AGENDA #1

 

MEMORANDUM

 

TO:                  Mayor and Town Council

 

FROM:            W. Calvin Horton, Town Manager

 

SUBJECT:       Public Hearing: Text Amendments to Stream Definitions and Field Verification Criteria in the Chapel Hill Land Use Management Ordinance

 

DATE:             October 20, 2003

 

 

This Public Hearing provides an opportunity for the Council to receive citizens’ comments on proposed amendments to stream definitions and field verification criteria currently found in the Chapel Hill Land Use Management Ordinance.  The proposed revisions are consistent with recommendations from the Technical Advisory Committee appointed by the Council to study these issues.

 

BACKGROUND AND DISCUSSION

 

The Chapel Hill Land Use Management Ordinance (the Ordinance) became effective on January 27, 2003, and includes broad and significant changes in regulatory requirements for development and redevelopment within the Town’s planning jurisdiction.  To implement the new regulations, Town staff developed specific procedures for receiving, reviewing, and processing development applications.  A significant area of change in the new regulations involves the Resource Conservation District and associated definitions and verification criteria to be used when classifying streams as perennial, intermittent, or ephemeral.

 

Town Engineering Department staff developed work sheets and guidelines for making stream determinations based on the new regulations.  Approximately thirty stream determinations have been completed by Town staff using the definitions and verification criteria currently in the Land Use Management Ordinance.  In making those determinations, we encountered difficulties in reasonably and consistently classifying some stream segments and in identifying the beginning and ending points of segments with different classifications.  Based on that experience, we suggested that some revisions in the Ordinance language were necessary.

 

On April 14, 2003, the Council adopted a separate resolution authorizing the Town Manager to establish a Technical Advisory Committee (the Committee) to review the current stream definitions and field verification criteria in the Ordinance and to provide recommended revisions for the Council’s consideration.

 

On June 23, 2003, the Committee presented to the Council its report entitled “Recommendations for Revisions in Stream Definitions and Field Verification Methods”.  Attachment #1 is a copy of the Committee’s report that includes general policy recommendations and recommendations for revisions in the stream definitions and verification criteria currently included in the Ordinance.  The Council received the report and directed the Manager to continue working with the Committee to develop and propose for the Council’s consideration specific Ordinance language revisions regarding stream definitions and verification criteria.  

 

On August 12, 2003, the Committee prepared a supplemental report that provided more detailed information concerning recommended revisions in the Land Use Management Ordinance language.  Attachment #2 is a copy of the Committee’s supplemental report.

 

On September 2, 2003, the Town Planning Board reviewed the Committee’s recommendations and Attachment #3 is a summary of the Planning Board’s action.

 

We offer the following Town comments on the Technical Advisory Committee recommendations:

 

Committee Recommendation #1:  Revise Definitions in the Land Use Management Ordinance

 

Staff Comment: Town staff worked closely with the Committee to identify applicable revisions in the definitions, and we concur with the Committee’s recommendations.  The attached ordinance includes proposed amendments reflecting recommended revisions to the current definitions. (See Ordinance Appendix A.   Definitions)

 

Committee Recommendation #2:  Clarify References to Maps in the Ordinance

 

Staff Comment: We concur with the clarification language recommended by the Committee.  The attached ordinance amendment includes proposed Ordinance amendments reflecting the clarification language.  (See Article 3.6.3 (a) Definition and Rules of Interpretation)

 

Committee Recommendation #3:  Adopt the State’s Intermittent Stream Classification Method

 

Staff Comment: We agree.  The proposed ordinance amendment includes by reference the State’s Stream Classification Form and Internal Guidance Manual.  (See Attachment #4)

 

Committee Recommendation #4:  Adopt the State’s Perennial Stream Classification Method

 

Staff Comment: We agree.  The proposed ordinance amendment includes by reference the State’s Stream Classification Form and Internal Guidance Manual.  (See Attachment #4)

