Chapter 17.80 applies to properties in the public zone and to publicly-owned parcels in other zones that abut the North Santiam River and its tributaries in the City of Mill City.

The purpose of Chapter 17.80 is to protect and restore riparian corridors and their associated water bodies, because of the multiple social and environmental functions and benefits these areas provide individual property owners, communities, and the watershed. Specifically, this chapter is intended to:

A.

Protect habitat for fish and other aquatic life,

B.

Protect habitat for wildlife,

C.

Protect water quality for human uses and aquatic life,

D.

Protect associated wetlands,

E.

Control erosion and limit sedimentation,

F.

Provide a stream "right-of-way" to accommodate lateral migration of the channel and protect the stream and adjacent properties,

G.

Reduce the effects of flooding, and

H.

Reserve space for storm water management facilities, other utilities and linear parks.

Chapter 17.80 is based on the "safe harbor" approach as defined in Oregon Administrative Rules (OAR), Chapter 660-23-0090(5) and (8).

This chapter excludes new structures from riparian buffer areas established around fish-bearing streams and adjacent wetland in Mill City. This chapter also limits vegetation removal or other alteration in these buffers and establishes a preference for native vegetation in the buffers.

(Ord. No. 404, § 1(Exh. A), 4-13-2021)

The following words, terms and phrases, when used in this chapter, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:

"Fish use" means streams inhabited at any time of the year by anadromous or game fish species or fish that are listed as threatened or endangered species under the federal or state endangered species acts. Fish use is determined from the natural resources inventory in the Mill City Comprehensive Plan or a statewide inventory prepared by the Oregon Department of Fish and Wildlife.

"Impervious surface" means any material that reduces and prevents absorption of storm water into previously undeveloped land.

"Lawn" means grass maintained as a ground cover of less than six inches in height. For purposes of this chapter, lawn is not considered native vegetation regardless of the species used.

"Mitigation" means mitigation includes taking one or more of the following actions listed in order of priority:

A.

Avoiding the impact altogether by not taking a certain development action or part of that action;

B.

Minimizing impacts by limiting the degree or magnitude of the development action and its implementation;

C.

Rectifying the impact by repairing, rehabilitating, or restoring the affected environment;

D.

Reducing or eliminating the impact over time by preservation and maintenance operation during the life of the development action by monitoring and taking appropriate corrective measures;

E.

Compensating for the impact by replacing or providing comparable substitute resources or environments.

"Net loss" means a permanent loss of habitat units or habitat value resulting from a development action despite mitigation measures taken.

"Non-conforming" means a structure or use that does not conform to the standards of Title 17 of the Mill City Municipal Code as of July 1, 2021. Non-conforming uses are not considered violations and are generally allowed to continue or be maintained, subject to the requirements of MCMC Chapter 17.48.

"Off-site mitigation" means habitat mitigation measures undertaken on property that is not part of the development site, which are intended to benefit fish and wildlife populations other than those directly affected by the proposed development activity.

"On-site mitigation" means habitat mitigation measures undertaken within or in immediate proximity to areas affected by a development action, and which are intended to benefit fish and wildlife populations directly affected by that action.

"Riparian area" means the area adjacent to a river, lake, stream, or wetland, consisting of the area of transition from an aquatic ecosystem to a terrestrial ecosystem. A goal 5 resource defined by OAR 660-023-0090 (1)(b).

"Riparian corridor" means a protected zone within the riparian area where placement of new structures, surface alteration and disturbance, and vegetation removal, is limited or prohibited in order to preserve the environmental and social benefits of the riparian area.

"Riparian corridor boundary" means an imaginary line that is a certain distance upland from the waterbody top of the bank.

"Safe harbor" means a safe harbor has the meaning given to it in OAR 660-023-0020(2). A "safe harbor" consists of an optional course of action that satisfies certain requirements under the standard process. Local governments may follow safe harbor requirements rather than addressing certain requirements in the standard goal 5 process. For example, a jurisdiction may choose to identify "significant" riparian corridors using the safe harbor criteria under OAR 660-023- 0090(5) rather than follow the general requirements for determining "significance" in the standard goal 5 process under OAR 660-023-0030(4). The safe harbor distances for waterways in Mill City are identified in MCMC Section 17.80.030.

