5C - Discussion and feedback on objectives and preliminary approaches to revising the Wetlands Protection Ordinance (Chapter 9-3, B.R.C.)CITY OF BOULDER
PLANNING BOARD AGENDA ITEM
MEETING DATE: April 17, 2008
AGENDA TITLE: Discussion and feedback on objectives and preliminary approaches to
revising the Wetlands Protection Ordinancc (Chapter 9-3, B.R.C.)
REQiJESTING DEPARTMENT:
Ruth McHeyser, Acting Planning Director
Susan Richstone, Acting Long Range Division Manager
Bev Johnson, Environmental Plamier
EXECUTIVE SUMMARY:
The purpose of this itcm is to get feedback from Plamiing Board on the objectives and
preliminary approaches to revising the Wetlands Protection Ordinance (Chapter 9-3, B.R.C.)
prior to a City Council Study Session on April 29, 2008. Planning Board's input on this item
will be presented to City Council at the April 29 study session.
The purpose of the study session with City Council on April 29, 2008 will be to introduce
council to the purpose and importance of protecting floodplaivs and wetlands; provide council
with background ou the Wetlands Protection Ordinance; a~~d to get feedback on prelilninary
approaches to revisii~g the ordinance.
A draft of the materials for the April 29 Ciry Council Study Session is attached to this memo for
Planning Board review. Planning Board will be provided with the final study session packet
when it is issued to the City Council. A bnef discussion with City Couocil ou Flood Emergency
Preparedness is also scheduled for tl~e April 29 study session. The materials for that discussion
are included in the attached docuinent for your information.
Planning Board providcd preliminary dircction to staff on revising the Wetlands Protection
Ordinance at its meeting on May 24, 2007. At that meetiug, the board also recoinmended that a
set of new wetland maps be taken forward for adoption. On August 16, 2007, Planning Board
made the formal recom~nendatio~~ that City Council adopt the proposed updated wetland maps.
In response to concems about applying the regulation to new properties before revisions were
made to the ordiuance, the board recoinmended that there be a transition period between
application of the old and new maps until the ordinance is revised. During the Yransilion period,
the less restrictive wetland ai~d buffer delineation of the old and the new maps would apply to
ptivate property until the wetlands ordinance is revised.
AGENllA ITEM # SC Paee ]
City Council adopted the updated wetland and buffer area regulatory maps on October 2, 2007
with the transition period as recommended by Plam~ing Board and directed staff to begin a
process to revise the Wetlands Protection Ordinance.
Staff began the revision project in November 2007 by meeting with staff from other departments
and public stakeholders to further identify issues with the current ordinance. Additional issues
that were identified include; (1) conflicts with the city's wetland mitigation requirements, (2)
inefficiencies in the permit review process, (3) lack of clarity with the definition of a wetland,
and (4) a lack of clarity about permitted and exempted uses relative to public projects.
Staff is proposing a revised set of objectives and process for the revision project in response to
the additional issues that were heard over the past few months. A discussion of the major issues,
a revised list of objectives and a revised process and timeline are outlined in Section 2 of the
attached packet. Staff would like the board's input on these items as well as on a set of
preliminary conceptual approaches to restructuring the ordinance. At this time, staff is asking
the board and council if these are the right approaches to further evaluate and if there are
additional approaches that should be considered.
Staff is also proposing a revised process for developing revisions which will involve three
phases. The discussion with Planning Board on April 17 and the study session with City Council
on April 29 will complete Phase I of the project. After receiving formal direction from council at
a public hearing on June 3, 2008 (tentative), staff will begin Phase II of the revision project by
refining and comparing the approaches to restructuring the ordinance, and developing options for
defining streams and determining buffer widths. During Phase III, administrative issues will be
addressed in a draft ordinance and a proposed approach to an education and incentives program.
Staff is expecting to complete the revision process in the first quarter of 2009.
During each phase of the project, staff will work directly with the public to ensure that
landowner and community issues and concerns are clearly understood and communicated to
Planning Board and City Council. Through various forms of public process, staff will work with
stakeholders to solicit input and reflect alternative viewpoints in the options that are presented
throughout the decision-making process.
The background on this project as well as public feedback on this item can be found in the
attachment materials.
The public can follow the Wetlands Protection Ordinance Revision Project by referring
periodically to the following website:
www.boulderplandevelop.net >Wetlands Protection Program
All landowners with properties affected by the current wetlands ordinance were sent notice of
this meeting and of the council study session on April 29, 2008.
AGENDA ITEM # SC Page 2
QUESTIONS:
The following is a list of suggested questions Co guide Planning Board's discussion of this item:
1) Does the board have any comments on the objectives for revising the ordinance?
2) Does the board have any feedback on the preliminary approaches for changing the
wetlands ordinance? Are these the right approaches to further develop and analyze?
3) What feedback does the board have regarding potential next steps and further analysis?
Approved By:
n
Ruth McHeyser, Acti~1~
rem
Planning & Development Services
ATTACHMENTS:
A Dratt Materials for the April 29, 2008 City Council Study Session on the
Wetlands Protection Ordinance and Food Emergency Preparedness
S:\PLAN\PB-ITEMSIMEMOS\bjwetlands 4.17.08.doc
AGENDA ITEM # SC Page 3
ATTACHMENT A
City of Boulder
April 29, 2008 -City Council Study Session
on Wetlands Protection and Flood Emergency
Preparedness
April 8, 2008
Draft Study Session Materials
Table of Contents
INTRODUCTION 5
QUESTIONS FOR CITY COUNCIL $
SECTION 1 OVERVIEW OF WETLAND AND FLOODPLAIN MANAGEMENT :............................7
WETLANDS AND FLOODPLARV PROTECTION IN BOULDER .....................................................................................9
Wetlands Protection 9
Floodplaln Protection .......................................................................................................................................l0
What is the d~erence between wetlands and floodplains? !0
Why does Boulder have local wetland andJlaod regularions? l l
SECTION 2 THE WETLANDS PROTECTION ORDINANCE :..............................................................13
BACKGROUND l5
History of the Ordinance ! 5
The Structure of the Wetlands Protection Ordinance ......................................................................................16
Comprehensive Wetlands Remapping Project ! 6
Buffer Area Study l 7
REVISIONS TO THE WETLANDS PROTECTION ORDINANCE ..................................................................................20
Project Overview ...............................................................................................................................................20
Process 20
/sues and Objectives ........................................................................................................................................20
Preliminary Approaches 26
Next Steps 29
SECTION 3: FLOODPLAIN MANAGEMENT AND EMERGENCY PREPAREDNESS ................31
BACKGROUND ........................................................................................................................................................33
Boulder's F/oodplains .......................................................................................................................................33
Boulder's Flood History ...................................................................................................................................34
Flaodplain Regulations 35
EMERGENCY PREPAREDNESS -PLANNING AND RESPONSE .................................................................................38
The National Flood Insurance Program 38
Comprehensive Flood and Stormwater Master Plan 40
Flood Preparedness 41
Flood Education 44
Next Steps 45
ATTACHMENTS 49
ATTACHMENT A: BACKGROUND INFORMATION ON THE WETLANDS PROTECTION PROGRAM ...................51
ATTACHMENT B: BACKGROUND ON THE COMPREHENSIVE WETLANDS REMAPPING PROJECT .................55
ATTACHMENT C: PUBLIC FEEDBACK ON THE WETLANDS PROTECTION ORDINANCE .................................63
ATTACHMENT D: WETLANDS AND STREAM BUFFERS: A REVIEW OF THE SCIENCE AND REGULATORY
APPROACHES TO PROTECTION ..............................................................................................................................69
3
Introduction
This document provides City Council with background materials for the Apri129, 2008 study
session on (1) Wetlands Protection and (2) Flood Emergency Prepazedness.
The purpose of the first part of the study session will be to provide City Council with
information on the Wetlands Protection Overlay District in the land use code (Section 9-3-9,
Boulder Revised Code) and to get feedback from council members on the objectives and
approaches to revising the ordinance. Staff will present an overview of the ordinance, issues that
have been raised concerning the city's current regulation, proposed objectives for the project and
preliminary approaches for restructuring the ordinance. A regular agenda item is tentatively
scheduled for the June 3, 2008 City Council meeting to get direction on the objectives and
approaches as well as approval of the study session summary.
The second part of the study session will provide City Council with information on the city's
flood emergency preparedness program. Utilities staff, along with staff from the Office of
Emergency Management, will present an overview of the city's emergency plans for flood
hazazds.
This study session memorandum is organized into three overall sections:
Section 1: Overview and comparison of wetland and floodplain regulation in
Boulder.
Section 2: Information and a discussion about the city's Wetlands Protection
Ordinance.
Section 3: Background on flood management in the city and the city's flood
emergency response plan.
Questions for City Council
Staff is suggesting the following questions to guide City Council's discussion at the study
session:
Wetlands Protection
1) Does council have questions about the current Wetlands Protection Ordinance?
2) Does council have questions regazding the key issues identified to date with the
ordinance?
3) Does council have any comments on the purpose and objectives for revising the
ordinance?
4) Does council have any feedback on the preliminayy approaches for changing the wetlands
ordinance? Are these the right approaches to further develop and analyze?
5) What feedback does council have regazding potential next steps and further analysis?
Emergency Preparedness -Flood Hazards
1) Does council have questions about the current floodplain regulations?
2) Does council have questions about the city's emergency planning and response related to
flood hazards?
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Section is
Overview of Wetland and Floodplain Management
Wetlands and Floodplain Protection in Boulder
Wetlands Protection
What is a Wetland?
Boulder's Wetlands Protection Ordinance defines a wetland as any one of the following types of
land azeas:
• an area that is inundated or saturated by surface or ground water at a frequency
and duration sufficient to support a prevalence of vegetation typically adapted for
life in saturated soil conditions;
• an open body of water such as a lake, pond, or reservoir; or
• a perennial or ephemeral stream.
Why are wetlands important to protect?
Wetlands and their buffer areas are valuable for the numerous enviromnental, aesthetic, and
recreational functions they provide in both urban and non-urban areas. One of the primary
functions that wetlands and streams provide in the city of Boulder is their ability to enhance air
and water quality. Streams and their upland riparian areas also help to moderate the effects of the
urban heat island and broader climate change impacts.
Wetlands aze also important for sustaining biological diversity and viable habitats for native
terrestrial and aquatic species and for minimizing impacts to our water system from developed
lands. Wetlands are particulazly valuable in semi-azid regions such as Colorado where
approximately 80% of native wildlife species depend upon wetlands and adjacent riparian azeas
during some portion of their life cycle.
Other critical functions of wetlands include: (1) replenishing our ground water supply; (2)
helping to detain and hold flood waters; (3) stabilizing stream slopes and preventing erosion;(4)
trapping sediments and pollutants from adjacent land uses; and (5) human recreation. (See
Attachment A for more information about wetlands.)
Boulder's Wetlands Ordinance
Boulder's Wetlands Protection Ordinance (Chapter 9-3, B.R.C.) was adopted in December 1992.
The ordinance is one tool established by the city to implement the Boulder Valley
Comprehensive Plan goal of protecting, restoring, and enhancing wetlands in the Boulder Valley.
The intent of the Wetlands Protection Program is to ensure "no net loss" of wetland acreage or
function in the city, on city-owned land, or as a result of city organization activities; and to
discourage development in and adjacent to wetlands or to replace impacted wetlands through
mitigation.
The wetlands ordinance is an overlay district in the city's land use code and requires a land
owner to obtain a permit for certain activities within a wetland and/or its "buffer azea." The
ordinance regulates activities in a mapped wetland or stream and within a buffer azea of either 50
or 25 feet outside of the wetland or stream chazmel depending on the wetland's significance (see
Attachment A). The ordinance does not require an easement or dedication of land to the city; it is
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simply a law which restricts certain activities within the regulated area unless a permit is
obtained.
Floodplain Protection
What are floodplains?
Floodplains aze land areas that are subject to recurring flooding or inundated with water when a
stream or river overtops its banks.
Why are floodplains important?
Boulder is located at the base of the foothills of the Rocky Mountains where there is the potential
for flash flooding with little time for wazning and preparation. The threat of loss of life and
property damage due to a catastrophic flood is significant and the need to monitor and regulate
the floodplains is critical.
Boulder's Floodplain Ordinance
Floodplains are also regulated as an overlay district in the land use code (chapters 9-3-2 through
9-3-7, B.R.C.). Regulated flood azeas are the:
1) 100-year floodplain or all the land areas subject to flooding in a storm event that has a
one percent chance of being equaled or exceeded in any given year.
2) Conveyance zone or the area of the floodplain where development is likely to impact the
depth of flood waters and where special analysis and mitigation are generally required;
and
3) Hiah hazard zone or those areas in the 100-year floodplain where flood waters aze most
likely to dislodge people from their feet and wash them away in flood waters.
What is the difference between wetlands and floodplains?
The intent behind the wetlands and floodplain protection ordinances is very different even
though wetlands and floodplains are sometimes located together on the ground. The intent
behind the Wetlands Protection Ordinance is to protect our wetland and stream resources and the
numerous benefits they provide to the community such as replenishment of groundwater
supplies, air and water quality protection, wildlife habitat, flood water retention, and recreation.
Our floodplain regulations are intended to protect the public health, safety and welfare by
protecting and preserving the water-carrying chazacteristics and capacities of watercourses used
for conveying and retaining floodwaters. While both overlay districts regulate the placement of
structures in and near creeks, the wetlands ordinance has a broader regulatory scope over
activities (vegetation removal, hydrologic changes) that would impact water quality, water
supply and wildlife habitat than the floodplain regulations.
Wetlands occur both in and outside of floodplains. Floodplains are determined by looking at the
probability of a lazge flood event inundating an azea with water; while, wetlands are determined
by looking at existing conditions in the area like water availability, soil saturation and species of
animals and plants. A floodplain may be completely dry neazly all of the time, but a wetland
t0
must have some water at or near the surface during a certain period of the growing season most
years.
Similar to a floodplain, a wetland buffer area can also be completely dry nearly all of the time.
The buffer area is defined in the Wetlands Protection Ordinance as the area adjacent to a wetland
or stream where human land use activities will most likely have an adverse impact upon the
wetland functions. Buffer areas often incorporate areas around a creek such as the upland
riparian vegetation that is not considered a wetland. The following illustration shows the basic
structure of a stream and its adjacent lands under typical conditions. The text boxes below the
illustration identify the regulatory zone of each part of the stream under Boulder's ordinance.
I
i
i
deciduous grtuses
shrubs & coni~erotu
~ trees
sedges
and ;
.rater
rushes
Aquatic Riparian ~ Upland
?one Zone Zone
L_..
Wetland Buffer Area
Why does Boulder have local wetland and flood regulations?
Questions often arise about why the city regulates wetlands at a local level when they are
regulated at the federal level. The simple answer is that past city councils determined that the
federal laws do not provide enough protection over our local wetland resources. Our local
ordinance is intended to fill in the gaps in the federal law.
The city's Wetlands Protection Ordinance was originally modeled on the federal wetlands
protection law (Section 404 of the Clean Water Act) in terms of the approach to how activities in
wetlands are regulated. Boulder's ordinance is similar to the federal law in that a landowner
applying for a wetlands permit must first show that impacts to a wetland have been avoided or
minimized. If avoidance or minimization is not feasible, the landowner must mitigate impacts
through creation of a new wetland to compensate for the loss of the old wetland. Our local
ordinance, however, is broader in scope and more restrictive than the federal law in that it
regulates:
• ephemeral streams or streams that may not have a surface water connection to a
navigable creek throughout most of the year;
• smaller scale activities in wetlands;
• a broader scope of activities (beyond dredge and till); and
• activities in a buffer area outside the wetland boundary.
11
For the most part, the city's wetlands ordinance regulates general development activities such as
the placement of fill, structures or impervious surfaces; major regrading; or the removal of a
significant amount of vegetation. The ordinance does not prohibit existing uses in the wetland or
buffer area, but requires a landowner to obtain a permit for new uses that are proposed.
In terms of federal involvement in floodplain protection, the federal government created the
National Flood Insurance Program (NFIP) to enable property owners in participating
communities to purchase flood insurance as protection against flood losses in exchange for
community floodplain management regulations that reduce future flood damages. Unlike
wetland regulations administered by the federal government, participation in the NFIP program
is voluntary. There is no federal law that requires a community to join. However, as discussed
later, nonparticipating communities face many disadvantages, such as loss of federal aid for
buildings in the floodplain, making participation a very important decision for communities.
The NFIP established minimum standards that must be implemented to participate in the
program and encourages and supports more restrictive standards where human safety requires
additional measures. Boulder has implemented higher standards for flood protection since it's
inception into the NFIP program in 1978. Some of the notable floodplain regulations that exceed
the NFIP requirements include the city's conveyance zone, high hazard zone and flood
protection elevation standards, which are all explained in more detail later in this report.
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Section 2:
The Wetlands Protection Ordinance
13
Background
Guiding Question far City Council:
1) Does council have questions about the current Wetlands Protection Ordinance?
History of the Ordinance
The city's Wetlands Protection Ordinance was adopted by the Boulder City Council in December
1992 after approximately four years of data collection, policy analysis and public process. The
ordinance establishes local regulatory control over a variety of activities which could have an
adverse effect upon the extent or function of wetlands in the city limits, on city-owned lands, and
through city-funded projects. The ordinance was a response to local concern over the loss of
wetlands occurring in the Boulder Valley.
City Council initiated development of a local ordinance by adopting the following policy in the
Boulder Valley Comprehensive Plan:
4.09 Wetland Protection.
Natural and human-made wetlands are valuable for their ecological and, where
appropriate, recreational functions, including their ability to enhance water and air
quality. Wetlands also function as important wildlife habitat, especially for rare,
threatened, and endangered plants and wildlife. The city and county will continue to
develop programs to protect and enhance wetlands in the Boulder Valley. The city shall
discourage the destruction of wetlands, but in the rare cases when development is
permitted and the filling of wetlands cannot be avoided, they shall be restored or
replaced.
Staff members based an initial ordinance on a "model" ordinance used by jurisdictions throughout
the country in the late 1980s. This model ordinance was similar to the structure and approach of the
federal law (Section 404 of the Clean Water Act). The first draft that went before the public was
poorly received. In response, an advisory group known as the Wetlands Working Group was
assembled to bring together the varied interests in the community that had a stake in wetlands
protection. The Wetland Working Group met from Febniary of 1991 until July of 1992 to develop
the goals of the wetlands protection program, a full range of implementation techniques (including
an ordinance), and the nature of wetlands regulation.
Filling the Gaps in Federal Law
The city's Wetlands Protection Ordinance was the first wetland-specific regulation on the
municipal level in Colorado when it was adopted in 1992. The primary motivation of the city in
developing a local wetlands protection program was to fill in the gaps in federal regulation. The
ordinance was created out of recognition of the importance of wetlands and the advantages of
local control over unregulated activities that could degrade or destroy wetlands in the Boulder
Valley,
15
The regulation of wetlands by the federal government has not been synonymous with wetland
protection. The intent of the Clean Water Act is to "restore and maintain the physical, chemical and
biological integrity of our nation's waters' ;consequently, only the filling and dredging of wetlands
is regulated through federal law. There aze no federal regulations which prohibit the draining of
wetlands or the removal of wetland vegetation, two activities which could destroy a wetland as
effectively as filling or dredging. In addition, the federal law does not regulate activities in areas
adjacent to a wetland or stream (buffer azeas). Extensive research and documentation over the past
three decades has shown that many, if not most, wetlands aze lost and creeks are degraded as a
consequence of indirect activity (such as the removal of riparian trees and vegetation) on adjacent
land.
A primary concern expressed by landowners dtuing the development of the original wetlands
ordinance was that the city would be adding another level of bureaucracy to wetland permitting.
Although many of the activities that take place in Boulder's wetlands are pre-authorized by the U.S.
Army Corp of Engineers under its general permitting system, some lazger development projects can
require both a local and federal permit. The city did not want to develop an entirely new level of
bureaucracy through a local wetlands permitting program so the original intent was to produce a
program that would meet federal standazds and streamline the review process. Consultation among
the three federal agencies responsible for implementation of the Clean Water Act and the city
eventually resulted in a concept that would allow the city to regulate wetlands without adding to
the bureaucracy faced by applicants. Consequently, the original ordinance was modeled on the
structure of the federal permitting system and modified to fit our local situation.
The Structure of the Wetlands Protection Ordinance
The city's Wetlands Protection Ordinance is set up as a discretionary review process similar to
the city's site review process. Activities that are regulated under the ordinance and proposed
within a wetland or its buffer area require a permit. When a standazd permit application is
received by Planning and Development Services, it is placed on a three-week review track
similaz to a site review application. Proposed activities are reviewed with respect to the general
standards of avoidance, minimization, or mitigation. No activities aze strictly prohibited under
our current regulation. If an activity is proposed in a buffer or wetland that would have
significant impacts on a wetland, staff typically works with an applicant to explore alternatives
that would avoid or reduce the impacts.
The Comprehensive Wetlands Remapping Project
Boulder's wetlands ordinance differs from the federal law and many county and state laws
throughout the country in that adopted wetland maps are used to administer the regulation. Land
areas (wetlands and buffers) regulated by the Wetlands Protection Ordinance aze identified by
the city and adopted by City Council. Regulated wetland azeas in the city were originally mapped
in the late 1980s on a broad, conceptual level through the use of aerial photography and limited
field mapping. Unti12004, these regulatory wetland maps had not been comprehensively
~ Permit applications fall into one of two categories, standard or simple. Standard permit applications require a 3-4
week initial review and are subject to revisions and Planning Board call-up. Simple permit applications are
generally reviewed and issued within two weeks and are not subject to boazd call-up.
I6
updated since the original mapping. Although buffer areas were defined in the ordinance, they
were not shown on the original adopted maps.
Over the yeazs, the original regulatory maps caused difficulty in administering the Wetlands
Protection Ordinance because of their conceptual representation of wetland boundaries. For the
city to effectively administer the ordinance and provide efficient service to landowners, accurate
maps aze essential. In 2004, a comprehensive remapping and evaluation of regulatory wetlands
within the city was conducted under a grant from the U.S. Environmental Protection Agency.
From fal12004 to May 2006, staff held several public meetings to get feedback from the public
and the Planning Board on proposed new wetland regulatory maps (see further background
information in Attachment B.) Several issues were raised by landowners during this process
about the new mapping and about the current wetlands ordinance.
Landowners attending the meetings expressed several concerns about the mapping process, the
buffer areas, and the wetlands ordinance in general. Attachment C includes logs of comments
received from various public meetings over the past two years. The following is a summazy of
the various concerns expressed by landowners:
• We did not know the city was regulating wetlands and buffer azeas on our properties.
• The fixed width buffer areas seem arbitrary, too excessive, and not scientifically based.
• The ordinance is too restrictive of typical residential backyard activities such as patios,
decks, and gardens.
• The buffer azea poses too many constraints on existing and planned activities in
residential areas.
• The buffer azea may result in the loss of property value and limitations on the ability to
expand a home. The buffer area changes the rights of a property owner to use their
property.
• With a fixed width buffer, the unique conditions of individual properties aze not
considered when determining the buffer widths.
• The city has not "ground-truthed" the wetland boundazies to make sure they are accurate.
• The city's ordinance is more restrictive than the federal wetlands protection law and
includes ephemeral streams or streams that do not have surface water throughout most of
the year.
• Why isn't the city compensating landowners for the "new" wetland and buffer overlay?
Buffer Area Study
In response to public comment and concern expressed about the wetlands ordinance, staff
postponed adoption of the new wetland regulatory maps in 2006 in order to conduct reseazch on
wetland and stream buffers. The purpose of the research was to understand the current scientific
basis for wetland and stream buffers, review and compare the regulatory approaches to buffer
protection used in other jurisdictions, and to develop options for improving the ordinance.
The study and conclusions were presented to Planning Boazd on May 24, 2007 (Attachment Dl.
The primary conclusions of the study aze:
17
1) Buffer area regulations are a common and important approach to protecting
wetlands and streams. Regulatory approaches to stream and wetland buffer azea
protection, however, differ widely throughout the country due to localized environmental,
land use, and political conditions.
2) Protecting wetlands in urban settings is critical because they often occur in
disturbed or degraded settings. Furthermore, the protection of wetlands in urban and
semi-arid settings is more necessary, because of the scarcity of these ecosystems and the
numerous ecological services they provide.
3) There is not one optimal width for a wetland buffer. In urban settings, buffer widths
often aze reflections of the balance of local site conditions, city goals, wetland functions
and landowner interests.
4) Boulder's current approach to regulating buffer areas may not be as effective as it
could be when compared to other jurisdictions.
How do these approaches compare to Boulder's Wetlands Protection Ordinance?
Similaz to most jurisdictions, Boulder regulates a wetland buffer area through an overlay
protection district in its land use code (Section 9-3-9, Boulder Revised Code). Boulder's fixed-
width buffer approach of applying a standard buffer to a wetland based on its value is also
Similaz to the many jurisdictions around the country. Unlike most local jurisdictions, however,
Boulder uses a discretionazy review system to regulate uses in both the wetland and the buffer
azea. Many municipal and county governments have adopted a setback approach where allowed,
prohibited, and permitted uses aze cleazly defined. Similar to the federal law, Boulder applies the
performance standards of "avoidance", "minimization", and/or "mitigation" of impacts through a
discretionary review of permit applications. (The federal law, however, only applies to activities
in the wetland and not the buffer azea.) Under the standazds of our code, regulated activities may
be permitted if the standards of avoidance, minimization and/or mitigation can be shown. Most
land use activities, then, aze not strictly prohibited within a wetland or its buffer. Through the
permit review process, a landowner must show that he or she has avoided, to the extent possible,
potential impacts to a wetland in the design of a proposed development activity. If avoidance is
not possible, the landowner must then show that impacts will be minimized and that direct
impacts will be mitigated.
Adoption of Updated Wetland Maps
Staff returned to Planning Boazd on August 16, 2007 for a recommendation to City Council on
adoption of the updated wetland and buffer azea maps and functional evaluations. At that
meeting, several landowners from the West Arapahoe Avenue neighborhood along Boulder
Creek raised concerns about adoption of the maps and about the Wetlands Protection Ordinance
(Attachment C1. A Few property owners along stream reaches that were not previously regulated
under the ordinance also expressed their concern about their properties being included on the
updated maps. In order to address the concerns raised by these landowners, Planning Boazd
recommended that City Council adopt the proposed updated wetland maps but with a transition
period between application of the old and new maps until the ordinance is revised. During the
transition period, the less restrictive wetland and buffer delineation of the old and the new maps
will apply to private property until the wetlands ordinance is revised.
