This chapter shall be known as the wetland protection ordinance of the City of Mill City, Oregon.

(Ord. No. 368, § 3 (Exh. C), 6-11-2013)

A.

This chapter is applicable to all wetlands within the City of Mill City, whether on the local wetland inventory (LWI) map or not.

B.

Wetland review, as defined by this code, is applicable to development on parcels containing any wetland protection area(s); or where any portion of the proposed development is within twenty (20) feet of wetland protection area(s) on adjacent parcels as shown on the LWI map.

C.

Unless otherwise stated, the City of Mill City shall apply the provisions of Sections 17.72.020—17.72.140 in conjunction and concurrently with the requirements of any other development permit being sought by an applicant. If no other permit is being sought, the city recorder or designee shall serve as the approving authority.

Note: The twenty-foot measurement is not a buffer or setback. It is an allowance for LWI map inaccuracy when the expense of a precise delineation may not be warranted. Also note that compliance with state and federal wetland regulations for all wetlands, mapped or unmapped, remains the legal responsibility of the landowner.

(Ord. No. 368, § 3 (Exh. C), 6-11-2013)

The purposes of establishing a wetland protection area are:

A.

To comply with goal 5 requirements.

B.

To implement the goals and policies of the City of Mill City comprehensive plan;

C.

To protect the City of Mill City's wetland areas, thereby protecting the hydrologic and ecologic functions these areas provide for the community;

D.

To protect water quality and natural hydrology, to control erosion and sedimentation, and to reduce the adverse effects of flooding;

E.

To protect fish and wildlife habitat;

F.

To protect the amenity values and educational opportunities of the City of Mill City's wetlands as community assets;

G.

To improve and promote coordination among local, state, and federal agencies regarding development activities in and near wetlands.

(Ord. No. 368, § 3 (Exh. C), 6-11-2013)

The following definitions shall apply to Sections 17.72.010—17.72.140:

"Economic, social, environmental, energy (ESEE) analysis" means analysis required of local governments when protection measures for locally significant wetlands are developed to address the unique economic, social, environmental, and energy considerations within their community. ESEE consequences are the positive and negative economic, social, environmental, and energy (ESEE) consequences that could result from a decision to allow, limit, or prohibit a conflicting use. [See OAR 660-023-0040 for more detail on ESEE decision process.]

"Delineation" means a determination of wetland presence that includes marking the wetland boundaries on the ground and/or on a detailed map prepared by professional land survey or similar accurate methods. A delineation is a precise map and documentation of actual wetland boundaries on a parcel, whereas wetland boundaries identified on a local wetland inventory boundary are approximated with an accuracy target of five meters (approximately sixteen and one-half (16.5) feet) [See OAR 141-90-005 et seq. for specifications for wetland delineation reports.]

"Determination" means a decision of the presence or absence of wetlands. A determination made in the office using existing available information including maps and aerial photography is an offsite determination and is considered advisory only. An onsite determination involves site-specific data collection consistent with the 1987 US Army Corps of Engineers Wetlands Delineation Manual and Regional Supplements.

"Locally significant wetlands" are determined to be locally significant wetlands based on Oregon Administrative Rules for Identifying Significant Wetlands (OAR 141-86-300 through 141-86-350). If the assessed wetland unit provides diverse wildlife habitat, intact fish habitat, intact water quality function, or intact hydrologic control function, then the wetland is locally significant. Locally significant wetlands are identified on the City of Mill City local wetland inventory as such. Locally significant wetlands also constitute the wetland protection area (unless otherwise indicated in this chapter).

"Local wetlands inventory (LWI)" means maps and reports adopted by the City of Mill City entitled Local Wetland Inventory Report, City of Mill City, Linn County, Oregon and any subsequent revisions as approved by the Oregon Department of State Lands. The LWI is a comprehensive survey and assessment of all wetlands over one-half acre in size within the urbanizing area. This includes both locally significant wetlands, and wetlands that are not identified as locally significant. This also includes probable wetlands, which are areas noted during the course of the LWI field work that appear to meet, or do meet, wetland criteria but are small or of undetermined size, and are mapped as a point rather than a polygon on the LWI map.

"Oregon Freshwater Wetland Assessment Methodology (OFWAM)" means a wetland function and quality assessment methodology developed by the Oregon Department of State Lands (DSL) to assess water quality, hydrologic control, fish habitat, and wildlife habitat.

"Wetland" means an area inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and which, under normal circumstances, does support, a prevalence of vegetation typically adapted for life in saturated soil conditions.

"Wetland professional" means a professional with a background in wetland science and knowledgeable of the process for conducting wetland delineations and determinations.

"Wetland protection area" means an area subject to the provisions of this chapter that is constituted by wetlands determined to be locally significant as shown on the LWI map (unless otherwise indicated). The wetland protection area extends twenty (20) feet from the mapped LWI boundary unless an onsite or off-site determination or wetland delineation allows for a more refined estimation of the wetland boundary. (See Section 17.72.080(1).)

