(a) Purpose. The creation and maintenance of stream buffers benefits the environment by protecting water quality and riparian ecosystems. This section shall, to the greatest extent possible, incorporate the City's stream buffer requirements contained in TMC 17.10.010, et seq.
(b) Definitions. The terms, words and phrases used in this section shall have the meanings ascribed to them in TMC 17.10.020.
(c) Plat Requirements.
(1) All plats prepared for recording shall clearly:
(i) Show the extent of any buffer on the subject property by metes and bounds.
(ii) Label the buffer.
(iii) Provide a restriction stating, "There shall be no clearing, grading, construction or disturbance of vegetation except as permitted under TMC 17.10.060 or as approved by the Public Works Director or his or her designee."
(2) The Public Works Director and Planning Director may mutually adopt administrative guidelines that more specifically illustrate text and graphics to be contained on the plat as referenced in this subsection.
(3) A dedication of a stream buffer area to the City shall not be interpreted to mean that this conveys to the general public the right of access to this area.
(4) Stream buffers situated adjacent to public streets add value to neighborhoods. In order to provide an incentive to locate buffers adjacent to public streets, the City will allow the dedicated right-of-way width as contained in the City's design criteria adjacent to the improved street to be included within the outer zone of the stream buffer. Also, the City may through its platting process accept the dedication of buffer areas located adjacent to streets and maintain the same as public property. (Ord. 19430 § 5, 6-15-10.)
17.10.010Purpose and intent.
The purpose of this chapter is to create and maintain stream buffers as a best management practice. Stream buffers enhance water quality and provide a method of complying with the City's national pollution elimination discharge permit.
(a) Buffers adjacent to waterways provide environmental protection and resource management benefits, which include the following:
(1) Helping protect the public from flooding;
(2) Controlling erosion and reducing sedimentation;
(3) Stabilizing stream banks;
(4) Removing pollutants delivered in stormwater;
(5) Restoring and maintaining the chemical, physical and biological integrity of the water resources;
(6) Providing infiltration of stormwater runoff;
(7) Providing tree canopy to shade streams and promoting desirable aquatic organisms;
(8) Providing riparian wildlife habitat;
(9) Furnishing scenic value and recreational opportunity;
(10) Providing sustainable native vegetation; and
(11) Maintaining base flow of streams.
It is the desire of the City to protect and maintain the native vegetation in riparian and wetland areas by implementing specifications for the establishment, protection and maintenance of buffer vegetation along waterways within the City limits.
(b) The intent of this chapter is to establish the minimum acceptable requirements for the design of buffers to protect the waterways of the City; to protect the water quality of waterways, reservoirs, lakes, and other significant water resources within the City; to protect the City's riparian and aquatic ecosystems; and to provide for the environmentally sound use of the land resources. (Ord. 17837 § 1, 5-21-02. Code 1995 § 66-151.)
The following words, terms and phrases, when used in this chapter, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:
"Active channel" means the area of the stream channel that is subject to frequent flows and that includes the portion of the channel below where the floodplain flattens.
"Best management practices (BMPs)" means conservation practices or management measures which control flooding, erosion and soil loss, and reduce water quality degradation caused by nutrients, animal wastes, toxins, sediment, and runoff.
"Buffer" means a vegetated area, including trees, shrubs, and herbaceous vegetation, which exists or is established to protect a stream system, lake, or reservoir.
"Development" means:
(1) The improvement of property for any purpose involving building; or
(2) The division or subdivision of a tract or parcel of land into two or more parcels; or
(3) The combining of any two or more lots, tracts, or parcels of property for any purpose; or
(4) The preparation of land for any of the above purposes; or
(5) The clearing of trees and vegetation and/or excavation or earthwork on a tract or parcel of land.
"GIS-based stream buffer shapefiles for the City of Topeka" means a shapefile developed using hydraulic modeling results and site-specific characteristics to determine the magnitude of stream setback limits using a process that evaluates the overall risk along the stream, direction of flow, and minimum bank offset. The science-based stream buffer highlights areas where bank failure is more likely to occur and where additional setback measures are needed to protect the integrity of the stream channel. This file shall be used to determine the stream buffer width for the outer area.
