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7.a 2 PC Memo Shoreland Ordinance Wetlands 11.14.17 Memorandum To: Scandia Planning Commission Reference: Shoreland Ordinance—Wetland Setbacks and Buffers Copies To: Neil Soltis, City Administrator Brenda Eklund, City Clerk Project No.: 16323.000 From: Sherri Buss, Planer, RLA AICP Routing: Date: October 9, 2017 Background It is timely for the City to review and consider updates to its wetland setback requirement in the Shoreland Ordinance: 1) the City is currently updating its Shoreland Ordinance; 2) the City has recently reviewed several requests for variances from the setback requirement, and these have raised questions about the setback standard; and 3) the State of Minnesota recently adopted a wetland buffer law (Minnesota Statutes 103F.48) that requires minimum buffers around all public waters, which include many lakes, streams and wetlands. Current Wetland Setback Standard The City’s Shoreland Ordinance includes a requirement in Section 8.1 that structures and septic systems be setback 75 feet from unclassified waterbodies. Unclassified waterbodies are defined as any “lake, pond, backwater, swamp marsh, wetland, stream, drainage way, flowage, river, floodplain, or other water-oriented topographical features not designated as a natural environment lake, recreational development lake, general development lake, or transition river or tributary stream on the zoning map. (The water-body classifications come from the DNR’s Shoreland regulations.) The DNR’s Model Shoreland Ordinance does not include a setback standard for unclassified waterbodies—this standard has been adopted in addition to state regulations by some cities, including Scandia. Cities in Washington County have a variety of standards on this issue:  Forest Lake requires a 50-foot structure setback in unsewered areas, and a 20-foot setback in sewered areas  The City of Hugo has no setback requirement for Unclassified waterbodies (county setback requirements for septic systems would apply in unsewered areas)  The City of White Bear lake has no setback requirement for Unclassified waterbodies (county setback requirements for septic systems would apply in unsewered areas)  The City of Stillwater requires a 75-foot structure and septic system setback from Unclassified Waterbodies in unsewered districts, and a 50-foot structure setback requirement on sewered parcels Shoreland Ordinance – Wetland Buffers Scandia Planning Commission Page 2 November 14, 2017 Washington County requires a 75’ setback from unclassified waterbodies for sewage tanks and soil treatment areas for septic systems. The County’s Shoreland Ordinance includes a required 75’ setback from the Ordinary High Water Level of Unclassified Waterbodies for structures in unsewered areas (or 20’ from the delineated wetland boundary—whichever is greater), and a 75’ setback from the OHWL for septic systems. The 20’ wetland setback requirement is in a footnote referenced by the ** shown in the County ordinance—this reference has disappeared from Scandia’s Ordinance, which has the ** symbol but no footnote reference. The wetland setback requirements were created before many communities started to consider Wetland Buffer regulations. The setbacks seem to have been based largely on sewer system setback requirements, but were also adopted to protect other water body functions such as flood control and wildlife habitat. Setbacks prohibit the construction of “structures” within the setback area, but do not prohibit impacts to vegetation. Trails and flat patio areas are often not defined as “structures.” The City requires septic systems to follow County regulations and obtain County permits, and therefore should include the County’s setback requirement for septic systems in its ordinance. However, it may determine whether it will have a setback requirement for other structures on Unclassified Waterbodies, and what that setback will be. Some communities have no structure setback requirements from wetlands (other than septic system setback requirements), but do have wetland buffer requirements. Hugo’s ordinance includes a recommendation for a 50-foot buffer in its Landscaping ordinance, but the buffer is not required. Wetland Buffers—BWSR Guidance In the 1990’s, cities and watershed districts began to consider requiring wetland buffers. Buffers are typically defined as “undisturbed land adjacent to shorelines and wetland consisting of native or existing vegetation” or “unmowed, naturalized strips of vegetation around the wetland perimeter.” Buffers are typically provided at development or redevelopment.” The Minnesota Wetland Conservation Act did not require buffers (natural resource agencies decided not to add this requirement to a law that was controversial fearing that additional regulation would prevent the WCA from being adopted), and left this option open to local governments and watershed districts. Buffer width requirements have been developed by many organizations based on wetland functions and values assessments. Minnesota has developed a standard approach to functions and values assessments that is completed with wetland delineations. The Minnesota Board of Water