Development of Stream Buffer and Setback Regulations

By Christine Smith

The city of Independence, MO, Water Pollution Control Department has been working for the last several years to integrate green concepts and watershed management strategies into the city’s day to day stormwater program operations. One major accomplishment has been the adoption and implementation of the Stream Buffer and Setback Regulations. This local ordinance has enabled the city to bring the concepts of water quality, ecosystem protection and responsible development practices together for the betterment of the numerous streams that flow through the city.

By coordinating the responsibilities of several city departments in the plan review process for new developments and construction, stream protection and riparian corridor preservation goals can be better met. A number of lessons have been learned over the 2 1/2 years of the ordinance development process, including research of academic and regulatory sources, coordination of input from city staff, public meetings and stakeholder review, City Council action, staff training for implementation of the ordinance and public information materials. Resources have been made available for ongoing references, such as the Stream Order Map and the “Stream Corridor Protection and Adaptive Management Manual”. Other stormwater program components are linked to riparian corridor protection in the public education efforts and capital improvement program.

In the 10 years prior to 2002, the city suffered from the effects of recurring, significant rain events that challenged resources and caused the residents to require attention. Consequently, significant stream protection measures were undertaken in Independence, and to address the growing stormwater management needs, residents passed a local sales tax to fund storm drainage improvement projects.

Independence has an extensive system of creeks, streams and a river that dissect the community, presenting ample opportunity to employ the concepts of riparian corridor management and preservation. Like many cities, the largest portion of Independence is already built out, with houses and businesses bordering stream banks. There are also significant portions of largely agricultural land that is now ripe for redevelopment and the city recognized the need to initiate measures to protect the riparian corridors and avoid the problems encountered with streamside development. As a result, the city brought together a diverse group of stakeholders to partner in developing a local ordinance for stream buffers and setbacks.

Figure 1: The buffer for a stream consists of a strip of land extending along both sides of the stream, including slopes greater than 15 percent.

Click here to enlarge image

In existing neighborhoods, the meandering streams have resulted in many homes too close to stream banks. Citizens want help repairing the damage left as yards slough off and the problems of soil and stream bank erosion with exposure of utility lines is significant. The city needed a tool to help prevent the conditions from occurring in new developments. The stakeholders also recognized the opportunity to maintain or improve water quality in the streams while producing opportunities for recreation and education, improving wildlife habitat and enhancing property values.

Initially staff began to study various city, county, state and federal regulations to support these opportunities and used an EPA model ordinance as a template. The primary goal was to adhere to the principles of “do no harm, enhance conditions when possible, and adopt a strategy of continuous improvement.”

While utilizing extensive research of literature and educational institutions’ publications to construct the ordinance, the city assembled its stakeholder group for local input. Public meetings were held with citizens, government agencies, watershed coalitions, developers and builders, and consultants and professionals. City staff was continually involved to coordinate the implementation of the ordinance and the roles each department had to fulfill. Preliminary information was provided to the City Council and Planning Commission to gain the much-needed support of city management, elected officials and administrators.

The priorities of the stakeholders became apparent: they wanted clearly defined regulations, a simplified and coordinated plan review process, and clarification of the ownership and maintenance responsibilities for stream buffers. There was agreement that stormwater should rank as a high city priority, and that there was a need to strike an effective balance to support economic development.

However, it became apparent that the adoption and implementation process could be more effective with the help of regional resources. A Missouri Department of Natural Resources (MDNR) 319 Grant Program became available through the Mid-America Regional Council (MARC). An action plan was written to include the support of the development of the local ordinance for Independence, which could then serve as model program to be used throughout the area. When the city entered into this formal agreement, they gained the services of professional consultants to fortify their plans. The possibilities expanded to include development of implementation and training materials, staff workshops, individual stakeholder interviews, and preparation of the stream order map that would be the foundation of the local ordinance. The grant program overlapped the writing and adoption of the ordinance and took the city into its first 6 months of having the code on the books.

The policy statement written in the ordinance reflects the following goals:

Restore and maintain water resources
Reduce erosion and sediment entering the stream
Reduce future flood hazards
Stabilize stream banks
Provide infiltration of stormwater runoff
Preserve tree canopy
Provide riparian wildlife habitat
Create community amenities

The foundation of the Independence ordinance is the stream order concept. The buffer zones and setbacks are based on the stream orders as shown on the adopted map which was derived from USGS data. Subsequent stream field checks were performed to validate and edit the map.