18
City Council adopted the updated wetland and buffer azea regulatory maps in October 2007 with
the transition period as recommended by Planning Boazd and directed staff to begin a process to
revise the Wetlands Protection Ordinance.
19
Revisions to the Wetlands Protection Ordinance
Guiding Questions for City Council:
1) Does council have questions regarding the key issues identified to date with the
ordinance?
2) Does council have any comments on the purpose and objectives jor revising the
ordinance?
3) Does council have any feedback on the preliminary approaches for changing the
wetlands ordinance? Are these the right approaches to further develop and analyze?
4) What feedback does council have regarding potential next steps and
further analysis?
Project Overview
The purpose of the Wetlands Protection Ordinance Revision Project is to revisit the city's
regulatory approach to wetlands protection, compare our current approach with other models,
and to develop the most effective and balanced approach to protecting wetlands. The revision
project will address issues with the city's general approach as well as issues that have been raised
concerning the follow elements of the ordinance:
1) Stream definition
2) Stream values and buffer widths
3) Regulated activities and use requirements
4) Review and permitting standards and process
5) Mitigation requirements
Process
Staff is proposing to develop revisions to the ordinance in the following three phases (see page
30 for a complete process chart):
Phase I: Identify Issues, Clarify Objectives and Develop Preliminary
Approaches
Phase II: Refine Approaches and Develop Policy Options
Phase III: Develop Draft Ordinance
Staff is now completing Phase I of the project which involved identifying issues with the
ordinance, clarifying the objectives of the project, and developing preliminary conceptual
approaches to changing the ordinance. The following is a discussion of those elements of the
revision project.
Issues and Objectives
Issues with the Current Ordinance
In May 2007, staff presented to Planning Board a preliminary list of issues with the Wetlands
Protection Ordinance. These issues were based largely on feedback from property owners and
20
Planning Boazd during the Comprehensive Wetlands Remapping Project. Staff's research on
wetland and stream buffer regulation in other jurisdictions (Attachment D) also provided
guidance on issues with our ordinance and on making it more effective.
From November 2007 through January 2008, meetings were held with staff members throughout
the city organization that had experience with the wetlands ordinance to identify additional
issues that may be addressed in the revision project. Several general topics emerged from these
discussions, some of which aze related to issues previously identified by the public and Planning
Boazd. Other issues raised by staff were more administrative in nature and will be addressed
later in the revision process.
The following is a discussion of the primary issues that have been identified during the initial
phase of the revision project:
1) Definition of a stream: Boulder's ordinance defines a wetland as a land area meeting
any one of the following criteria: 1) an open body of water such as a lake or reservoir; 2)
a stream or creek (perennial or ephemeral); or 3) an azea that is saturated by surface or
groundwater at a frequency and duration sufficient enough to support a prevalence of
vegetation that lives in saturated soil conditions.
During the remapping project, several landowners expressed concern that a stream or
creek is not defined in the ordinance, especially in regard to ephemeral streams, or
streams that may be dry for most of the year. Some people questioned whether some
streams in the city may actually be irrigation ditches.z
2) Buffer area width: Boulder applies two fixed-width buffer azeas to wetlands and
streams based on their significance (see Attachment A). "Significant" wetlands require a
50 foot buffer area. All other wetlands have a 25 foot buffer azea. Most of Boulder's
creeks are designated as "significant" because they provide an important flood control or
water quality function. Only a few small, isolated wetlands and streams outside the
floodplain do not meet any of the criteria for a significant wetland and have 25 foot wide
buffer areas. When Boulder's wetlands ordinance was originally adopted, these buffer
widths were thought to be the most reasonable balance between the protection of the
wetland and landowner interests.
A fixed-width buffer approach such as Boulder's is used in numerous jurisdictions
throughout the country because it is relatively easier and more efficient to administer.
Many landowners, however, have expressed concerns about the fixed-width buffer
approach in that it does not take specific site and wetland conditions into account.
Several landowners also feel that a 50 foot buffer is too excessive in some locations and
does not make practical sense. Many aze also concerned that the buffer area boundaries
include existing homes. On the other hand, the review of the science of buffer azeas
2 Activities that take place within irrigation ditches that are operated by a ditch company are not regulated under the
city's Wetlands Protection Ordinance. Wetlands outside of a ditch easement that are supported by the leakage of
water from a ditch may be regulated under the ordinance. The city, however, cannot require a ditch company to
provide the water to support a wetland if it is created by ditch leakage.
21
indicates that a 25 or even 50 foot undeveloped buffer area may not be enough to protect
certain wetland and stream functions in certain areas (Attachment D).
Regulatory buffer widths are largely a balance between resource protection goals of a
community and landowner interests. Some jurisdictions have adopted buffer width
approaches that are more sensitive to the conditions of specific sites or stream reaches. A
more site or reach specific approach would incorporate criteria such as existing land use
conditions, slope, or wetland function and location within a watershed.
3) Regulatory approach and regulation of uses: One of the frequent concerns with
Boulder's ordinance as voiced by both the Planning Board and the public is that the city's
discretionary approach to the review of regulated activities lacks clarity and consistency
and appears too subjective.
Boulder's Wetlands Protection Ordinance was modeled after Section 404 of the Clean
Water Act which applies general performance standazds to the review of proposed
activities within a wetland and its buffer azea. Unlike most jurisdictions surveyed in the
buffer area study, Boulder does not strictly prohibit any activity in the buffer azea.
Boulder applies a discretionary approach which permits activities in the wetland or buffer
azea if the standards of avoidance, minimization or mitigation aze satisfactorily met.
Over the past 16 years since the ordinance was first adopted, roughly 160 wetland permit
applications for activities in either the wetland or the buffer area have been submitted and
fewer than five permits have been denied.
Boulder's approach to regulation of activities in the buffer azea has been to work with
applicants to avoid or minimize impacts to wetlands and buffer areas in the design of a
proposed activity. While this approach may be viewed as positive in terms of its
flexibility, the lack of clarity about what is allowed and prohibited has created uncertainty
among landowners and a perception that the city is often arbitrary and unfair in its
administration of the ordinance. Without clear limitations for development in the buffer
area, the discretionary approach also does not ultimately protect the resource or account
for cumulative impacts as successive permits along individual stream reaches are
reviewed over time.
Over the past 10 to 15 years as more local jurisdictions have adopted buffer protection
ordinances, regulatory approaches have evolved. Few of the current regulatory
approaches reviewed in the buffer area study (Attachment D) require discretionary review
of proposed activities or base approval of permits on a set of broad performance
standards, such as in Boulder's ordinance. While some jurisdictions require some level of
review or permitting for activities within the actual wetland, many have adopted more
straightforward buffer area setbacks where allowed and restricted activities within the
buffer azea are clearly defined.
4) Permit review and variance process: Boulder's wetlands ordinance includes several
exemptions for activities in the wetland or buffer azea that are considered to have an
insignificant impact on a wetland. Concerns have been expressed by both the public and
22
the Planning Boazd, however, that the ordinance is still too restrictive of everyday
residential activities (e.g. the addition of new landscaping material, gazdens, fences, air
conditioning units) and that the permit process can be expensive and burdensome for a
landowner. Under the current ordinance, typical backyazd activities such as minor
regrading, addition or removal of vegetation, or construction of sheds, decking, or patios
require a wetland permit. Under the current fee schedule, a permit for a regulated activity
exclusively in a buffer area would cost a landowner $580. If the proposed activity is in
any portion of the wetland itself, the permit application would cost the landowner
$2,315 s In addition, both types of permit applications must be prepazed by a qualified
wetland biologist, further adding to the cost of a permit application.
5) Wetland and buffer area boundary changes: Some landowners have expressed the
concern than the city's current process for changing either a wetlands or buffer azea
boundary can be cumbersome, expensive, and time consuming, especially for straight-
forward modifications. Under the current code, wetlands and buffer areas are adopted by
ordinance. A landowner may request a modification to either the wetland or the buffer
but any changes to the wetland maps must also be adopted by ordinance.
Few jurisdictions have a similaz variance procedure for changing buffer azeas. Since
many jurisdictions take a setback approach to regulating activities, they allow vaziances
to uses in the buffer instead of to the buffer width. The standazds for these procedures are
often similaz to our standazds for discretionary review but require approval by a zoning
board.
6) Mitigation requirements: Under Boulder's wetlands ordinance, certain activities that
result in an impact to a wetland may be permitted if the wetland impacts aze "mitigated"
by creating or restoring another wetland. A wetland created to replace the loss of another
aze referred to as a "compensatory wetland" or "compensatory mitigation." The science
of compensatory wetland creation is complex and imperfect and does not always result in
a satisfactory replacement of the functions of destroyed wetlands. Reseazch over the
years has found that created wetlands can be reduced in size from an original plan
because of inaccuracies in project design or changes in anticipated supporting hydrology.
In order to insure "no net loss" of wetland acreage, many jurisdictions azound the country
(including the U.S. Army Corps of Engineers which administers the federal law) often
require compensatory wetlands to be larger than the wetlands they are replacing.
Boulder's ordinance requires applicants to create compensatory wetlands at a ratio of 2:1
(e.g. two acres of new wetland for every acre destroyed).
The success of a created wetland is mostly dependent upon the availability of a water
source to support the wetland. If a new wetland is created at the same site at a 1:1 ratio,
one can assume that there is no change of use in the water to support the compensatory
wetland. However, to create a new wetland at a size above a 1:1 ratio, a supplemental
'The city has guidelines for establishing user fees based on whether the applicant or the community is the primary
beneficiary of the service. The city assumes that wetland permits primarily benefit the applicant and are based on
full recovery of costs for the review of permits and inspection.
23
water source is needed. Likewise, if a compensatory wetland is constructed in a different
basin than that of the original wetland, a supplemental water source is also needed.
Under Colorado state law, any new use of water or development of a new well requires
submittal of a water augmentation plan to the Office of the State Engineer. The
augmentation plan must show that the appropriate water rights are available for the new
use of the water. Water sources in this region vary substantially in their nature, location,
appropriated use, cost, and ownership and have a significant bearing on the adequacy and
appropriateness of a water supply for a compensatory wetland. Consequently, the rights
to the new use of water will generally be difficult to obtain and can result in several years
in water court just to obtain junior rights to support a new wetland.
Staff has identified the conflict between water rights and the city's 2:1 mitigation
requirement to be a major policy issue that needs to be analyzed and resolved during the
revision process. Research will be conducted on the current science of successful
compensatory wetland creation and evaluate our approach against other regulatory
models.
7) On-going landowner education and support: Most of the public feedback that staff
heard during the Comprehensive Wetland Remapping Project was that landowners were
not aware of the city's Wetlands Protection Ordinance. Many of the residential
landowners in particular saw the revised maps as a new regulation that affected the use of
their property. A concern from the public meetings was that the city does not adequately
educate the landowners about laws that can affect them on a daily basis.
The city is involved in other education and outreach programs that are related to wetland
and stream protection through its Water Quality Program in the Utilities Division of
Public Works. The city has a Watershed Outreach Program directed toward students and
the general community to teach ways to be actively involved in caring for water
resources. The city also participates in the Keep It Clean Partnership which is a regional
interagency group that educates the public about broader water quality and watershed
issues. The StreamTeam program in particular is a cooperative program sponsored by the
Keep it Clean Partnership that educates the community about its relationship to streams
and watershed. The program provides support for people who want to learn more about
and become involved in protecting their local stream.
The city currently does provide on-going outreach to impacted landowners to specifically
support the Wetlands Protection Ordinance. This deficiency is a weakness in the city's
wetlands protection program and contributes to a lack of landowner support for the
ordinance.
Pu61ic Feedback
Throughout the Comprehensive Wetlands Remapping Project, concerns about the Wetlands
Protection Ordinance were raised by landowners in several neighborhoods. These concerns were
brought forward to Planning Board and City Council during the public hearing process. Knowing
that landowners in the West Arapahoe Avenue neighborhood along Boulder Creek were still
frustrated with the process, staff attempted to do additional outreach with this neighborhood in
24
December during the issues identification process. Staff was unsuccessful in setting up a
meeting with the landowners at that time.
An open house was held on January 31, 2008 to present the preliminary approaches to revising
the Wetlands Protection Ordinance to the public for feedback. Approximately 21 people
attended the open house. Several of the attendees asked clarifying questions about the current
wetlands ordinance as it affects their individual properties. Approximately six to eight
landowners communicated concerns to the city's meeting facilitator regazding staff s
responsiveness to their input during the remapping project (see written comments from the open
house in Attachment C1. Attendees who offered this perspective were primazily property
owners in the West Arapahoe Avenue neighborhood. In the interest of better capturing feedback
from these residents and conveying it to Planning Boazd and City Council, staff is working
directly with these landowners to schedule a meeting (or series of meetings) aimed at discussing
their specific concerns and alternative approaches to wetlands protection. Meeting outcomes
could influence the options that aze presented to Plazming Boazd and City Council.
Summary of Issues
The following is a summazy of the major policy issues that will be addressed during the revision
project:
1) Streams are not defined in the current ordinance.
2) The approach to designating buffer widths (significant v. non-significant) may not allow
for variability in stream, wetland, and individual site conditions.
3) The discretionary review approach, while allowing some flexibility to landowners, does
not clearly define allowed and prohibited uses and does not prevent cumulative impacts
over time.
4) The permit review process can be tedious and expensive for small activities such as the
addition of landscape beds.
5) Vaziance procedures need to be more cleazly defined and less cumbersome and
expensive.
6) Boulder's mitigation requirements need to be revisited to balance effectiveness in
achieving no net loss of wetlands with feasibility of mitigation.
7) The lack of on-going education and support programs has led to misunderstanding and
lack of support for the ordinance.
Planning Board Initial Guidance
At its May 24, 2007 meeting, Planning Board provided initial direction to staff on an approach
for revising the Wetlands Protection Ordinance. Planning Boazd recommended an approach to
changing the ordinance that would:
1) Cleazly define uses that are allowed "by-right" and prohibited in the buffer azea;
2) Define a buffer width but with more refined levels of stream or wetland value (e.g. three
levels of stream importance) that defines different levels of by-right uses in the buffer;
3) Include an appeals process for property owners who disagree with the wetland mapping.
4) Define a set of hazdship criteria;
5) Incorporate a discretionary process (with a review and hearing) with better review criteria
for proposed uses that aze not by-right;
zs
6) Provide for the ability to mitigate impacts of uses that are not by-right; and
7) Include better education and incentive programs.
Proposed Objectives
Planning Board also endorsed a set of objectives at its May 24, 2007 meeting that would provide
guidance for the ordinance revision project. In December 2007 and January 2008, during Phase I
of the project, staff met with several city departments to identify additional issues with the
ordinance that may need to be addressed in a revised ordinance. The following proposed
objectives for the revision project combine both Planning Boards initial recommendation and
staff additions to address new issues identified over the past few months (new objectives are in
bold font).
Obiective l: Define a regulated stream.
Objective 2: Clearly define a minimum buffer width that balances resource protection with
landowner interests, and is sensitive to specific site and wetland conditions.
Objective 3: Provide clarity to the landowner in the uses and activities that are prohibited or
allowed in the buffer area.
Objective 4: Provide a common sense, flexible approach to regulation which promotes
compliance.
Objective 5: Balance landowner interest and resource protection in the regulation of activities
by incorporating exceptions for existing land uses, and offering mitigation options
for activities that have minimal cumulative impact.
Objective 6: Provide flexibility and a clear and reasonable appeals process to landowners when
there are physical site constraints, hardships or other unusual circumstances to
necessitate variances.
Objective 7: Define mitigation requirements that are achievable and help to insure the
goal of "no net loss" of wetland acreage and function in the Boulder Valley.
Objective 8: Provide an ongoing educational program that ensures that future residents know
about the buffer and use restrictions, and provides incentives and
recommendations to landowners for enhancing their wetlands.
Preliminary Approaches
Staff has developed three conceptual approaches to revising the ordinance. These approaches are
derived from model and other wetland ordinances around the country that staff reviewed in its
buffer area study (Attachment Dl. Each approach includes regulation of a buffer area but is
different in terms of the number of regulatory zones applied to properties. The first approach is
Boulder's current ordinance or the "no change" approach which applies one set of standards to
both the wetland and the buffer area. The second and third approaches present two-zone and
26
three-zone models that would separate use standards for the buffer area from those for the
wetland. The concept is that with more regulatory zones, the more specific a jurisdiction can be
about uses that are allowed or prohibited in each zone. The primary drawback of having more
zones, however, is that on-the-ground implementation of the ordinance can be more confusing
for landowners.
Approach 1: Current Ordinance
(One regulatory zone that includes both the wetland and buffer)
Approach 1 would be to leave the current ordinance as is. No changes would go to City Council.
Currently, the city regulates wetlands and their buffer areas by applying the same set of use
standards or restrictions to the entire regulatory area (wetland and buffer). For most uses in the
regulatory zone, a landowner must first show that avoidance of impacts is not possible and that
he or she has minimized impacts of an activity to the extent feasible in order for a permit to be
issued.
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Buffer width: Fixed buffer width (2~ or ~0 feet) based on the significance of the
wetland or stream.
Regulated uses: Currently, most uses proposed for the buffer or wetland require a
permit. Minor landscape maintenance and passive recreational uses are allowed without
a permit. Existing uses such as existing structures and landscaping are also exempted.
Approach 2: Current Ordinance -Modified
(Wetland Zone + Buffer Zone)
This approach would be a modification to the current ordinance. The regulated area would be
divided into two zones -the wetland zone and the buffer zone. Each zone would have a separate
set of restricted and exempted uses. Two separate zones would result in less restrictive standards
for many uses in the buffer zone that currently require a permit. Uses such as new structures or
27
pavement with potentially higher impacts to the wetland would still require standard permit
review.
Zone 1 ~ ~r- r_
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~ P i ~a•
X S
.~i! ~ t Zone 2
r ~ (buffer)
Buffer widths: Buffer widths would be the minimum width determined necessary to
balance resource protection with landowner interests while remaining sensitive to specific
site and wetland conditions.
Regulated uses: The current ordinance would be modified to exempt more uses in the
buffer zone that would have minor impacts such as landscaping, small patios or
temporary structures. Uses that could potentially have more wetland impacts, such as new
structures, pavement or the significant removal of riparian vegetation, would still require
a standard permit. Existing uses would be exempted.
Approach 3: Three-Zone
(Wetland Zone + Inner Buffer Zone + Outer Buffer Zone)
This approach would be a modification to the current ordinance. The buffer area would be
divided into two zones - an inner zone and outer zone -with different use standards applied to
each zone. Stricter standards would be applied to the wetland and the inner buffer than to the
outer buffer zone. With this approach, many minor activities in the buffer that currently require
a permit could be exempted in the outer zone. One approach to regulating uses in the outer zone
would be just to limit the overall amount of impervious surface area (e.g. buildings, pavement)
and exempt all other uses.
~g
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Zone 1
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l~nci)'"~ ~ - ~ r gone 3
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Buffer widths: The width of the inner zone would be the minimum buffer determined
necessary to protect basic functions of a particular stream reach or wetland. The outer
zone width would be based on the buffer width needed to support specific high-value
functions of the wetland or stream.
Regulated uses: The wetland and inner buffer would have higher standards or
restrictions on activities such as vegetation removal, new structures or pavement than the
outer buffer zone. Existing uses would be exempted.
Next Steps
The chart on the following page outlines the three phases of the revision project and process
steps in each phase. Staff is completing Phase I of the revision process as shown in the
following chart. After receiving direction and input from Planning Board and City Council on
the issues, objectives and preliminary approaches, staff will return to City Council on June 3,
2008 for approval of the study session summary and for specific direction on the approaches that
should be further analyzed in Phase II.
In June, staff will begin Phase II by refining and comparing the approaches and developing
preliminary options for addressing the major policy issues in the ordinance (stream definition,
buffer width methodology, use standards, mitigation requirements). During Phase III,
administrative issues will be addressed in a draft ordinance and a proposed approach to an
education and incentives program. I
During each phase of the project, staff will work directly with the public to ensure that public
issues and concerns are clearly understood and communicated to Planning Board and City
Council. Through various forms of public process, staff will work with stakeholders to solicit
input and reflect alternative viewpoints in the options that are presented throughout the decision-
making process.
Staff is expecting to complete the revision process in the first quarter of 2009.
29
r
PHASE 1 PHASE 11 PHASE III
ISSUES AND APPROACHES REFINE APPROACHES AND DEVELOP POLICY DRAFT ORDINANCE
October 2007 -May 2008 OPTIONS Winter 2009
June -December 2008
Issue Identification Objectives and Preferred Approach Refine Policy Options Draft Ordinance and Final Ordinance and
Preliminary and Policy Options Revised Maps Maps
A roaches
Stakeholder input on Staff develops Staff: Staff refines: Staff develops: Staff revises
issues preliminary Refines and Buffer width maps and
approaches com ares approach Draft ordinance ordinance based
p Revised maps on stakeholder
Interest groups approaches '
• Approach to
• Internal stakeholders II Develops options Staff develops on oin ublic input
• Landowners and Stakeholder input for definin options for: g g p
eneral public (issues on a I 9 education and
9 pproaches ~ streams and Regulating uses
identified throw h ma support
9 p ~ determining buffer Mitigation ~ Public hearings
update process) Landowners and on final
widths requirements
general public Consultant ordinance and
(January 31 open Consultant reviews Consultant reviews draft maps
house)
. Interest groups preliminary reviews policy ordinance .Planning
Internal stakeholders approaches and options Board
policy options
- - • City Council
Planning Board Stakeholder Stakeholder
April 17, 2008 involvementt on involvement on
Stakeholder policy options draft maps and
City Council Study involvement on a
Session preferred approach ordinance
• Landowners,
April 29, 2008 interest row s,
9 p Landowners,
• Landowners, and general public general public
interest groups, .Internal and interest
Staff revises and general public stakeholders groups
~ Internal Internal
preliminary I stakeholders
stakeholders
approaches based ~ Planning Board
on public, board, Staff refines public hearing
and council input i options based on and
stakeholder input recommendation
City Council on policy options
meeting for formal ! planning Board City Council
direction on and City Council direction on
issues, objectives, direction on policy options
and approaches preferred approach
June 3, 2008 and policy options
30
i
Section 3:
Floodplain Management and Emergency
Preparedness
31
Background
Guiding Question for City Council:
1) Does council have questions about the currentfloodplain regulations?
Boulder's Floodplains
Boulder is located at the base of the foothills where there is high potential for flash flood events
which allow little time for warning. A major flood event, particularly on Boulder Creek, could
result in substantial property damage and loss of life. Because the threat to life and property
damage is so great, the need to monitor and regulate the f7oodplain is critical.
Boulder is impacted by 15 major drainageways or creeks that pass through the city limits and
include the following designated water courses (Figure 1):
• Bear Canyon Creek • Fourmile Canyon Creek • South Boulder Creek
• Bluebell Canyon Creek • Goose Creek • Sunshine Creek
• Boulder Creek • Gregory Canyon Creek • Twomile Canyon Creek
• Elmer's Twomile Creek • Skunk Creek • Wonderland Creek
• King's Gulch • Viele Channel
i' [~Ma'or ~Drai.ria~ a ,~L ~ r
1. Y~
~n Bfoulder -L~
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Z • ' 3 arc ~
r v ar^eM ~4 ~ ~r
Sua~~ Gaps° Creek l ~ 'r ~
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0
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- 1
Figure 1-Major Drainageways in Boulder
33
All the major drainageways passing through Boulder are ultimately tributary to Boulder Creek at
the eastern city limits. The 100-year floodplains associated with these drainageways cover
approximately 1 ~ percent of the lands in the city (more than twice the national average of seven
percent), and approximately 4,100 structures exist within these floodplains (last reported to be
3,515 single-family to four-family residential structures and 646 other structures). Flooding from
these various creeks may be narrow and swift, as with Boulder Creek downtown and Bear
Canyon Creek in Table Mesa, or quite wide and highly dispersed, as recently identified for
Fourmile Canyon Creek in North Boulder and South Boulder Creek in the Keewaydin Meadows
area.
Structures in the 100 Year and 500 Year Floodplains
zooo - _
taoo -
~aoo- _
taoo -
d tzao
2 tooo
soo
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¦ t~ yr Structures ¦50~ yr Structures
Figure 2 -Properties with Structures in Floodplain Areas
(.\'olc~: 6'iele C'hunnel is• n~~1.ti~hvtirn uncl(here ure no knoirn svruc•tures within the 1 DU your or
.SUU year.floodpluins)
It should be noted that floodplains arc delineated only for major drainageways. Other areas of
the city may still be subject to flooding due to more localized storm events. The city's
Stormwater Master Plan focuses on identifying and addressing these types of hazards.
Boulder's Flood History
•fhe largest recorded flood in Boulder occurred over afour-day period along Boulder Creek from
May 29 to June 1, 1894. The estimated 100-year flood coursed through the city, washing out the
railroad, roads and numerous structures. In July 1909, flooding along Twomile Can}•on Creek
claimed two lives and hospitalized two more. An estimated 40-year flood struck Boulder Creek
again in 1914, with subsequent tlooding in 1919 and in 1921.
34
Twomile Canyon Creek flooded again in September 1933, demonstrating that floods can occur in
late fall. The lazgest flood of record for South Boulder Creek passed through Eldorado Springs
and Mazshall in 1938. The Eldorado Springs Resort was significantly damaged, including the
dance hall and a number of cabins being washed away. Boulder Creek also flooded at this time.
In May 1969, an estimated 25-yeaz flood damaged significant azeas along Boulder Creek, Beaz
Canyon Creek and South Boulder Creek.
Boulder has been spazed the impact of devastating floods over the last 38 yeazs. However,
several events estimated to be smaller than 20-year floods have occurred on the tributaries to
Boulder Creek. Bear Canyon Creek, Fourmile Canyon Creek, Goose Creek, Gregory Creek and
Twomile Canyon Creek have all experienced waters over-topping the creek banks.
Large floods have also occurred in the surrounding region that far exceeded the 100-year storm
level. One such flood occurred in the Big Thompson Canyon in 1976 and in Fort Collins in
1997. Flooding in the Big Thompson caused more than 140 fatalities and is classified as lazger
than a 500-yeaz storm event. The Fort Collins' flood caused the loss of five lives in an azea that
was not considered part of the floodplain.
Floodplaiu Regulations
The city of Boulder first adopted floodplain regulations in 1969, in response to Front Range
flooding events that demonstrated the flood potential and need for protective measures within the
community. The city's Flood Control and Drainage Utility was established in 1974.