 

Committee Recommendation #5:  Include Policies in the Ordinance for Streams that do not Precisely Meet Minimum Criteria

 

Staff Comment: Attachment #5 is a technical document entitled “Field Procedures for Classification of Streams”, prepared by the Town of Chapel Hill Engineering Department.  This document includes means and methods for classifying streams and stream segments that do not precisely meet adopted definitions and/or verification criteria.  The proposed ordinance amendment includes by reference this technical document. (See Article 3.6.3 (a) Definition and Rules of Interpretation)

 

 

Committee Recommendation #6:  Include Policies in the Ordinance for Streams that have been Degraded

 

Staff Comment: Attachment #5 is a technical document entitled “Field Procedures for Classification of Streams”, prepared by the Town of Chapel Hill Engineering Department.  This document includes means and methods for classifying streams and stream segments that do not precisely meet adopted definitions and/or verification criteria.  The proposed ordinance amendment includes by reference this technical document. (See Article 3.6.3 (a) Definition and Rules of Interpretation)

 

 

Committee Recommendation #7:  Refer to (but do not include) Detailed Procedures and Technical Documents in the Ordinance

Staff Comment: We agree. The proposed ordinance amendment includes by reference detailed procedures and technical documents as noted in the staff comments under #3, #4, #5, and #6 above. (See Article 3.6.3 (a) Definition and Rules of Interpretation)

 

Committee Recommendation #8:  Implement an Appeals Procedure Using a Panel of Professionals

 

Staff Comment: We do not agree with the Committee’s recommendation that a permanent Surface Water Determination Appeals Board of experienced professionals be appointed to hear appeals regarding stream determinations performed by Town staff.  State statutes establish a model for governance and administration of local regulations in North Carolina, relying on the Town Manager to administer regulations and a Council-appointed Board of Adjustment to hear appeals.  We believe that the Town’s existing appeals process via the Board of Adjustment is reasonable and appropriate.  We do not believe that there is a basis in North Carolina law for a decision of the Manager to be overturned by a panel of experts.

 

However, we expect to involve experienced and knowledgeable professionals in an advisory manner when circumstances warrant.  Specifically, when classification opinions are contested and, in the opinion of the Manager, it would be beneficial to have an informal independent review, the Manager would appoint a review panel of one or more experts and review their advisory opinion before making a final administrative decision.    

 

Committee Recommendation #9:  Implement a Policy that Identifies the minimum Length of Time that a Stream Determination Remains Valid

 

Staff Comment: We agree with the Committee’s recommendation that a stream determination remain valid for five years unless changes in the watershed result in significant alteration of the characteristics of the stream such that a new determination is warranted.  The attached resolution would establish a five year validity period for all stream determinations before a redetermination request would be considered, unless the stream characteristics are significantly altered as a result of changes in the watershed to the extent that a redetermination in less than five years is warranted.

 

 

 

 

Committee Recommendation #10:  Implement a Policy for Re-evaluation of Stream Determinations made Prior to 1/27/03

 

Staff Comment: We agree with the Committee’s recommendation that stream determinations made prior to adoption of the Ordinance on January 27, 2003, remain valid for a period of five years.  The attached resolution would establish a five year validity period for all stream determinations before a redetermination request would be considered, unless the stream characteristics are significantly altered as a result of changes in the watershed to the extent that a redetermination in less than five years is warranted.  We note that current Ordinance language states that the location of the Resource Conservation District boundary will not be modified to comply with the new Ordinance regulations on single-family and two-family lots existing on January 27, 2003.

 

CONCLUSION

 

Following tonight’s Public Hearing, we will consider Council and citizen comments and questions in preparing our recommendations for amending the Town’s Land Use Management Ordinance with regard to stream definitions and verification criteria.  We expect to present our recommendations for the Council’s consideration at its November 10, 2003 regular business meeting.