"Stream" means a channel such as a river or creek that carries flowing surface water including perennial and intermittent streams with defined channels, and excluding man-made irrigation and drainage channels.

"Structure" means a building, accessory building, viewing platform, deck or other structure that is built, constructed or installed, not including minor improvements, such as utility poles, flagpoles, or irrigation system components, that are not customarily regulated through zoning ordinances.

"Substantial improvement" means any repair, reconstruction, or improvement of a structure, the cost of which equals or exceeds 50 percent of the market value of the structure either:

A.

Before the improvement or repair is started, or

B.

If the structure has been damaged and is being restored, before the damage occurred.

For the purposed of this definition, "substantial improvement" is considered to occur when the first alteration of any wall, ceiling, floor, or other structural part of the building commences, whether or not that alteration affects the external dimensions of the structure.

The term does not, however, include either:

A.

Any project for improvement of a structure to comply with existing state or local health, sanitary, or safety code specification which are solely necessary to assure safe living conditions, or

B.

Any alteration of a structure listed on the National Register of Historic Places or a State Inventory of Historic Places.

"Top of bank" means the stage or elevation at which water overflows the natural banks of streams or other water of the state, and begins to inundate the upland areas. In absence of physical evidence, the two-year recurrence interval flood elevation will be used to approximate the "bank full" stage or delineate the top of bank.

For the North Santiam River, the approximate location of the "top of bank" is shown on the maps in appendix A of the ordinance from which this chapter is derived and filed with City Hall to be open to inspection and available to the public at all reasonable hours. ^[2]

(Ord. No. 404, § 1(Exh. A), 4-13-2021)

A.

The inventory of significant riparian areas contained in the natural resources element of the Mill City Comprehensive Plan lists fish-bearing streams.

B.

The following riparian buffers, as shown on the maps in appendix A of the ordinance from which this chapter is derived, are adopted for fishbearing stream segments in the City of Mill City:

Stream Sizes with Annual Average Flow Less Than 1,000 cfs

1.

Cedar Creek shall have a buffer of 50 feet from the top of bank.

2.

Elizabeth Creek shall have a buffer of 50 feet from the top of bank except as identified below;

a.

Riparian setbacks within the Village at Santiam Pointe subdivision shall be in accordance with the riparian and wetlands study, prepared by Fishman Environmental Services, January 1999 (FES Project #98110), as approved by the Mill City Planning Commission, (File No. 1998-10-13), and designated on the approved site plans for individual lots in the subdivision.

3.

DeFord Creek and Snake Creek shall have a minimum buffer of 50 feet from the top of bank. ^[3]

Stream Sizes with Annual Average Flow Greater Than 1,000 cfs

4.

The North Santiam River shall have a minimum buffer of 75 feet from the "bank full" stage of the river, as shown on the maps in appendix A of the ordinance from which this chapter is derived, except as identified below:

Measurement of the Riparian Buffer from the edge of a Wetland or Top of Bank

5.

Where the riparian buffer includes all or portion of a significant wetland as identified in the City of Mill City Local Wetlands Inventory ^[4], the riparian buffer shall be at least 50 feet and shall be measured from and include the upland edge of the wetland.

6.

The measurement of the riparian buffer shall be measured from the top of the bank (as shown on the maps in appendix A of the ordinance from which this chapter is derived). The measurement shall be slope distance. In areas where the top of each bank is not clearly defined, the riparian buffer shall be measured from the ordinary high-water level, or the line of non-aquatic vegetation, whichever is most landward.

(Ord. No. 404, § 1(Exh. A), 4-13-2021)

A.

The permanent alteration of the riparian buffer by grading or by the placement of structures, sidewalks, decks, patios, paved areas or other impervious surfaces is prohibited.

B.

The outdoor storage of materials, motor vehicles, recreational vehicles or other items in the riparian area is prohibited.

C.

Removal of riparian vegetation in the buffer is prohibited, except for:

1.