The city's cun•ent floodplain regulations aze designed to address the sepazate issues of life safety,
floodwater conveyance, property protection and compliance with the minimum standazds
established by the Federal Emergency Management (FEMA) for inclusion in the National Flood
Insurance (NFIP). The city's floodplain regulations aze specifically designed to place a major
emphasis on life safety by identifying those portions of the floodplain where an unacceptably
high safety risk exists for Boulder residents and visitors. These regulations provide a mechanism
for restricting human exposure to flood hazazds.
The current floodplain regulations were adopted by Ordinance 5199 on June 27, 1989 and
established three specific flood zones used to manage and regulate development and uses within
the floodplain. These zones include the floodplain, conveyance zone and high hazazd zone.
Under the floodplain regulations, restrictions aze applied to development and use in each flood
zone. The regulations apply to all properties located within the 100-year floodplain, which also
includes the conveyance and high hazazd zones. A floodplain development permit is required for
all development within the floodplain to document compliance with the floodplain regulations.
Projects impacted by multiple flood zones (100-year, conveyance, high hazazd) must meet the
requirements of all applicable zones.
35
100-year Fooodplain
The 100-year floodplain is defined as all land areas subject to inundation by flood waters. The
adopted regulatory floodplain is based on a predicted flood that has a one percent (1%) chance of
being equaled or exceeded in any given year. The area predicted to be flooded by a one percent
base flood is commonly called the 100-year floodplain. (Unfortunately, the term 100-year flood
is misleading. It does not mean that this type of flood only happens every 100 years.)
Development in the 100-year floodplain is permitted only upon demonstration that all proposed
structures and additions incorporate flood protection measures, which aze intended to mitigate
the risk of property loss or damage resulting from a 100-year flood. In residential applications,
this requires that the lowest floor of any structure be elevated and placed at or above the flood
protection elevation, which is defined as two feet above the projected flood water surface
elevation of the base flood. Before a structure is approved for occupancy, an elevation certificate
prepared by a licensed surveyor is required to confirm compliance.
In non-residential applications, the lowest floor of any structure must be elevated to the flood
protection elevation or be flood-proofed such that the structure is watertight with walls
substantially impermeable to the passage of flood waters below the flood protection elevation.
New structures must be flood-proofed in a manner requiring no human intervention. Existing
structures may be flood-proofed using human intervention (consisting primarily of flood shields
or gates). Before a structure is approved for occupancy, an elevation certificate prepazed by a
licensed surveyor and/or a floodproofing certificate prepared by a licensed engineer or architect
is required to confirm compliance.
In general, all uses are allowed in the floodplain, with restrictions on the storage of hazazdous
materials and moveable objects. New parking lots aze not permitted in the floodplain where
flood depths would exceed 18 inches, which is the flood depth at which automobiles may
become buoyant.
Conveyance Zone
The conveyance zone represents a preservation corridor for passing flood flows along the creek
comdor, without redirecting flood waters onto or adversely impacting land azeas located outside
of the adopted floodplain. The city's conveyance zone is based on the FEMA "floodway"
regulation that allows for a maximum one-foot increase in flood water depths, but the city uses
the more restrictive 0.5-foot flood water depth increase criterion.
Development in the conveyance zone is further restricted in that the establishment of any use or
placement of any structure or obstruction may not create any rise in flood water elevations. This
is intended to preserve the conveyance of flood waters without an adverse impact on adjacent
lands. Applicants for projects in the conveyance zone must provide a hydraulic analysis
prepared by a licensed engineer to demonstrate compliance with applicable regulations.
High Hazard Zone (HHZ)
The High Hazard Zone (HHZ) is an area of the floodplain where the combination of depth and
water velocity aze expected to be too great for persons to travel on foot. Areas where the flood
36
velocity (in feet per second) multiplied by the flood depth (in feet) is greater than or equal to four
or where the flood depth exceeds four feet are considered to be high hazazd areas.
Development in the high hazard zone is the most restricted, based on life safety considerations.
No new structures or additions to existing structures intended for human occupancy are
permitted in the high hazazd zone, recognizing the extreme flood risk for potential occupants. In
addition, no new pazking lots and no change in use of an existing structure from non-residential
to a residential aze permitted.
Some agencies apply regulations to the floodway in a similaz manner as the HHZ. However, the
HHZ is unique to Boulder and was adopted instead of a "no-build" floodway because of the
extensive development that had already occurred in the floodway and the city's decision to apply
a non-containment approach to floodplain management and avoid channelization of Boulder
Creek. Furthermore, there aze potential challenges in demonstrating that the hazard to life safety
in the floodway would justify the impact on private property rights.
Substantially Damaged Structures
The city's floodplain regulations permit remodeling or rebuilding of flood damaged structures
only under certain conditions. Buildings that are "substantially damage" (beyond 50 percent of
their value) within the high hazazd zone may not be rebuilt. This regulation has great impacts on
the associated property owners. Property owners with flood insurance would be eligible for
some compensation for the loss of their structure and its contents, and the city anticipates that it
will play a role in compensating property owners for the value of their land if reconstruction is
prohibited.
For "substantially damaged" floodplain buildings located outside of the high hazard zone,
regulations require that reconstructed buildings be brought into conformance with the current
floodplain regulations. Residential structures would be particularly difficult to bring into
compliance as elevation of the lowest finished floor would be required. With the exception of
high hazazd zone properties, the substantial damage provision applies not only to damage caused
from flooding, but also fire, earthquakes, wind, rain or other natural or human-induced hazazd.
Floodplain Development Permit Process
Any development within a regulatory floodplain requires authorization in the form of a
floodplain development permit. The permit review process ensures that all development-related
changes to the floodplain, including filling or grading, construction of new structures and
improvements to existing structures, comply with the city's requirements. The review process
involves assessing the accuracy and completeness of the application, evaluating site plans,
topographic data, building design plans and other technical data, identifying deficiencies, and
issuing or denying permits.
Each portion of the floodplain zone has different restrictions for development and review
processes associated with them. Currently, the permit decision authority for a project in the 100-
yeaz floodplain is delegated to the city manager, while permits for development in the
conveyance and/or high hazard zones aze subject to call-up by the Planning Boazd following a
decision from the city manager. Variance requests are also subject to call-up by Planning Boazd.
37
Emergency Preparedness -Planning and Response
Guiding Question for City Council:
1) Does council have questions about the city's emergency planning and response related
toJlood hazards?
The National Flood Insurance Program
The National Flood Insurance Program (NFIP) is a federal program which enables property
owners to purchase flood insurance. It was established by Congress through passage of the
National Flood Insurance Act of 1968 and is operated under the jurisdiction of the FEMA. This
flood insurance is designed to provide an alternative to federal disaster assistance for property
damage caused by floods. Flood insurance is generally unavailable through most private-sector
insurance companies. There are currently 2,000 federally backed flood insurance policies in
effect in Boulder, which is the greatest number for any Colorado community. (However, there
are a total of 4,100 structures in the floodplain.)
The intent of the NFIP is to encourage communities to enact and enforce floodplain regulations.
The NFIP functions based on an agreement between a local community and the federal
government. The NFIP provides federally subsidized flood insurance for the community when
the community implements measures to reduce future flood risks. Local community measures
required under the NFIP agreement include floodplain regulations, master planning and
drainageway improvements that provide a means to reduce potential flood losses. The NFIP has
established minimum standards that must be implemented to participate in the program and
encourages and supports more restrictive standazds where human safety requires additional
measures.
Community participation in the NFIP is voluntazy. However, in order for a property to be
covered by a federally subsidized flood insurance policy, the community must participate in the
NFIP. The city of Boulder joined the NFIP in 1978 and has continued to participate since that
time. This pazticipation makes flood insurance available to all property owners in the
community, whether the property is located inside or outside of the floodplain limits, and
provides increased potential for federal disaster assistance in the event of catastrophic flooding.
For the city of Boulder to remain a participant of the NFIP, the city must fully enforce all of the
provisions of its floodplain ordinance. If the city fails to fulfill its NFIP obligations to the federal
government and allows non-compliant construction, the community impact can be severe.
Insurance on an improperly constructed new building may be very expensive, new buildings will
be built subject to flood damage, and FEMA can impose "sanctions" to encourage compliance
and enforcement. According to federal regulations, a community that does not join the NFIP,
has withdrawn from the program, or is suspended from it, faces the following sanctions:
• Flood insurance will not be available and existing flood insurance policies will not be
renewed.
• No federal grants or loans for development may be made in identified flood hazard
azeas under programs administered by federal agencies, such as HUD, EPA and SBA.
38
• No federal disaster assistance may be provided to repair insurable buildings located in
identified flood hazazd areas for damage caused by a flood.
• No federal mortgage insurance or loan guarantees may be provided in identified flood
hazard azeas. This includes policies written by FHA, VA and others.
• Federally insured or regulated lending institutions, such as banks and credit unions,
must notify applicants seeking loans for insurable buildings in flood hazazd azeas that
there is a flood hazazd and that the property is not eligible for federal disaster relief.
To ensure compliance, Community Assistant Visits (CAV) and Community Rating System
(CRS) verification visits are conducted by the state and FEMA periodically. Boulder's most
recent CRS verification visit was in December 2006.
Community Rating System
The NFIP has also established a Community Rating System (CRS) for flood insurance, initiated
in 1990. The objective of the CRS is to reward communities doing more than the minimum
NFIP requirements to prevent or reduce flood losses, and to provide incentives for communities
to initiate new flood protection programs. Under the CRS, flood insurance premium rates are
lowered when a community takes extra action to reduce flood damages. This may include
managing development in azeas not mapped by the NFIP, protecting new buildings beyond the
minimum NFIP protection levels, helping insurance agents obtain floodplain information,
implementing acquisition programs for flood-prone properties, establishing early flood warning
systems, producing advanced floodplain mapping, offering floodplain education programs and
helping people obtain flood insurance.
The CRS operates under apoint-type rating system which, in turn, results in a community-
specific Class rating. A Class 1 rating means the community may receive a 45 percent reduction
in insurance premiums; while a Class 10 rating does not receive any reduction. Cun•ently, only a
handful of communities in the nation have received a rating less than Class 8. The city of
Boulder is currently rated a Class 8, which offers a ten percent reduction in the flood insurance
premiums paid by policy holders within the city.
The city of Boulder's adopted floodplain regulations exceed the minimum standards established
by FEMA. Notable floodplain regulations that exceed FEMA standazds include:
• the high hazard zone, which prohibits constructing structures in the most hazardous azeas
of the floodplain
• the flood protection elevation, which requires two feet of elevation above the flood water
surfaces (FEMA required zero feet of elevation)
• the conveyance zone, which limits floodplain encroachment to a 0.5 foot rise (FEMA
required requires protection of a one-foot rise floodway.)
• flood-proofing requirements, which allow no human intervention for new non-residential
structures.
There aze 1,049 communities in the CRS with a Class 9 rating or better, representing 67 percent
of the NFIP's policy base. As of October 1, 2007, CRS communities by class were:
Class 9 = 303 Class 6 = 80 ossible for Class 3 =1 Kin Coun ,
39
Boulder in 2009 WA
Class 8 = 420 Class 5 = 33 Class 2 =1 Tulsa, OK
Class 7 = 209 Class 4 =1 (Fort Collins, Class 1 =1 (Roseville, CA)
CO
The CRS claims a series of rewards in addition to reduced flood insurance premiums. These
include:
(a) enhanced local floodplain management
(b) benchmazk assessments
(c) federal technical assistance
(d) incentive-based program maintenance
(e) qualification for federal assistance programs
The CRS awards points in four major categories:
• ACTIVITY 300 -Public Information Activities
¦ ACTIVITY 400 -Mapping & Regulatory Activities
¦ ACTIVITY 500 -Flood Damage Reduction Activities
¦ ACTIVITY 600 -Flood Preparedness Activities
Boulder entered the CRS based on progressive local flood management programs that were put
in place over the years. The city initially received a Class 9 rating in 1992, offering a five percent
reduction in annual flood insurance premiums. In 1997, the city was able to improve to a Class 8
rating with a ten percent reduction in local premiums.
Recently, the city received a class upgrade to a Class 7, which provides a 15 percent discount on
flood insurance premiums. It appears that the Flood Management Program is close to earning
enough credits for a Class 6, and should accomplish this with the anticipated 2008 completion of
both the Multi-Hazazd Mitigation Plan and South Boulder Creek Restudy. The city will be
pursuing a better rating (6 or 5) in 2009. If the city receives a 6 rating, flood insurance premiums
could be reduced by 20-25 percent; if it receives a 5 rating, flood insurance premiums could be
reduced by X percent. If this cannot be achieved, the city may want to reassess its commitment
to the CRS to determine if seeking a higher classification offers the best benefit to the
community compazed to other flood management elements.
Comprehensive Flood and Stormwater Master Plan
The Comprehensive Drainage Utility Master Plan (CDUMP) was accepted in January 1989 as
part of an identified need to update local floodplain management efforts. CDUMP defined a
scope, funding and timing for CIP flood mitigation projects, high-hazard structure acquisition,
and a new Stormwater quality program. CDUMP was also developed concurrently with the
Tributary Greenways Master Plan in an effort to integrate program activities.
In 2004, the Comprehensive Flood and Stormwater Master Plan was created and accepted to
update and replace the 1989 CDUMP. The master plan provides the current framework for
addressing flood management program activities.
40
Flood Preparedness
Flood prepazedness is a critical element in the city's floodplain management program,
considering the significant number of structures, including dwellings that are located in the
floodplain. Flood monitoring and warning must provide notification in an extremely timely
manner, given that 20 minutes' notice may be all that can be provided. The more a community
can be prepared pre-flood, including ongoing monitoring, effective warning systems, training for
response and post-flood recovery, the better chance for managing the risks of flooding.
Flooding puts lives and property at risk and a community's ability to respond may be the
deciding factor to reduce those risks. It takes time for emergency response agencies to set up and
prepaze for an organized response, and damaged roads and disrupted communications systems
may restrict access to critically affected areas. Individual prepazedness, planning, survival skills
and mutual aid within neighborhoods and worksites during the initial period of an emergency aze
essential measures in coping with the aftermath of a flood.
No community wants to be faced with the daunting task of disaster recovery. However, disasters
are typically followed by the lazgest infusion of federal, state and local recovery capital that will
ever occur at one time. Communities with up-to-date response plans can cleazly and quickly
identify and articulate needs to appropriate state and federal officials. These communities have a
competitive edge when post-disaster funding and technical assistance are needed.
ALERT System
The city of Boulder and Boulder County developed a flood monitoring and wazning system in
conjunction with the Urban Drainage and Flood Control District (UDFCD) in 1979. This system
is known as ALERT. The system is comprised of numerous rainfall and stream flow gauges that
provide data to assess flood potential in the foothills and canyons west of Boulder. The system is
managed and maintained by the UDFCD. The National Weather Service and a meteorological
consultant retained by the UDFCD also provide weather information to assist with flood
prediction. A current limitation of the system is the lack of rainfall monitoring gauges within the
city, which could provide data for smaller drainage basins and creeks.
Flood Emergency Preparedness Plans
City and county officials work together using the procedures outlined in the Boulder Creek
Flood Warning Plan (2003) and the Emergency Operations Plan -Boulder County and City of
Boulder (1998) and the City of Boulder Emergency Operations Manual (2008) (collectively
referred to as the Flood Emergency Preparedness Plans) to determine if a flood wazning is
wazranted, to disseminate waznings, and to respond to flooding accordingly. Currently, the
emergency manager has access to sirens, radio, cable override and a "911-type" callback system.
The flood monitoring season officially begins on April 1.
The current Flood Emergency Preparedness Plans provide step-by-step procedures for public
officials to follow during the eazly stages of a flood. These plans are fairly comprehensive;
however, modifications to the plans aze being investigated by staff to distinguish procedures for
daytime and nighttime response.
41
These plans address necessazy recovery elements as well, such as identifying early actions and
decisions that must be made, meeting victims' immediate needs, performing building and
infrastructure damage assessments, re-establishing critical community services, acquiring or
preserving post-flood properties to avoid future losses, issuing building permits for allowed
reconstruction, and restoring normal city operations. Staff is continuing to develop this aspect of
the plans.
Boulder Office of Emergency Management (OEM)
The Boulder Office of Emergency Management (OEM) was established under a joint agreement
between Boulder County and the city of Boulder, Colorado in 1984 and revised in 1993.
In October 2007, pursuant to Homeland Security Exercise and Evaluation Program (HSEEP)
Guidelines for All-Hazards Planning, the Boulder OEM, working with the Boulder Police, Fire
and Boulder County Public Health departments, developed along-term training cycle. The next
full-scale flood exercise is planned for April 2009, however, there aze seminars and workshops
scheduled for 2008 relating to flood prepazedness. These include a flash flood table top exercise
conducted for the University of Colorado in March, the MACS Meeting (Apri17), and the Senior
Officials Workshop (April 14).
In 2007, the Boulder OEM and the Fire Department initiated the 2007 Flood Preparedness
Project. The goal of the project was to identify and reach out to the vulnerable populations (VP)
in the HHZ of Boulder Creek, where the depth and velocity of surging water during a flood
would endanger lives. The project leaders reached out to many organizations that have VP
clients in the HHZ to form a collaborative partnership. These organizations included Carmel
Community Living Corporation, Senior Corps RSVP, Boulder Housing Partners, Imagine,
Colorado Citizen Corps, Center for People with Disabilities, Special Transit, Meals on Wheels
and others. The project staff conducted four preparedness-training sessions for nearly 200
participants who serve these VP. The project lasted for six months and ended in September
2007. Additionally, OEM provided 190 grant-funded weather monitor radios to service
organizations to deliver to their VP clients.
Multiple Agency Coordinating System (MACS)
The purpose of the multiple agency coordinating system (MACS) is to provide a voluntazy
organization between political jurisdictions and response agencies in Boulder County that will,
through the effective utilization of critical resources, minimize suffering and loss of life and
property in any natural or human-caused disaster.
The MACS concept operates sepazately from the Incident Command System (ICS) utilized for a
particulaz incident and is not directly involved in deciding the strategy or tactics for that incident.
The MACS group is made up of representatives from departments and agencies involved in
disaster situations, including the Boulder Police and Fire departments, the Sheriff's Department,
City Manager's Office, Public Works, the American Red Cross, University of Colorado, Boulder
Valley School District, Open Space and Mountain Parks Department, City Attorney's Office and
others.
42
The MACS group is activated upon receiving information of a possible disaster situation.
Evaluation of material and information is made by an emergency services group before further
actions are taken. The responses are layered to avoid "over-reaction" to information.
Incident Command System (ICS)
The ICS is a standard management system for controlling incidents. The ICS consists of
personnel, facilities, equipment, communications and procedures, all operating within a common
organization structure to gain control and resolve any type of incident.
City/County Emergency Operations Center (EOC)
The Emergency Operations Center (EOC) is a special central location for disaster management
and communications. The EOC is opened when it becomes apparent that a pazticulaz event has or
will have major effects on the community exceeding the capabilities available from routine work.
Its principal purpose is to allow both policy and operating people and groups to work effectively
and smoothly together, sharing information and participating in decisions on how best to
proceed. The EOC is activated during Mode 2 of a potentially disastrous situation by
predetermined MACS representatives.
During acrisis/disaster situation, information from all available resources regarding weather,
hazard azeas, incident situations and other pertinent information is reported to the EOC, where it
is discussed and decisions aze made. This centralized organization allows for all information to
go through the EOC for the best decisions to be made, allowing for the most effective and
efficient allocation of resources to be disbursed to best handle acrisis/disaster situation.
The EOC is currently located on the second floor of the Public Safety Building, located at 1805
33rd Street in Boulder. It is anticipated the EOC will be relocated sometime during 2008 to a
new building neaz the Boulder County Jail on Airport Road.
Public Works Department Incident Command Center
The Public Works (PW) Incident Command is established as the central point for essential
Public Works information coordination concerning a disaster situation. The PW Incident
Command stays in contact with the EOC. (At least one PW representative will be at the EOC and
act as a liaison between the EOC and the PW Incident Command.)
The PW Incident Command is located at the Municipal Service Center in the conference room.
The PW Incident Command begins being prepazed for activation during mode 2 and is activated
and fully staffed in mode 3.
The Municipal Service Center also serves as Public Works' Resource Allocation Center (RAC),
which is responsible for allocating and documenting city resources (personnel, equipment and
supplies) needed in a disaster situation.
Multi-Hazard Mitigation Plan
The city is working with AMEC Earth and Environmental, Inc. on finalizing the development of
a multi-hazazd mitigation plan (MHMP) for Boulder. The Disaster Mitigation Act of 2000
(DMA) requires local communities to have a FEMA-approved MHMP in place in order to
43
maintain eligibility for certain federal pre- and post-disaster mitigation fimding. The purpose of
the plan is to identify natural hazazds that affect a community and the people and places that aze
at risk. The plan then provides a framework for actions that may be applied to reduce or
eliminate long-term risk associated with priority hazazds.
MHMP elements include:
• Community Profile
• Risk Assessment
• Hazard Identification
• Vulnerability Assessment
• Capability Assessment
• Mitigation Srtategy
The Denver Regional Council of Governments (DRCOG) adopted a Denver Regional Natural
Hazazd Mitigation Plan in October 2003, as initially required under the DMA. Boulder County
and the city of Boulder did not formally participate in the DRCOG plan and did not receive
MHMP credit. The city of Boulder Flood Management Program decided to initiate the MHMP
process independently to preserve federal mitigation funding eligibility.
The University of Colorado (CU) has also adopted a MHMP and Boulder County has recently
initiated development of a MHMP.
The city of Boulder MHMP has been presented to WRAB and is currently under final review by
FEMA. It is anticipated the plan will be presented for formal adoption by City Council in July.
Flood Education
Boulder has substantial development in the floodplain, making flood education and outreach a
vital component to the flood management program. Flood education activities focus on
educating the public about flooding and providing information and resources the public may
access to reduce their own exposure to flooding. Staff continues to work on a variety of flood
education efforts that communicate with the public about the flood hazards in the city of Boulder
and how to prepare for flooding. Boulder currently implements the following flood education
activities:
• Annual mail updates to floodplain properties through UDFCD
• Annual flyer inserts in April's utility bill
• Flood information on the city's natural hazards and flood Web site
• The Boulder County Flood Protection Handbook (2002)
• Internet-based flood education sites that cover topics on flood safety and property
protection
The city of Boulder and the UDFCD co-funded anInternet-based flood education project for
Boulder in 2004, found at www.boulderfloods.or~. The project was developed by Mazshall
Frech, Texas Environmental Center (TEC) and is an expansion of the Web site originally
44
developed to address major flooding in Texas. Phase 1 involves interactive maps, an introductory
video, Front Range flood history, and information about clean-up after a flood.
Given the Phase 1 results and the value of expanding the availability of flood education, the city
and UDFCD co-funded a Phase 2 of the project. In addition, TEC is seeking fending from other
multiple resources to expand the Web site to cover the entire Front Range. Expected products
from the Phase 2 project include:
• "Ready or Not," a PBS movie about Front Range flooding
• Flood animation maps
• Watershed maps
• Short videos of municipal projects and flood safety issues
• Flood insurance facts
• Public Safety Personnel Orientation and Training DVD
• Front Range weather videos
• National attention for Boulder's Flood Risk
In addition to the www.boulderfloods.or¢ Web site, staff continues to develop and expand the
city's floodplain management Web page, www.boulderfloodinfo.net. The site focuses on
educating the public about flood emergency prepazedness and floodplain management activities
and information, including access to common flood information.
The annual flood information utility bill has been improved this year. This will be distributed
with the city's April utility bills, and a message on the utility bill itself will point customers to
the information in the insert.
Public Works staff also incorporates flood safety information into a variety of other outreach and
educational materials and events. Below is a list of other outreach efforts for 2008:
• New underpass warning signs installed
• K-3 Classroom Flood Safety Program will be offered to teachers.
• Flood awazeness utility bill insert
• Two utility bill messages
• H2O Go Middle School Flood Unit available
• Farmers Mazket outreach on Wednesdays, May -October, and on Saturdays, June -
August
Next Steps
Flood Regulations for Critical Facilities
City Council endorsed the development of higher floodplain standazds for critical facilities at its
January 29, 2002 Floodplain Policies study session. The CFS adopted in 2004 also prescribed the
development of 500-yeaz protection standards for critical facilities, in line with federal guidance,
to ensure access to, use of, and uninterrupted service for critical facilities. The 2006 Boulder
45
Valley Comprehensive Plan, Implementation Plan, Section 4.20-4.24, "Floodplain Policies,''
outlined the implementation of a critical facility floodplain ordinance:
Short Term (1-2 Years) Mid Primary Status
2006-2007 Term (3-5 Responsibili
Years) ty
2008-2010
Environment
4.20 - Develop a critical facility floodplain Utilities, These efforts
4.24 ordinance for the city to protect Planning are set to
Floodplain critical facilities to the 500 year flood. move
Policies Expand risk assessment activities to forward
include: immediately
• 500 year floodplain risk assessment with city's
(population and structures). consultant
• High Hazard floodplain risk providing
assessment (population and research and
structures). recommenda-
• Hazard analysis of identified critical tions.
facilities using available data.
• Additional inventory and analysis of
100-year, 500-year, and High Hazard
floodplain to include # of acres, # of
parcels improved and vacant, and
vacant parcel Land Use and Zoning
designations.
The location of critical facilities is a major concern in any disaster event. Critical facilities are
essential to the community in serving and protecting the public and maintaining continuity of
government and the economy before, during and after a disaster. Critical facilities located in the
floodplain are placed at a higher risk for loss and ensuring their protection may be vital in an
emergency.
The first element in developing a critical facility ordinance is defining critical facilities.
Commonly accepted critical facilities include fire and police stations, water and sewer treatment
plants, utility infrastructure for water, sewer, gas, electric and communications, hospitals,
nursing homes, and facilities storing hazardous materials. Others may be schools, publicly-
owned facilities and designated emergency shelters.
