A Model Stream Corridor Protection Ordinance Prepared by the Stony Brook-Millstone Watershed Association www.thewatershed.org Prepared by: Imali D. Seneviratne, Project Manager, Stony Brook-Millstone Watershed Association In conjunction with: Gerald J. Muller, Esq. With the extensive contributions of: The Stream Corridor Ordinance Resource Group Introduction In 1995 the Stony Brook-Millstone Watershed Association began working on a model stream corridor ordinance under the Watershed Management Project. The Watershed developed a boilerplate document, which could be introduced to all of the 26 municipalities within the organization's watershed, and modified according to each township's specific needs. The motive behind this is simple. Laws passed by one municipality ultimately impact their neighboring community downstream. By creating some consistency in how area municipalities treat stream corridors, we have a shot at greater protection of water quality and ecologically sensitive areas throughout the region. The need for greater protection of stream corridors is significant. Only three municipalities within the organization's watershed have incorporated ordinances related to stream corridor protection into their governance. West Windsor Township was the first municipality in New Jersey to support a stream corridor protection through a revision in their Master Plan, which in 1977 incorporated a Green Belt Plan for preservation of environmentally sensitive areas along streams. The plan has never been challenged by a developer. The scope of the Model Stream Corridor Ordinance includes the following. Delineate a contiguous stream corridor to buffer the surface waters from pollution impacts by providing a transition area from development activities. The minimum recommended width is 100 feet from the 100-year flood plain. Extending the stream corridor beyond the minimum width is an option that will provide the opportunity to adequately buffer other significant ecological components as well. Control the alteration of stream channels, flood plains, wetlands and steep slopes; protect habitats and the buffering ability of stream corridors; and control activities which may increase flood damage by restricting or prohibiting uses within the delineate stream corridors. Supplement existing state, regional and municipal stream corridor protection initiatives. Provide a legal basis for the municipal review agencies and affiliated voluntary review committees to strengthen their stream corridor protection initiatives. The stream corridor protection standards of this ordinance can be adopted into the land development ordinance of individual municipalities as a sub-chapter in the Site Plan Review Standards and Other Standards, or as a Special Overlay Zone in the Zoning Map. However, the first approach would allow municipal review groups to be more flexible in their planning process. Additionally, it is recommended that municipal review agencies take into consideration the advice of the Environmental Commission, Shade Tree Commission, and Historic Commission, as appropriate, when making decisions about a specific development. Although the recommendations of these commissions aren't binding, these committees are instrumental in addressing development-related environmental issues. The Model Ordinance Section 1.00 PurposeS The purposes of this ordinance are as following: Maintain the quality streams and improve the currently impaired streams of the watershed Protect significant ecological components of stream corridors such as wetlands, floodplains, woodlands, and steep slopes within the stream corridors of the watershed Prevent flood related damage to the communities of the watershed Complement the existing state, regional, county and municipal stream corridor protection and management regulations and initiatives Displace potential sources of non-point source pollution from the water's edge Maintain biotic diversity of aquatic plants and wildlife Help maintain adequate flows of filtered water to underground aquifers SECTION 2.00 Definitions As used in this ordinance, the following words and terms shall have the following meanings: Activity means any land disturbance, including any development for which an application for development is necessary1. One Hundred Year Flood Line means the line, which is formed by following the outside boundaries of the area inundated by a 100-year flood. A 100-year flood is estimated to have one percent chance or one chance in 100 of being equaled or exceeded in any one year. The 100-year flood line shall be determined by reference to ................................. Stream means a waterway depicted on the United States Geological Survey Hydrologic Map: Open File Report # ..., such report being on file with .................................... Stream Corridor shall mean for every waterway that receives surface water runoff from a drainage area of 50 acres or more as determined from U.S.G.S. Quadrangle sheets or more accurate site survey information. For a waterway with a delineated 100-year flood line, the Stream Corridor shall include all of the land bounded by the 100-year flood line and all the land measured 100 feet radial from and perpendicular to each 100-year flood line and all contiguous slopes of 12% or greater and all contiguous wetlands. If there is no one hundred year flood line delineated, the distance shall be measured outward from the bank of the stream channel. If slopes greater than 12% abut the outer boundary of the stream corridor, the area of such slopes shall also be included as the stream corridor. Section 3.00 STREAM CORRIDOR protection 3.10 APPLICABILITY All tracts falling in whole or in part within a stream corridor shall be subject to the standards set forth in section 3.20 et. seq., except that this section shall not be applicable when an activity is reviewed by the Delaware and Raritan Canal Commission under N.J.A.C. 7:45-7: Stream Corridor Impact Regulations for the Review Zone of the Delaware and Raritan Canal State Park (adopted February, 1994) or successive regulations and amendments. 