Removal of non-native vegetation and replacement with native plant species. At a minimum, replacement vegetation shall cover the area from which vegetation was removed, and shall maintain or exceed the density of the removed vegetation; ^[5] and

2.

Removal of vegetation necessary for the development of approved water-related or water-dependent uses. Vegetation removal shall be kept to the minimum necessary to allow the water-dependent or water-related use; and

3.

Trees in danger of falling or that pose a hazard to life or property may be trimmed or removed. If no hazard will be created, the city may require a tree, once felled, to be left in place in the protected riparian corridor. The city recorder may require replacement trees to be planted with native tree species. The city may consult with an arborist, the Oregon Department of Forestry, Oregon Fish and Wildlife Department, North Santiam Watershed Council and Soil and Water Conservation Districts or other professional foresters for recommendations; and

4.

Incidental removal of vegetation associated with recreational, educational, scientific research and land survey activities; and

5.

Removal of trees under a commercial harvesting permit granted by the Oregon Department of Forestry.

D.

Permitted Vegetation Management Exception. The following activities are permitted and are not required to meet the standards of this section.

1.

Annual or biannual mowing of native grasses, as a part of a vegetation management plan to prevent the incursion of undesirable non-native weed species is allowed.

2.

Removal of invasive species and non-native vegetation.

3.

Native plant replacement or restoration projects.

E.

Exceptions. The following uses may be permitted. The applicant must obtain a riparian development permit as required in Section 17.80.050 and must obtain applicable state and/or federal permits as required in Section 17.80.070.

1.

Pedestrian/bicycle paths and recreational trails;

2.

Public and private utilities;

3.

Parks and recreation facilities, such as viewpoints, picnic tables, trash receptacles, play equipment, or similar facilities;

4.

Irrigation pumps;

5.

Drainage facilities;

6.

Stormwater detention, retention and water quality treatment facilities designed to enhance overall function of the riparian resource (for example a grassy swale or constructed wetland with a buffer of native vegetation).

7.

Water-related and water-dependent uses (for example boat launch, fishing dock);

8.

Replacement of existing structures with structures in the same location that do not disturb additional riparian surface area; [e.g. existing picnic shelter, pump station, etc.].

9.

Structures within the protected riparian corridor may be expanded provided the expansion does not occur within the riparian buffer. Substantial improvement of a non-conforming structure in the riparian buffer shall require compliance with the non-conforming use standards of this chapter and MCMC Chapter 17.48;

10.

Existing lawn and non-native plantings within the riparian buffer may be maintained, but not expanded within the protected area. New development activities on the property do not permit replacement of vegetation in the riparian buffer with lawn; and

11.

Existing shoreline stabilization and flood control structures may be maintained. Any expansion of existing structures or development of new structures shall be evaluated by the local government and appropriate natural resource agency staff, for example Oregon Department of Fish and Wildlife, Division of State Lands, Department of Environmental Quality, Water Resources Department. Such alteration of the riparian buffer shall be approved only if less-invasive or nonstructural methods will not adequately meet the stabilization or flood control needs.

(Ord. No. 404, § 1(Exh. A), 4-13-2021)

A.

Permit Required. Any person proposing a development activity on a lot, where any portion of the proposed development activity is within the riparian buffer, shall file an application with the city and obtain city approval of a riparian development permit before proceeding. ^[6]

1.

A development activity includes:

a.

New building construction;

b.

A deck, patio or addition to an existing structure;

c.

A subdivision, partition or lot line adjustment;

d.

The removal of trees or other vegetation in the riparian area, not including those trees removed in accordance with Section 17.80.040 (C).

e.

The addition or removal of 50 cubic yards of soil within the riparian area; (A DSL fill and removal permit is required when the activity is within a jurisdictional waterway or wetland);

f.

Construction of a driveway or parking area;

g.

Installation of a public and/or private utility;

h.

A park and recreation facility;

i.

Drainage facilities and stormwater treatment facilities;

j.

Water-related and water-dependent uses (for example boat launch, fishing dock);

k.

Replacement of existing structures or other non-conforming alterations existing fully or partially within the protected riparian buffer;

l.

Shoreline stabilization and flood control structures; and

m.

Any other development activity which directly impacts the riparian area.