AMEC Earth & Environmental, Inc. is assisting the city in researching and developing a critical
facility ordinance. AMEC's June 16, 2006 memo outlines research of critical facility regulations
nationwide and has led to a recommendation for defining local critical facilities as follows:
46
"Critical Facility" means any property that, ifflooded, would result in severe consequences !o
public health and safety or a facility which, if unusable or unreachable because offlooding,
would seriously and adversely affect the health, safety and welfare of the public. Critical
facilities include, but are nod limited to: (1) Schools and other publicly-owned facilities, (2)
Hospitals, nursing homes and housing likely to have occupants who may not be sufficiently
mobile to avoid injury or death during a flood, (3) Police stations, fire stations, vehicle and
equipment storage facilities, and emergency operations centers and designated shelters that are
needed
for flood response activities before, during and after a flood, (4) Public and private
utility facilities that are vital to maintaining or restoring normal services to flooded areas
before, during and after a flood, and (5) Structures or facilities that produce, use or store highly
volatile, flammable, explosive, toxic and/or water/reactive materials.
Staff is currently researching and evaluating floodplain regulations and measures for application
to critical facilities. Some options that may be considered include prohibiting new critical
facilities in flood hazazd areas, requiring substantially improved structures to be flood protected
to the 500-yeaz flood level (this will also require an analysis of appropriate freeboazd
requirements), and road access standazds to ensure connection to lands outside the 500-yeaz
floodplain. Conceptually, the regulations would apply protection standazds to facility
development deemed critical based on the 500-yeaz-event water surface elevations, instead of
100-yeaz-event water surface elevations currently used to regulate both critical and more general
development.
Current floodplain regulations prohibit use changes in the high hazazd zone of existing structures
to schools, daycaze centers, group homes, residential care facilities or congregate caze facilities.
Staff will evaluate expanding on this requirement to include other defined flood risks (100-year,
500-yeaz, and conveyance zone) and other types of critical facilities. Amore detailed discussion
regarding specific development standards for protecting critical facilities will be presented at a
later phase of the project.
Ideally, critical facilities would not be located in the 500-year floodplain. However, it is
recognized there aze a significant number of existing facilities that are within this floodplain. The
evaluation will include inventorying these existing facilities and distinguishing their various
uses. (For example, in the case of various public facilities, the associated agency and the type of
use.) Cost estimates for potential mitigation alternatives that provide protection for both the 100-
year and 500-yeaz flood event will be developed. The type of facility and the estimated
mitigation cost will be used to prioritize facilities for inclusion in the proposed ordinance
definition of critical facilities.
The city is also considering expanding floodplain risk assessment activities to include the 500-
year floodplain. This expanded assessment will be used to define the effectiveness of current
floodplain standards and offer an understanding of the impacts that would be associated with
increasing floodplain standazds to the 500-year level. Recent disasters and national trends in
natural hazazd protection standards have raised concerns that the 100-year flood standazd may
not offer adequate protection for losses. Minor regulatory changes, specifically related to
clarifying the current code, may also be evaluated through this process, and if needed; ordinance
changes will be forwarded to City Council as part of the critical facility regulations.
47
Approval of a "critical facilities" definition and ordinance will be subject to public review and
recommendation by the Water Resources Advisory Board and the Planning Board before
presenting an ordinance to City Council for consideration.
48
ATTACHMENTS
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ATTACHMENT A:
Background Information on the Wetlands Protection Program
Wetlands aze azeas that are inundated or saturated by surface water or groundwater with
sufficient duration and frequency to support life adapted to saturated soil conditions. In the
Boulder region, wetlands typically occur neaz and along streams and ditches, along the edges of
ponds and reservoirs, and in other low-lying places where the water table is near the ground
surface. Boulder's Wetlands Protection Ordinance also applies to lakes, ponds, and streams,
including ephemeral streams that flow at least every other year.
According to city ordinance, a wetland is delineated using the Comprehensive Wetland
Boundary Determination as described in the Federal Manual for Identifying and Delineating
Jurisdictional Wetlands (Federal Interagency Committee for Wetland Delineation 1989, also
know as the "89 Manual"). This manual describes the technical criteria used to determine if an
area possesses the vegetation, soil characteristics, and hydrology that define a wetland. For
streams the regulated azea is from bank to bank in the active channel.
Wetlands play important roles in supporting water supply, maintaining water quality, and
supporting plants, animals, and ecosystems. Wetlands store floodwaters and they supply water
to both aquifers and streams. Wetlands store and/or transform nitrogen, phosphorous, sediment,
and other contaminants. Vegetation in wetlands prevents erosion and further degradation of
water quality. Wetlands also provide important habitat for plants, wildlife, and other animals,
and they aze a vital part of many food chains. Wetland benefits are often degraded by the
pressures of development and land management practices that result in stresses such as increased
paving, introduction of invasive species, and urban runoff. When wetland functions aze lost,
cities and taxpayers are left to beaz the costs including increased water treatment, flood
control, erosion control, weed control, and diminished water supplies. Therefore, federal, state,
and local governments have recognized the need to protect and mitigate for loss of wetland
resources.
Even though the city of Boulder has been drastically modified by human activities, half of the
wetlands aze primarily natural in origin (see following table). However, the natural wetlands
account for only 10% of the wetland azea that aze mapped. About one-third of the wetlands are
primarily products of urban /industrial activities, such as creation of wetlands along existing
drainageways. It is important to note that wetlands that aze classified as natural may have
significant components that are the result of human activities. For example, Goose Creek is
considered to be a natural wetland, even though the lower reaches have been heavily altered.
Ori in of Ma ed Wetlands
Origin Number % of Total Area (acres) % of Total
of Number Area
Wetlands
Natural 48 52 94.6 10
A riculture 6 6 19.1 2
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Urban/industrial 31 33 739.8 80
Minin 8 9 77.5 8
Total 93 100 931 100
The 2004 wetland remapping and assessment project confirmed that Boulder contains an
impressive collection of wetlands within the city limits. The project mapped 93 wetlands within
the city boundaries, and the total area of mapped wetlands was 931 acres (of which nearly 700
acres are associated with the Boulder Reservoir). A qualitative comparison of boundazy changes
in the 93 wetlands suggests that there has been minimal overall net change in wetland area within
the city since the late 1980s for a vaziety of reasons including definition differences and
improvements from mitigation and restoration efforts.
The city's wetlands are performing a vaziety of functions within a fairly wide range of
effectiveness. More than half of the wetlands perform at least one of the assessed functions at a
high to very high level. Flood storage, sediment trapping, long-term nutrient retention, in-basin
food chain support, and passive recreation are the wetland functions that are being performed by
the greatest number of wetlands to a high degree. Passive recreation/heritage was the function
with the maximum number and percentage of wetland azea with a high or very high rank. The
largest numbers ofhigh-functioning wetlands are found near the Boulder Reservoir, Boulder
Creek, and S. Boulder Creek/Dry Creek as those aze the main areas of water flow and storage
which support the largest concentrations of wetlands
Boulder's Wetlands Protection Ordinance
Boulder's Wetlands Protection Ordinance was first adopted in 1992. In developing the original
wetlands protection program in the early 1990's, City Council adopted the goal to protect all
wetlands in the Boulder Valley. The intent of this goal was to ensure 'no net loss' of wetland
acreage or function in the city and, where possible, in the Boulder Valley. The following Boulder
Valley Comprehensive Plan policy was later adopted to reinforce this city goal:
4.09 Wetland Protection.
Natural and human-made wetlands aze valuable for their ecological and, where
appropriate, recreational functions, including their ability to enhance water and air
quality. Wetlands also function as important wildlife habitat, especially for rare,
threatened, and endangered plants and wildlife. The city and county will continue to
develop programs to protect and enhance wetlands in the Boulder Valley. The city shall
discourage the destruction of wetlands, but in the rare cases when development is
permitted and the filling of wetlands cannot be avoided, they shall be replaced.
The implementation techniques that council endorsed at the time in order to achieve this goal
azea are described in the Environmental Program Summary section of the comprehensive plan
and are as follows:
? A local wetlands permitting program
? Negotiated agreements with other governmental entities to protect wetlands
? Acquisition of significant wetlands
? Public education and technical assistance to encourage property owners to preserve,
enhance, and restore wetlands through voluntary compliance
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? Preservation, restoration, and enhancement of wetlands in conjunction with the
development and maintenance of capital facilities
? Preservation, restoration, and enhancement of wetlands on city-owned or managed
land.
A wetlands permitting program was implemented in December 1992 through the adoption of the
Wetlands Protection Ordinance. The intent of the ordinance as outlined in the code is as follows:
1) It is the intent of the City Council in enacting [the ordinance] to preserve, protect and
enhance wetlands. The council finds that wetlands aze indispensable and fragile natural
resources with significant development constraints due to high groundwater, flooding,
erosion, and soil limitations, and that development activities may threaten wetlands. The
preservation of wetlands under [the ordinance] is consistent with the goal of wetlands
protection set forth in the Boulder Valley Comprehensive Plan.
2) The City Council finds that many wetlands have been lost or impaired by draining,
dredging, filling, excavating, building, polluting, and other acts. Piecemeal and
cumulative losses destroy or diminish the functions of remaining wetlands.
3) The City Council finds that it is necessary for the city to ensure protection for wetlands
by discouraging development activities in wetlands and those activities at adjacent sites
that may adversely affect wetlands When development is permitted and the destruction of
wetlands cannot be avoided, the City Council finds that impacts on wetlands should be
minimized and mitigation provided for unavoidable losses.
The ordinance regulates activities in wetlands and a buffer area of either 50 feet (for significant
wetlands) or 25 feet (for all other wetlands) outside the boundary of the wetland. The ordinance
establishes a set of wetlands aerial maps as the official determination of wetland boundaries
within the city limits. These maps identify the regulatory areas where certain activities require a
wetland permit.
What is a "Significant" Wetland?
According to the Wetlands Protection Ordinance, "Significant wetland" means a wetland which
meets one or more of the following criteria:
(a) Meets the criteria for significant wetland set forth in the Boulder County Comprehensive
Plan as follows:
(1) Important for flood control, water quality, and runoff stabilization;
(2) Designated as Critical Wildlife Habitat in the Boulder County Comprehensive
Plan;
(3) Designated as a Critical Plant Association in the Boulder County Comprehensive
Plan; or
(4) Designated as a part of a Natural Area in the Boulder County Comprehensive
Plan;
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(b) Performs at least one wetland function, exceut for active or passive recreation, to a high
or a very high degree, as set forth in Advanced Identification of Wetlands in the City of
Boulder Comprehensive Planning Area (1988) by D. Cooper, Ph.D.;
(c) Provides habitat for the following species:
(1) Plant, animal, or other wildlife species listed as threatened or endangered by the
United States Fish and Wildlife Service;
(2) Plant, animal, or other wildlife species listed by the State of Colorado as rare,
threatened or endangered, species of special concern, or species of undetermined status;
(3) Plant, animal, or other wildlife species listed in the Boulder County
Comprehensive Plan as critical;
(4) Plant, animal, or other wildlife species listed as a Species of Local Concern in the
Boulder Valley Comprehensive Plan;
(d) Could be made a significant wetland through reasonable changes in management practices;
(e) Has a hydrological connection to a significant wetland, the impairment of which would
adversely affect the significant wetland; or
(f) Is designated as part of a natural ecosystem in the Boulder Valley Comprehensive Plan.
54
ATTACHMENT B:
Background on the Comprehensive Wetlands Remapping Project
Purpose of the Remapping Project
Wetlands in Boulder were originally mapped in the late 1980's on a broad, conceptual level
through the use of aerial photography and some field mapping. Over the years, the conceptual
mapping approach used to map the current regulatory maps has caused some difficulty in
administering the wetlands ordinance. Built structures such as roads, trails, and buildings aze
shown as part of a defined wetland. For the city to effectively administer the ordinance and
strive to achieve no net loss of wetlands (the original policy direction for the ordinance), accurate
and current maps are essential.
In the summer of 2004, the city conducted a comprehensive remapping of wetlands throughout
the city under a $71,600 grant from the Environmental Protection Agency. The grant enabled the
city to hire a consultant to conduct the field work and develop a digital database which includes
new wetland and buffer area boundaries and functional evaluations of all regulated wetlands on
private and city-owned land within the city limits.
Methodology
Wetlands within the city were mapped and evaluated from May to October 2004. The field work
involved walking around the perimeter of each wetland (if access was granted), collecting
relevant environmental and vegetation data, and mapping the wetland boundaries on color aerial
photographs. The city's wetland consultants also conducted a functional evaluation of each
wetland in the field (see sample functional evaluation at the end of this attachment).
A total of 93 wetlands were mapped within the city limits. Wetlands that were visited during the
project included previously mapped wetlands, new locations highlighted by city staff, and
potential wetlands identified from review of aerial photographs. The total area of mapped
wetlands was 931 acres, of which nearly 700 acres were associated with Boulder Reservoir. It is
important to note that this project did not include all of the wetlands within the city limits.
Wetlands that were excluded from this mapping effort were those located on federal government
property and University of Colorado grounds, wetlands owned by the city and managed by Open
Space and Mountain Parks, and specific properties the city asked to exclude (e.g., county enclave
properties, recently remapped azeas, unmapped ditches, and small ornamental ponds on single-
family residential lots).
A direct numeric compazison of the newly mapped wetland azeas with previous boundaries was
not completed for this project, and would be difficult to do accurately given the differences in
segmenting wetland boundaries. A qualitative comparison, based on consultant observations of
boundary changes in 93 wetlands, suggests that there was a minimal overall net change in
wetland area within the city. Although some former wetlands disappeared from filling or
absence of water, mitigation wetlands and restoration efforts increased wetlands in other
locations. The size of wetlands lying along streams typically decreased due to changes in
wetland mapping methodology, notably the availability ofhigh-resolution aerial photographs.
However, slope wetland areas not directly associated with streams tended to increase because of
55
the availability of better mapping tools. A difference between past and current wetland maps is
the inclusion of certain ephemeral creek channels in 2004. Previous maps included portions of
wetlands along creeks (appazently identified at the discretion of mappers), while the 2004 project
included stream channels along natural drainage pathways in keeping with the city's current
wetland definition.
The wetland functions that were evaluated included groundwater rechazge and dischazge,
floodflow storage or alteration, sediment trapping, shoreline anchoring (erosion control), nutrient
retention, food chain support, aquatic and wildlife habitat, and recreation and heritage values.
More than half of the wetlands perform at least one of these functions at a high to very high
level. Flood storage, sediment trapping, long-term nutrient retention, in basin food chain
support, and passive recreation are the wetland functions that aze being performed by the greatest
number of wetlands to a high degree. Passive recreation heritage is the function with the
maximum number and percentage of wetland azea with a high or very high rank. Conversely,
fish and aquatic habitat and active recreation received high ratings in only five wetlands. The
largest number ofhigh-functioning wetlands is found neaz the Boulder Reservoir, Boulder Creek,
and South Boulder Creek/Dry Creek as those are the main areas of water flow and storage in the
city.
Out of the 23 wetlands that had three or more highly-rated functions, 11 wetlands were identified
as exemplary and deserving special protection and management. These wetlands were selected
based on their size, setting, and/or overall integrity, and there was at least one in each of the
designated drainage basins (with the exception of the Elmer's/Two Mile and Skunk Creek
basins).
The 2004 remapping and assessment project highlighted a variety of threats facing Boulder's
wetlands including invasion of noxious weeds and other alien plant species, continuing
urbanization with more paved surfaces, channel downcutting, changes in flood hydrographs, and
increasing human and pet use. Increased coordination among city departments and greater
management will be required to abate these threats and protect Boulder's wetland over the long
term.
Public Process
In Apri12004, staff mailed an information letter to landowners who had regulated wetlands
identified on their property. The letter provided information about the remapping project and
requested permission of the landowner to access their property to remap wetlands.
Approximately 70 out of 500 property owners responded to the letter. The city's consultant team
did not access private property for the remapping project unless a property owner granted
specific permission to the city or if the city had an access easement along a stream or creek (e.g.
Boulder Creek). If no access rights were available, the consultant remapped wetlands and
corrected mapping errors through interpretation of aerial photography or by viewing the wetlands
from off the site.
After the initial mapping was completed in September 2004, landowners affected by wetland or
buffer azea boundaries on the proposed maps were sent two letters informing them of public
open house dates and Planning Board public heazing dates.
56
Planning Board considered a recommendation to City Council on adoption of the maps on
October 28, 2004. Because of issues raised by property owners at that meeting concerning the
regulation of residential properties, the board directed staff to look at changes to the ordinance.
Staff returned to the boazd on May 19, 2005 with proposed revisions to the ordinance that would
exempt certain many minor residential activities from permit requirements. At that meeting, the
boazd did not make a recommendation to City Council but requested that staff consider further
changes to the Wetlands Protection Ordinance to address the following additional issues with the
ordinance:
1) Some boazd members felt that the $500.00 fee is too high for some permits.
2) Several board members expressed an interest in changing the ordinance to make it clear
that interior remodeling is an exempt activity under §9-12-5(c) B.R.C. 1981
3) Some type of "right to rebuild" in cases of natural acts (e.g. fire) should be added to the
exemptions.
4) The boazd expressed that it would like to expand the things that would be exempt from a
wetland permit. Some things mentioned by the board include basic uses of residential
back yards, like raised garden beds, gazebos, sheds, and fences.
5) General support was given to the existing 50 and 25 foot buffer widths. However,
several boazd members expressed potential support for a process that would allow
property owners to vary the buffer width on an individual property.
6) Some board members did not think that active-passive recreation should be considered as
one of the factors that would create a significant wetland.
On September 22, 2005 staff took options for addressing property owner concerns to the board
for discussion. At that meeting, staff recommended that property owner issues be addressed
primarily by exempting several minor activities which do not involve placement of permanent
structures or buildings from the ordinance. Planning Board gave the following direction to staff:
1) The permit fee for simple permits is too high and needs to be reduced to promote
compliance with the ordinance.
2) Although the intent of the ordinance and the buffer azea is very important, there needs to
be a reasonable appeals process for landowners to request reconsideration ofthe buffer
size on their property.
3) Look at educational opportunities to make property owners awaze and get voluntary
involvement and cooperation in protecting wetlands.
4) Look at restructuring the ordinance to define specifically what is not allowed without a
permit instead of listing all the exemptions.
57
Because of the issues with the ordinance in general and the buffer azea in pazticular that were
raised by affected property owners and Planning Boazd, staff postponed the adoption of changes
to the ordinance in fa112006 in order to reseazch the science related to buffer areas and
approaches to buffer area regulation azound the country. The reseazch resulted in a buffer area
study that was presented to Planning Board in May 2007 (see Attachment D). At that meeting
staff presented the board with options for addressing concerns about the wetlands ordinance.
Planning Board directed staff to proceed with adoption of the maps but also to begin the process
of revising the ordinance.
After the new mapping was completed, the mailing list was expanded to include property owners
with proposed wetlands and buffer area designations on their properties. At least five letters
were sent to all affected landowners beginning in August 2004 to inform them of the proposed
new maps and provide an update on the adoption process. Landowners could view and comment
on the proposed changes to the wetlands boundaries on: 1) a web-based interactive wetlands map
and, 2) a map book in the lobby of Planning and Development Services. Staff communicated
with approximately 175 out of 8001andowners by phone, through a-mail, or in person.
From September 2004 to May 2006, several public meetings were held to present the proposed
new maps and hear comments and concems about the Wetlands Protection Ordinance. Five
public open houses were held in 2004, 2005, and 2006 to allow landowners to view the proposed
wetland boundazies on their property and to talk directly to city staff and its consultants. The
city's wetland consultant attended one of those meetings and revisited about a 20 properties
where concerns with the mapping were raised by the property owner. A combined total of
approximately 125 people attended these five public meetings.
The primazy concerns expressed by landowners at the public meetings, by phone, and through e-
mail is that they did not know about the existing Wetlands Protection Ordinance and that the
buffer area regulation was too restrictive of typical residential activities. Although many
landowners were aware that the city regulated floodplains, they did not know that the city also
regulated activities within wetlands and a 50 or 25 foot buffer azea. Although Boulder has
regulated activities within the wetland buffer azea since January 1993, the buffer area was not
shown on the city's regulatory maps or GIS until the late 1990s.
Many landowners voiced their opposition to the regulation of a buffer azea. Concerns were
raised about the extent of the buffer area covering individual yazds and the potential constraints
the regulation posed on existing and planned activities. Since the buffer area is one of two
standard fixed widths, it often incorporates built structures and other improvements on a
property. (In many residential azeas, the buffer area covers over one half of some individual
properties and sometimes the house itself) Staff attempted to address these concerns by
proposing exemptions for most activities within buffer azeas that would not result in significant
impacts to adjacent wetlands. Several landowners, however, were not satisfied with this
approach. Because they felt that a buffer area affected the value of their property and that the
proposed exemptions would limit the potential for the expansion of their homes, they were
opposed to the staff proposed changes to the ordinance.
58
Notices sent to property owners:
April 14, 2004 Notice sent to landowners with (then) current with wetland
designations on their property of remapping project and request to
access property for on their properties informing them of the
remapping project.
September 3, 2004 Notice sent to all landowners with proposed wetland and buffer
areas on their properties informing them of the completion of the
remapping, proposed boundary changes, and a public meeting on
September 15, 2004.
September 17, 2004 Notice of completion of remapping, proposed boundary changes,
and public meeting on September 29, 2004 (sent to landowners
with proposed wetlands and buffer azeas that were not captured in
9-3-04 mailing).
September 21, 2004 Information letter sent to landowners in the West Arapahoe
Avenue neighborhood to clarify ordinance and answer additional
questions (at request of one property owner).
November 3, 2004 Notice of completion of remapping, proposed boundary changes,
and public meeting on November 15, 2006 (sent to approximately
301andowners that were omitted from the original mailing).
November 23, 2004 Follow-up letter sent to 15 attendees of 11-15-06 public meeting in
response to questions.
November 23, 2004 Notice sent to all landowners informing them of postponement of
the adoption process.
March 17, 2005 Notice sent to all landowners informing them of April 5, 2005
public meeting and May 19, 2005 Planning Board meeting.
June 9, 2006 Notice sent to all landowners informing them of June 19 public
meeting.
August 4, 2006 Notice sent to all property owners affected by proposed wetland or
buffer area designations informing them of the August 24 Planning
Board meeting and postponement of the adoption process.
April 30, 2007 Notice sent to all landowners informing them of the May 24, 2007
Planning Boazd public hearing on wetland and stream buffers and
direction on the adoption of the amended regulatory maps.
59
May 1, 2007 Second notice sent to all landowners informing them of the May
24, 2007 Planning Board public hearing on wetland and stream
buffers and direction on adoption of the amended regulatory maps.
July 27, 2007 Notice sent to all landowners informing them of the August 16
Planning Board public hearing on proposed regulatory maps,
functional evaluations, and work plan for ordinance amendments.
Public meetines:
September 15, 2004
September 29, 2004
November 15, 2004
Apri15, 2005
June 29, 2006
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Example of a Wetland Functional Evaluation
Wetland Evaluation Wetland 40503 Former#: 8 T_R_S: multiple
Investigator: A. Carpenter, C. Browne Date of Visit: 8114/2004 Obs. Method: Onsite
General Location: Boulder Creek from western boundary of city east to 30th street; Arapahoe road to Foothills Parkway
Description: Boulder Creek is the major stream flowing from west to east across the center of the city, and its perennial water and
large watershed make it the centerpiece of the Boulder landscape, providing several high value ecological functions. Mostly
forested wetland with plains cottonwood abundant in upper reaches and crack willow dominant in lower reaches; heavy recreational
use of entire wetland. The hydrologic functions vary with location and season but generally, the creek bottomlands are associated
with groundwater discharge, particularly from the south where the creek Flows along the edge of a Pierre shale formation between
9th and 28th, and also in the lowland areas near 55th St (in TINR70WS27).
Wetland Origin: Natural Primary Water Souree: Creek
Hydroperiod: Seasonally flooded Max WaterDepth (ft): 3
Maior plant communities present % of wetland area % Vegetated: 20
Plains cottonwood 15 % Bare ground: 10
Crack willow 85 % Water: 70
FUNCTION AND VALUE ASSESSMENT
Ratings: 5 =very high, 4 =high, 3 =medium, 2 =low, 7 = no Confidence in rating: c = high, b = medium, a =low
Grouudwahr 2 6 While local recharge may occur seasonally in certain locations, the hydrogeologic
Recharge maps depict groundwater less than 5 R below ground surface, so the effectiveness of
recharge would be limited.
Groundwater 3 c Geohydrology map suggests groundwater discharge may occur when the water table
Dixharge is high, particularly from the south where the creek Flows along the edge of a Pierre
shale formation between 9tlr and 28ttt, and also in the bottomland areas in
TOVR70WS27 near 55th St.
Flood Storage / 4 6 The sheer scale of Boulder Creek and its location as the major drainage corridor Nrough
Floodflow Alteredos the crnter of the city give it an important functional value for altering flood flows by
receiving inflows from numerous subbasins.
Shoreliae Anchor. / 5 6 Local vegetation and substrate conditions may vary along this long stream corridor,
StaMlintbs bm overall the shoreline stabilization function is very high.
Sediment Treppiog /Retrndoa 3 b Perennial flows tend to move sedimrn[s through the system for deposit furdrer downstream.
Pockets of deposition along edges expected to be washed out in periods of high Flows.
Nutrient Rehados (long term) 4 b Significant rtrntirnt expected in tress and shmbs and some sediments, and opportunity for
input exists from the large number of nonpoint sources throughout the watershed.
Nuttiest Retention 3 b No significant sedimrnt accumulation or marsh type vegMation.
(ahoti-tern)
Food Chds Sapport (export) S b Plentiful ovefianging trees and perrnnial flaws for export.
Food Chain Support 4 6
(withls Main)
Fia6 Habitat / Aqutk 4 b
Divereity
Wildlife Habiat 4 6
Aetive ReemNoa 4 c
Paaaive Ree/Hetita`e Valne S c Heavy recreational use throughout. Heritage value is rnostty from creek's large siu and
importance to the city's character.
61
ATTACHMENT C:
Public Feedback on the Wetlands Protection Ordinance
January 31, 2008 Open House on Preliminary Approaches to the Wetlands
Ordinance Revisions
The Following are written comments received from landowners in the West Arapahoe
Avenue and Two-Mile Canyon Creek neighborhoods:
List of citizens narticiaatine with email addresses:
Lovedy Barbatelli lovedy@,lovedv.com
Jane Ann Hebert janehebert~msn.com
David W. Crumpacker david.crumnacker(u~colorado.edu
Gail Gordon Qail-cpa(a~gordonassoacom
Craig Bundy craigbundy(c~yahoo.com
Dick Blumenhein Dblumenhein(a~hotmail.com
Arapahoe Maaaine Comments:
-No notification of individual properties during mapping
• No one came to survey/walk my property to look at on the ground information.
• It seems arbitrary how the buffers aze laid in.