"Levee" means a manmade structure to control, divert, and contain stormwater runoff and flood flows.
"Native vegetation" means vegetation comprised of plant species that are indigenous to the area in question.
"Nonpoint source pollution" means 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 groundwater seepage rather than direct discharge.
"Pollution" means any contamination or alteration of the physical, chemical, or biological properties of any waters that will render the waters harmful or detrimental to domestic, commercial, industrial, agricultural, recreational, or other legitimate beneficial uses, livestock, wild animals, birds, fish or other aquatic life.
"Streams" means perennial and intermittent watercourses identified through site inspection, drainage study, or United States Geological Survey (USGS) maps and further defined and categorized as follows:
(1) "Type I streams" are defined as perennial streams shown as solid blue lines on a United States Geological Survey seven-and-one-half-minute series topographical map.
(2) "Type II streams" are defined as intermittent streams shown as dashed blue lines on a United States Geological Survey seven-and-one-half-minute series topographical map.
(3) "Type III streams" are defined as waterways or dry channels that have a contributing drainage area of 40 acres or greater.
"Water pollution hazard" means a land use or activity that causes a relatively high risk of potential water pollution.
"Waterways" means natural or manmade lakes, channels, rivers, streams, and creeks, which store and/or convey stormwater runoff.
"Wetlands" means those areas not influenced by tidal fluctuations which are 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. (Ord. 20262 § 16, 10-6-20.)
(a) This chapter shall apply to all proposed development except for that development which meets waiver or variance criteria as outlined hereinafter.
(b) This chapter shall apply to activities that involve clearing, earthwork, and excavation within the buffer zone as defined herein.
(c) Except as provided elsewhere, this chapter shall apply to all tracts and parcels of land, structures, and activities that cause or contribute to:
(1) Pollution, including nonpoint source pollution, of the waters of the City.
(2) Erosion or sedimentation of stream channels.
(3) Degradation of aquatic or riparian habitat.
(d) This chapter shall not apply to development which, prior to the effective date of this chapter:
(1) Is covered by a recorded plat in accordance with subdivision regulations and no further development is anticipated.
(2) Is covered by a valid, unexpired building permit.
(3) Has applied for a building permit.
(e) This chapter shall apply to all development of existing platted parcels occurring after the effective date of this chapter where the impervious surface increases by 50 percent or more; or where the redevelopment of an existing platted parcel contains one-eighth of a mile or more of a type I, II, or III stream; or where the platted parcel is adjacent to one-eighth of a mile or greater of a type I, II, or III stream. (Ord. 19370 § 70, 3-23-10. Code 1995 § 66-153.)
17.10.040Plan requirements.
(a) A buffer plan approved by the Director of Utilities or designee is required for all development within the buffer zone as defined herein.
(b) The buffer plan shall contain an informative, conceptual, and schematic representation of the proposed development activity by means of maps, graphs, charts, or other written or drawn documents so as to enable an informed decision regarding the proposed development activity.
(c) The buffer plan shall contain the following specific information:
(1) A location or vicinity map to include maximum two-foot contour intervals and scale of no greater than one inch equals 100 feet.
(2) Field delineated streams, springs, seeps, bodies of water, wetlands, forested and open areas, and waterway buffer zones.
(3) All buffer areas shall be in a stream buffer easement.
(d) A buffer plan shall be submitted in conjunction with the required grading plan for any development, and the buffer zone identifying both the streamside area and outer area shall be clearly delineated on the final grading plan.
(e) Boundary markers shall be installed by the applicant prior to commencing clearing and grading operations. Markers shall be placed at the outside edge of the buffer zone prior to the start of any activity adjacent to the buffer zone. Markers shall be clearly visible and shall be spaced at a maximum of 100 feet. The markers shall be joined by marking tape or fencing. (Ord. 20262 § 17, 10-6-20.)
