)

For purposes of calculating the minimum lot size for the subdivision of land, areas of surface water resources as defined in this article shall be excluded from the area used to calculate the minimum lot size.

(b)

Buffers adjacent to surface water resources as defined in this article shall be included in the calculation of minimum lot size.

(c)

Paragraphs (a) and (b) above do not apply if the lots are created by conditional use permit under conservation residential development (CRD), sections 102-284 through 102-290.

(Ord. No. O-2012-07-B, 8-1-2013)

The invalidation of any provision of the Surface Water Protection Overlay District Ordinance shall not affect the validity of any other provision of the Keene Zoning Ordinance.

(Ord. No. O-2012-07-B, 8-1-2013)

Enforcement of this article shall be by the City of Keene under the provisions set forth in RSA 676 as it may be amended.

(Ord. No. O-2012-07-B, 8-1-2013)