Ottawa’s network of streams and rivers form the backbone of its drainage system and provide many other critical benefits for the city’s environmental health and quality of life. The importance of this natural “green infrastructure” system has become even more evident through multiple rounds of stormwater master planning and implementation of stormwater management projects; preparation of the city’s Comprehensive Plan; and as the city works collaboratively with community stakeholders to protect and improve water quality through its Municipal Separate Storm Sewer System (MS4) program in accordance with the Clean Water Act. Critical benefits provided by streams and particularly the vegetated riparian (stream) corridors through which they run, include but are not limited to the following.
15-101. Water quality. Natural streams, creeks, and rivers provide important water quality benefits as they collect and convey stormwater runoff from the city’s landscape. Riparian corridor vegetation slows runoff that flows over stream banks, reducing runoff velocities and volumes by infiltrating water into the ground, preventing erosion, and filtering pollutants from the remaining runoff that enters the stream. Vegetated streambanks also resist erosion from stream flow by slowing flow velocities and reinforcing bank stability, reducing the amount of sediment entering the stream from bank erosion and failures. Natural vegetation and stream bed materials create turbulence that aerates stream flows, increasing dissolved oxygen, supporting healthy aquatic life, and preventing nuisance conditions from stagnant water and anaerobic bacteria. Riparian vegetation provides shade that reduces water temperature for aquatic life and improves dissolved oxygen capacity.
15-102. Flood Protection. Floodplains and riparian corridors protect life, property and infrastructure by more safely conveying flood waters. Streambank and riparian vegetation slows flow velocities, reducing flash flood potential in downstream areas. Adequate, unobstructed and vegetated floodplains provide capacity for higher flows when streams overflow their banks; and infiltrate a portion of the flows into the ground. Adequate, undeveloped stream buffers also separate occupied and unoccupied structures and infrastructure from flood hazards.
15-103. Stream Degradation. Extensive stream assessments and research conducted in Eastern Kansas and nationally clearly demonstrate that adequate, healthy vegetated riparian corridors and floodplains reduce and prevent stream degradation and improve overall stream health and quality. By reducing runoff velocities and volumes, and reinforcing streambanks, healthy stream corridors prevent incision (down cutting) of stream beds and lateral bank erosion and advancement.
15-104. Wildlife Habitat. Streams and riparian corridors provide critical habitat and resources for wildlife, as well as a connected network that allows safe and unimpeded movement. This network is most valuable when it is complete and unfragmented, allowing migration through the larger riparian system and connected upland habitat areas.
15-104. Open Space and Recreation. Streams and riparian corridors provide undeveloped open space and natural areas throughout the community, improving neighborhood aesthetics, allowing the enjoyment of nature, and providing greenways for recreational amenities like bicycle and pedestrian trails. These benefits increase property values in nearby neighborhoods and districts and create healthier environments.
15-105. Comprehensive Plan. For these reasons the Ottawa Comprehensive Plan (Chapter 4, Rev. 11-16-11) calls for a holistic, watershed approach to stormwater management that preserves and enhances water quality, while protecting and restoring natural systems. A key recommendation is to develop and adopt a stream buffer ordinance, noting that:
Headwater streams are often severely degraded by urbanization and intense agricultural practices. As a consequence, many communities have adopted stream buffer requirements as part of an overall urban watershed protection strategy—a practice the City of Ottawa should follow for the watershed of the Marais des Cygnes River and its tributaries and creeks. Urban stream buffers are an integral element of any local stream protection program. By adopting some of these rather simple performance criteria, communities can make their stream buffers more than just a line on a map. Better design and planning also ensure that communities realize the full environmental and social benefits of stream buffers.
15-201. Based on the findings described in Section 20-101 through 105, this Chapter is intended for the following purposes.
a. Improving Water Quality.
b. Protecting Life and Property.
c. Protecting Infrastructure.
d. Providing Open Space Amenities.
e. Providing Greenway Trail Opportunities.
f. Protecting Environmental Quality.
g. Providing Certainty and Flexibility.
h. Increasing public knowledge and understanding of protecting water resources.