17.10.050Design standards for buffers.
(a) A buffer for a stream system shall consist of a strip of land extending along both sides of a stream and its adjacent wetlands or slopes.
(b) The streamside area portion of the buffer shall begin at the edge of the waterway for type I and at the centerline of the channel for type II and type III streams. The edge of the waterway is the outer wet edge of the channel during base flow or where the edge of vegetation occurs. The buffer shall be composed of two distinct areas: streamside area and outer area. The outer area widths are defined by the GIS-based stream buffer shapefile for the City of Topeka. The GIS-based stream buffer shapefile is located on the City's utilities exploration map. As an alternative to using the GIS-based stream buffer shapefile for the outer area extent, an analysis may be done using the procedure outlined in Section 5605.5, Stream Assessment of the Kansas City Metropolitan Chapter of the American Public Works Association's Standard Specifications and Design Criteria (APWA); Section 5600, Storm Drainage Systems and Facilities, to justify use of a different outer area extent. A rating of 12 or below when using the channel condition scoring matrix is considered acceptable. A rating between 12 and 18 may be acceptable if engineering justification is provided to verify adequate protection of the channel. A rating greater than 18 does not support a change from the GIS-based stream buffer. The streamside area widths are defined in the following table. Each area has allowable uses and vegetative targets as follows:
WATERWAY BUFFERS
| | STREAMSIDE AREA | OUTER AREA |
| TYPE I | TYPE II | TYPE III | TYPE I | TYPE II | TYPE III |
| | | | | | |
| Width | 50 feet | 25 feet | 15 feet | Determined by the GIS-Based Stream Buffer Shapefiles for the City of Topeka. |
| Vegetation | Native vegetation. | Native vegetation or managed lawn (type II or III). |
| Uses | Streambank stabilization, flood control, utility corridors. | Biking/hiking paths, flood control, detention/retention structure, utility corridors, stormwater BMPs, residential yards, landscape areas. |
| Unpaved foot paths, road crossings. |
| Function | Protect the physical and ecological integrity of the stream ecosystem. | Protect key components of the stream and filter and slow velocity of water runoff. |
(c) The width for all buffers (i.e., the base width) is subject to an expansion requirement depending on wetlands or critical areas.
(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 water body by the distance indicated below:
(1) Storage and use of hazardous substances: 300 feet;
(2) Above- or below-ground petroleum storage facilities: 300 feet;
(3) Drainfields from on-site sewage disposal and treatment system: 200 feet;
(4) Raised septic systems: 500 feet;
(5) Solid waste landfills or junkyards: 600 feet;
(6) Confined animal feedlot operations: 500 feet. (Ord. 20262 § 18, 10-6-20.)
17.10.060Buffer establishment, management, and maintenance.
(a) The 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 prohibited within the buffer, except with written approval by the Director of Utilities or designee:
(1) Clearing of existing vegetation; provided, however, this prohibition shall not prevent a property owner from trimming or cutting overgrown vegetation, removing dead vegetation or replacing vegetation.
(2) Grading, stripping, or other soil-disturbing practices.
(3) Filling or dumping.
(4) Draining the buffer area by ditching, underdrains, or other systems.
(5) Use, storage, or application of pesticides, except for the spot spraying of noxious weeds or nonnative species consistent with recommendations of the Shawnee County Soil Conservation District.
(6) Housing, grazing, or other maintenance of livestock.
(7) Storage or operation of motorized vehicles, except for maintenance and emergency use.
(b) The following structures, practices, and activities are permitted in the buffer, with specific design or maintenance features, subject to the review of the Director of Utilities or designee:
(1) Pedestrian bridges, foot paths, and utilities.
(2) Stream restoration projects, facilities and activities are permitted within the buffer.
(3) Water quality monitoring and stream gauging reading are permitted within the buffer.
(4) Individual trees within the buffer may be removed with prior approval from the Director of Utilities.