3.20 STANDARDS 3.21 Activities Permitted in Stream Corridors Stream corridors shall remain in their natural state, with no clearing or cutting of trees and brush (except for removal of dead vegetation and pruning for reasons of public safety), altering of watercourses, regrading or construction except for the following activities: Wildlife sanctuaries, woodland preserves and arboretums, but excluding enclosed structures. Game farms, fish hatcheries and fishing reserves, operated for the protection and propagation of wildlife, but excluding enclosed structures. Unpaved hiking, bicycle and bridle trails. Fishing areas. Reconstruction of a structure which pre-dates the adoption of this ordinance in the event of damage or destruction by fire, storms, natural hazards, or other acts of God, provided that the reconstruction does not have a greater footprint or total area than that of the damaged structure and that no change in land use occurs; and further provided that the reconstruction shall be permitted only if no more than 50% of the structure is destroyed. 3.22 Location of Activities on Tracts Partially Within Stream Corridors All new lots in major and minor subdivisions and site plans shall be designed to provide sufficient areas outside of stream corridors to accommodate primary structures as well as any normal accessory uses appurtenant thereto. The board of jurisdiction may allow an average stream corridor width of 100 feet from the one hundred year flood line, thus allowing reasonable flexibility to accommodate site planning when necessitated by the size and shape of the tract and physical conditions thereon. The stream corridor width may be reduced to a minimum of 50 feet from the one hundred year flood line provided there is an equivalent increase in the width elsewhere on site and all relevant permits (e.g., Stream Encroachment, Freshwater Wetlands) are obtained (and provided that the compensatory land is equal in its ability to buffer the stream as the land that is intruded upon.). 3.23 Activities Permitted In Stream Corridors When There is no Reasonable or Prudent Alternative The following are permitted in a stream corridor when subdivisions or site plans cannot be designed in the manner set forth in section 3.22 or (who decides this? And under what criteria? Expand on this), in the case of a pre-existing lot for a one-family or two-family dwelling, when there is insufficient room outside the stream corridor for permitted accessory uses. In either case, there must be no other reasonable or prudent alternative to placement in the stream corridor: Yard improvements such as lawns and accessory structures such as swimming pools. Recreational use, whether open to the public or restricted to private membership, such as parks, camps, picnic areas, golf courses, sports or boating clubs, not to include enclosed structures, but permitting piers, docks, floats or shelters usually found in developed outdoor recreational areas. Outlet installation for sewage treatment plants and sewage pumping stations and the expansion of existing sewage treatment facilities. Private or public water supply wells that have a sanitary seal, flood proofed water treatment facilities or pumping facilities. Dams, culverts, bridges and roads provided that they cross the corridor directly as practical. Sanitary or storm sewers. Utility transmission lines installed during periods of low stream flow in accordance with soil erosion and sediment control practices and approved by the State Soil Conservation District in a manner which will not impede flows or cause ponding of water. 3.24 Activities Permitted In Stream Corridors When prohibiting such activities would cause extreme ECONOMIC HARDSHIP New structures (other than those permitted as exceptions to sections 3.21 and 3.23), including retaining walls, parking facilities and roads (but not those which are parallel to the stream) are permitted in a stream corridor only if: Upon a clear and convincing demonstration by the applicant that prohibiting such activity would result in extreme economic hardship or would conflict with a compelling public need. The board of jurisdiction shall use the following standards in determining whether extreme economic hardship exists: Prohibiting the activity would result in an extreme economic hardship, as distinguished from mere inconvenience, because of the particular physical surroundings, shape or topographical conditions of the property involved. The necessity of acquiring additional land to locate development outside the stream corridor shall not be considered