• Has the city "ground truthed" and determined if the new aerial maps are accurate?
• 20 yeazs ago, Juniper not in Greenbelt; added in recently. Discussion at Planning
Boazd-- Consultant said..."We made a mistake originally"
• Should look at this neighborhood by neighborhood and consider each property's
unique circumstances. Can not do this with the "cookie cutter" approach.
• Consultant admitted at Plan Board that they did not have the resources to do accurate
mapping.
• Staff claimed that the maps were "site based". How can that be if they did not come
to property?
• 10/02/07 City Council meeting approved wetlands map against (information provided
during) citizen participation.
• (We now have) a map without ordinance and clear process brings people into a
regulatory zone with out any recourse to understand condition they are now in.
RE: Juniper issues:
Kalmia-Juniper neighbors have spent 10's of thousands of dollazs to remove from maps.
Hired Walsh Envirorunental and have signed designation from Corps of Engineers. What
happens how if the city rejects this information? What is our remedy inside of this
process and who decides?
63
Added by other neighbors:
This azea deals with "dry" creek/stream.
Why is City's wetlands ordinance more strict than Federal regulations?
Buffer Zone comments:
"Buffer Zone, looks like just another reason to regulate properties. I want to build an
addition some day and this is changing my right as a property owner, to use my
property."
• First the City regulates us... and then they charge us!
• Puts burden back on the property owner with no compensation for lost value.
• No one has proposal to compensate us for new Wetland/Buffer overlay.
• Staff's materials on the wall not representative of our circumstances.
• City of Boulder got grant for $72K-EPA started borrowing concepts for buffers etc,
from together communities, piecing together information to inform ordinance.
• City started the EPA wetlands mapping project in 2004 without citizen input.
• Buffer is not tied to information about "what is a wetlands and why do we regulate
them."
• Does the 50-foot buffer on Arapahoe consider the topography of the creek bed being
separated from our yards by steep bluff/drop?
• The City appears to be setting up ordinance for simplicity ofadministration -not
considering case-by-case analysis.
• Taking away our property rights is not an effective way to get your citizens behind a
wetlands ordinance.
• Buffer includes the footprint of our houses.
• 2/3 of the Gordon house is located inside of the arbitrary buffer zone.
• Need a MORATORIUM until more of the basis is resolved.
• What are the boundazies of the wetlands?
• Buffer looks azbitrary.... Based on buffer models from other parts of the country.
• Should there be compensation for lost value as consequence of buffer? Maintenance?
General Wetland & Flood Protection Comments:
• Need flood prevention first
• City should look at select removal of large trees -look at the Cottonwood ecosystem
and its effect on the creek way.
• Need active management of ripazian habitat.
• We all support wetlands, just not with wide buffer-narrow corridor.
• Cannot take a wetlands plan -and just run it though the existing neighborhood.
• In favor of protecting true wetlands, with "reasonable standards" for protection.
• How many properties in how many neighborhoods aze affected?
• Resident properties along the creek are well cared for and well landscaped. We take
far better caze of our creek easement than the city properties do. Look at Eben Fine
Park and Library properties- not in good shape.
• City-owned Library and properties have placed asphalt lots adjacent to Boulder
Creek. This is a double standazd.
64
Process and staff performance comments:
• We need to speak to City Council. They need to look at this neighborhood-by-
neighborhood.
• Where aze the comments we have made at other meetings, since 2006/2007?
• City staff is the issue. Assigned staff not qualified/competent to do this work.
• June 2006- meeting facilitated by Kon Damas. 130 people spoke and he took our
comments. Where aze these notes and how were they ever used?
• Come to these meetings and say the same thing over again. Staff is not hearing where
we aze.
• We want Jeff Arthur, from flood management assigned to manage this project ASAP.
• Many properties aze subject to both floodplain and wetlands regulations.
• There is no comprehensive stated objective for this project. Feels like there has been
no cleaz direction.
• Notice for this meeting said to come and provide input -yet we aze not going to be
"heazd" here by anyone who makes decisions.
• Is the City mailing list accurate? Many of our neighbors were not notified.
• City seems intransigent- not listening. No chance for rebuttal.
• We have no trust in Bev Johnsons staff leadership in this wetlands project.
• Please convene multiple neighborhoods and provide Council members for us to speak
with.
• Can citizens have presentation time at City Council Study session?
• We have no idea how much this is going to cost us.
• Where is the City Manager in this process?
• "Leadership" is lacking. No clear process. No evident consideration of equity.
• Need the City Council to give staff clear goals and direction.
• Staff is not elected to work for us; they have their own agenda.
• Agree with Rob Smoke - we need a performance evaluation of the Planning
Department staff.
• We need to interact with Council somehow.
• I am a single woman. This real estate is all I have...
• No comprehensive stated objective. People do not have understanding of what
happens when they are "brought in."
• Some property owners aze not participating in this public process for fear or reprisal
from the City.
Specific comments received at the Open House:
Our house, built in 1991, partially lies within the 50' buffer zone (about 25 percent of it).
Either the new ordinance should exclude structures that preceeded it, or the preferred
approach for us would be to exclude structures built before 1992 from the wetlands buffer
zone altogether. Logically, the exclusion would be from the wetlands buffer zone itself.
I favor approach #Z.
George Peters
65
379 W. Arapahoe Ln. Boulder, CO 80302
303-415-9835
1 Deters ,earthlink.net
It's quite bogus to be frank. The "preliminary approaches" have been going on for three
different elected city councils.
It is severe over-regulation especially for those of us that have lived there on Arapahoe
(between 4`h and 5~ St.) for over 20 years (like me since 1985).
For long time residents, we have never had "wetlands" in our yards. Boulder city
decided to re-do maps, but no site measurements ever done.
Why is the city spending all this time and money just so that they can control how we
develop our properties? It's Big (Boulder) Brother at its worst.
Lovedy Barbatelli
441 Arapahoe Ave. Boulder, CO 80302
303-443-1662
lovedvna lovedv.com
Meeting Notes from the June 26, 2006 Public Meeting on Wetlands Ordinance
and Map Revisions
The following summarizes comments of the members of the public in attendance at the meeting:
• Mosquito control between the County and City has been inconsistent and has been
provided on public lands only if mosquitoes were found that were potential carriers of
the West Nile Virus.
• The proposed changes to the wetlands scope (and perhaps the original 1992 ordinance
which may have been passed without notifying individual property owners except
perhaps in newspaper articles) is a "taking" of property and requires a nexus between
the purpose/scope of the ordinance and the taking. Many present did not believe that
nexus existed.
• The city should notify affected landowners before adopting any changes. Those
attending also asked that the notes of the meeting be made public and emailed to all
who attended.
• The scope of the buffer zone is excessive and unnecessarily and inappropriately being
applied to many areas.
• Inclusion of ephemeral streams in the ordinance is outside the purpose of the
wetlands ordinance and buffer zones around ephemeral streams is also excessive.
• The regulation of ditches is excessive.
• It is unfair that a standard buffer zone is applied to properties regardless of the
topography of the site.
66
• Some landowners have hired outside experts to look at their property and claim that
there are no wetlands on their property (even though the city is showing wetlands on
its maps).
• The definition used for wetlands under the city's ordinance was challenged as was its
application to real parcels. The federal law requires soil, hydrology and vegetation to
be considered wetlands. The ordinance requires only two of three of those factors to
be present. Furthermore, the city adds drainage ditches and ephemeral wetlands to its
definition even though some of them never carry water.
• The definition of wetlands and the buffer zone widths need to be based on expert
opinion and hard science. Some suggested the definition of wetlands be changed to
be "bank to bank".
• It is not fair to say that the proposed changes improve things for the landowner since
most landowners didn't know about the ordinance in the first place.
• Has the city solicited input from environmental groups on the changes to the
ordinance and the affect the changes would have on endangered species?
• Property owners objected to the city identifying wetlands and a standazd buffer area
and putting the onus on the property owner to challenge that designation after
payment of a fee, which was found to be excessive.
• The approach of the ordinance is too punitive. Some participants felt that a
cooperative approach would be more successful.
• Has staff addressed Planning Board's concerns about the cost of permit fees?
• Participants suggested the ordinance include an exemption from permit for clearing
flood blockages.
• The buffer zone should align with the 100 year or 500 year flood plain.
• The ordinance should include an exemption for property owners to access the creek
on their property instead of requiring permits if a property owner wishes to build
stairs to the creek.
• The city should use conservation easements instead of wetlands ordinance to protect
streams and wetlands.
• The ordinance should be called something like "groundwater recharge" ordinance to
eliminate confusion and avoid some argument.
• Staff was requested to provide drafts of changes eazlier so the public could have more
time to review them before public meetings are held.
• Property owners complained that the new proposed map showing the buffer zones
had already adversely affected the value of properties under contract for sale.
• While the ordinance grandfathers in the footprint of existing structures, questions
were raised as to whether or not that would apply to illegal structures as well.
• It was suggested that surveys of individual pazcels be completed to determine pazcel-
by-parcel what needs protection.
• The buffer zone should be eliminated. Some opposed its elimination.
• Will the city pursue reappraisal of each property through the county tax assessor to
reflect the reduction in land value created by the ordinance?
• The city should compensate for the impact to property values the ordinance creates
due to the restrictions on buildable area (as evidenced by the affect the drafr map has
had on property sales already).
67
• Pure wetlands should be regulated sepazately from buffer zones and ephemeral
streams.
• Aerial photography is not a good way to accurately identify wetlands.
• People requested clearly written regulations and standazds to avoid arbitrary and
inconsistent decision-making around individual permits (which some complained had
happened on their permits).
• Attendees were urged to show up at public hearings as the lack of public attendance
at previous public hearings was seen as an indication that no changes needed to be
made to the ordinance.
• Designation of wetlands should be based more on science that staff and experts could
agree on, and that any ordinance include reasonable appeals that were cost and time
effective.
• The city does not appear to Follow its own rules as evidenced by the degradation of
Boulder Creek where public access is allowed.
68
ATTACHMENT D:
Wetlands and Stream Buffers: A Review of the Science and
Regulatory Approaches to Protection
Summary of Report
(Full report follows this summary)
The following questions guided development of the report and the analysis of Boulder's
ordinance as discussed in the following section:
1) What is the scientific basis for wetland and stream buffers?
2) What are the various approaches used in other U.S. jurisdictions to regulate activities in
streams, wetlands, and buffer areas or to protect their functions?
3) How do these approaches compaze to Boulder's Wetlands Protection Ordinance?
4) What makes for an effective wetland protection ordinance?
5) Is Boulder's Wetland Protection Ordinance effective? If not, what could improve its
effectiveness?
What is the scientific basis for wetland and stream buffers?
Scientific literature provides extensive evidence that buffers aze an important tool for achieving
wetland protection. Characteristics of a good buffer depend on the individual wetland and the
function being evaluated. For flood control benefits, a buffer should try to maximize available
space in the floodplain so as to increase short term water storage, and vegetated banks should be
present to stabilize streambanks. For water quality benefits, buffers need vegetation to slow
runoff and for groundwater to pass through and undergo pollutant removal. For terrestrial
habitat, it is desirable to have buffers with native vegetation in a vaziety of strata, providing
connectivity to other patches, and with minimal disturbances. For stream ecology purposes,
buffers are most effective when they provide leaf litter to supply the food chain, canopy for
shade, lazge woody debris for in-stream cover, and a place for groundwater rechazge which in
turn supports baseflow in the stream.
Protecting wetlands in urban settings is critical because they often occur in disturbed or degraded
settings. Furthermore, the protection of wetlands in urban and semi-azid settings is more
necessary, because of the scazcity of these ecosystems and the numerous ecological services they
provide. The health of urban creeks and wetlands depends, in part, on the presence of wetland
buffers to reduce the impacts from road runoff, pet and recreational usage, and commercial and
industrial land uses that contribute to degraded water quality.
There is not one optimal width for a wetland buffer. Instead, widths depend on the desired
functions and local conditions such as topography. A substantial body of reseazch exists that
correlates wetland buffer widths with function; there is a wide range of recommended widths for
different functions ranging from a minimum of 50 feet to reduce sediment loading in streams, to
300 feet for protection of certain types of wildlife habitat.
69
Research sources recognize, however, that buffer widths are also political choices that balance
protection of the resource with landowner interests. Although buffers in urban settings are, for
many reasons, more important that in rural settings, those buffer widths aze reflections of the
balance ofpre-existing development conditions, city goals, and landowner interests.
What are the various approaches used in other U.S. jurisdictions to regulate activities in
streams, wetlands, and buffer areas or to protect their functions?
The use of buffers is a very common approach to wetland and stream protection across the
country on the municipal and county levels. Regulatory approaches to stream and wetland buffer
area protection differ widely throughout the country due to localized environmental, land use,
and political conditions. There are, however, commonalities among municipal and county
ordinances which can be summarized as follows:
1) Location in code
The most common framework for buffer protection ordinances is an overlay zoning
district within a land use code. This approach appears to be the more effective and
expedient approach, because it ties development restrictions in buffer azeas more closely
to the existing zoning of a property.
2) Approach to establishin¢ buffer widths
Most jurisdictions use fixed-width buffers because they are simpler to develop,
communicate and administer. Variable and multi-zoned buffer width approaches,
although less common, are more adapted to site conditions, more scientifically based, and
tend to balance landowner interests with resource protection.
3) Review process
The majority of ordinances that were reviewed regulate uses with a setback approach
with allowable and restricted uses specifically defined. Setback approaches provide more
clarity to the landowner and tend to be simpler to administer than discretionary review
approaches which require a permit review administration. The discretionary review
approach of applying general performance standazds to a proposed use in a buffer area is
much less common.
4) Variances
Jurisdictions that have adopted a setback approach provide for a variance procedure for
activities that aze generally prohibited. Typically, variance procedures require an appeal
to the planning or zoning board to allow a prohibited activity under hardship conditions.
Jurisdictions with a discretionary review approach do not provide for variances to
proposed activities, but typically allow for modifications to fixed buffer widths.
How do these approaches compare to Boulder's Wetlands Protection Ordinance?
Similaz to most jurisdictions, Boulder regulates a wetland buffer area through an overlay
protection district in its land use code (Section 9-3-9, Boulder Revised Code). Also like most
jurisdictions, Boulder uses affixed-width buffer approach by applying either a 25 or 50 foot
buffer width to regulated wetlands.
Unlike most other jurisdictions, however, Boulder uses a discretionary review system and not a
setback approach to defining allowed and prohibited uses in the buffer azea. Similar to the
70
federal law, Boulder applies the performance standards of "avoidance", "minimization", and/or
"mitigation" of impacts through a discretionary review of permit applications. (The federal law,
however, only applies to activities in the wetland and not the buffer azea.) Under the standazds
of our code, regulated activities may be permitted if the standazds of avoidance, minimization
and/or mitigation can be shown. Most land use activities, then, aze not strictly prohibited within
a wetland or its buffer. Through the permit review process, a landowner must show that he or
she has avoided, to the extent possible, potential impacts to a wetland in the design of a proposed
development activity. If avoidance is not possible, the landowner must then show that impacts
will be minimized and that direct impacts will be mitigated.
City of Boulder
Planning and Development Services
Wetland and Stream Buffers: A Review of the Science and
Regulatory Approaches to Protection
Apri12007
Developed by:
City of Boulder
Planning and Development Services
and
Biohabitats, Inc.
72
Table of Contents
I. Introduction
Purpose and Background
Structure of Report
Role of Local Governments in Wetland and Buffer Area Protection
Boulder's Wetlands Protection Ordinance
II. The Science of Wetland Buffers
Introduction to Wetland Buffers
Functions and Benefits of Buffers
Functions of Wetland Buffers in Relation to Location, Dimensions, and Vegetation
Considerations of Wetland Buffers in Semi-Arid Settings
Considerations of Wetland Buffers in Urban Settings
Summary
III. Regulatory Approaches to Buffer Protection
Introduction
Methodology
Regulatory Approaches
Location of Buffer Ordinances in Local Codes
Approaches to Establishing Buffer Area Widths
Review Processes and Standards
Variance Procedures
Model Ordinances
Wetland and Watershed Plans
Summary
IV. Conclusions
Appendices
A Model Buffer Ordinance
B References
C Glossary of Terms
List of Tables
1. Effectiveness of different vegetation types for specific buffer benefits
2. Buffer widths recommended by USEPA for various wetland functions
3. Examples of buffer ordinances
73
I. Introduction
PURPOSE AND BACKGROUND
The purpose of this report is provide the Planning Boazd, City Council and the Boulder
community with information on the value of wetland and stream buffers and a review of
regulatory approaches to buffer protection across the U.S. The information in this report will be
used to compare Boulder's Wetlands Protection Ordinance (Boulder Revised Code, Section 9-3-
9, "Wetlands Protection") with other regulatory approaches to wetland" protection throughout the
country and to determine the scope and direction of potential revisions to the city's code.
In conducting a public process to update the city's official wetlands maps, issues with the
wetlands ordinance in general and the regulatory buffer area in particular were raised by property
owners and the Planning Board. Some of the issues that were raised with the current ordinance
concerned: 1) the methodology for establishing buffer widths; 2) the appropriate size of buffer
areas to protect the wetland functions; and 3) the lack of specific standards in the review process.
This report addresses some of the issues that were raised with the ordinance by reviewing the
current thinking about and approaches to buffer area protection across the country. The goal of
the study is to provide background information that will guide the development of options for
updating the city's wetlands protection program and ordinance. The following questions are
addressed in this report:
1) What does recent science tell us about the purpose and importance of wetland
buffers? What are the recommended widths to protect different wetland
functions?
2) What are the various approaches used in other U.S. counties and municipalities
to regulate activities in buffer areas?
3) What are the elements of an effective wetland buffer ordinance and how does
that compare to Boulder's Wetlands Protection Ordinance?
STRUCTURE OF REPORT
The information in this report is presented in four sections. Section I provides background on
the role of local governments in regulating wetland and stream buffers. Section II reviews the
purpose and functions of buffers and the science-supported buffer widths needed to protect the
ecological functions of streams and wetlands. Section III is a discussion and analysis of various
approaches to buffer protection among several local jurisdictions across the country. Section IV
presents a conclusion to the report and recommendations for change to Boulder's ordinance.
For the purposes of this report, use of the term wetland refers to both wetlands and streams.
74
ROLE OF LOCAL GOVERNMENT IN WETLAND BUFFER AREA PROTECTION
Regulatory and policy approaches to wetland protection exist on all government levels including
federal, state, regional, county, and municipal. Section 404 of the federal Clean Water Act
establishes a program administered by the U.S. Army Corps of Engineers to regulate the
dischazge of dredged or fill material into waters of the U.S., including wetlands, through a
permitting process. The landward extent of the federal jurisdictional authority, however, is
defined by the boundazies of the wetland as defined in federal rules.
Although much attention has been placed on wetland regulation at the federal level over the past
few decades, there is a limitation to the role that the federal government plays in regulating
activities in and azound wetlands. For example, the ability of the federal government to regulate
and administer the protection of smaller wetlands and streams through acase-by-case permitting
system is limited by the lack of federal control over water rights (which is regulated through the
states) and land use (which is regulated primarily on the county and municipal level). In addition,
the federal government places little authority over non-wetland habitat azound a wetland despite
the fact that the U.S. Army Corps of Engineers and the federal courts have established that the
azeas outside jurisdictional wetlands may be vital to the processes on which functioning wetlands
depend.
The role of local governments in protecting wetlands and other natural resources is becoming
more evident as political pressures at the federal level result in continuing changes to the scope
and effectiveness of Section 404. Minimum thresholds and types of activities that aze within the
scope of the federal law constantly change with political administrations, court challenges, and
periodic re-issuance of general permits.
Over the last two decades, local governments have come to realize the critical role they play in
protecting and restoring wetlands. Buffer area protection is not uncommon in ordinances or
statutes designed to protect wetlands, streams or rivers. In fact, the use of buffers is very
common and becoming more of the normal approach to wetland protection across the country on
the municipal and county levels. Numerous states, counties, and municipalities have enacted
laws and ordinances over the past 20 yeazs to provide stronger protection to wetlands. As of
2006, it is estimated that approximately 5,000 to 6,000 counties, cities and towns across the U.S.
have adopted specific wetland protection regulationss. Local wetland regulations fill the gaps in
federal and state protection by providing regulatory approaches that cater to local conditions,
provide more effective enforcement, and emphasize landowner education. In particulaz, local
governments can provide better protection of the land areas adjacent to sensitive resources which
are typically outside the purview of federal and state governments.
BOULDER'S WETLANDS PROTECTION ORDINANCE
Boulder's Wetlands Protection Ordinance was first adopted in December 1992 and went into
effect in January of 1993. The ordinance is part of the land use section of the city's municipal
s See Kusler, 2006.
75
code and requires a landowner to obtain a permit for certain activities within a wetland or its
buffer area. The ordinance regulates activities in a mapped wetland or stream channel and within
a 25 foot or 50 foot buffer area from the edges of the wetland or stream channel (or top of the
bank). For the most part, general development activities such as the placement of fill, structures
or impervious surfaces; major regrading; or the removal of a significant amount of vegetation are
currently regulated under the ordinance.
The city's ordinance was developed with an approach to the regulation of activities similar to the
federal law (e.g. the placement of fill, removal of vegetation, alteration of drainage, and
placement of structures) but was expanded in scope to regulate these activities in more wetlands
and in a buffer area beyond the wetland boundary. Similaz to the individual permit system of the
federal law, Boulder applies the standards of "avoidance", "minimization", and/or "mitigation"
of impacts through a discretionary review of permit applications. Most land use activities, then,
are not strictly prohibited within a wetland or its buffer. Under the standards of the code,
regulated activities may be permitted if the standards of avoidance, minimization and/or
mitigation can be shown.
76
II. The Science of Wetland Buffers
INTRODUCTION TO WETLAND BUFFERS
Wetland protection depends not only on managing wetlands themselves, but on managing the
surrounding water sources and landscape, above all in huffer areas. An abundance of scientific
research published since the 1970s documents the value of establishing, maintaining, and
enhancing vegetated buffers along wetlands. Wetland buffers provide important benefits
including water quality improvement, streambank stabilization, flood control, wildlife habitat,
and groundwater recharge (USDA, 2003; Castelle et al., 1992; EOR, 2001; Wenger, 2000;
Correll, 1996). Wetland buffers also provide significant social and economic benefits by
improving aesthetics and increasing property values (Lovell and Sullivan, 2005; Qui et al.,
2006).
Wetland buffers are located along the edges of streams, and ponds, as well as on hill slopes and
in depressions (Figure 1). Water bodies and adjacent lands are generally divided into three zones
-the aquatic zone includes the area below the high water mark; the riparian zone is between the
high water mark and the upland area; and upland areas are adjacent to the riparian zones with
distinctly different vegetation and soils. Because they are not wetlands, buffers generally have
unsaturated soils that did not develop under saturated conditions and vegetation communities
with few if any plant species that require saturated soils. A wetland buffer is the vegetated
transition zone between an upland area and the aquatic ecosystem, and depending on the
definition, the buffer may include portions of both riparian and upland zones. This unique
position in the landscape enables buffers to mitigate certain impacts of upland land use on
adjacent wetlands. In the absence of wetland buffers, these impacts are typically magnified and
become more damaging.
Width, length, and vegetation composition of
buffer areas are key features that enhance
many functions essential to establishing and ~ ~
maintaining healthy wetlands. Wetland ~ . _ ~ ,
buffers var in size based on factors such as ~t`~"
adjacent land use, land ownership, . ~ ~ _
topography, wetland area, and ecological { ~ -
functions. Generally speaking, buffers that are ~ ~ yk~
~ t ~ L1~' ~rf n~ ~ +
wider, longer, and more densely vegetated ~ ' ; ~ ~
with herbaceous, shrub, and tree layers
provide more benefits than buffers that are ~ y ~
t
narrower, shorter, and sparsely vegetated with i, f~~~ ~ ~
Figure 1. Example of vegetated wetland buffer along
only herbaceous species. Bear Canyon Creek in Boulder, CO.
In riparian areas adjacent to active stream channels, buffers provide important hydrological and
ecological "rights-of-way". Stream buffers maintain lateral connectivity between the streams
and adjacent floodplains and uplands, as well as longitudinal connectivity up and down stream.
77
FUNCTIONS AND BENEFITS OF BUFFERS
This subsection summarizes major wetland buffer functions including water quality protection,
streambank stabilization, floodflow alteration and storage, groundwater recharge, and habitat
protection. Vegetated wetland buffers also provide an array of sociological and economic
benefits to communities which are only briefly noted here.
Water Quality Protection -Wetland buffers improve tivater quality by trapping and/or
transforming pollutants such us sediments, nutrients, pathogens, cand pesticides in surface water
and groundsnuter (Pearsell and Mulamoottil, 1996; numerous articles cited in Correll, 1996
including Mitsch et al., 1979; Peterjohn and Correll, 1984; Lowrance et al., 1988; Klarer and
Millie, 1989; Chesair et al., 1991; Parsons et al., 1990. Surface runoff is slowed by buffer
vegetation, causing larger sediment particles and pollutants adsorbed to sediment particles to
settle out (Lee et al., 2003; Correll, 1996). This filtering function is greatly enhanced as the
density of ground layer vegetation and the width of a buffer increase. Further removal and/or
transformation of smaller sediments, nutrients, pathogens. and pesticides can occur through
groundwater filtration, uptake by vegetation, biogeochemical processes, and microbial processes
in the shallow soil profile (Lee et al., 2003; Correll, 1996; USEPA 2005b). For certain
pollutants, such as bacterial pathogens, drier, unsaturated buffer soils will be more effective at
reducing concentrations than saturated wetland soils (Pearsell and Mulamoottil et al., 1996).
Elevated nitrate levels can be reduced where groundwater contacts roots of vegetation and
denitrifying microbes in soils in buffer areas, thereby reducing growth of excess aquatic
vegetation such as algae blooms (Lee et al., 2003). Heavy metals may be precipitated in the soil
and removed from groundwater or may be transformed such that they become immobile or less
toxic or otherwise less biologically active.
Without mature, densely vegetated buffers, common urban runoff pollutants such as pesticides
and fertilizers easily find their way into and degrade receiving waters (Miltner et al., 2004; CWP,
1995; Meyer et al., 2005). It is important to note, however, that the filtering function that
wetland buffers can provide depends largely on the proportion of surface runoff traversing the
buffer via sheet flow. If runoff in an area is mostly channelized or routed into storm sewers, the
filtering function would be greatly reduced.
streambank Stabilization -Vegetated riparian barffers stabilize streumhcrnks and therefore
help to protect infrastructure, improve safety, and redarce sediment loading. The strong, thick
roots of trees and/or shrubs growing along the edge of a stream channel greatly increase the
stability of the stream banks and can effectively dampen energy in stream water, slow water
velocities, and promote infiltration. Plant roots increase the effective size and cohesiveness of
soil particles, thereby protecting soil in stream banks from the erosive forces of water, reducing
the amounts of streambank erosion.