2.

Exceptions. The following activities within the riparian buffer are exempt from city review and do not require a riparian development permit from the city.

a.

Removal of vegetation within the riparian area in compliance with Section 17.80.040.

b.

Repair or remodel of an existing structure that does not disturb additional riparian surface area;

c.

Replacement of an existing structure with a new structure in the same location that does not disturb additional riparian surface area;

d.

Construction and/or replacement of a pump house, irrigation equipment or facility;

e.

The restoration or maintenance of an historic structure including railroad bridge and abutments, walls, pilings and water intake areas.

f.

Park and recreation equipment and appurtenances, such as picnic tables, trash receptacles, play equipment, or similar facilities;

g.

Native plant replacement or restoration projects.

B.

Application. An application for a riparian development permit shall be submitted to the city in accordance with the provisions of Section 17.64.060. A filing fee in accordance with the provisions of Section 17.64.070 shall be submitted with the application. The application shall include:

1.

A site plan, drawn to scale, showing all property lines, proposed lot lines, existing and proposed structures. The plan must include the names of the applicant, property owner, date, north arrow and scale of the drawing.

2.

The following items must be shown on the site plan:

a.

All existing and proposed structures;

b.

Existing and proposed streets, easement and utilities;

c.

The location of waterways, the top of the stream or waterbody bank, the riparian buffer boundary and areas of riparian vegetation.

d.

The location and direction of drainage channels and the location of areas subject to flooding, including any identified wetlands.

e.

Natural features such as rock outcroppings, marshes, wooded areas and isolated preservable trees.

3.

If the proposal includes development within the identified riparian buffer identified in MCMC Section 17.80.030, then the applicant must submit the following information:

a.

Uses that will occur within the protected riparian corridor and potential impacts (for example: storm drainage runoff, chemical runoff, noise, etc.);

b.

The extent of vegetation removal proposed;

c.

Characteristics of existing vegetation (types, density);

d.

Any proposed grading, fill, or alterations of topography or drainage patterns,

e.

Existing uses on the property and any potential impacts they could have on riparian resources, and

f.

Proposed mitigation plans to reduce negative impacts on the riparian corridor.

C.

Hearing and Action on a Riparian Development Permit. Before the planning commission may act on an application for a riparian development permit, it shall hold a public hearing in accordance with the provisions of Sections 17.64.080 and 17.64.090.

1.

Hearing notice shall also be provided to the Oregon Department of Fish and Wildlife, the Oregon Division of State Lands, the Oregon Department of Forestry and the North Santiam Watershed Council.

2.

Decision and Conditions of Approval. After the public hearing is closed, the planning commission shall either approve or deny the application. In approving the application, the planning commission may impose conditions as outlined in subsection (F) of this section. Additional state or federal permits may be required.

D.

Decision Criteria. In order for the city to approve a riparian development permit, the city shall conclude the proposal complies with all of the following criteria.

1.

The proposal is allowed as a permitted or conditional use in the zone.

2.

The proposal complies with the riparian setback requirements in MCMC Section 17.80.030.

3.

The proposal complies with the riparian protection requirements in MCMC Section 17.80.040.

4.

The proposed use includes actions to protect existing fish and wildlife habitat, including such items as stream bank erosion/stabilization and water quality degradation.

5.

If the proposed use or activity is within a special riparian or wetlands study area, that the special riparian/wetlands plan has been approved by the Mill City Planning Commission and the proposal complies or can comply with recommended mitigation measures in the plan.

6.

The applicant has obtained or applied for applicable regulatory permits approved by the Division of State Lands, Oregon Department of Fish and Wildlife, U.S. Army Corps of Engineers or other state or federal regulatory agency.

E.

Basis for Denial. The planning commission may deny a riparian permit application if it concludes the proposal does not or cannot comply with the approval criteria and/or cannot be conditioned to mitigate its adverse impact on the riparian corridor.

F.

Conditions of Approval. The city may impose conditions of approval in order to maintain, enhance and protect the riparian area and existing fish and wildlife habitat along the river. Conditions of approval may include, but are not limited to, the following:

1.

Replacement of trees or natural vegetation removed due to the development activities.