15-301. Scope and Applicability.
a. Upon adoption the stream buffer regulations of this chapter will apply to all applications for approval of preliminary plans, development plans, any other plans provided for in the zoning ordinance, preliminary plats, final plats and amendments to such plans or plats except as follows:
1. If the City Planning Commission has not recommended approval of a final plat for a unified development plan, preliminary plan, development plan or preliminary plat that was approved before October 3, 2018, the regulations of this chapter will not apply to any phases of the pre-adoption approved plan as long as the City Commission recommends approval of the first final plat within one year of the date that the Director of Community Development sends certified mail notice of this requirement to the subject property owner.
2. If the City Commission has recommended approval of a final plat for a pre-adoption approved plan before October 3, 2018, the regulations of this chapter will not apply to any phases of the pre-adoption approved plan as long as the City Planning Commission recommends approval of the next final plat for the pre-adoption approved plan by October 3, 2018.
3. If the requirements of (1) through (2) have been met, the regulations of this chapter will not apply to any phases of the unified development plan, preliminary plan, development plan or preliminary plat as long as the City Planning Commission recommends approval of each subsequent final plat within 3 years of the date that City Planning Commission recommended approval of the immediately preceding final plat.
4. The regulations of this chapter will not apply to amended development plans or amended preliminary plats if no significant changes are made. A significant change is any change that: (1) adds additional land area to the approved plan; (2) changes the overall land use in a way that would increase stormwater runoff volumes and rates; (3) increases the number of lots by 10% or more (as compared to the number of lots included in the originally approved plan/plat); or (4) increases the developed area by 10% or more (as compared to the originally approved plan/plat).
5. The regulations of this chapter will not apply to amended development plans or amended preliminary plats if the proposed changes to the development plan or preliminary plat are not located in an area on the development plan or preliminary plat where the buffer requirements would normally apply. If the proposed changes are located in an area where the stream buffer requirements would normally apply, then the amendment of that area on the plan/plat must comply with the regulations of this chapter for the amended area only.
b. The Director of Community Development is authorized to approve an extension of the time frames established above for a maximum of one year. Extension requests must be submitted in writing and include an explanation and justification for the request.
c. For the purposes of this section, unified development means a development consisting of one or more zoning or subdivision applications that were approved by City Commission on or about the same date on contiguous property through the same applicant. Additionally, for purposes of this section, commercial and residential plans approved collectively as one unified development (although approved through separate ordinances and plans) will be construed to be a single approved preliminary plan or phase.
d. The stream buffer regulations of this chapter will apply to all public infrastructure projects for which preliminary or final plans have not yet been approved by the City Commission.
15-302. Lands to Which Ordinance Applies.
a. The stream buffer standards of this chapter apply to all streams identified on the Natural Resources Map.
b. The City Stormwater Coordinator/GIS Technician is authorized to maintain and periodically update the Natural Resources Map to ensure its accuracy. Map updates that add stream reaches or otherwise have the affect of expanding the land area affected by the stream buffer regulations of this chapter must be noticed in the same manner as zoning map amendments.
15-303. Lands to Which Ordinance Does Not Apply.
a. The stream buffer regulations of this chapter are not intended to prohibit maintenance of existing City-owned facilities within the stream buffer.
b. Streams and rivers already protected by municipal levees at the time of adoption, such as the Marais des Cygnes River.
c. Storm sewer systems, human-made channels (except those designed to function as natural streams), and roadside ditches are not considered streams (except where natural streams are aligned with a roadway).
15-304. Abrogation and Greater Restrictions. It is not intended by this Article to repeal, abrogate, or impair any existing easements, covenants, or deed restrictions. However, where this Article imposes greater restrictions, the provisions of this Article shall prevail. All other City laws inconsistent with this Article are hereby repealed to the extent of the inconsistency only.
15-305. Interpretation. In their interpretation and application, the provisions of this Article shall be held to be minimum requirements, shall be liberally construed in favor of the Governing Body, and shall not be deemed a limitation or repeal of any other powers granted by Kansas statutes.
a. Administration. The Director of Community Development shall be responsible for administration of this Chapter.
b. Review for Compliance. Review for compliance with these standards will be conducted in conjunction with platting or preliminary or final plan review, as described in Section 20-403.