an economic hardship unless the applicant can demonstrate that there is no adjacent land which is reasonably available; and An applicant shall be deemed to have established the existence of an extreme economic hardship only if the applicant demonstrates, based on the specific facts, that the subject property is not capable of yielding a reasonable economic return if its present use is continued or if it is developed as unauthorized by provisions of this ordinance and that this inability to yield a reasonable economic return results from unique circumstances peculiar to the subject property which: do not apply to or affect other property in the immediate vicinity; relate to or arise out of the characteristics of the subject property rather than the personal situations of the applicant; and are not the result of any action or inaction by the applicant or the owner or his predecessors in title. An applicant shall be deemed to have established compelling public need if the applicant demonstrates, based on specific facts, that: the proposed project will serve as an essential public health or safety need; the public health and safety require the proposed activity; the proposed use is required to serve existing public health or safety need; there is no alternative available to meet the established public health or safety need; the activity will not be materially detrimental or injurious to other property or improvements in the area in which the subject property is located and will not endanger public safety; and the exception granted is the minimum relief necessary to relieve the compelling public need. The stream corridor includes more than 75% of the tract. If an exception2 set forth in subsections 3.24-(1)-(a) or (b) is granted the board of jurisdiction or the zoning officer, as the case may be, may reduce the width of the stream corridor to no less than 50 feet from the one hundred year flood line. (3) If such an exception is granted, the applicant shall rehabilitate an environmentally degraded stream corridor within or adjacent to the same tract at least equivalent in size to the stream corridor reduction permitted and if not possible rehabilitate or expand a stream corridor of such size within a nearby tract and if available, within the same watershed. Rehabilitation shall include reforestation, stream bank stabilization and removal of debris. The area to be rehabilitated and the rehabilitation plan shall be acceptable to the board of jurisdiction or the zoning officer, as the case may be. 3.25 Prohibited Activities All activities not permitted pursuant to subsection 3.21, 3.23 and 3.24 shall be prohibited. In no circumstance shall the following be permitted as exceptions to such subsections: Any solid or hazardous waste facilities, including but not limited to sanitary landfills, transfer stations and wastewater lagoons. Junkyards, commercial and industrial storage facilities and open storage of vehicles and materials. 3.26 Provisions governing ACTIVITIES in Stream corridors The applicant for any activity permitted in a stream corridor shall rehabilitate any degraded areas within the stream corridor, in a manner acceptable to the board of jurisdiction or the zoning officer, as the case may be, unless the applicant demonstrates that it is economically infeasible to do so. The applicant shall also; rehabilitate or cure the affects of the disturbance caused during construction; maintain the integrity of the surrounding habitat; and maintain the existing ability of the stream corridor to buffer the stream. The applicant shall provide whatever additional measures are necessary to assure that areas designated as stream corridors will be preserved and to prevent additional encroachments in stream corridor likely to occur as a result of the approval granted. The board of jurisdiction, in the case of an application for development, and the zoning officer, in all other cases, may require conservation easements or deed restrictions assuring that there will be no further intrusion on the stream corridor than that permitted by the activity approved. 3.3 Submission requirements An applicant for an activity in a stream corridor shall submit to the municipality a map of the project site delineating the following (at a scale of -- 1 inch : 200 ft), using the best available information: one hundred year flood line; and state wetland boundary lines; and the stream corridor boundary; and any slopes >15% within the site; and the location of all improvements and land disturbance proposed to be located within any of the above boundaries. In addition, the following shall be submitted: ____________________________________________________________ ____________________________________________________________ ____________________________________________________________ This ordinance covers development activities whether or not covered by site plan and subdivision review and, unless the reference to "any land disturbance" is deleted, should be included in the Other Provisions section of the zoning regulations. If it is deleted, the ordinance should be included in the site plan and subdivision regulations. If the standards set forth in section 3.20 are included in the zoning regulations rather than in the site plan and subdivision section, this exception should be treated as a conditional use.