"Wetlands not subject to goal 5 protection" means all state jurisdictional wetlands including those in the City of Mill City, mapped or not, are subject to the state removal-fill law administered by the Oregon Department of State Lands (DSL). All wetlands are potentially jurisdictional wetlands. Wetlands on the LWI map which are not identified as locally significant are considered other potentially jurisdictional wetlands. These wetlands are not subject to the City of Mill City wetland protection area standards, but, like all wetland areas, are subject to DSL notice/review and potentially subject to DSL and the U.S. Army Corps of Engineers permitting.

(Ord. No. 368, § 3 (Exh. C), 6-11-2013)

Except as exempted or allowed in this code, the following activities are prohibited within a wetland protection area:

1.

Placement of new structures or impervious surfaces.

2.

Excavation, grading, fill, or removal of vegetation. (See Section 17.72.060.)

3.

Expansion of areas of landscaping with non-native species, such as a lawn or garden, into the wetland protection area.

4.

Disposal or temporary storage of refuse, yard debris, or other material.

5.

Any use not specifically allowed or exempted in Sections 17.72.060 and 17.72.070, or pursued through a variance under Section 17.72.110.

(Ord. No. 368, § 3 (Exh. C), 6-11-2013)

The following activities and continuation and/or maintenance thereof are exempted from all wetland protection area regulations, provided that any applicable state or federal permits are secured:

1.

Any use, except those identified as allowed uses under Section 17.72.070, that was lawfully existing on the date of adoption of this chapter, may continue within a wetland protection area. Such use or development may continue at a similar level and manner as existed on the date of adoption of this chapter per the standards for non-conforming development in Chapter 17.48 of this code;

2.

The maintenance and alteration of pre-existing ornamental landscaping so long as no additional native vegetation is disturbed;

3.

Restoration and enhancement of native vegetation;

4.

Cutting and removal of trees which pose a hazard to life or property due to threat of falling;

5.

Cutting and removal of trees to establish and maintain defensible space for fire protection;

6.

Removal of non-native vegetation;

7.

Maintenance and repair of existing utilities; or

8.

Normal farm practices such as grazing, plowing, planting, cultivating, harvesting, and other practices under the review authority of Oregon Department of Agriculture.

The following activities are also exempted from wetland protection area regulations, but are subject to state or federal permits:

9.

Maintenance of existing drainage ways, ditches, or other structures, to maintain flow at original design capacity and mitigate upstream flooding, provided that management practices avoid sedimentation and impact to native vegetation, any spoils are placed in uplands, and any applicable state permits are obtained (department of state lands); ^[1]

10.

Emergency stream bank stabilization to remedy immediate threats to life or property (department of state lands);

11.

Wetland restoration and enhancement activities (department of state lands).

(Ord. No. 368, § 3 (Exh. C), 6-11-2013)

The following activities and maintenance thereof are allowed within a wetland protection area upon city review and approval and provided any applicable state or federal permits are secured:

1.

Replacement of a permanent, legal, nonconforming structure in existence on the date of adoption of this chapter with a structure on the same building footprint, or expansion of the original building footprint if it does not encroach into additional wetland area, and in accordance with the provisions of Chapter 17.48 of this code.

2.

Installation of interpretive/educational displays and/or public pedestrian paths, as long as these do not present an obstruction that would increase flood velocity or intensity.

(Ord. No. 368, § 3 (Exh. C), 6-11-2013)

Where wetland review is applicable (see Section 17.72.020), applicants shall submit the following materials (unless otherwise indicated):

1.

A scale drawing that clearly depicts any local wetland inventory (LWI) map wetland boundary within the subject parcel and any wetland within twenty (20) feet of the development on an adjacent parcel, all surface water sources, existing trees and vegetation, property boundaries, and proposed site alterations including proposed excavation, fill, structures, and paved areas.

2.

Written statement of compliance with approval criteria for any proposed allowed activities. Activities listed as allowed under Section 17.72.070 and which are acknowledged to occur within a wetland protection area, require a written statement of compliance but do not require any demonstration of avoidance as per Section 17.72.080(3).

3.

Demonstration of wetland protection area avoidance. The placement of structures or impervious surfaces, vegetation removal or grading within the vicinity of any wetland protection area shall require demonstration that all impact to the wetland shall be avoided. Avoidance can be demonstrated by any one of the following:

a.

Keeping all development activity including vegetation removal and grading at least twenty (20) feet from the edge of the wetland boundary shown on the LWI map;

b.

Submitting an offsite determination, conducted by the department of state lands (DSL), that concludes the proposed activities will occur outside the wetland;

c.

Submitting an onsite determination, conducted by a qualified wetland professional, that concludes the proposed activities will occur outside the wetland protection area; or

d.

Submitting a current wetland delineation (completed within the last five years), certified by DSL, that shows the proposed activities will occur outside the wetland protection area.

(Ord. No. 368, § 3 (Exh. C), 6-11-2013)

A.