Channel and shoreline erosion occur as a result of fast-moving and turbulent flows contacting
unstable stream banks (Figure 2). In urban and suburban settings, accelerated erosion is typically
associated with increased and uncontrolled stormwater runoff (Dunne and Leopold, 1978; Wohl,
2001). Hardened and compacted land surfaces contribute to increased volumes and higher
velocities of runoff by reducing the degree of stormwater infiltration and increasing the rate of
~g
j
runoff. Where streambank erosion occurs, _
landowners can lose property, infrastructure may ~ ~
become undermined, and wildlife habitat can be .
destroyed. Furthermore, as the energy of the water - , ;t~tis::;~, ' -
in a stream diminishes following a storm, eroded
materials are deposited in the stream channel. r:
These depositional areas can cause channel ~
widening, reduce flood storage capacity, block fish ~r~ `.,~r j j
movement and smother a uatic habitats Jacobson ''"~'`"~y"'~
q ( Figure 2 .Example of eroded stream banks.
et al., 2001; also Waters, 1995 in Jacobson et al., Buffer area lacks sufficient vegetation to
2001 and Burton and Pitt, 2002 in Sprague et al., provide stabilization. Erosive force of water cuts
2006). the banks and sediments degrade water quality.
Floodflow Alteration and Flood Storage - Wetland buffers provide space for, flood water to
spread laterally once it leaves a channel; thereby slowing flood water velocity and unsaturated
soils help provide additional temporary storage.for flood water. Flooding is a natural event that
is essential to maintaining sediment transport and deposition, biodiversity (e.g., by seed dispersal
and creation of spatially heterogeneous habitat), and contaminant removal (Naiman at al., 2005;
Briggs, 1996). Wetland buffers that are undeveloped and vegetated with trees and shrubs in
floodplains help to slow, store, and gradually release flood waters. Dense vegetation in a
wetland buffer increases surface roughness of a floodplain and slows the velocity of overland
flow while promoting shallow groundwater recharge, depressional surface storage, and
subsequent uptake of water by vegetation. The reduced velocity and volume of flood water
results in reduced flood peaks (Leopold, 1994) and improved base flows due to subsequent slow
release of water stored in floodplain soils. Wetland buffers play a key role in reducing property
damage associated with flooding while at the same time maintaining natural processes necessary
for the health of stream and river systems. Limiting development in wetland buffers means that
flooding does not threaten structures in the portion of the floodplain covered by the wetland
buffer.
Development activities associated with urbanization increase the proportion of impervious
surfaces in a watershed and reduce infiltration of precipitation. Greater impervious surface
increases the volume of surface runoff and the speed with which it reaches a stream (both via
direct overland flows and indirect flows routed into storm sewers). This leads to an increase in
the occurrence and severity of floods and increased property damage (Wohl, 2001; Briggs, 1996;
Wenger and Fowler, 2000; Sprague et al., 2006 and numerous citations therein including
McMahon et al. 2003, Poff et al. 1997, and USEPA 1997a).
Groundwater Recharge -During long, dry periods, the water in streams and wetlands may
come solely from groundwater which is recharged in upland buffers. Vegetated wetland buffer
areas help to slow surface runoff and promote infiltration thereby helping to maintain
groundwater levels. Elevated groundwater then discharges into streams to provide baseflow
(EOR, 2001). Elevated soil moisture also provides a source of water for riparian vegetation
(Naiman et aL, 2005; Poff and Allan, 1997, Pearsell and Mulamoottil, 1996}. In addition, water
quality benefits arise from the interaction of surface water and groundwater. Groundwater
discharge into streams also helps moderate temperature fluctuations (Sprague et al., 2006).
79
a
o
~ n
0
o~
P~
i~ha f/ow overland
~ ~ flow
0
c
water °'te
[able ~ f~oH,
Figure 3 Groundwater and surface water interactions.
Adapted from: Stream Corridor Restoration: Principles, Processes, and Practices
(10198) Interagency Stream Restoration Working Group.
In the absence of wetland buffers, the groundwater table can decline because of the reduced
infiltration of precipitation. Reduction in groundwater discharge to a stream and attendant
reduction in baseflow can negatively impact aquatic life during low Clow periods by reducing
available habitat and causing stream temperatures to increase. Groundwater decline can also
negatively impact riparian vegetation when the plant roots are unable to reach saturated soils
(Briggs, 1996). If riparian trees and shrubs die as a result of water table decline, a stream
channel can become unstable with an increase in streambank erosion and downcutting. Loss of
riparian shrubs and trees could lead to reduced leaf fall into a stream. Leaves from riparian
plants are a primary energy source for aquatic food chains (Naiman et al., 2005).
Habitat Protection & Food Chain Support -Riparian areas make up only 1 % of the
landscape but support 80% of all vertebrate wildlife and more hird species than any other
huhitut urea in the southwest (NRCS, 1996; Miller et al. 1995). Buffers provide critical habitat
for a wide range of aquatic and terrestrial species living in and around wetlands (Semlitsch and
Bodie, 2003; Naiman et al., 2005). Wetland buffer vegetation provides three critical functions for
aquatic systems. First, leaves and twigs from trees and shrubs, and to a lesser extent, herbaceous
species, provide energy for aquatic food webs. Leaves in the stream are colonized by algae and
microscopic invertebrates. The algae are eaten and the leaves are shredded by aquatic organisms
(e.g., caddis fly larvae). These invertebrates are, in turn, eaten by fish. Studies have shown loss
of riparian vegetation causes reduced growth of aquatic insects that rely on leaves from trees and
shrubs for food (Johnson et al., 2003). Second, riparian trees and shrubs shade streams and help
moderate water temperatures. This is especially important for cold-water (as opposed to warm-
water) aquatic life such a trout. Streams and ponds with overhanging vegetation will have lower
water temperatures than those that lack overhanging vegetation (Westchester County, 2007).
Stream water temperatures are also influenced by direct surface runoff from nearby impervious
surfaces. These thermal impacts can be mitigated by directing the surface runoff as sheet flow to
vegetated buffers, allowing it to infiltrate and slowly return to the receiving water as shallow
80
groundwater flows. Third, tree trunks and large limbs that fall across a stream channel create
small dams that help prevent channel downcutting (Wohl, 2001; Naiman, et al., 2005); although,
this is less relevant to urban areas because city and urban drainage agencies generally have a
policy of keeping drainageways free of debris to prevent potential flood hazards.
The location of wetland buffers makes them ideal links between aquatic and upland ecosystems.
As a result of the presence of water, buffers provide habitat for a broad range of birds, small
mammals, reptiles, insects, and amphibians that require both upland and wetland areas to
complete their life cycles (numerous articles cited in Semlitsch and Bodie, 2003). Deciduous
shrublands and forests found in wetland buffers in semi-arid landscapes are vital for many bird
species. For example, numerous migratory bird species use wetland buffers in the spring and fall
as they travel through Boulder.
~'k .
Wetland buffers provide habitat corridors, as shown in
-
Figure 4, which facilitate wildlife movement between ~
habitat patches (Hilty, 2006). In urban areas, these
important corridors often become fragmented, ;
significantly limiting the movement of key species and
facilitating the colonization of opportunistic invasive
and predator species (Schaefer, et al., 2006; Lineham et
al., 2006). Establishing wetland buffers in urban and
suburban areas can reduce this fragmentation and help _
maintain important floral and faunal populations on a
local scale (Lovell and Sullivan, 2006; Miltner et al., -
2004; Johnson et al., 2003; Peak and Thompson, 2006). Figure 4. Schematic showing important wildlife
corridors provided by wetland buffers (Source
http://www.rivercare.or4/wildlink/wl corridors.php)
Other Benefits -Recreation, Aesthetic, Education, and Economic -Wetland buffers offer
recreational, aesthetic, economic, and educational opportunities for neighborhoods and schools,
promoting healthy lifestyles and enhanced community stetivardship and relationships (Lovell and
Sullivan. ?006). For example, the wetland buffers along Bear Canyon Creek provide an
educational opportunity for students at Beak Creek Elementary School in south Boulder. It
should be noted, however, that recreation can also degrade wetlands if it occurs at high levels
and in an unmanaged setting.
In addition to the ecosystem services and benefits previously noted, communities and property
owners that establish and implement wetland buffers typically benefit from increased property
values due to the aesthetic appeal of open space. (Qiu et al., 2006). Development near streams,
lakes, or wetlands is often able to sustain premium sale prices. Where aquatic resources lack
buffers, communities and property owners often are faced with mitigation and repair costs to
protect infrastructure and property being impacted by erosion, sediment deposition and floods.
Wetland buffers can provide cost-effective and reliable human health and safety services such as
flood control, erosion control, water quality protection and enhancement, and recreational
81
opportunities that would otherwise cost communities significant amounts of money to provide
through highly engineered structures and systems.
FUNCTIONS OF WETLAND BUFFERS IN RELATION TO LOCATION,
DIMENSIONS, AND VEGETATION
The effectiveness of wetland btrffers varies by,function and depends on a number offactors
including vegetation, width, length, and landscape setting, but generally speaking, the wider the
buffer, the more effective it will he. Vegetation composition can have a significant effect on the
health, function, maintenance and effectiveness of a buffer. Vegetation composition can vary
wridely across a wetland buffer -as illustrated in Figure 5. Examples of buffer benefits provided
by grasses, shrubs, and trees are provided in Table 1. Note that increased benefits are generally
associated with deciduous trees and shrubs in a wetland buffer.
deciduous ~ grasses
shrubs & conr~erotcs
sedges frees ;
and ;
wai~'r .
f rushes
Aquatic ~ Riparian ~ Upland
Zone ~ Zone Zone
Figure 5 Cross section of riparian zones.
Adapted from: Wohl, 2001, after R.J. Smith 1979, Mountain grazing on riparian
ecosystems to benefit wildlife in Cope., ed. Forum -grazing and riparian/Stream
ecosystems. Tro Unlimited. Inc. Fig. 1.
Table 1 Effectiveness of Different Ve etation T es for S ecific Buffer Benefits
BENEFITS Grass Shrubs Trees
Stabilize streambanks
Filter sediment & the nutrients, pesticides & pathogens
bound to it
Filter nutrients, pesticides, & microbes from surface
water -
Protect roundwater and drinkin water su lies
Im rove overall a uatic habitat
Im rove wildlife habitat for field animals
Im rove wildlife habitat for forest animals
Moderation of water tem eratures
Provide visual interest
Protect a ainst floodin
sz
Low
Adapted from: Connecticut River Joint Commissions, 2000. Riparian Buffers for the Connecticut River
Watershed: No. 8 Planting Riparian Buffers (and Plant List).
There is not one optimal width for a wetland buffer. Instead, widths depend on the desired
wetland functions and local conditions such as topography (see Figures 6-9). A substantial body
of research exists that correlates wetland buffer widths with function (MRCS, 2003; USAGE,
2000; CWP &USEPA, 2005; USEPA, 2005b); there is a wide range of recommended widths for
different functions as shown in Table 2 and Figure 10. While much of the literature has
investigated buffer widths in more humid or agricultural settings, the information is still pertinent
and can be used to infer applicability to semi-arid and urban settings, because the underlying
physical and biological mechanisms are the same. For example, regardless of the climate or
contaminant, the pathway of sheet flow as opposed to channelized flow across a wetland buffer
is the key variable influencing the effectiveness of capturing sediment and increasing infiltration.
11~~ .~YS ~ Y '~r
5i ~ ~~se -
~ ~ ~u
~y t itli t
Figure 6. Wetland along lower Four Mile Figure 7. Riparian corridor along South µ
Canyon Creek ,northwest of Pleasantview Boulder Creek.
soccer fields.
f~,,:
_ ,r ~,.r
~ ' - i ~ fin. ~ .
~ }
~f .
" Figure 9. Upstream reach on Four Mile
Figure 8. Upstream reach on Bear Canyon Canyon Creek .west of Broadway.
Creek ,west of Lehigh.
For aquatic habitat purposes, the USEPA has established methods for evaluating the condition of
streams and rivers using a rapid bioassessment protocol which includes criteria for riparian
vegetative zone width (Barbour et al., 1999). In the aquatic habitat assessment method,
vegetated riparian zone greater than 18 meters (i.e., 56 feet on each side) is considered optimal;
12- l 8 meters is considered suboptimal; 6-12 meter zones are considered marginal, and less than
6 meters is categorized as poor. These categories are very general and do not strictly apply in all
situations. For example, in some topographic settings, high-quality buffers may consist of only a
83
narrow strip of riparian vegetation surrounded by extensive native upland (e.g., along Four Mile
Creek where it crosses Open Space west of Broadway).
Table 2 Buffer Widths Recommended b USEPA for Various Wetland Functions
Function Special Features Recommended Minimum Width (feet)
Steep slopes (~-1
and/or functionally 100
valuable wetland
Sediment reduction Shallow slopes (<5%) or
low quality wetland 50
Consider buffer width additions with
Slopes over l~% each 1% increase of slope (e.g., 10 feet
for each 1 % of slope greater than 15%)
Phosphorus reduction Steep slope 100
Shallow sloe 50
Nitrogen (nitrate) Focus on shallow
reduction groundwater flow 100
Biological contaminant N/A 50
and pesticide reduction
Unthreatened species 100
Rare, threatened, and
Wildlife habitat and 200-300
corridor protection endangered s ecies
Maintenance of species 50 in rural area
diversity 100 in urban area
Flood control NIA Variable, depending on elevation of flood
waters and potential damages
Source: Center for Watershed Protection and United States Environmental Protection Agency.
2005. Wetlands and Watersheds: Adapting Wuter.rhed Tnols to Protect Wetlands.
Figure 10
84
Aquatic Buffer Width Correlated to Ecological Function
Bank Stabilization
pStream Shatling
u
c
a
Water ~ualdy ProteGion
c
x
~ Flootl Water Storage
m
Wildlde Habitat
r
0 26 60 76 100 126 160 176 200 226 260 276 300
Width (feet)
Adapted from USDA Natural Resources Conservation ServVice. Where the Lend and Water Meer A Guide
far Protection and Resrorafion of Riparian Areas Fvsf Edition USDA NRCS, September 2003.
Terrestrial habitat widths have an even wider range than aquatic habitat. One literature survey
reported that most of the current municipal buffer programs are not wide enough to protect the
life cycle activities of many reptile and amphibians (Semlitsch and Bodie, 2003). In their study,
Semlitsch and Bodie (2003) summarized data on the use of terrestrial habitat by numerous
amphibians and reptiles. They found for example, that certain species can migrate within a core
habitat area of 200-600 meters, and the range of core habitats for amphibians was 159-290
meters. While protection of buffer distances of this size is difficult to achieve in urban settings,
they highlight the need for large buffers where possible to protect wildlife habitat.
"Our data clearly indicate that the 15-30 meters used to protect wetland
species in many states, are inadequate for amphibian and reptiles. Further,
we emphasize that our estimates are derived from the core terrestrial habitats
used by amphibians and reptiles and therefore are not buffers per se but
necessary habitat. " (Semlitsch and Bodie, 2003)
Riparian buffer widths also have been found to be a factor influencing effectiveness of water
quality improvements such as nitrogen removal. USEPA conducted an extensive review of the
current science and regulations pertaining to buffer width, vegetation cover, and nitrogen
removal (USEPA, 2005b). Buffer vegetative cover was not found to play a major role in nitrogen
removal efficiencies. Although variations occur due to soil type, loading, and organic carbon, in
general, the wider the buffer the more effective nitrogen removal. "Wider buffers (>SOm) more
consistently removed significant portions of nitrogen entering a riparian zone" (USEPA, 2005b).
For erosion and sediment control purposes, the Colorado Office of the Natural Resources
Conservation Service (NRCS) provides multiple technical guidances that relate to buffer
conditions and width. Most of these have been developed for agricultural settings, but they also
have some applicability to urban and suburban settings along the Front Range (Jim Sharkoff,
NRCS State Agronomist, pers. comm.). The Contour Buffer Strip code (NRCS, Code 332)
states that the buffer should be 30 feet (10 meters) wide or greater in order to reduce erosion and
85
i
sediment loading and enhance wildlife habitat. The Riparian Forest Buffer code (NRCS Code
391) suggests buffer widths by zones-- where the first zone starts at the high water line and
extends 10 feet out; zone 2 extends from the edge of zone 1 a minimum of 20 feet (or 30% of
the floodplain width not less than 35 feet) and zone 3 is variable depending on the drainage are
and surrounding land us. However, NRCS Colorado field office staff note that the forest buffer
code is not directly applicable to Colorado conditions and to consider instead the Filter Strip
code (NRCS Code 393). The filter strip size recommendations in Code 393 are based on the ratio
of the drainage area to the filter strip area (approximately 70:1) as well as considerations of slope
and annual sheet and rill erosion rates above the filter strip.
CONSIDERATIONS OF WETLAND BUFFERS IN SEMI-ARID SETTINGS
In the semi-arid western U.S., there is generally a greater difference between the biota in
wetlands buffers compared to the adjacent upland than there is the more humid eastern U.S.
(Baker et al., 2004). In the west, the riparian vegetation is typically more diverse and more
abundant and is easily distinguished from that in adjacent uplands. This reflects the steeper
gradient in the availability of water as one moves away from a wetland in the western U.S.
compared to the eastern U.S. The presence of steep topography and the presence of dry-south-
facing slopes accentuate the differences in soil moisture as one moves away from a stream in the
west. Generally speaking, riparian community characteristics also follow a longitudinal gradient
that parallels the increase in elevation and precipitation that occurs from lowland prairies to
mountains (Mutel and Emerick, 1992).
Many streams in the semi-arid west are intermittent and therefore sometimes mistakenly
considered to provide little functional value. However, intermittent streams play a critical role in
maintaining wetlands. Despite ephemeral flows, floodplains and stream banks along even small
intermittent streams nonetheless provide opportunities for increased native vegetation and the
associated benefits as described below.
Physical, Chemical, and Biological Linkages. There are physical, chemical, and hiological
linkages or inte~•relationships that are zrnigare to and.fr~cused in semi-arid wetland buffers thin do
not occur to the sumo degree in surrounding areas. Unlike humid areas where plant production
is relatively uniform over a wide geographic area, in semi-arid regions the limited availability of
water causes native plant production to be concentrated in and around wetland and riparian areas.
Organic matter in buffer soils can therefore be higher and help promote water quality benefits
such as denitrification (USEPA, 2005).
Additionally, unlike humid areas where the temporal distribution of precipitation patterns may be
more evenly distributed, the timing (frequency and duration) of precipitation events in the semi-
arid west supports a number of species that are adapted to capitalize on specific hydrologic
conditions. Plains cottonwood is the dominant native tree species found along riparian areas in
Boulder, and cottonwood regeneration is specially adapted for establishment in floodplains
through a variety of recruitment pathways, particularly following high streamflow events in early
summer (Cooper et al., 2003; numerous references in Rood et al. 2003). The interconnected
linkages between hydrology, geomorphology, chemistry, and biology are critical aspects of
86
wetland ecosystems, and buffer azeas aze focal points for many of these interconnected processes
(Baker et al., 2004).
Deciduous Woody Species. Probably the most important characteristic of semi-arid wetlands
and their buffers is the increased diversity and productivity of native deciduous trees and shrubs
as compared to surrounding semi-arid grasslands (Rood et al., 2003, Wohl, 2001). 12ipazian
areas tend to be one of the few locations in semi-arid landscapes that possess dense, multi-
layered strata including trees, shrubs, and herbaceous species which provide important cover for
terrestrial wildlife. Abundant leaf litter from the cottonwoods and other woody species provides
food for aquatic insects. Cottonwoods shade streams and provide lazge woody debris that
supplies cover for fish.
Extensive roots from the woody species, such as lazge cottonwood trees and native willows, also
provide major streambank stabilization benefits. While some non-native species such as
Siberian elm and crack willow also provide streambank stabilization benefits, other impacts may
result from the replacement of native species with non-natives. For example, the increased
amount and size of lazge woody debris from a crack willow could affect channel morphology by
increasing channel braiding which in tum may alter pool formations, sedimentation, and
ultimately aquatic habitat.
Biodiversity. Wildlife use is disproportionately high in riparian areas in semi-arid settings
such as the Colorado Front Range (Hilly, 2006, Wohl, 2001, Baker et al., 2004, and numerous
references in Leal et al., 1995). The combination of water and diverse and abundant vegetation
provides attractive habitat conditions for a wide array of terrestrial and aquatic species. For
example, semi-azid riparian habitats have some of the highest bird diversity and breeding bird
densities in the country (Cazothers et al., 1974). Interestingly, the Colorado Breeding Bird Atlas
shows the Boulder quadrangle as having the highest number of breeding birds of any of the
surveyed blocks in the state (Kingery, 1998). This probably reflects, in part, the riparian areas
that aze present in the Boulder quadrangle.
CONSIDERATIONS OF WETLAND BUFFERS IN URBAN SETTINGS
Protecting wetlands in urban settings is critical because they often occur in disturbed or
degraded settings. At the same time, urban wetlands are located in areas where there is an
increased need
for the ecological services they can provide such as water quality improvements.
The studies examining negative impacts that occur in wetland ecosystems from a variety of
urban stressors aze voluminous (Baker, et al., 2004; CWP & USEPA, 2006; Peazsell and
Mulamoottil, 1996; Sprague et al„ 2006; Sheldon et al., 2005). Wetlands in urban azeas are
typically stressed by both direct and indirect threats including altered hydrology, increased
erosion, channelization, pollutant loading, reduced size, and generally higher levels of human
activity. Potential impacts and opportunities for improved protection through the establishment
of buffers aze briefly summarized below.
Hydrologic Balance and Flood Storage. Wetland buffers in urban areas are particularly
important in helping to moderate the impacts of altered hydrologic regimes and flooding. In
87
urban areas with abundant paved surfaces, increased volume and peak flows after precipitation
events can increase the severity of flooding as well as channel destabilization. Vegetated buffers
facilitate infiltration and storage in unsaturated soils and thereby reduce the impacts from flood
damage.
Streambank Stability. Roots from woody species in vegetated buffers help to reduce erosion
associated with poorly located road and buildings in urban areas. Protected streambanks also
help to reduce scouring and sediment loading.
Water Quality. The health of urban creeks and wetlands depends, in part, on the presence of
wetland buffers to reduce the impacts from road runoff, pet and recreational usage, and
commercial and industrial land uses that contribute to degraded water quality. In the absence of
buffers, pollutant loading is higher and human health risks may increase. Vegetated buffers can
therefore function as a precautionary best management practice to "pre-treat" stormwater and
protect wetland and water resources.
Biodiversity. Urban wetlands vary widely in the quality of habitat they provide, but often
wetlands and stream corridors are the only remaining undeveloped areas available for native
plants, birds, amphibians, reptiles, and small mammals. Habitat degradation leads to a decline
in native plant and animal diversity. Protecting wetlands with buffers can increase habitat patch
size, reduce edge effects, and reduce trampling. Perhaps most importantly, urban wetland buffers
increase the connectivity between wetland areas within the city as well as providing important
corridors and "stepping stones" between larger habitat patches at the edge or outside the city
limits.
Often, it can be challenging to balance the ecologic and hydrologic benefits of buffer zones with
the need for living spaces and urban infrastructure. Traditionally, engineered solutions have
been pursued that allow for increased development intensity adjacent to wetlands.
Unfortunately, these expensive structural solutions can have limited effectiveness, because they
may only address one function rather than the multiple interconnected functions provided by the
natural system. In fact, traditional engineering solutions can sometimes exacerbate undesirable
conditions (such as habitat loss), and may simply transfer a problem to another location.
Fortunately, there aze numerous opportunities for humans to reduce impacts to wetlands from
urbanization through the establishment and maintenance of buffer areas. The Natural Resources
Conservation Service, Urban Drainage and Flood Control District, and the City of Boulder
Greenways Program aze a few of the organizations that have developed guidelines to reduce
impacts through installation of filter strips, best management practices, and trail designs. A
common theme in all of these approaches is the importance of maintaining streamside
vegetation.
88
III. Regulatory Approaches to Buffer Protection
INTRODUCTION
There are several regulatory and non-regulatory mechanisms that can be used to protect and
manage wetlands and their buffer areas. Wetland and stream buffer protection programs can
include: acquisition (fee simple or easement), comprehensive planning, incentives, floodplain
management, education, technical assistance, or regulation and zoning. Boulder has adopted
several of these types of plans and programs over the yeazs which contribute to wetland
protection in the city and in the Boulder Valley.
This chapter focuses primazily on regulatory approaches to wetland and buffer protection across
the country. Municipal and county buffer ordinances were reviewed in terms of the location of
the ordinance in the local code, the approach to establishing buffer widths; the process for review
of proposed activities in buffers; and the approach to allowing variances. One non-regulatory
approach, wetland and watershed planning, is reviewed in this chapter because it is an example
of a planning approach used by a few communities to establish buffer widths that aze adapted to
localized conditions.
Methodology
City staff conducted the study by reviewing municipal and county codes and adopted plans
throughout the country and developing a list of communities that regulate activities in wetlands
and streams. Although several states have wetland protection laws, state-level law is typically
less applicable to the municipal level and was not reviewed for this study. A general survey of
municipal and county codes from the following categories was completed:
• Peer cities
• Front Range and Colorado cities and counties
• Major western cities
• Other western cities of similar size and density
• City and county codes cited in literature sources
• City and county codes cited by high profile agencies and organizations (USEPA,
Center for Watershed Protection, and the Association of State Wetland Managers)
• Model ordinances promoted by high profile, nationally-based organizations
After compiling a list of communities with some level of wetland buffer protection, individual
codes were examined to understand the different approaches used to regulate buffer areas in each
jurisdiction (See Table 3). Although most of this report is based on the review of written code,
limited interviews with staff from a few jurisdictions along the Front Range were conducted to
determine the effectiveness of some individual ordinances. Staff, however, did not fully assess
the success, actual costs, or support level of the approaches among all of the jurisdictions that
were reviewed.