15-401. Buffer Plan.
a. A stream buffer plan must be provided when the stream buffer standards apply. The plan must delineate the buffer zones and the proposed development site in relation to:
1. The FEMA- or City-designated floodplain or the estimated 1% flood conveyance, as determined by a qualified engineer using City-approved methods;
2. Wetlands within or adjacent to the floodplain or required stream buffer;
b. A preliminary buffer plan must be submitted for City review with preliminary plats and preliminary plans, and with any other plans provided for in the zoning ordinance. The preliminary buffer plan must include a plan at a scale no smaller than 1”=100’ showing at a minimum:
1. Existing topography with at least 2-foot contour intervals;
2. Approximate stream locations based on approved City geographic information system mapping or City-approved mapping from state and federal agencies;
3. Approximate boundary of the FEMA- or City-designated floodplain based on City approved geographic information system mapping or federal mapping;
4. Approximate 1% flood conveyance limits where no regulatory floodplain is identified as determined by a qualified engineer using City-approved methods;
5. Approximate and/or potential wetland locations from a field survey, or the U.S. Fish and Wildlife Service National Wetlands Inventory or other publicly available data source (subject to formal delineation and Jurisdictional Determination by the U.S. Army Corps of Engineers prior to submittal of final buffer plan);
6. The location of proposed structures or activities;
7. Identification of required stream buffer zones based on City-approved geographic information system mapping or a site topographic survey and a survey of mature riparian vegetation;
c. The final buffer plan must be submitted for City review with or be included in final plats and final plans. (The requirements for final plans are in the zoning ordinance.) The final buffer plan must include a plan at a scale not smaller than 1”=100” showing at a minimum:
1. Existing topography with at least 2-foot contour intervals;
2. Field delineated, marked, and surveyed streams and wetlands;
3. Existing sub-drainage areas of the site;
4. The location of proposed structures or activities;
5. The location of field delineated and surveyed stream buffer zones;
15-403. Buffer Plan Approval.
a. Preliminary Buffer Plans shall be submitted with Preliminary and final Plats and Preliminary Site Plans for review and approval. Final Buffer Plans shall be submitted with Final Site Plans for review and approval.
b. The Stormwater Coordinator/GIS Technician shall review Preliminary and Final Buffer Plans, and provide recommendations for approval, conditional approval, rejection; as well as needed revisions.
15-501. General Standards.
a. Buffer Zones.
1. Streamside Zone. 25 feet from top-of-bank in all cases.
2. Middle Zone.
• FEMA 100-year/1% floodplain where mapped.
• Engineer-determined 100-year/1% conveyance for smaller streams and tributary areas.
• Plus any contiguous wetlands under Clean Water Act Section 404, where applicable.
3. Outer Zone. 25 feet from edge of Middle Zone in all cases.
b. Allowed Uses of Buffer Zones.
1. Streamside Zone.
• Stormwater outfalls.
• Road, trail, bridge, and utility crossings only; perpendicular to the stream channel.
• Vegetation management and trash removal.
2. Middle Zone.
• All uses allowed in the Streamside Zone.
• Paved and unpaved trails.
• Stormwater drainage channels.
• Utility corridors.
• Conditional Uses: Post-construction stormwater best management practices with approval of the City Engineer, and provided that the BMP is appropriate and resilient for a floodplain setting and is designed to withstand the anticipated conditions.
3. Outer Zone.
• All uses allowed in the Streamside and Middle Zones.
• Stormwater Best Management Practices.
4. All Zones.
• Infrastructure maintenance and repair.
• Streambank stabilization.
• Noxious weed and invasive species management.
• Emergency actions for health & safety.
• Public open space for habitat and outdoor recreation provided it complies with the above criteria.
c. Prohibited Activities and Uses. Anything not specifically allowed above is prohibited. Furthermore, streams may not be enclosed or otherwise altered from a natural state except as provided for by Section 20-6, and in accordance with all other applicable state and federal laws and regulations.
d. Flexibility. The provisions of this Chapter are intended to coincide with other provisions of the Subdivision Regulations and Zoning Regulations, to create a streamlined system that provides multiple community benefits while maximizing developer flexibility. Specific provisions include the following.