 

RECOMMENDATIONS

 

Planning Board Recommendation:  The Planning Board discussed the proposed Ordinance text amendment on September 2, 2003, and voted 8-1 to recommend approval.  Please see attachment #3, Summary of Planning Board Action.

 

Manager’s Preliminary Recommendation:  That the Town Council enact the attached Ordinance that would revise stream definitions and field verification criteria in the Chapel Hill Land Use Management Ordinance; and that the Council adopt the attached Resolution regarding validity periods for stream determinations performed by Town staff within the Town’s Planning Jurisdiction.

 

ATTACHMENTS

 

1.                  Technical Advisory Committee Report and Recommendations dated June 23, 2003 (p. 11).

2.                  Supplement to the Technical Advisory Committee Report and Recommendations dated August 12, 2003 (p. 29).

3.                  Summary of Planning Board Action on September 2, 2003 (p. 35).

4.                  State Stream Classification Form and Internal Guidance Manual (p. 36).

5.                  Technical Document entitled “Field Procedures for Classification of Streams” (p. 44).

 

 

 

 

 

 

 

 

 

 

AN ORDINANCE AMENDING THE CHAPEL HILL LAND USE MANAGEMENT ORDINANCE REGARDING STREAM DEFINITIONS AND VERIFICATION CRITERIA

 

WHEREAS, the Council of the Town of Chapel Hill has been concerned about the Land Use Management Ordinance Resource Conservation District stream definitions and field verification criteria; and

 

WHEREAS the Town Council finds that revision of the stream definitions and field verification criteria is desirable and that the amendments achieve the purposes of the Comprehensive Plan; 

 

NOW, THEREFORE, BE IT ORDAINED by the Council of the Town of Chapel Hill as follows:

 

Section 1:  Appendix A, Definitions, of the Land Use Management Ordinance is hereby revised to add and/or modify the following definitions as shown:

 

 

The top elevation of a stream’s current active channel.

 

The defined course (e.g. bed, ditch, or depression) where a natural or man-made stream of water is transmitted. A natural or artificial watercourse with a definite bed and banks that conducts continuously or periodically flowing water. A natural water-carrying trough cut vertically into low areas of the land surface by erosive action of concentrated flowing water or a ditch or canal excavated for the flow of water.

 

The document entitled “Town of Chapel Hill Design Manual” and dated September 1997 (or latest version), which document is hereby incorporated by this reference.

 

A man-made channel other than a modified natural stream constructed for drainage purposes that is typically dug through inter-stream divide areas.  A ditch or canal may have flows that are perennial, intermittent, or ephemeral and may exhibit hydrological and biological characteristics similar to perennial streams.

 

A stream that flows only during wet periods of the year and flows in a continuous, natural channel or depression (including natural springs).  The flow may be heavily supplemented by stormwater runoff.  Intermittent streams include those that are shown on the Town’s Geographic Information System (GIS) coverage, the USGS 7.5 Minute Quadrangle, or the USDA Orange County Soil Survey (subject to field verification), and/or those shown as a dashed blue line on USGS maps, in addition to streams confirmed to be intermittent by field verification by the Town Manager.  A well-defined channel that contains water for only part of the year, typically during winter and spring when the aquatic bed is below the water table.  The flow may be heavily supplemented by stormwater runoff.  An intermittent stream often lacks the biological and hydrological characteristics commonly associated with the continuous conveyance of water. 

 

An intermittent stream shall be confirmed by the Town Manager by at least two (2) of the following:

 

(a)        The presence of water during periods of wet weather or more than forty-eight (48) hours after a storm event of at least 0.5" rainfall.

 

(b)               The presence of geomorphological features that are characteristic of a fluvial system, such as:

 

(1)               Riffle/pool sequences

(2)               Areas of alluvial deposition (i.e. point bars)

(3)               Sinuosity

(4)               Fluvially weathered bed materials (i.e. cobbles, gravels, boulders)

 

(c)                The presence of a channel or depression (including natural springs) created by topographic features that is hydrologically connected to surface waters through surface flow or a pipe.