89
REGULATORY APPROACHES TO BUFFER AREA PROTECTION
Location of Buffer Ordinances in Local Codes
Buffer protection ordinances were found in the following three general areas of municipal and
county codes throughout the country:
1) Wetland or stream buffer restrictions as Hart of a land use or zonine code
This is Boulder's approach to buffer regulation and the most common approach on a local
level. Typically, wetland buffers are identified or designated as an overlay or special
district, resource conservation area, or sensitive lands on local zoning maps. Overlay or
special zone restrictions are then included in the zoning regulations or land use code. An
overlay zoning approach is considered more effective and expedient approach by several
sources because it ties development restrictions in buffer areas more closely to the
existing zoning of a property without requiring changes to a zoning map.
2) Freestandin¢ ordinances
Freestanding ordinance approaches aze similar to land use code type restrictions but are
found in other areas of the municipal code such as an environmental protection section.
These types of ordinances are most common in jurisdictions that have limited zoning
ordinances.
3) Wetland/stream protection as Hart of other regulations
This approach incorporates some degree of wetland or stream protection into other
regulations such as floodplain zoning, coastal zone management, tree protection
regulations, stormwater management regulations, grading regulations. This approach was
the least common among the codes that were reviewed.
Approaches to Establishing Buffer Area Widths
As discussed in Section II of this report, a considerable amount of research has been conducted
over the past 30 years to provide a scientific basis for various buffer widths. Most regulatory
approaches, however, seek to balance wetland protection with property rights in establishing
local buffer widths. Regulatory buffer widths, consequently, vary among jurisdictions across the
country. As a general rule, wider buffers are adopted in non-urban, agricultural azeas, while
narrower buffers aze found in denser urban areas where pre-existing development likely
influences the determination of the regulatory area.
Those jurisdictions that regulate wetland buffer azeas have adopted one of three general
approaches to establishing widths. The following are the general approaches used to establish
buffer widths:
1) Fixed-width buffer areas
Most jurisdictions that were reviewed regulate buffer areas by applying fixed or standard
buffer widths to wetlands or streams. These approaches tend to simplify buffer
regulations by applying a "one-size-fits-all" width to all wetlands regazdless of the value
of the waterbody or the existing land use conditions. Most jurisdictions adopt fixed
90
buffer widths because they aze the simplest to apply and administer. Those jurisdictions
typically have adopted a buffer width that balances property owner input with the
minimum width to protect desired wetlands or stream functions. Some of these
jurisdictions establish two, three, or four different fixed buffer widths based on various
conditions such as stream or wetland value, size of wetland, location of the wetland or
stream within a jurisdiction, or stream order.
Boulder uses affixed-width approach. In the Boulder Revised Code (§9-3-9), a buffer
area is "an azea azound a wetland or stream within which activities aze likely to have an
adverse impact upon wetland functions: ' The buffer azea in the wetlands protection
overlay district is a fixed width of either 50 feet "from each point on the wetland
boundazy" for significant wetlands and 25 feet "from each point on the wetland
boundary" for all other wetlands.
The weakness of a fixed-width approach is that the buffer widths aze not necessarily
tailored to the specific conditions of and azound the individual wetlands. Fixed-width
buffers may not provide sufficient protection to ecologically sensitive areas or,
conversely, may deprive landowners of azeas more suited to development in ecological
terms. Absent a detailed stream inventory and evaluation, standazd buffer widths can
appeaz excessive in some locations and insufficient in others.
2) Vaziable-width buffer azeas
Variable-width buffer approaches allow buffer azea widths to vary according to site-
specific or reach-specific conditions such as slope, vegetative condition of the stream, or
intensity of the existing land use. Typically with these approaches, a minimum buffer
width is established that applies to all wetlands and then widths aze widened based on site
or reach specific conditions. The benefit of this approach is that the buffer area can
incorporate protection for other sensitive natural features such as floodplains, wildlife
habitat, and steep slopes.
Although avariable-width buffer approach tends to take into account localized conditions
it can be more difficult and expensive for a jurisdiction to develop and administer. This
approach, although more scientifically defensible, requires much more site evaluation
since every stream reach, parcel and land use is different. Absent a comprehensive
wetland or watershed plan, avariable-width approach also can place more burden on the
landowner to provide detailed site analyses if buffer azeas are established through site
development applications. Other downsides of variable-width approaches are that they
can be less easily understood by the public, they may strike some landowners as unfair,
and they can result in continual disputes with landowners.
3) Multi-zoned buffer areas
A variation to the fixed or variable width system is the multi-zoned buffer azea approach
which is the recommended approach in the model ordinances promoted by both the
USEPA and the Center for Watershed Protection. This approach establishes a buffer azea
that includes a strict setback in the azea neazest a stream or wetland, a limited
development zone beyond the setback, and a development zone along the far edge of the
91
buffer area. The objective of this approach is to provide strict protection of the riparian
azea and vegetation neazest the waterbody and to direct more intense uses away from the
wetland azea. Some multi-zoned approaches apply fixed widths to each zone, others
allow variation according to stream and land use conditions.
The difficulty in applying amulti-zoned approach to urban streams is that existing
development conditions may not provide enough undeveloped land area for a meaningful
multi-zoned system. In addition, amulti-zoned system may be more difficult to
administer in terms of educating landowners about the location of zones on individual
properties and clazifying use restrictions in each zone. In some cases, atwo-zoned
system that provides a riparian setback and an outer limited development zone may be
more applicable in an urban setting.
Table 3: Exam les of Setback/Buffer Ordinances
NRISDICTION BUFFER TYPE AND W IDTH APPROACH TO REGULATING
(POPULATION) ACTIVITIES IN THE BUFFER
Peer Cities
Ann Arbor, Michigan No apparent buffer N.A.
(114,000) requirement.
Berkeley, California Fixed widths (30 ft. from Setback from centerline of
(103,000) centerline) creek. Permits for new
construction allowed under
certain conditions.
Appeals to Zoning Adjustment
Boazd.
Eugene, Oregon Fixed widths based on wet?and Setbacks with prohibited and
(142,000) value. allowed uses defined.
0 ft. -low value wetlands Variances to setbacks and uses
25 - 50 ft. moderate value allowed by planning director.
50 - 100 ft. - hi h value
Fort Collins, Colorado Fixed widths based specific No development is allowed in
(128,000) stream corridor or size of the buffer zones. Buffer zones
wetland (50 - 300 ft.) determined through site
develo ment plan.
Madison, Wisconsin No apparent buffer N.A.
222,000) re uirement.
Norman, Oklahoma No apparent wetland or creek N.A.
(96,000) rotection ordinance.
Provo, Utah No apparent wetland or creek N.A.
(106,000 rotection ordinance.
Santa Bazbaza, California Fixed widths (25 ft.) Discretionary review of permit
(93,000) applications with general
standards.
Santa Cruz, California Variable widths/Three-zoned Setbacks and use restrictions in
92
(55,000) system based on category of inner zones.
stream reaches as specified in Development allowed in outer
the city-wide creeks and zone if defined standazds aze
wetlands management plan: met.
Riparian corridor: 10-120 ft. Variances allowed subject to
Development Setback: 15- Planning Commission approval
150 ft. if pazcel is undevelopable with
Total Management Area: up buffers.
to 175 ft.
Other Cities
Aurora, Ohio Fixed widths (25, 75 or 120 ft.) Setbacks.
(14,000) based on wetland ranking. Most new development
activities (including
disturbance of natural
vegetation) are prohibited
within the setback.
Variances allowed subject to
Planning Commission
approval. Applicant must show
hardship.
Bozeman, Montana Two-zoned system with overall Setbacks.
(32,500) fixed widths based on specific No new development or
creek and adjacent wetlands. impervious surfaces allowed in
(50, 75 or 100 ft.) either zone.
Zone 1 is 60% of required Trails, utility lines, street
setback and closest to crossings and stormwater
watercourse. facilities may be permitted in
Zone 2 is 40% of required Zone 2.
setback. Vaziances allowed through
boazd a eal rocess.
Colorado Springs, Colorado Variable/Three-Zone System: Combination of setbacks and
(370,000} based on stream chazacteristics discretionary review depending
on zone.
Streamside zone: 15-30 ft.
Middle zone: 40-60 ft.
Outer zone:15-30 ft.
Croton-On-Hudson, New York Three-zoned system Combination of setbacks and
(7,600) discretionary review depending
on zone.
Davis, California Unclear setback requirements N.A.
(64,000) for watercourses and habitat
azeas.
Napa, California Fixed: 50 ft. Discretionary review of plans.
(73,000 Develo ment allowed within
93
Buffer may be increased to ripazian habitat buffer if it
mitigate development impacts. minimizes impacts to riparian
habitat.
Portland, Oregon Fixed widths depending on Setbacks. Development review
(556,000) designated protection zone (30 required.
or 50 ft.)
Seattle, Washington Fixed widths based on size and Setbacks. Development and
(574,000) value of wetland (0- 200 ft.) vegetation removal is
prohibited in wetland buffers
All watercourses have a 100 ft. and the riparian management
riparian management area. azea.
Buffer reductions allowed with
director approval.
Tuscan, Arizona Fixed widths (20 or 50 ft.) Setbacks on watercourses.
(515,000)
Ventura, California Fixed widths (100 ft.) Setbacks. Development in
(105,000) buffer must be consistent with
comprehensive plan.
Boundazy adjustments may be
made through comp plan
change rocess.
Couuty-Level
Aspen/Pitkin County, Colorado Fixed widths (100 ft. standazd Setbacks.
(15,000) may be modified to a minimum Buffers may be reduced to a
of 50 ft./25 ft. minimum for minimum of 50 ft. under
isolated wetlands) certain conditions.
Athens-Clarke County, Georgia Fixed widths: Setbacks with prohibited and
(104,000) 100 ft. (protected rivers) allowed activities specifically
150 ft. (protected streams in defined (permits also required).
industrial zones) Vaziances aze not apparent.
75 ft. (all other protected
streams)
25 ft. lake, ond, state waters)
Baltimore County, Mazyland Fixed (25 - 100 ft.) based on Setbacks of 25-35 ft. based on
(754,000) stream order and location of type of use. Restricted
floodplain. development allowed in
remaining buffer.
Management requirements
s ecific for setback.
Boulder County, Colorado No specific buffer requirement Discretionary review of
(290,000) building and development
permits. Exemption plat
a royal re uired.
94
Hillsborough County, Florida Fixed: Setbacks.
(1,147,000) 30 fr. for designated No filling, excavating, or
conservation areas. placement of permanent
50 fr. for designated structures or other impervious
preservation areas. surfaces shall be allowed
within a re wired setback.
King County, Washington Variable: based on habitat Setback. No development
(1,737,000) rating, proposed use, and allowed in the buffer azea.
proposed mitigation measure. Buffers may be modified on
(25 - 225 fr.) staff level based on defined
standards.
Pima County, Arizona Variable: as defined on adopted Floodplain control section of
(1,000,000) ripazian habitat classification code.
maps. Permit system with avoidance,
minimization, mitigation
standazds.
Variances to maps through
boazd approval.
San Miguel County, Colorado Fixed width of 100 fr. Permit with discretionary
6,600 review standards.
Summit County, Colorado Fixed for single family. (25 ft.) Setbacks.
(23, 600) Variable for high quality Variances to setbacks allowed
wetlands. (50 - 300 ft.) with board approval.
Teton County, Wyoming Fixed based on the following Setbacks.
(18,300) categories: No development permitted.
Permit required for agricultural
Rivers: 150 ft. use, flood protection, habitat
Streams: 50 -150 fr. enhancement or public
Wetlands: 30 ft. pathways.
95
Review Processes and Standards
Generally, three different approaches to regulating activities in buffer areas can be found among
the numerous municipal, county, and state wetland ordinances that were reviewed for this report:
1) Setback-based svstem with allowable and restricted uses clearly defined
This is the most common approach to regulating activities in buffer azeas found among
the jurisdictions sampled for this report. Most jurisdictions have adopted buffer azea
overlay districts as part of their zoning codes which function as setbacks. With this
approach, allowed and restricted activities are clearly defined for the buffer azea.
Although specific use restrictions vazy from code to code, many communities specifically
restrict most new development, grading, impervious surface, or clearing of vegetation
within a defined setback and allow utility crossings, landscaping and limited path or trail
development under certain conditions. If a prohibited use is proposed, a variance must be
obtained through the local planning or zoning board. Staff-level variances are generally
not allowed.
Although a setback approach can be seen as more restrictive than a discretionary review
approach, it provides much more clarity and certainty for the landowner and the local
administrators of the code. Setbacks can also be more reflective of the science by cleazly
defining the buffer area that is needed to protect wetland functions. Since setbacks can
be administered through existing development review processes, the additional expense
to administer a permit system and additional permit fees for the landowner could be
avoided.
2) Discretionary review of proposed activities
A discretionary review approach requires that a landowner obtain a permit for a proposed
activity if the activity falls within a set of regulated uses. With a discretionary approach,
prohibited and allowed uses within a buffer azea typically aze not cleazly outlined in the
ordinance. In order for a permit to be issued, the city must find, at its discretion, that the
proposed activity meets a set of performance standards or that the activity is designed to
minimized impacts to a wetland and its buffer.
Few examples of municipal codes were found that apply discretionary standazds to
proposed activities as in Boulder's ordinance. Wetland permit applications in Boulder
aze reviewed through a discretionazy process where staff applies a general set of
standards for review of proposed activities in either the wetland or the buffer azea. In
order for a permit to be issued under Boulder's ordinance, the applicant must demonstrate
that: (1) adverse impacts to a wetland or its buffer were minimized through the design of
the activity; (2) the project is in the public's interest; and (3) the unavoidable adverse
impacts can be "successfully mitigated." These standards, however, are more easily
applied to activities within the wetland itself than in those in the buffer azea where it is
often difficult to measure the level of indirect impact of an activity on an adjacent
wetland.
96
Since the eazly 1990's when Boulder's code was adopted, some jurisdictions across the
country have adopted a discretionary review process but with slightly more defined
performance standards such as a maximum impervious surface coverage or a requirement
to retain the natural vegetation in a buffer.
Similaz to Boulder, Athens, Georgia requires a permit for certain activities in the buffer
area. Although Athens strictly prohibits certain activities in the buffer azea that aze
generally related to land development, it allows development of utility or transportation
crossings, new single family homes, and vegetation clearing as long as very specific
performance standazds are met. Some of the performance standazds for the construction
of a new single family home include the following:
• the lot must be no smaller than two acres in size if adjacent to high value streams;
• development plans must conform to the topography of the site;
• septic tanks cannot be located in the riparian buffer;
• the impervious area footprint of the house and accessory structures must be less
than 2,500 squaze feet;
• natural vegetation must be retained, protected and supplemented if possible; and
• the disturbed azea and duration of exposure to erosive elements shall be kept to a
practicable minimum.
3) Combination
A few communities have adopted ordinances with multi-zoned buffer area approaches
and combine strict setback prohibitions in one zone with discretionazy review standazds
and permit requirements in a second zone. Communities using this approach typically
prohibit most new development within a streamside zone and limit development through
performance standazds (e.g. impervious surface cover limitations) in the outer zones.
Although existing physical conditions in some urban areas may limit the practicality of a
combined approach, this approach may be a more desirable way to balance the need for
strict protection of the resource with landowner interests.
Variance Procedures
A variance or modification procedure is a permitted waiver or deviation from the land use
regulations if a set of applicable criteria have been found to be met. Two general approaches to
variances to wetland regulations were found among the sampled jurisdictions: 1) variances or
appeals procedures for prohibited uses, and 2) variance procedures to modify adopted buffer
widths.
Most jurisdictions generally prohibit activities in a setback area and provide for a variance
procedure to the prohibited use or activity. Typically, an ordinance will outline a list of activities
prohibited in the setback and require an appeal to the planning or zoning board to allow a
prohibited activity. In order for a variance to be granted, a boazd must determine whether there
is an unnecessary hazdship, a physical constraint, or some unusual circumstance that would allow
such an exemption.
The Berkeley, California zoning code provides a common example of a variance procedure for
proposed activities in a setback. In general, construction in the 30 foot creek setback is
97
prohibited and may be allowed only by appeal to the Zoning Adjustments Board for a vaziance.
In the case of a single family home, an addition may be constructed through the issuance of a
Conditional Use Permit if the Zoning Adjustments Board makes all of the following findings:
• all portions of the creek on the property are enclosed within a culvert;
• there is no open creek within 30 feet of the proposed construction;
• the single-family home is bisected by the creek such that "at least 30 percent of its
footprint is located on both sides of the culverted creek";
• no portion of the addition is located directly above the culverted creek;
• there is no feasible alternative to development within the setback;
• the home has two or fewer bedrooms and is smaller than the median sized home
within a 500 foot radius;
• the addition will not increase the size of the home to be latger than the median
sized home within 500 feet;
• an independent structural engineer has concluded that the culvert is adequate to
support the existing and proposed structure or will be made so; the addition will
not adversely affect the creek; and
• the proposed addition will not be detrimental to the health, safety, peace, morals,
comfort or general welfare of persons residing or working in the azea or
neighborhood of such proposed use, or be detrimental or injurious to property and
improvements of the adjacent properties, the sureounding area or neighborhood or
to the general welfare of the city.
Very few of the jurisdictions that were reviewed allow pennanent variances to the buffer width
such as in Boulder ordinance. Boulder's ordinance allows for permanent modifications to buffer
widths if a landowner can demonstrate that the modified buffer is the azea necessary to preserve
the natural water source of the wetland or to protect the animal and plant habitat associated with
the wetland. Since Boulder's ordinance is a discretionary review approach which allows an
appeal of a pennit decision to the Planning Board of a permit decision, a vaziance process for
proposed activities is not necessary.
Modifications to the buffer area must be adopted by City Council ordinance after review and
recommendation by the Planning Boazd. A problem with Boulder's current variance approach,
however, is that, over time, buffer area boundaries could become irregular along certain stream
widths and difficult to administer.
Model Ordinances
Several national and regional agencies and organizations have developed model buffer protection
ordinances to provide guidance to jurisdictions wishing to develop a local law. The USEPA, the
Association of State Wetland Managers, and the Center for Watershed Protection promote a
similaz model ordinance involving amulti-zoned buffer system (see Appendix X). In the
USEPA's model ordinance, the basic structure of a stream buffer in an urban setting is broken up
into the following three zones -each with different functions, width, vegetative targets, and
allowed uses:
1) Streamside zone (minimum 25 feet from the top of the bank). Allowable uses
restricted to flood control, utilities, footpaths, road crossings.
98
2) Middle zone (minimum 50 feet from streamside zone). Allowable uses restricted to
biking paths, stormwater facilities, recreational uses, limited tree clearing.
3) Outer zone (Minimum of 25 feet between middle zone and the nearest permanent
structure). Restricts permanent structures or impervious cover with the exception of
paths.
The USEPA's model ordinance provides suggested wording for a local regulation and is not
meant to be adopted verbatim. Modification of the ordinance language is recommended in order
to address specific local or regional conditions and concerns. The USEPA notes that
consideration of political situations within a community may influence the final choice of buffer
width, and flexibility in establishing stream buffer zones is important. While the wording and
buffer widths of the USEPA's model ordinance may be flexible, several features aze
recommended for establishing the most effective ordinance possible:
• The establishment of a minimum stream buffer width. A width of at least 100 feet
is recommended in order to recognize all the benefits that the stream buffer can
provide.
• The creation of a three-zone buffer system with the functions, widths, vegetative
tazgets and management schemes for each zone explained in detail.
• Language that creates the ability to expand the buffer to include the 100-year
floodplain, steep slopes, and any adjacent delineated wetlands or critical habitats.
• A thorough explanation of the limits and uses of the stream buffer system and the
requirements expected for any development plan during the entire development
process--from initial plan review, through construction.
• A system to permanently mark the buffer, both physically on-site and in the land
records should be enacted.
• A designated management system for the buffer, detailing permitted and restricted
uses within the buffer, and an educational program that ensures that future
residents know about the buffer.
• Any waivers or variances which may be granted regarding the buffer should be
explained in detail to avoid legal challenges.
• Maintenance guidelines and enforcement procedures for buffer violations should
be included.
WETLAND AND WATERSHED PLANNING
The USEPA and the Center for Watershed Protection promote awatershed-based approach to
wetland and stream protection. A watershed, also called a drainage basin, is the azea in which all
water, sediments, and dissolved materials flow or drain from the land into a common river, lake,
ocean, or other body of water. Wetlands are important elements of a watershed because they
serve as the link between land and water resources.
Watersheds are significantly influenced by their wetlands. The capacity of wetlands to attenuate
floods, absorb pollutants, recharge groundwater, provide wildlife habitat, and protect shorelines
are important watershed functions. Despite performing these critical functions, wetlands aze
seldom integrated into local watershed plans. Instead, wetland managers regulate individual
99
wetlands on a site-by-site basis. The site-by-site approach, however, often fails to consider
cumulative wetland functions, and is often segregated along regulatory and jurisdictional lines.
A watershed-based approach to water and wetlands protection considers the whole system,
including other resource management programs that address land, air, and water, to successfully
manage problems for a given aquatic resource. Wetlands protection programs aze most effective
when coordinated with other surface and ground-water protection programs and with other
resource management programs, such as flood control, water supply, protection offish and
wildlife, recreation, control of stormwater, and nonpoint source pollution. The watershed
approach thus includes not only the water resource, but also the surrounding land from which the
water drains. This area can be as large as the Mississippi River drainage basin or as small as a
back yard.
Another benefit to a watershed-based approach is that the impacts of impervious surface on
streams and water quality can be considered in a broader context. While maintaining protected
ripazian buffers helps to stabilize banks, protect riparian and wildlife habitat, and mitigate some
of the effects of impervious surfaces, in many urban areas, most surface runoff is concentrated
and routed through storm sewer systems before it reaches the stream buffer. Impervious surfaces
result in the transfer of most precipitation into stormwater runoff, leading to increased surface
and channel erosion, faster storm flows and elevated stream sediment levels. Flow from
impervious surfaces carries pollutants directly to streams, bypassing natural filtration that would
occur in undeveloped soils. In these cases, the buffers provide little service in intercepting
sediments and other pollutants carved to the streams. Ripazian buffers cannot fully protect
streams if they are constantly scoured by high storm flows caused by runoff from impervious
surfaces.
A few communities have addressed their water resource problems by taking a broader approach
to protection of wetlands and streams and adopting comprehensive wetland protection plans.
These plans generally consider the wetlands in a broader landscape context and establish
conservation or protection areas based on extensive area by area habitat surveys and
drainageway conditions (Santa Cruz, CA West Eugene, OR). The components of a watershed-
based wetland protection plan as presented by the Center for Watershed Protection are as
follows:
I) Compile wetland information on a watershed basis
2) Assess local wetland protection capacity
3) Identify wetland partners and roles
4) Define wetland goals and objectives for the watershed
5) Create an inventory of wetlands in the watershed
6) Screen wetlands for further assessment
7) Evaluate wetlands in the field
8) Adapt watershed tools to protect wetlands
9) Prioritize wetland recommendations
10) Coordinate implementation of wetland recommendations
11) Monitor progress towazd wetland goals
100
West Eugene, Oregon was one of the first communities to take this approach to wetland
protection in the eazly 1990s. The plan provided a survey and evaluation of wetlands in the
community and designates protection areas, buffer sizes, and mitigation areas based on the
location and value of each wetland in its broader watershed context.
The City Council of Santa Cruz, California adopted a "City-wide Creeks and Wetlands
Management Plan" in February of 2006 which provides the scientific basis for its wetland and
stream protection policies. The purposes of the plan aze to: 1) identify and map watercourses
and wetlands within the city limits; 2) identify appropriate development setbacks based on
evaluation of habitat, stream and land use chazacteristics; 3) recommend management actions
which promote the preservation of riparian and wetland resources, 4) define development
guidelines and standazds for azeas where development adjacent to watercourses may be
appropriate, and 5) provide a framework for permitting development adjacent to watercourses.
The intent of the plan is to present a strategic approach to stream corridor management that is
intended to result in better protection, enhancement, and management of the city's riparian and
wetland resources and water quality, while providing consistency and predictability of the city's
permitting process.
Watershed-based wetland plans can be a strong approach to establishing the most supportable
buffer azeas on a local level. Understanding the existing condition and larger context of streams
and wetlands is key to applying the appropriate level of protection to individual sites.
Comprehensive approaches are sometimes warranted in developed urban areas where existing
land use conditions and political interests aze complex. However, comprehensive studies and
plans take time and expense to successfully develop and implement.
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IV. CONCLUSIONS
Scientific literature provides extensive evidence that buffers are an important tool for achieving
wetland protection. Characteristics of a good buffer depend on the individual wetland and the
function being evaluated. For flood control benefits, a buffer should try to maximize available
space in the floodplain so as to increase short term water storage, and vegetated banks should be
present to stabilize streambanks. For water quality benefits, buffers need vegetation to slow
runoff and for groundwater to pass through and undergo pollutant removal. For terrestrial
habitat, it is desirable to have buffers with native vegetation in a variety of strata, providing
connectivity to other patches, and with minimal disturbances. For overall stream ecology
purposes, buffers are most effective when they provide leaf litter to supply the food chain,
canopy for shade, large woody debris for in-stream cover, and a place for groundwater rechazge
which in turn supports baseflow in the stream.
There is not one optimal width for a wetland buffer. Instead, widths depend on the desired
functions and local conditions such as topography. A substantial body of research exists that
correlates wetland buffer widths with function; there is a wide range of recommended widths for
different functions ranging from 50 feet to reduce sediment loading in streams to 300 feet for
protection of certain types of wildlife habitat.
Protecting wetlands in urban settings is critical because they are at risk due to their location in
disturbed or degraded settings. Furthermore, the protection of wetlands in urban and semi-arid
settings is more necessary because of the scarcity of these ecosystems and the numerous
ecological services they provide. The health of urban creeks and wetlands depends, in part, on
the presence of wetland buffers to reduce the impacts from road runoff, pet and recreational
usage, and commercial and industrial land uses that contribute to degraded water quality.
Buffer area protection is not uncommon in ordinances or statutes designed to protect wetlands,
streams or rivers. In fact, the use of buffers is very common and becoming more of the normal
approach to wetland and stream protection across the country on the municipal and county
levels. However, regulatory approaches to stream and wetland buffer area protection differ
widely throughout the country due to localized environmental, land use, and political conditions.
There are, however, commonalities among municipal and county ordinances which can be
summarized as follows:
1) Location in code
The most common framework for buffer protection ordinances is an overlay zoning
district within a land use code. This approach appears to be the more effective and
expedient approach because it ties development restrictions in buffer areas more closely
to the existing zoning of a property.