1. Dedication and Reservation of Public Sites and Open Space (Subdivision Regulations Article 5). Floodplains and sensitive lands must be protected under Article 5, and count toward the total open space requirement. Privately owned open space, such as permanent open space created by a stream buffer that is accessible for recreation, also counts toward the total open space requirement.
2. Conservation Development Standards (Subdivision Regulation, Article 13). Article 13, Section 13-401 designates a stream buffer as Tier One Conservation Developments, and Section 13-1101 provides for a 5% net density bonus in Tier One Conservation Developments. Protecting additional natural and sensitive areas may increase the net density bonus to as great as 15%.
3. Non-residential Developments. Non-residential development sites that include stream buffer areas are allowed up to a 25-percent reduction in minimum required parking and up to a 25-percent increase in allowable building height over the base zoning requirements. In addition, parking areas may be sited in the Outer and Middle Zones provided that they are constructed with a pervious pavement surface, subject to approval by the City Engineer; and provided that the surface pavement is maintained such that sediments are removed, and infiltration capacity is continuously maintained.
15-502. Specific Standards.
a. Vegetation. Disturbed stream buffer areas shall be revegetated with native vegetation appropriate for Eastern Kansas floodplains and riparian corridors.
b. Ownership and Responsibility for Stream Buffer.
1. Stream buffer must be formally designated as permanent open space in common ownership and maintenance, such as by a Homeowners Association (HOA) or commercial property owner/manager; placed in a conservation easement or deeded to a land trust, park department, or other land management agency; or deeded to the City only if the City agrees to take ownership. Owners (including easement holders and land management agencies) must allow municipal bicycle/pedestrian trail connections through the permanent open space.
2. Where an HOA or commercial owner maintains the permanent open space, legal and financial provisions must be provided for perpetual maintenance of the permanent open space in the event that the original owner is dissolved or transfers ownership to another entity.
3. Alternatively, the City may agree to take ownership in all cases in lieu of a conservation easement or deed to a land management agency. See also Subdivision Regulation Article 5 – Dedication and Preservation of Public Sites and Open Space.
4. Maintenance, the owner is responsible for all maintenance, including inspection and enforcement of the buffer provisions and use restrictions, maintenance of vegetation and removal of invasive species, and other reasonable maintenance as appropriate. Maintenance activities must comply with all other state and federal regulations and should minimize the use of chemical pesticides. The owner must submit a buffer maintenance plan that defines the required maintenance activities and schedule; and which clearly identifies the party or entity responsible for maintenance. Should the responsible entity cease to exist (such as a homeowner’s association or corporation), the maintenance plan must state that responsibility for its implementation would fall to the current owners.
c. Boundary Markers.
1. Boundary markers must be put in place clearly marking required stream buffer before, during and after construction.
2. Boundary markers must be installed at the intersection of private lot lines with the outer edge of the permanent open space before receiving final City approval of plans for clearing, grading, or sediment and erosion control.
3. Construction fencing must be placed at the outer edge of the permanent open space in the outer zone to delineate the buffer. This fencing must be maintained throughout the construction process.
4. Permanent signs must be placed at the edge of the permanent open space after construction to denote the buffer as follows:
(A) For single-lot developments, signs must be posted every 100 feet along the boundary of the permanent open space.
(B) For multiple lots located along a buffer, signs must be located at the intersection of every other lot line along the boundary of the permanent open space, or at 100-foot intervals, whichever is less.
5. The sign face shall be two square feet in area.
6. Required signs must read: “Protected Stream Buffer - No clearing, grading, construction or disturbance of vegetation permitted. Routine maintenance and trash removal are allowed. Ordinance 4004-18 with the sign message located approximately 4 feet above the ground. No other message shall be on the sign.