Approval Criteria. In approving allowed activities under Section 17.72.070, and/or ensuring compliance with Section 17.72.050 (prohibited activities), the approving authority shall base its decision on the following criteria in addition to the required criteria for any other permit or approval that is being sought. Approvals shall be based on compliance with the following criteria:

1.

Demonstration of avoidance of impacts to wetland protection area as outlined under Section 17.72.080(3); or

2.

The proposed project will not result in excavation or filling of a wetland or reduction of wetland area that has been identified as part of a wetland protection area, except as exempted or allowed in criteria outlined specifically under Sections 17.72.060 and 17.72.070.

3.

Evidence of any applicable permit(s) from the Oregon Department of State Lands (DSL) or other state or other federal agency.

B.

Mapping Error and Corrections. The city recorder or designee may correct the location of the wetland protection overlay zone when the applicant has shown that a mapping error has occurred and the error has been verified by the department of state lands (DSL). Delineations verified by DSL shall be used to automatically update and replace local wetland inventory (LWI) mapping. A mapping correction is not considered to be a variance. No formal variance application or plan amendment is needed for map corrections where approved delineations are provided.

(Ord. No. 368, § 3 (Exh. C), 6-11-2013)

A.

The city recorder shall be the final decision authority for administrative decisions under this chapter, unless the decision is appealed to the planning commission as outlined in Section 17.64.050.

B.

The planning commission shall be the final decision authority for variances and appeals under this chapter, unless the decision is appealed to the city council as outlined in Section 17.64.050.

C.

The administrative, public hearing, decision and enforcement procedures and requirements, which are part of the city zoning code codified in Chapter 17.64 are incorporated herein by reference and shall be applicable to actions taken under provisions of this chapter.

(Ord. No. 368, § 3 (Exh. C), 6-11-2013)

A.

The planning commission shall be the approving authority for applications for variances to the wetland protection area provisions. The procedures of Chapter 17.56 shall be followed for approval of a variance except that the variance criteria of this section in lieu of criteria in Chapter 17.56.

B.

Variances. The planning commission may grant a variance to the provisions of this chapter only when the applicant has shown that all of the following conditions exist: Through application of this chapter, the property has been rendered not buildable:

1.

The applicant has exhausted all other options available under this chapter to relieve the hardship;

2.

The variance is the minimum necessary to afford relief;

3.

All state and federal permits required for authorization of wetland impacts are obtained;

4.

No permitted type of land use for the property with less impact on the wetland is feasible and reasonable;

5.

There is no feasible on-site alternative to the proposed activities, including but not necessarily limited to; reduction in size, density or intensity, phasing of project implementation, change in timing of activities, revision of road and lot layout, and/or related site planning considerations, that would allow a reasonable economic use with less adverse impacts;

6.

The proposal utilizes to the maximum extent possible innovative construction, design, and development techniques, including pervious surfaces, which minimize to the greatest extent possible net loss of wetland functions and values; and

7.

The area of disturbance is limited to the area that has the least practical impact on the wetland functions and values.

(Ord. No. 368, § 3 (Exh. C), 6-11-2013)

A.

The City of Mill City shall notify the Oregon Department of State Lands (DSL) in writing of all applications to the City of Mill City for development activities—including development applications, building permits, and other development proposals—that occur in, or within twenty (20) feet of, any wetland identified on the local wetlands inventory (LWI) map.

B.

When conducting a wetland review under this chapter, the approving authority shall consider recommendations from the Oregon Department of Fish and Wildlife regarding OAR 635-415 "Fish and Wildlife Habitat Mitigation Policy." (Note: Recommendations from ODFW are advisory only.)

(Ord. No. 368, § 3 (Exh. C), 6-11-2013)

When a wetland has been altered in violation of this chapter, enforcement shall be conducted as outlined in Chapter 17.64. In instances where violations of department of state lands (DSL) requirements have occurred, DSL enforcement mechanisms apply. In some cases, both local and DSL enforcements may occur.

(Ord. No. 368, § 3 (Exh. C), 6-11-2013)

A.

Plan Amendment Option. Any owner of property affected by the wetland protection area may apply for a comprehensive plan amendment. This amendment must be based on a specific development proposal. A change in the boundary of the wetland protection area or a change in the allowed uses within the wetland protection area must be adopted through a plan amendment process. A proposed amendment must be supported by an environmental, social, economic and energy (ESEE) consequences analysis prepared in accordance with OAR 660-23-040. If the application is approved, then the ESEE analysis shall be incorporated by reference into the City of Mill City comprehensive plan, and the City of Mill City local wetland inventory map.

Plan amendment applications shall adhere to the following requirements:

1.

The ESEE analysis must demonstrate to the ultimate satisfaction of the City of Mill City City/County Council that the adverse ESEE consequences of not allowing the conflicting use are sufficient to justify the loss, or partial loss, of the resource;

2.

The ESEE analysis must consider existing opportunities for accommodating a conflicting use outside of the wetland protection area.

(Ord. No. 368, § 3 (Exh. C), 6-11-2013)