 

(d)               The presence of amphibian larvae or benthic macro-invertebrates.

 

 

The volume of water carried by a steam in times other than droughts or above average rainfall.

 

The 30-year average rainfall, updated each decade to the most recent 30-year period by the National Climatic Data Center.

 

 

A natural or man-made basin that stores surface water permanently at depths sufficient to preclude growth of rooted plants, including lakes, ponds, and similar water features.  For the purposes of this Section, the surface waters must be part of a natural drainageway with a continuous discharge during a year of normal rainfall.  Perennial surface waters include those that are shown on the Town’s Geographic Information System (GIS) coverage (subject to field verification) in addition to others that are confirmed as such by field verification by the Town Manager or the North Carolina Division of Water Quality.

 

A stream that flows throughout the majority of the year and flows in a well-defined channel.  Perennial streams include those that are shown on the Town’s Geographic Information System (GIS) coverage, the USGS 7.5 Minute Quadrangle, or the USDA Orange County Soil Survey (subject to field verification) in addition to streams confirmed to be perennial by field verification by the Engineering Department.  A well-defined channel that contains water year round during a year of normal rainfall with the aquatic bed located below the water table for most of the year.  Groundwater is the primary source of water for a perennial stream, but it also carries stormwater runoff.  A perennial stream exhibits the typical biological, hydrological, and physical characteristics commonly associated with the continuous conveyance of water.

 

A perennial stream shall be confirmed by the Engineering Department by at least two (2) of the following:

 

(a)                The presence of continuously flowing water during a year of normal rainfall.

 

(b)               The presence of geomorphological features that are characteristic of a fluvial system, such as:

 

(1)               Riffle/pool sequences

(2)               Areas of alluvial deposition (i.e. point bars)

(3)               Sinuosity

(4)               Fluvially weathered bed materials (i.e. cobbles, gravels, boulders)

 

(c)                The presence of obligate and facultative wetland vegetation, as identified by U.S. Fish and Wildlife Service species lists, along the stream channel and banks.

 

(d)        The presence of fish, amphibian larvae, or benthic macro-invertebrates.

 

A natural or man-made basin that stores surface water permanently at depths sufficient to preclude growth of rooted plants, including lakes, ponds, and similar water features.  For the purposes of this Section, the surface waters must be part of a natural drainageway (i.e., connected by surface flow to a stream).  Perennial Water Bodies shall be those delineated on the Town's Aerial Topographic Maps, subject to field verification. A natural or man-made basin that stores surface water permanently at depths sufficient to preclude growth of rooted plants, including lakes, ponds, and similar water features.  For the purposes of this Section, the surface waters must be part of a natural drainageway (i.e. connected to a stream by a channel with intermittent or perennial flow).  Perennial water bodies shall be those delineated on the Town’s Aerial Topographic Maps, subject to field verification.

 

A natural or vegetated area adjacent to streams and perennial water bodies through which stormwater flows in a diffuse manner, so that runoff does not become channelized and which provides for the infiltration of runoff and filtering of pollutants.  The riparian buffer is measured landward (horizontal distance) from the stream bank on both sides of the stream or from the normal pool elevation of a perennial water body.  The riparian buffer shall also “wrap around” the upstream end of the stream origin.

 

A body of concentrated flowing water in a natural low area or natural channel on the land surface.

 

The point(s) where the wetted perimeter of a stream’s cross section has the highest elevation (as referenced to mean sea level) during normal stream flow.The point on a stream’s cross-section defined by the bankfull elevation.

 

A natural or vegetated area adjacent to watercourses through which stormwater runoff flows in a diffuse manner, so that runoff does not become channelized and that provides for the infiltration of runoff and filtering of pollutants.  The stream buffers required by this Section are delineated in Table 3.6.3-2.

