Protecting Stream Corridors in Your Town: Ordinance Structure and Organization There are a number of ways to structure a stream corridor ordinance. The approach taken by a municipality should reflect the amount of control it wishes to retain over the corridor. While most ordinances simply establish a stream corridor and seek to regulate activities taking place within them, some municipalities require the landowner to grant a conservation easement to the town in perpetuity.1 For example, South Brunswick's stream corridor ordinance requires a conservation easement of 50 feet from the stream bank or 50 feet from the 100-year floodplain, whichever is greater, plus the first 25 feet of any critical slope, as defined by the ordinance as land having a slope of 12% or greater. Holmdel requires that a conservation easement be included in any application to the Planning Board. The conservation easement makes subsequent construction activities in the buffer covered by the easement more difficult. However, nearly all the ordinances use the same basic structure and include the following sections: a purpose, or intent, section definitions an applicability section a standards section a list of prohibited and permitted uses variance requirements notice requirements enforcement procedures Details on each of these sections are explained below. The Purpose Section states a municipality's intentions for enacting a stream corridor ordinance. Purposes include any combination of the following: protecting property from flooding, protecting stream water quality, protecting natural habitats, and providing recreational corridors. Some ordinances go further by declaring their intent to slow or contain urban sprawl and others note the effect on down stream users or others living in the watershed when development occurs in stream corridors. The Definitions Section lists key terms used throughout the ordinance. Most important is how the ordinance defines "stream." This often requires reference to United States Geological Survey Hydrologic Maps (water.usgs.gov). Whether the definition refers only to perennial streams or includes intermittent streams is critical, particularly if a town wants to protect headwater areas. Because the buffer that is the subject of the ordinance encompasses the stream, the scope of the protected area is directly dependent on the features considered streams. For example, Princeton Township defines a waterway as any periodic or permanent stream with a contributing watershed of 10 acres and in certain more developed areas, a contributing watershed of 5 acres. Once the streams affected by the ordinance have been identified, the width of the buffer or corridor must be determined. Typically, the starting point for measuring the buffer is from the top bank of the stream. Several municipalities in New Jersey have taken different approaches. Approach #1: Site Specific Widths Princeton Township identifies certain streams as more critical, such as Stony Brook and the Millstone River. The rationale for this is that larger rivers need wider corridors because they drain a larger area and their floodplains are larger. This type of buffer system is more complicated and may require more administration. The public and affected landowners may perceive the variations as unfair or arbitrary. Approach #2: Expanded Buffers Baltimore County, MD expands the standard buffer width under certain environmental conditions: Impervious Surfaces Simply put, impervious surfaces detract from a stream corridor's ability to remove nutrients and, in addition, the pollutants that collect on graded surfaces run off into the stream. Stream corridors that have roads running parallel within them should have increased buffers to account for the increased runoff. Wetlands The soils with the highest moisture level, wetlands have long been recognized for their value in trapping sediment and nutrients. Federal and State law currently protect wetlands. Wetlands should not be credited towards the buffer width for a stream corridor because they are sensitive lands and excluding them from buffer width determination will not interfere with state regulations governing wetlands. Steep Slopes Many researchers have noted that steep slopes cannot effectively remove contaminants. In general, most municipalities define a steep slope as land having a slope of 12% or greater. Approach #3: Variable Width Buffers The Stony Brook Millstone Watershed Association's model stream corridor ordinance establishes a flexible buffer. Buffer widths begin from the 100-year flood line and range from 50 to 200 feet. This allows for some discretion depending on the amount of a landowner's property that will be affected by the buffer. There is always the potential for this discretion to be abused. Approach #4: Fixed Buffers The simplest of the buffers, this creates a uniform width, typically 100 feet, from the 100-year flood line. The ordinance should take care to address wetlands, which should have a buffer surrounding them as well to be consistent with the purpose of the ordinance and with applicable laws and regulations. Unfortunately, in the context of the entire ordinance, the standard buffer may not address the effects of existing non-conforming uses will have on drainage and runoff into the stream. Approach #5: Either/Or Buffers Montgomery Township requires either a 100-foot buffer or 100 feet beyond the 100-year floodplain whichever is larger. Care must be taken to establish the 100-year floodplain, typically this will use maps created by the Federal Insurance Administration flood insurance maps. The Permitted Use Section states which activities are permitted in a stream corridor. Most include natural resource activities such as stream restoration and revegetation projects, natural resource protection, monitoring and management. Other uses that may be permitted: Maintenance - note that dead and dying vegetation (unless it is a safety hazard) should be left to add to the build-up of the humus layer. Pre-existing agriculture use permitted, with a minimum buffer (e.g., 50 feet) and approved soil conservation and water quality plan. Agriculture usage should be limited if possible because activities such as the application of fertilizers and pesticides, the spreading of animal wastes, the direct access of livestock to the stream and the construction of waste lagoons threaten the health of a stream and its riparian habitat. Agriculture comprises 64% of non-point source pollution impacting streams in the Northeast.2 One municipality, South Brunswick, has prohibited the use of fungicides, herbicides, pesticides, and fertilizers in stream corridors with the exception of agriculture, horticulture and silvaculture, where use is subject to municipality review. Necessary livestock crossings permitted, with design approval required. Existing Structures Existing structures typically can be restored, repainted maintained or enhanced. Roads and Bridges Allowed where no other locations are feasible. Typically restricts roads to those that are oriented perpendicular to the stream corridor. Recreation Many ordinances allow the construction of foot or horse paths within the corridor. The Prohibited Use Section states which activities shall be prohibited in the stream corridor. One option is to prohibit all uses not specifically listed in the permitted