2) A~nroach to establishine buffer widths
Most jurisdictions use fixed widths because they are simpler to develop, communicate
and administer. Variable and multi-zoned buffer width approaches, although less
common, are more adapted to site conditions, more scientifically based, and tend to
balance landowner interests with resource protection.
102
3) Review process
The majority of ordinances that were reviewed regulate uses with a setback approach
with allowable and restricted uses specifically defined. Setback approaches provide more
clarity to the landowner and tend to be simpler to administer than discretionary review
approaches which require a permit review administration. The discretionary review
approach of applying general performance standazds to a proposed use in a buffer area is
much less common.
4) Vaziances
Jurisdictions that have adopted a setback approach provide for a variance procedure for
activities that aze generally prohibited. Typically, vaziance procedures require an appeal
to the planning or zoning boazd to allow a prohibited activity under hardship conditions.
Jurisdictions with a discretionary review approach do not provide for variances to
proposed activities but typically allow for modifications to fixed buffer widths.
Because state and federal regulations do not adequately protect wetland buffers, local
jurisdictions need to decide which buffer objectives and approaches to protection will work best
within their regulatory framework. Under ideal circumstances, a watershed planning approach is
recommended whereby individual wetlands and adjoining land uses are assessed for vazious
functions and areach-specific approach to buffer protection is developed and implemented.
Nevertheless, most sources including the USEPA, the Association of State Wetland Managers,
and the Center for Watershed Protection agree that the following basic objectives need to be met
in a local wetland protection program for it to be effective:
1) Cleazly define a minimum buffer width that balances resource protection with landowner
interests and is sensitive to specific site and wetland conditions.
2) Provide clarity to the landowner in the uses and activities that aze prohibited or allowed
in the buffer azea.
3) Balance landowner interest and resource protection in the regulation of activities and
incorporate exceptions for existing land uses and activities that have minimal cumulative
impact.
4) Provide flexibility to the landowner when there aze physical site constraints, hazdships or
other unusual circumstances to necessitate variances.
5) Provide an on-going educational program that ensures that future residents know about
the buffer, use restrictions, and recommended enhancements.
Like most other jurisdictions, Boulder regulates wetlands through an overlay zone district in the
land use code and applies affixed-width approach to establishing buffer areas. Unlike most other
jurisdictions, however, Boulder uses a discretionary review approach and requires a permit for
proposed activities in the buffer azea. Boulder also allows a landowner to apply for a
modification to the buffer width on an individual property if the landowner can show that the
modified buffer includes the area adjacent to the wetland that is necessary to preserve the natural
water source of the wetland or to protect the animal and plant habitat associated with the
wetland.
The primary problem with Boulder's ordinance appeazs to be its discretionary review approach.
The discretionary review approach results in a lack of clarity to the landowner in the uses that aze
103
permitted in the buffer azea. The lack of concrete and clear standazds in discretionary review can
result in inconsistent application of performance standazds and compromise both landowner
expectations and resource protection. The discretionary review process has resulted in numerous
permitted activities at various distances from wetlands, since there is no clear minimum buffer
width. Finally, the city has not provided adequate, on-going education to ensure that landowners
know about the buffer, use restrictions, and recommended enhancements.
Boulder's Wetlands Protection Ordinance was modeled on the Section 404 of the Clean Water
Act by applying the standards of avoidance, minimization, and mitigation to activities within a
wetland. It expanded upon the federal law by applying those same standazds to the review of
activities in wetland buffer areas. Over the past 10 to 15 years as more local jurisdictions have
adopted wetland buffer area protection ordinances, regulatory approaches have evolved. Few of
the current regulatory approaches require discretionary review of proposed activities or base
approval of permits on a set of broad performance standards such as in Boulder's ordinance.
While some jurisdictions require some level of review or permitting for activities within the
actual wetland, many have adopted more straightforwazd buffer azea setbacks where allowed and
restricted activities within the buffer azea are cleazly specified.
Several changes to Boulder's wetlands protection program could help resolve regulatory issues
and make it more effective. In reviewing more recent approaches taken by communities
throughout the country, it appears that the city could benefit by looking at the following changes
to the code:
1) Develop a new approach to establishing buffer widths based on better science and
more localized stream and wetland conditions. (Consider amulti-zone approach)
2) Consider a setback approach which more strictly defines allowable and restricted
uses in at least a portion of the buffer area, creates a minimum buffer width, and
provides more clarity to landowners.
3) Develop a procedure for allowing variances for restricted uses under clear
conditions and standards.
4) Develop and implement an on-going educational program to keep new landowners
informed about restrictions in buffer areas as well as about goals and expectations
for land stewardship.
too
Appendix A
Model Buffer Ordinance
(from the Center for Watershed Protection)
Section I. Background
Whereas, buffers adjacent to stream systems and coastal areas provide numerous
environmental protection and resource management benefits which can include the following:
a) restoring and maintaining the chemical, physical and biological integrity of the water
resources
b) removing pollutants delivered in urban stormwater
c) reducing erosion and controlling sedimentation
d) stabilizing stream banks
e) providing infiltration of stormwater runoff
f) maintaining base flow of streams
g) contributing the organic matter that is a source of food and energy for the aquatic
ecosystem
h) providing tree canopy to shade streams and promote desirable aquatic organisms
i) providing riparian wildlife habitat
j) furnishing scenic value and recreational opportunity
It is the desire of the (Natural Resources or Planning Agency) to protect and maintain the native
vegetation in ripazian and wetland azeas by implementing specifications for the establishment,
protection and maintenance of vegetated along all stream systems and/or coastal zones within
our jurisdictional authority.
Section II. Intent
The purpose of this ordinance is to establish minimal acceptable requirements for the design of
buffers to protect the streams, wetlands and floodplains of (Jurisdiction); to protect the water
quality of watercourses, reservoirs, lakes, and other significant water resources within
(Jurisdiction); to protect (Jurisdiction's) riparian and aquatic ecosystems; and to provide for the
environmentally sound use of (Jurisdiction's) land resources.
Section III. Definitions
Active Channel: The azea of the stream channel that is subject to frequent flows (approximately
once per one and a half years), and that includes the portion of the chapnel below where the
floodplain flattens.
105
Best Management Practices (BMPs): Conservation practices or management measures which
control soil loss and reduce water quality degradation caused by nutrients, animal wastes, toxins,
sediment, and runoff.
Buffer: A vegetated azea, including trees, shrubs and herbaceous vegetation, which exists or is
established to protect a stream system, lake, reservoir or coastal estuarine area. Alteration of this
natural area is strictly limited.
Development: 1) The improvement of property for any purpose involving building; 2)
Subdivision, or the division of a tract or parcel of land in to 2 or more parcels; 3) the
combination of any two or more lots, tracts, or parcels of property for any purpose; 4) the
preparation of land for any of the above purposes.
Non-Tidal Wetland: Those azeas not influenced by tidal fluctuations that aze inundated or
saturated by surface or groundwater at a frequency and duration sufficient to support, and that
under normal circumstances do support, a prevalence of vegetation typically adapted for life in
saturated soil conditions.
Non-point Source Pollution: Pollution which is generated by various land use activities rather
than from an identifiable or discrete source, and is conveyed to waterways through natural
processes, such as rainfall, storm runoff, or ground water seepage rather than direct discharge.
One Hundred Year Floodplain: The area of land adjacent to a stream that is subject to
inundation during a storm event that has a recurrence interval of one hundred (100) yeazs.
Pollution: Any contamination or alteration of the physical, chemical, or biological properties of
any waters that will render the waters harmful or detrimental to: public health, safety or welfare;
domestic, commercial, industrial, agricultural, recreational, or other legitimate beneficial uses;
livestock, wild animals, or birds; fish or other aquatic life.
Stream Channel: Part of a water course either naturally or artificially created which contains an
intermittent or perennial base flow of groundwater origin. Base flows of groundwater origin can
be distinguished by any of the following physical indicators:
1) Hydrophytic vegetation, hydric soil or other hydrologic indicators in the azea(s) where
groundwater enters the stream channel, in the vicinity of the stream headwaters, channel
bed or channel banks
2) Flowing water not directly related to a storm event
3) Historical records of a local high groundwater table, such as well and stream gauge
records.
Stream Order: A classification system for streams based on stream hierazchy. The smaller the
stream, the lower its numerical classification. For example, a first order stream does not have
tributazies and normally originates from springs and/or seeps. At the confluence of two first
order streams, a second order stream begins, and so on. (See Figure 1)
Stream System: A stream channel together with one or both of the following:
1) 100-year floodplain and/or
2) Hydrologically-related non-tidal wetlands
Streams: Perennial and intermittent watercourses identified through site inspection and USGS
maps. Perennial streams aze those which are depicted on a USGS map with a solid blue line.
Intermittent streams are those which aze depicted on a USGS map with a dotted blue line.
NOTE: Defining-the term "stream" is perhaps the most contentious issue in the
definition of stream buffers. This term determines the origin, and the length of the
stream buffer. While some jurisdictions restrict the buffer to perennial or "blue line"
106
streams, others include both perennial and intermittent streams in the stream buffer
program. Some communities do not rely on USGS maps, and instead prepare local
maps of all stream systems that require a buffer.
Water Pollution Hazard: A land use or activity that causes a relatively high risk of potential
water pollution.
Section IV. Applications
A) This ordinance shall apply to all proposed development except for that development which
meets waiver or variance criteria as outlined in Section IX of this regulation.
B) This ordinance shall apply to all timber harvesting activities, except those timber hazvesting
operations which are implementing a forest management plan which has been deemed to be
in compliance with the regulations of the buffer ordinance and has received approval from .
(state forestry agency).
C) This ordinance shall apply to all surface mining operations except that the design standazds
shall not apply to active surface mining operations which aze operating in compliance with an
approved (state or federal agency) surface mining permit.
D) The ordinance shall not apply to agricultural operations that are covered by an approved
NRCS conservation plan that includes the application of best management practices.
E) Except as provided in Section IX, this ordinance shall apply to all parcels of land, structures
and activities which are causing or contributing to:
1) Pollution, including non-point pollution, of the waters of the jurisdiction adopting this
ordinance.
2) Erosion or sedimentation of stream channels
3) Degradation of aquatic or riparian habitat
Section V. P?an Requirements
A) In accordance with section IV of this ordinance, a plan approved by the appropriate agency is
required for all development, forest harvesting operations, surface mining operations, and
agricultural operations.
B) The plan shall set forth an informative, conceptual and schematic representation of the
proposed activity by means of maps, graphs, charts, or other written or drawn documents so
as to enable the agency an opportunity to make a reasonably informed decision regarding the
proposed activity.
C) The plan shall contain the following information:
1) a location or vicinity map
2) field delineated and surveyed streams, springs, seeps, bodies of water, and wetlands
(include a minimum of two hundred (200) feet into adjacent properties).
3) field delineated and surveyed forest buffers
4) limits of the ultimate one hundred year floodplain
5) hydric soils mapped in accordance with the NRCS soil survey of the site azea
6) steep slopes greater than fifteen (15) percent for areas adjacent to and within two
hundred (200) feet of streams, wetlands, or other waterbodies.
7) a narrative of the species and distribution of existing vegetation within the buffer
107
D) The buffer plan shall be submitted in conjunction with the required grading plan for any
development, and the forest buffer should be clearly delineated on the final grading plan.
E) Permanent boundazy mazkers, in the form of signage approved by (Natural Resources or
Planning Agency), shall be installed prior to final approval of the required clearing and
grading plan. Signs shall be placed at the edge of the Middle Zone (See Section VLE).
Section VI: Design Standards for Forest Buffers
A) A forest buffer for a stream system shall consist of a forested strip of land extending along
both sides of a stream and its adjacent wetlands, floodplains or slopes. The forest buffer
width shall be adjusted to include contiguous sensitive areas, such as steep slopes or erodible
soils, where development or disturbance may adversely affect water quality, streams,
wetlands, or other waterbodies.
B) The forest buffer shall begin at the edge of the stream bank of the active channel.
C) The required width for all forest buffers (i.e., the base width) shall be a minimum of one
hundred feet, with the requirement to expand the buffer depending on: stream order; percent
slope; 100-yeaz floodplain; wetlands or critical areas.
1) In third order and higher streams, add 25 feet to the base width.
2) Forest Buffer width shall be modified if there are steep slopes which are within a
close proximity to the stream and drain into the stream system. In those cases, the
forest buffer width can be adjusted.
Several methods may be used to adjust buffer width for steep slopes. Two examples
include:
Method A:
Percent Sloe Width of Buffer
15%-17% add 10 feet
18%-20% add 30 feet
21%-23% add 50 feet
24%-25% add 60 feet
Method B:
Percent Type of Stream Use
Slo e
Water Contact Sensitive Stream
Recreational Use Habitat
108
0 to no change add 50 feet
14%
15 to add 25 feet add 75 feet
25%
Greater add 50 feet add 100 feet
than
25%
3) Forest buffers shall be extended to encompass the entire 100 year floodplain and a
zone with minimum width of 25 feet beyond the edge of the floodplain.
4) When wetland or critical areas extend beyond the edge of the required buffer width,
the buffer shall be adjusted so that the buffer consists of the extent of the wetland plus
a 25 foot zone extending beyond the wetland edge.
D) Water Pollution Hazards
The following land uses and/or activities are designated as potential water pollution hazards,
and must be set back from any stream or waterbody by the distance indicated below:
1) storage of hazardous substances (150 feet)
2) above or below ground petroleum storage facilities (150 feet)
3) drainfields from on-site sewage disposal and treatment system (i.e., septic
systems--100 feet)
4) raised septic systems (250 feet)
5) solid waste landfills or junkyards (300 feet)
6) confined animal feedlot operations (250 feet)
7) subsurface discharges from a wastewater treatment plant (100 feet)
8) land application of biosolids (100 feet)
For surface water supplies, the setbacks should be doubled.
E) The forest buffer shall be composed of three distinct zones, with each zone having its own set
of allowable uses and vegetative targets as specified in this ordinance. (See Figure 2).
NOTE: Although athree-zone buffer system is highly recommended, the widths and
specific uses allowed in each zone may vary between jurisdictions.
1) Zone 1 Streamside Zone
a) The function of the streamside zone is to protect the physical and ecological
integrity of the stream ecosystem.
b) The streamside zone will begin at the edge of the stream bank of the active
channel and extend a minimum of 25 feet from the top of the bank.
c) Allowable uses within this zone are highly restricted to:
i) flood control structures
ii) utility rights of way
109
iii) footpaths
iv) road crossings, where permitted.
d) The vegetative target for the streamside zone is undisturbed native vegetation.
2) Zone 2 Middle Zone
a) The function of the middle zone is to protect key components of the stream and to
provide distance between upland development and the streamside zone.
b) The middle zone will begin at the outer edge of the streamside zone and extend a
minimum of 50 plus any additional buffer width as specified in Section VI C.
c) Allowable uses within the middle zone are restricted to:
i) Biking or hiking paths
ii) Stormwater management facilities, with the approval of (Local agency
responsible for stormwater).
iii) Recreational uses as approved by (Planning Agency).
iv) Limited tree clearing with approval from (Forestry agency or Planning
Agency).
d) The vegetative target for the middle zone is mature native vegetation adapted to
the region.
3) Zone 3 Outer Zone
a) The function of the outer zone is to prevent encroachment into the forest buffer
and to filter runoff from residential and commercial development.
b) The outer zone will begin at the outwazd edge of the middle zone and provide a
minimum width of 25 feet between Zone 2 and the nearest permanent structure.
c) There shall be no septic systems, permanent structures or impervious cover, with
the exception of paths, within the outer zone.
d) The vegetative target for the outer zone may vazy, although the planting of native
vegetation should be encouraged to increase the total width of the buffer.
Section VII. Buffer Management and Maintenance
A) The forest buffer, including wetlands and floodplains, shall be managed to enhance and
maximize the unique value of these resources. Management includes specific limitations on
alteration of the natural conditions of these resources. The following practices and activities
are restricted within Zones 1 and 2 of the forest buffer, except with approval by (Forestry,
Planning or Natural Resources Agency):
1) Clearing of existing vegetation.
2) Soil disturbance by grading, stripping, or other practices.
3) Filling or dumping.
4) Drainage by ditching, underdrains, or other systems
5) Use, storage, or application of pesticides, except for the spot spraying of noxious
weeds or non-native species consistent with recommendations of .(Forestry Agency)
6) Housing, grazing, or other maintenance of livestock.
7) Storage or operation of motorized vehicles, except for maintenance and emergency
use approved by .(Forestry, Planning or Natural Resources Agency)
110
B) The following structures, practices, and activities are permitted in the forest buffer, with
specific design or maintenance features, subject to the review of (Forestry, Planning or
Natural Resources Agency):
1) Roads, bridges, paths, and utilities:
a) An analysis needs to be conducted to ensure that no economically feasible
alternative is available.
b) The right of way should be the minimum width needed to allow for maintenance
access and installation.
c) The angle of the crossing shall be perpendiculaz to the stream or buffer in order to
minimize clearing requirements
d) The minimum number of road crossings should be used within each subdivision,
and no more than one fairway crossing is allowed for every 1,000 feet of buffer.
2) Stormwater management:
e) An analysis needs to be conducted to ensure that no economically feasible
alternative is available, and that the project is either necessary for flood control, or
significantly improves the water quality or habitat in the stream.
f) In new developments, on-site and non-structural alternatives will be preferred
over larger facilities within the stream buffer.
g) When constructing stonnwater management facilities (i.e., BMPs), the azea
cleared will be limited to the area required for construction, and adequate
maintenance access, as outlined in the most recent edition of (Refer to Stormwater
Manual).
h) Material dredged or otherwise removed from a BMP shall be stored outside the
buffer.
3) Stream restoration projects, facilities and activities approved by (Forestry, Planning
or Natural Resources Agency) are permitted within the forest buffer.
4) Water quality monitoring and stream gauging are permitted within the forest buffer,
as approved by (Forestry, Planning or Natural Resources Agency):.
5) Individual trees within the forest buffer may be removed which aze in danger of
falling, causing damage to dwellings or other structures, or causing blockage of the
stream.
6) Other timber cutting techniques approved by the agency may be undertaken within
the forest buffer under the advice and guidance of (State or Federal Forestry
Agency), if necessary to preserve the forest from extensive pest infestation, disease
infestation, or threat from fire.
C) All plats prepared for recording and all right-of--way plats shall clearly:
1) Show the extent of any forest buffer on the subject property by metes and bounds
2) Label the forest buffer
3) Provide a note to reference any forest buffer stating: "There shall be no clearing,
grading, construction or disturbance of vegetation except as permitted by the agency."
4) Provide a note to reference any protective covenants governing all forest buffers areas
stating: "Any forest buffer shown hereon is subject to protective covenants which
may be found in the land records and which restrict disturbance and use of these
areas."
111
D) All forest buffer azeas shall be maintained through a declaration of protective covenant,
which is required to be submitted for approval by (Planning Board or Agency). The covenant
shall be recorded in the land records and shall run with the land and continue in perpetuity.
E) All lease agreements must contain a notation regarding the presence and location of
protective covenants for forest buffer areas, and which shall contain information on the
management and maintenance requirements for the forest buffer for the new property owner.
F) An offer of dedication of a forest buffer area to the agency shall not be interpreted to mean
that this automatically conveys to the general public the right of access to this area.
G) (Responsible Individual or Group) shall inspect the buffer annually and immediately
following severe storms for evidence of sediment deposition, erosion, or concentrated flow
channels and corrective actions taken to ensure the integrity and functions of the forest
buffer.
H) Forest buffer areas may be allowed to grow into their vegetative target state naturally, but
methods to enhance the successional process such as active reforestation may be used when
deemed necessazy by (Natural Resources or Forestry Agency) to ensure the preservation and
propagation of the buffer area. Forest buffer areas may also be enhanced through
reforestation or other growth techniques as a form of mitigation for achieving buffer
preservation requirements.
Section VIII Enforcement Procedures
A) (Director of Responsible Agency) is authorized and empowered to enforce the requirements
of this ordinance in accordance with the procedures of this section.
B) If, upon inspection or investigation, the director or his/her designee is of the opinion that any
person has violated any provision of this ordinance, he/she shall with reasonable promptness
issue a correction notice to the person. Each such notice shall be in writing and shall describe
the nature of the violation, including a reference to the provision within this ordinance which
has been violated. In addition, the notice shall set a reasonable time for the abatement and
correction of the violation.
C) If it is determined that the violation or violations continue after the time fixed for abatement
and correction has expired, the director shall issue a citation by certified mail to the person
who is in violation. Each such notice shall be in writing and shall describe the nature of the
violation, including a reference to the provision within this ordinance which has been
violated, and what penalty, if any, is proposed to be assessed. The person chazged has thirty
(30) days within which to contest the citation or proposed assessment of penalty and to file a
request for a heazing with the director or his designee. At the conclusion of this hearing, the
director or his designee will issue a final order, subject to appeal to the appropriate authority.
If, within thirty (30) days from the receipt of the citation issued by the director, the person
fails to contest the citation or proposed assessment of penalty, the citation or proposed
assessment of penalty shall be deemed the final order of the director.
D) Any person who violates any provision of this ordinance may be liable for any cost or
expenses incurred as a result thereof by the agency.
E) Penalties which may be assessed for those deemed to be in violation may include:
1) A civil penalty not to exceed one thousand dollars ($1,000.00) for each violation with
each days continuance considered a separate violation.
112
2) A criminal penalty in the form of a fine of not more than one thousand dollars
($1,000.00) for each violation or imprisonment for not more than ninety (90) days, or
both. Every day that such violations shall continue will be considered a sepazate
offense.
3) Anyone who knowingly makes any false statements in any application, record, plat ,
or plan required by this ordinance shall upon conviction be punished by a fine of not
more than one thousand dollazs ($1,000.00) for each violation or imprisonment for
not more than thirty (30) days, or both
F) In addition to any other sanctions listed in this ordinance, a person who fails to comply with
the provisions of this buffer ordinance shall be liable to the agency in a civil action for
damages in an amount equal to twice the cost of restoring the buffer. Damages that are
recovered in accordance with this action shall be used for the restoration of buffer systems or
for the administration of programs for the protection and restoration of water quality,
streams, wetlands, and floodplains.
Section IX Waivers/Variances
A) This ordinance shall apply to all proposed development except for that development which
prior to the effective date of this ordinance:
1) Is covered by a valid, unexpired plat in accordance with development regulations
2) Is covered by a current, executed public works agreement
3) Is covered by a valid, unexpired building permit
4) Has been accepted to apply for a building permit
5) Has been granted a waiver in accordance with current development regulations.
B) The director of the agency may grant a variance for the following:
1) Those projects or activities where it can be demonstrated that strict compliance with
the ordinance would result in practical difficulty or financial hazdship
2) Those projects or activities serving a public need where no feasible alternative is
available.
3) The repair and maintenance of public improvements where avoidance and
minimization of adverse impacts to nontidal wetlands and associated aquatic
ecosystems have been addressed
4) For those developments which have had buffers applied in conformance with
previously issued requirements.
C) Waivers for development may also be granted in two additional forms, if deemed appropriate
by the director:
1) The buffer width made be relaxed and the buffer permitted to become narrower at
some points as long as the average width of the buffer meets the minimum
requirement. This averaging of the buffer may be used to allow for the presence of an
existing structure or to recover a lost lot, as long as the streamside zone (Zone I) is
not disturbed by the narrowing, and no new structures are built within the one
hundred (100) yeaz floodplain.
2) (Planning Agency) may offer credit for additional density elsewhere on the site in
compensation for the loss of developable land due to the requirements of this
ordinance. This compensation may increase the total number of dwelling units on the
site up to the amount permitted under the base zoning.
113
D) The applicant shall submit a written request for a variance to the director of the agency. The
application shall include specific reasons justifying the variance and any other information
necessary to evaluate the proposed variance request. The agency may require an alternatives
analysis that clearly demonstrates that no other feasible alternatives exist and that minimal
impact will occur as a result of the project or development.
E) In granting a request for a variance, the director of the agency may require site design,
landscape planting, fencing, the placement of signs, and the establishment of water quality
best management practices in order to reduce adverse impacts on water quality, streams,
wetlands, and floodplains.
Section X. Conflict With Other Regulations
Where the standards and management requirements of this buffer ordinance are in conflict with
other laws, regulations, and policies regarding streams, steep slopes, erodible soils, wetlands,
floodplains, timber harvesting, land disturbance activities or other environmental protective
measures, the more restrictive shall apply.
114
Appendix B
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Appendix C
Glossary of Terms
Adsorb - To accumulate gases, liquids, or solutes on the surface of a solid or liquid.
Alluvial -Relating to the sand, silt, clay, gravel, or other matter deposited by flowing water, as in
a riverbed, floodplain, delta, or alluvial fan.
Aquatic bench -Shallow, flat zone along the edge of the permanent pool that is comprised of
emergent wetland vegetation that acts as a biological filter.
Base~low -That portion of stream discharge derived from groundwater.
Biogeochemical -The relationship between the geochemistry of a given region and its flora and
fauna, including the circulation of such elements as carbon and nitrogen between the
environment and the cells of living organisms.
Contour buffer strips aze defined in NRCS Code 332 as "narrow strips of permanent, herbaceous
vegetative cover established across the slope and alternated down the slope with parallel wider
cropped strips.
Filter strip is described in NRCS Code 393 as "A strip or azea of herbaceous vegetation situated
between cropland, grazing land or disturbed land (including forestland) and environmentally
sensitive areas."
Floodplain -The low-lying land adjoining a river that is sometimes flooded; generally covered
by fine-grained sediments (silt and clay) deposited by the river at flood stage.
Hydrologic budget - An accounting of the inflow to, outflow from, and storage in, a hydrologic
unit, such as a watershed, wetland, aquifer, or lake.
Natural capital - An extension of the economic notion of capital (manufactured means of
production) to environmental'goods and services'. It refers to a stock (e.g. a forest) which
produces a flow of goods (e.g. new trees) and services (e.g. cazbon sequestration, erosion control,
and habitat).
Riparian - of or relating to or located on the banks of a river or stream.
Trophic state -Indication frequently associated with ponds and lakes of their biological
productivity (i.e., the amount of living material supported, primarily in the form of algae). The
least productive ponds and lakes are called `oligotrophic'. These aze typically cool and clear, and
have relatively low nutrient concentrations. The most productive lakes are called `eutrophic' and
are characterized by high nutrient concentrations, which result in algal growth, cloudy water, and
low dissolved oxygen levels. Those lakes with a trophic status that falls along the continuum
somewhere between oligotrophy and eutrophy are termed `mesotrophic'.
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