 

A natural water-carrying trough cut vertically into low areas of the land surface by erosive action of concentrated flowing water; or a ditch or canal excavated for the flow of water.

 

Any Perennial Stream, Intermittent Stream, or Perennial Surface Water as defined herein. Any intermittent or perennial stream or modified stream or any perennial water body as defined herein.

 

Any area of a perennial stream or regulatory flood plain which is inundated during the base flood discharge.  A permanent or intermittent stream or other body of water, either natural or man-made, which gathers or carries surface water. Any natural or man-made conveyance of concentrated surface flow including:  (1) any area of a perennial stream or regulatory flood plain which is inundated during the base flood discharge, (2) any intermittent or perennial stream, (3) any ephemeral stream or ditch that frequently transports stormflow, or (4) any perennial water body. “

 

A natural or vegetated area through which stormwater runoff flows in a diffuse manner so that the runoff does not become channelized and which provides for infiltration of the runoff and filtering of pollutants.  The buffer is measured landward from the normal pool elevation of impounded structures and from the bank of each side of streams or rivers.

 

Section 2.  Section 3.6.3 (a) of the Land Use Management Ordinance is hereby revised to read:

 

“(a)      Definitions and Rules of Interpretation

 

In the interpretation and application of this Article, all provisions shall be: (a) considered as minimum requirements, (b) strictly construed in favor of the public interest and community benefit, and (c) deemed neither to limit nor repeal any other powers provided by Town ordinance or State statute.  The following terms and phrases, among others, shall have specific meanings for purposes of this Section, and are defined in Appendix A:

 

Ditch or Canal

Ephemeral Stream

Intermittent Stream

Land Disturbance

Modified Natural Stream

Obligate and Facultative Wetland Vegetation

Perennial Stream

Perennial Water Body

Riparian Buffer

Stream

Stream Bank

Stream Channel

Stream Corridor

 

Streams subject to the provisions of this Article and Article 3.6.4 include those shown on the Town’s Geographic Information System (GIS) coverage, the most recent version of the US Geological Survey 1:24,000 scale (7.5 minute) topographic map, or the soils map in the US Department of Agriculture Orange County Soil Survey and shall be subject to field verification by the Town of Chapel Hill Engineering Department. The most current versions of the following documents shall be used to classify streams within the Planning Jurisdiction of the Town of Chapel Hill: (1) North Carolina Division of Water Quality “Stream Classification Form and Internal Guidance Manual” and (2) Town of Chapel Hill “Field Procedures for Classification of Streams”.

 

Section 3. This ordinance shall become effective November 11, 2003.

 

This the _______ of________, 2003.

 

 

 

A resolution REGARDING THE VALIDITY PERIOD FOR STREAM DETERMINATIONS PERFORMED BY tOWN STAFF WITHIN THE TOWN’S PLANNING JURISDICTION

Whereas, the Council desires to adopt revised stream definitions and verification criteria in the Chapel Hill Land Use Management Ordinance and related policy recommendations of the Technical Advisory Committee; and

WHEREAS, the Council desires to adopt the State of North Carolina Department of Environment and Natural Resources, Division of Water Quality “Stream Classification Form and Internal Guidance Manual” and the Town of Chapel Hill “Field Procedures for Classification of Streams” for use in determining the classification of streams and stream segments within the Town Planning Jurisdiction; and

WHEREAS, the Council desires to adopt the policy that stream determinations remain valid for a minimum period of five years, unless changes in the watershed result in significant alteration of the characteristics of the stream such that a new determination is warranted;

Now, therefore, be it resolved by the Council of the Town of Chapel Hill that the Council herewith establishes a five year validity period for all stream determinations performed by Town staff within the Town’s Planning Jurisdiction before a redetermination request would be considered, unless the stream characteristics are significantly altered as a result of changes in the watershed to the extent that a redetermination in less than five years is warranted.

This the ________ of_________, 2003.