uses section. However, many ordinances choose to list prohibited uses and this may be useful to avoid any unwanted interpretations of permitted uses that are not unambiguously defined. Examples of prohibited uses include: Disturbances to vegetation Clear-cutting or disturbances to natural vegetation are often prohibited. This includes tree and shrub removal, clearing, burning, and spraying. South Brunswick draft plan also prohibits the use of pesticides, fungicides, herbicides and fertilizers. Septic Systems No septic fields in the corridor. No sewage disposal systems may be located within 300 feet of the high level of a surface water supply. Grading, Excavating and Dumping No soil disturbance from grading, plowing, except with approved soil conservation and water quality plan. No mining or excavation, except existing uses, no dredging except as permitted by State law. No deposit or landfill refuse, solid or liquid waste. No underground storage tanks. No dumping. No fill to expand development area. One noteworthy ordinance is Princeton Township's, which takes a different approach than most municipalities. Rather than listing specific uses, there are a series of factors that must be considered in light of the requested action. For example, the planning board must consider the ecological impact of the project, the relation of the proposed structures to the environment, and surface water drainage. The Submission Requirements Section states which documents shall be submitted to the municipality in an application to perform any land disturbing activity near the stream corridor. Usually, the application must include a map of the project site with the delineation of the stream corridor boundaries, the 100-year flood line, wetland boundaries, slopes greater than 12% within the site, and the locations of all improvements proposed within those boundaries. Some ordinances also require more detailed information such as all trees greater than four inches diameter breast height (D.B.H.), soil conditions, landscaping plans, and rights-of-way easements. The most significant problem with the stream corridor ordinances is that not all municipalities require that buffers be clearly delineated on the plans for clearing or grading and sediment control. The absence of boundaries on construction-stage plans increases the risk that contractors will encroach or disturb the stream corridor. In addition, buffer boundaries should be clearly marked on-site during construction activities. The Variance Section lists the criteria for exemption from the provisions of the ordinance. Not all ordinances list specific reasons for granting variances. For those that do, economic hardship or conflicts with a compelling public need are the most common reasons. Some ordinances, such as Montgomery Township's, allow such a hardship variance only where the granting of the variance will not increase flood heights or the cost to the public. Montgomery also prohibits variances in designated floodways. Clinton Township's proposed stream corridor ordinance lists standards to determine when an economic hardship exists, such as when there is no alternative beyond acquiring additional land, uniqueness to the affected property, and that the problem is not due to the applicant or previous owners. Sometimes, it may be necessary to list uses for which no variance will be granted, such as for a landfill. Even when a variance is granted, the applicant is typically required to restore the remaining portions of the disturbed area with native vegetation. Enforcement is a subject very rarely addressed by stream corridor ordinances. A landowner or developer cannot clearly determine the risks associated with a project when there are no clearly defined penalties. There may be no legal remedy for non-neighboring landowners. Any penalty or sanction should be readily discernible in order to be enforced against the violator. A good example of an enforcement section is found in the South Brunswick draft that provides for a $1,000 fine and/or 30 days imprisonment for every violation of the ordinance. Furthermore, each day the violation persists may be treated as a separate violation. Monitoring of stream corridors buffers should be done on an annual basis in order to ensure their effectiveness. During a site visit a "code enforcement officer" should refer to a checklist stating the permitted uses of the said property under the ordinance. If it appears to the municipality that a violation of the Ordinance has occurred, the "code enforcement officer" shall initiate enforcement proceedings by sending an enforcement notice. By means of the enforcement notice, the "code enforcement officer" may order discontinuance of illegal use of land or structures; removal of illegal structures or additions, alterations, or structural changes thereto; or discontinuance of any illegal work being done. (The municipal secretary, chief of police, members of the municipal police dept. and any other persons designated by the municipality would also be authorized to enforce the ordinance). The enforcement notice shall, at minimum, state the following: The name of the owner of record and any other persons against whom the municipality intends to take action. The location of the property in violation. The specific violation, with a description of the requirements, which have not been met. The date on which the steps for compliance must be commenced and the date on which the steps must be completed. That the recipient of the notice has the right to appeal to the municipality. That failure to comply with the notice within the time specified, unless extended by appeal, constitutes a violation with the possibility of sanctions. Causes of Action Whenever a violation of the ordinance occurs, or is alleged to have occurred, any person may file a written complaint with the municipality. The "plaintiff" (enforcement officer, an owner, or tenant) must show substantial affect by the alleged violation and may institute appropriate action to correct the violation. Notice of an action authorized in the above subsection shall be served upon the municipality at least 30 days prior to the time the action is begun. Enforcement Remedies Any person, partnership, or corporation who has received a notice of violation from the municipality may either correct the violation within the allotted time period, or if believed to be wrongfully served, promptly file an appeal with the municipality. Any person, partnership, or corporation who or which has violated or permitted the violation of the provisions of the ordinance shall, upon being found liable therefore in a civil enforcement proceeding commended by the municipality pay a judgment plus all court costs including reasonable attorney fees incurred by the township as a result thereof. Each day that a violation continues shall constitute a separate violation. All judgments, costs, and reasonable attorney fees collected for the violation of the ordinance shall be paid to the municipality. In addition to the above remedies, the municipality may take other appropriate legal action, which may include equitable and injunctive relief, to enforce the provisions of the ordinance. 1 A conservation easement is an agreement that protects land while leaving it in private ownership. 2 David J. Welsch, Riparian Forest Buffers at 2 (1991).