Figure 2: The foundation of the Independence ordinance is the stream order concept, based on the map shown above.

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The city established a three-zone buffer consisting of the streamside, middle and outer sections where the widths vary according to the stream order. The buffer width can be averaged throughout a development to accommodate a meandering stream and other circumstances, so long as the overall requirement is achieved. Steep slopes also affect buffer widths, and the distances are measured from the top of the bank on each side of a stream.

The plan review process has been integrated with existing city procedures. When a development plan is submitted, the map is checked to determine if a regulated stream occurs on the property or within 150 feet of its boundaries. The owner/developer must submit an application and delineated buffer plan with a $100 application fee for the review to proceed. The buffer plan is incorporated with the site plan, grading plan or similar components to provide for a cohesive plan review process, which also meets one of the chief concerns of stakeholders. During development, boundary markers and construction fencing are installed to delineate and protect the stream buffer. Recorded plats must include the buffer lines and a designation of ownership of the stream buffer.

Stream buffer widths are established by stream order and are as follows:

The streamside zone is 35 feet wide; the middle zone can be 25 to 90 feet depending on stream order; and the outer zone is 25 feet. If the averaging technique is applied, the middle zone can be expanded or reduced.

Certain activities are prohibited in stream buffers, such as clearing and grading, drainage ditching, filling or dumping; housing of livestock; and storage of motorized vehicles. Permanent structures within the stream buffer are prohibited. Permitted activities may include the placement of roads, bridges and utilities as approved during plan review; water quality monitoring, targeted tree maintenance, control of noxious weeds and creation of view corridor with city approval.

The ownership and maintenance of the stream buffer is a major concern and the city found that there was not a single solution for it. So, the ordinance provides for alternatives that can be selected for a development, including private ownership by individuals or homeowners groups, or dedication to the city with approval. It is advisable to protect the land with a drainage or conservation easement, and these are to be recorded on the property plat.

Since this is a local ordinance, enforcement provisions have been included. The Director of Water Pollution Control has the administrative authority to apply the code, issue notices of violation and cooperate with other departments to issue stop work orders. Violations can be addressed through the municipal court process with appropriate fines and cost recovery to restore buffer areas. The possibilities for civil actions and recovery of legal fees are also addressed. The developer or owner also has recourse to seek relief by appeal to the local board of adjustment. In all cases, decisions by the board must provide for a minimum of an 85-foot buffer to be preserved.

The city has now had a couple of years of experience implementing its Stream Buffer and Setback Ordinance and has learned a few lessons. Applying the ordinance to infill development is challenging at best. If a property has never been platted, then the provisions apply. But if a new plat is not required, the city has not been able to require the establishment of a buffer. However, those cases have been few and there are other city code provisions that help, such as certain setback provision in the public works codes.

The city has also experienced a willingness by developers to apply the intent of the regulations, recognizing opportunities to enhance their properties through preservation and conservation principles. Certain large developments have partnered with the city to create green spaces that coordinate with city and county park lands. These are helping to establish and retain riparian corridors along some major streams in the area.

Participating in the MDNR 319 Grant Program proved to be extremely valuable for the city. The process of validation that was achieved through interaction with all stakeholders made the acceptance by elected officials almost seamless, although there were some intense discussions with impacted developers and property owners that made the determination of the actual widths challenging.

The training and support materials that were developed have helped city staff to “own” the process.

The city believes the stream buffer and setback regulations are one of many tools it can use to provide flood protection and water quality improvement. Research shows that there are many reasons to protect streams and a variety of methods to employ. Perhaps the city has taken a simple route in basing the buffers only on stream order, but the overall benefits of wildlife habitat, education and recreations opportunities, stream bank stability and economic value can still be achieved. Thus, the city believes that this is a step in balancing economic development with public safety and environmental protection.

About the Author:

Christine Smith is the Environmental Compliance Supervisor for the city of Independence (MO) Water Pollution Control Department. She can be reached at 816-325-7714, or via e-mail at [email protected].