and Soil Resources publication (attached) provide a framework for Wetland Buffer Standards based on a review of scientific literature that looks at the effectiveness of buffers for stormwater management and providing wildlife habitat. Their research found that buffer widths of 50-60 feet generally provide adequate protection from suspended solids for maintaining high water quality, and recommendations for protecting wildlife habitat functions ranged from 50-600 feet, depending on the quality of habitat adjacent to the wetland. The BWSR recommendations identify 4 wetland management classes, and recommended buffers for each. Ranged from the highest quality to wetlands to the lowest, their classifications include: Shoreland Ordinance – Wetland Buffers Scandia Planning Commission Page 3 November 14, 2017 Wetland Management Class Buffer Requirement A – Preserve ≥ 50 feet for water quality; ≥ 100 feet for wildlife habitat B – Manage 1 35-50 feet. Require monuments to mark the buffer edge C – Manage 2 25-35 feet. Require monuments to mark the buffer edge D – Manage 3 25 feet The BWSR publication discusses the criteria for each of the wetland classifications. Local Watershed Districts The Watershed Districts in Scandia have each adopted buffer requirements in their rules. They have not adopted setback requirements. 1) The Comfort Lake-Forest Lake Watershed District (CLFLWD) Rule 4 includes lake, stream, and wetland buffer requirements. The rules apply to all lakes, streams and wetlands within the watershed and are applied at subdivision or a new use is approved through a rezoning or variance. The Districts wetland buffer standards include: Water Body Buffer Requirement Preserve Wetland classification 100 feet Manage 1 Wetland classification 75 feet Manage 2 Wetland classification 50 feet Manage 3 Wetland classification 25 feet If a lake or wetland is a groundwater- dependent resource 100 feet If a stream is a groundwater- dependent resources 150 feet CLFLWD buffer requirements may be extended when buffer zones include significant natural communities, steep slopes, or floodplains. 2) The Carnelian-Marine-St. Croix Watershed District (CMSCWD) standards for wetland buffers are the same as those used by the CLFLWD. The CMSCWD permits “buffer averaging” as an option to provide benefits to natural resources, but no area of the buffer may be less than 25’ in width. New State Buffer Regulations Minnesota adopted a buffer law in 2015. The law gives counties or local governments the option to adopt and enforce the law as part of zoning ordinances or shoreland ordinances. Washington County is proposing to adopt an ordinance to permit the County to enforce the buffer requirements. Since the County does not have zoning or shoreland ordinance authority within the cities in the county, it is not clear whether it can enforce the ordinance outside Township areas. And while the County has said that the buffer requirement primarily affects agricultural parcels, BWSR has stated that it affects all parcels on public waters. Shoreland Ordinance – Wetland Buffers Scandia Planning Commission Page 4 November 14, 2017 The ordinance requires a minimum 30’ buffer width, and an average 50’ buffer width for all public waters, i.e. classified lakes, streams and wetlands. The City should consider this requirement if it adopts a buffer width requirement in its Shoreland or Zoning Ordinance. Some Options to Consider  Setbacks on Unclassified Waterbodies o Keep the current setback requirement for all structures o Keep the current 75’ setback requirement for septic systems, but reduce the requirement for other structures to 50’ or less (width could be based on the classification of the water body) o Keep the current 75’ setback requirement for septic systems, but eliminate the structure setback requirement for other structures  Wetland Buffer Requirement o Replace the structure setback requirement with a buffer requirement o Keep or revise the structure setback requirement and adopt a buffer requirement City Council Discussion and Updates to Draft Ordinance. The City Council reviewed the information in this memo, and recommended unanimously that the ordinance should be revised to include wetland setbacks that mirror the distances in th e watershed district buffer requirements. They also recommended that a “de minim us” provision be added for small and low-quality wetlands, consistent with the provisions in the Wetland Conservation Act. The Planner updated the setbacks section of the Shoreland Ordinance (section 6.4) to include a table for wetland setbacks. This would replace the blanket 75’ setback for unclassified water bodies included in the current ordinance. The table includes setbacks for structures and for septic systems. Washington County’s septic system ordinance requires a 75’ setback from all wetlands (regardless of quality) and 150’ setback from streams, including Tributary streams. I have included a draft “de minimus that exempts small wetlands (up to 400 square feet, or up to 1000 square feet if approved by the City) from the setback requirements. The Planning Commission should be prepared to discuss the wetland setback requirements at the meeting on November 14.