7. Signs must be maintained and remain legible at all times.
d. Inspections. Required stream buffer must be accessible to the directors of Community Development Department and Public Works and their designees to facilitate inspection, construction, maintenance and other activities related to the stream and public infrastructure in the buffer area.
15-601. Flexibility.
a. The stream buffer regulations of this chapter have the effect of limiting development near streams identified on the Natural Resources Map.
b. To help offset potential adverse impacts on development yields for property near stream corridors, property owners are encouraged to use the open space development and conservation subdivision development options of Article 13 of the subdivision regulations.
15-602. Stream Buffer Variance Criteria. Variances to any of the standards of this chapter may be approved by the City Commission, after review and recommendation of the City Planning Commission, subject to all applicable city, state and federal regulations, and subject to the provisions of this section. When exceptions are approved, applicants must mitigate impacts in accordance with the mitigation standards in 20-4-c-6, below. Notice will be provided of the hearings held by the City Planning Commission and the City Commission on the exception request in accordance with adopted code.
a. The City Commission may approve a variance if it finds that a property that is subject to this chapter is of such size or shape or is subject to or is affected by such topographical conditions, or is to be devoted to such uses that full compliance with this chapter is impossible or impractical and that the exception is necessary so that substantial justice may be done and the public interest secured. In order to approve an exception request, the City Commission must also determine that adequate measures will be put in place to protect the integrity of the stream buffer that includes appropriate mitigation of disturbed natural resources.
b. Variances must be identified on the preliminary plat or preliminary plan.
c. To recommend or approve a variance, the City Planning Commission and City Commission must determine that all of the following conditions exist:
1. That there are special circumstances or conditions affecting the property;
2. That the exception is necessary for reasonable and acceptable development of the property in question and is not a greater exception than is required to allow reasonable and acceptable development of the subject property; and
3. That the granting of the exception will not be detrimental to the public welfare or injurious to other property in the vicinity in which the subject property is situated.
d. Applicants for a variance must submit a stream buffer exception application and mitigation plan, including any planned mitigation measures, to the Community Development Department. The exception application and/or mitigation plan must include the following:
1. A written description of the requested variance and the special circumstances or conditions affecting the property that warrant an exception under (1) through (3) above;
2. A description of all measures taken to avoid or otherwise minimize encroachment into the buffer zone;
3. Proposed mitigation for any encroachment; and
4. A preliminary buffer plan, as required by 20-401 that clearly displays the location and total acreage of proposed clearing and grading, and the percentage of outer zone area proposed to be cleared. The buffer plan must also include the limits and total acreage of proposed mitigation, and ratio of proposed mitigation to cleared area.
e. The department must review the plan for compliance with the stream buffer regulations of this chapter and recommend that the exception request be approved, approved with conditions, or denied. An exception may be recommended for approval when the Community Development Department director determines that an exception is warranted, under the provisions of this section, and when the integrity of the stream corridor will be protected through avoidance, minimization and appropriate mitigation measures.
f. Utilities may encroach into the streamside zone only when available system connection points physically preclude an alignment farther from the edge of stream, or, in the case of sanitary and storm sewers, when the controlling elevations provide insufficient head for normal system function. Streambanks and natural resource areas affected by allowed encroachments must be stabilized in accordance with the City’s standards, specifications and design criteria.
15-603. Conditions for Approving Stream Buffer Variances. Disturbed natural resources must also be mitigated. Mitigation may be provided on the property or in another location, provided that it complies with the following criteria. Revegetation or restoration of any portion of the original disturbance counts toward the required mitigation.
a. Mitigation of outer zone vegetation that is contiguous to the remaining outer zone vegetation must be provided at a ratio of 1 unit of mitigation area to 1 unit of existing outer zone area.
b. Mitigation of outer zone vegetation that is not contiguous to the remaining outer zone vegetation but is along the same stream must be provided at a ratio of 1.5 to 1.
c. Mitigation of outer zone vegetation that is not located along the same stream must be provided at a ratio of 2.0 to 1.
d. Encroachment into the middle or streamside zones or alteration of the stream channel must be mitigated at a ratio of 3 to 1.
e. The Community Development Department Director may approve mitigation at City designated locations in lieu of locations owned or controlled by the applicant.