(c) Fences constructed within the buffer zone must be of an open, split rail or wood plank type design. Metal fencing may be added but only as an attachment to an acceptable wood fence design. Added metal fencing may not exceed the height of the wood fence. Screening material of any kind is prohibited.
(d) Stream Buffer Easement. The owner of the project shall secure all the necessary easements on a permanent basis, including a stream buffer easement for the stream buffer area included in the project design. The stream buffer easement shall provide for access to the buffer at reasonable times for periodic inspection by the City or its contractor or agent and shall require the property owner to ensure that the stream buffer is maintained in proper working condition to meet design standards and any other provisions established by this chapter. All easements shall be shown on the recorded plat granted by separate, recorded instrument and shall run with the land until they are lawfully released. (Ord. 20262 § 19, 10-6-20.)
Cross References:Public Works Department, TMC 2.20.100.
17.10.070Enforcement procedures.
(a) The Director of Utilities or designee is authorized and empowered to enforce the requirements of this chapter 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 chapter, 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 chapter which has been violated. In addition, the notice shall set a reasonable time for the abatement and correction of the violation. Failure to abate or correct the violation or seek a waiver or variance, as may be applicable, will render the person ineligible for future building permits or for City approvals until such time as the violation is abated, corrected or resolved by waiver or violation as may be applicable.
(c) Any person who violates any provision of this chapter may be liable for any costs or expenses incurred as a result thereof by the City. (Ord. 20262 § 20, 10-6-20.)
Cross References:Public Works Department, TMC 2.20.100.
17.10.080Waivers – Variances.
(a) The Director of Utilities or designee may grant a waiver for any of the following:
(1) Those projects or activities serving a public need where no feasible alternative is available.
(2) The repair and maintenance of public improvements where avoidance and minimization of adverse impacts to wetlands and associated aquatic ecosystems have been addressed.
(3) Those developments which have had buffers applied in conformance with previously issued requirements.
(4) Those developments that are redeveloping parcel(s) that are predominately impervious to maintain that impervious area.
(b) Variances for development may be granted if deemed appropriate by the Director of Utilities or designee. Subject to Planning and Development Director approval, additional density elsewhere on the site may be allowed to counterbalance the loss of developable land due to the requirements of this chapter.
(c) The applicant shall submit a written request for a waiver or variance to the Director of Utilities or designee. The application shall include specific reasons justifying the variance and any other information necessary to evaluate the proposed variance request. The Director of Utilities 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. At a minimum, a variance or waiver request shall include the following information:
(1) A site map that includes locations of all streams, wetlands, and other natural features, as determined by field survey;
(2) A description of the shape, size, topography, slope, soils, vegetation and other physical characteristics of the property;
(3) A detailed site plan that shows the locations of all existing and proposed structures and other impervious cover, and the limits of all existing and proposed land disturbance, both inside and outside the buffer area. The exact area of the buffer to be affected shall be accurately and clearly indicated;
(4) Documentation of unusual hardship should the buffer be maintained;
(5) At least one alternative plan, which does not include a buffer or setback intrusion, or an explanation of why such a site plan is not possible;
(6) A calculation of the total area and length of the proposed intrusion; and
(7) Proposed mitigation, if any, for the intrusion. If no mitigation is proposed, the request must include an explanation of why none is being proposed.
(d) In granting a request for a waiver or variance, the Director of Utilities 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. (Ord. 20262 § 21, 10-6-20.)
Cross References:Public Works Department, TMC 2.20.100; Planning Commission, Chapter 2.225 TMC.
17.10.090Conflict with other regulations.
Where the standards and management requirements of this buffer article 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. (Ord. 17837 § 9, 5-21-02. Code 1995 § 66-159.)
Thanks,
-Brett
Brett Blackburn - Chief Engineer
Kansas Department of Wildlife & Parks
1020 S.Kansas, Topeka, Ks. 66612-1237
Office : (785) 296-8404
www.ksoutdoors.com
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