2.

Planting of new trees or native vegetation to restore the riparian corridor. Planting shall be with riparian plant species appropriate to western Oregon. The Planning Commission may require the applicant to work with the North Santiam Watershed Council or the Linn/Marion Soil and Water Conservation District to develop an approved mitigation or planting plan.

3.

Requirement of additional or special setbacks from the water's edge, the top of the bank or from the edge of the identified the riparian buffer.

4.

Installation of a landscape buffer or fencing outside the riparian buffer to protect the riparian corridor.

5.

Compliance with mitigation recommendations in a riparian or wetlands mitigation plan approved by the planning commission.

6.

Compliance with all requirements imposed under a permit issued by a state or federal regulatory authority.

G.

Time Limit for an Approved Riparian Development Permit.

1.

Approval of a riparian development permit that involves the construction or expansion of a building shall expire two years after the date of the written notice of decision unless a building permit application has been filed. However, upon written request, the planning commission may grant one extension, not to exceed two years, to complete the project.

2.

Approval of a riparian development permit for a use or development activity that does not involve construction or expansion of a building shall expire five years after the date of the written notice of decision.

3.

Approval of a riparian development permit for a partition or subdivision shall expire two years after the date of the written notice of decision, if a final plat has not been filed and recorded. The city may issue building permits for construction of new buildings within the approved land division for a period of up to seven years from the date the final plat is recorded with the county as long as the applicant fully complies with the conditions of approval of the riparian development permit.

4.

Riparian development approvals are not transferable.

(Ord. No. 404, § 1(Exh. A), 4-13-2021)

A.

Alteration of the riparian buffer, as shown on the maps in appendix A of the ordinance from which this chapter is derived, is allowed subject to the conditions in an approved riparian development permit, compliance with an approved mitigation plan or a permit issued by a state or federal regulatory authority.

B.

Proposals for modification of the riparian buffer will be referred to affected agencies, including, but not limited to, the North Santiam Watershed Council, the Oregon Department of Fish and Wildlife (ODFW), the Division of State Lands (DSL) or the U.S. Army Corps of Engineers. The agency review and/or mitigation recommendations from the regulatory agency shall be included in the record. For purpose of implementing statewide planning goal 5, the goal is no net loss of protected resources and no net loss of habitat values.

C.

Variance. Variances to requirements in Chapter 17.80 are not permitted on city-owned properties.

(Ord. No. 404, § 1(Exh. A), 4-13-2021)

All activities wholly or partially within riparian corridors and subject to applicable Division of State Lands permit requirements under the Removal-Fill Law and the U.S. Army Corps of Engineers permit requirements under Section 404 of the Clean Water Act. Where there is a difference between local, state, or federal regulations, the more restrictive regulations shall apply.

In addition, the city may defer its authority under Chapter 17.80 to allow for the implementation of a restoration plan, action plan or joint permit issued by the Division of State Lands, Oregon Department of Fish and Wildlife, the U.S. Army Corps of Engineers and/or Linn/Marion County, upon submittal of a copy of the approved permit to the city. Such plans or permits may include, but are not limited to:

A.

Fill removal permits.

B.

Fish habitat general authorizations.

C.

Other general authorization permits.

D.

Large wood general authorization permit.

E.

Flood plain permit.

(Ord. No. 404, § 1(Exh. A), 4-13-2021)

Any activities within a riparian buffer not authorized under this chapter are a violation. Violators shall be subject to the enforcement procedures pursuant to Chapter 17.64 of this code. A violation of this chapter shall be considered a separate offense for each day the violation continues.

(Ord. No. 404, § 1(Exh. A), 4-13-2021)

To best protect important functions and values of riparian buffers in the event that the requirements of this section conflict with other ordinance requirements, the city shall apply the requirements that best provide for the protection of the resource.

(Ord. No. 404, § 1(Exh. A), 4-13-2021)

The sections and subsections of this chapter are severable. The invalidity of one section or subsection shall not affect the validity of the remaining sections, or permit approvals and prosecutions brought pursuant to this section.

(Ord. No. 404, § 1(Exh. A), 4-13-2021)