15-604. Further Appeals. Any person aggrieved by the decision of the Appeal Board or any taxpayer may appeal such decision to the District Court as provided in K.S.A. 12-759 and 12-760.
15-701. Violation of the provisions of this Article or failure to comply with any of its requirements (including violations of conditions and safeguards established in connection with granting of variances) shall constitute a misdemeanor. Any person who violates this Article or fails to comply with any of its requirements shall, upon conviction thereof, be fined not more than $500.00 and in addition, shall pay all costs and expenses involved in the case. Each day such violation continues, shall be considered a separate offense. See Also City Code Chapter 14, Article 1, Section 14-104 for MS4 enforcement. Nothing herein contained shall prevent the City or other appropriate authority from taking such other lawful action as is necessary to prevent or remedy any violation.
The following definitions apply to the provisions of this chapter:
a. Best Management Practices (BMP). Products, techniques, or methods that have been shown to be the most reliable and effective way to minimize adverse impacts on natural resources, particularly stormwater quality.
b. Clearing. Any act that removes vegetative cover, structures or surface material, including, but not limited to, topsoil, root mat, or surface layer removal.
c. Common Open Space. An outdoor area designated and intended for the common use and enjoyment of residents or occupants of the development or other members of the controlling association.
d. Ephemeral Stream. A stream that flows only in direct response to precipitation, and whose channel is at all times above the water table.
e. Encroachment. A temporary or permanent activity (such as clearing vegetation or constructing a permanent improvement) that occurs within a stream buffer zone that is expressly prohibited within that zone by this Chapter. Mitigation activities are not considered encroachment.
f. Erosion. Process by which the ground surface is worn away by the action of wind, water, ice, gravity, or artificial means, and/or land disturbance.
g. Intermittent Stream. A stream which flows only at certain times of the year when it receives water from springs or from some surface source such as melting snow.
h. Invasive Species. A species that is non-native to the ecosystem under consideration and whose introduction causes or is likely to cause economic or environmental harm or harm to human health.
i. Manual of Best Management Practices for Stormwater Quality. Stormwater BMP planning and design reference approved by the American Public Works Association and the Mid-America Regional Council in August 2012, or the most current version adopted by the City.
j. Native Vegetation. Plants indigenous to northeastern Kansas and appropriate for the location and the natural conditions at the location, as defined by the Kansas Forest Service, Kansas Native Plant Society, or other accepted regional references, agencies, and research institutions.
k. Natural Hazard Areas: Areas that potentially pose a significant hazard to people or property, such as drainageways, wetlands, and lands whose slope and/or soils make them particularly susceptible to subsidence or erosion when disturbed by development activities.
l. Natural Stream. A body of water meeting the definition of a “stream” (m, below) that is not human-made; or which if human-made is intended to restore an altered stream channel or replicate a natural stream for habitat or other purposes.
m. Perennial Stream. A stream which flows continuously.
n. Riparian Vegetation. Vegetation native to Eastern Kansas that exists within and is adapted to land adjacent to a water body (stream, river, lake).
o. Slope. The ratio of vertical distance over horizontal distance.
p. Stream. A body of running water moving over the earth’s surface and flowing at least part of the year. Storm sewer systems, human-made channels (except those designed to function as natural streams), and roadside ditches are not considered streams (except where natural streams are aligned with a roadway).
q. Stream Buffer. Vegetated area, including trees, shrubs, and herbaceous vegetation, that exists or is established to protect a stream system, lake, or reservoir.
r. Stream Channel. The streambed and its banks.
s. Stream Corridor. The stream channel and adjacent floodplains and wetlands.
t. Top of Bank. The limits of the stream when the discharge is equal to the 50% storm flow based on rural conditions land use. Rural conditions land use flows can be estimated from U.S. Geological Survey regression equations.
u. Unified Development. A development consisting of one or more zoning or subdivision applications that were approved by City Commission on or about the same date on contiguous property through the same applicant.
v. Wetlands. Areas that are saturated or inundated by surface water or groundwater at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation adapted for life in saturated soil conditions.