1001.04 DEFINITIONS.

(a) It is hereby determined that the system of rivers, streams, and other natural watercourses within the City contributes to the health, safety, and general welfare of the residents

of the City. The specific purpose and intent of this regulation is to regulate uses and developments within wetland and wetland and riparian setbacks that would impair the ability of riparian areas to:

(1) Reduce flood impacts by absorbing peak flows, slowing the velocity of flood waters, and regulating base flow.

(2) Assist in stabilizing the banks of watercourses to reduce woody debris from fallen or damaged trees, streambank erosion, and the downstream transport of sediments eroded from watercourse banks.

(3) Reduce pollutants in watercourses during periods of high flows by filtering, settling, and transforming pollutants already present in watercourses.

(4) Reduce pollutants in watercourses by filtering, settling, and transforming pollutants in runoff before they enter watercourses.

(5) Provide watercourse habitats with shade and food.

(6) Reduce the presence of aquatic nuisance species to maintain a diverse aquatic system.

(7) Provide habitat to a wide array of wildlife by maintaining diverse and connected riparian vegetation.

(8) Benefit the City by minimizing encroachment on watercourse channels and the need for costly engineering solutions such as gabion baskets and rip rap to protect structures and reduce property damage and threats to the safety of watershed residents; and by contributing to the scenic beauty and environment of the City, and thereby preserving the character of the City, the quality of life of the residents of the City, and corresponding property values.

(b) The following regulation has been enacted to protect and enhance the functions of wetland riparian areas by providing reasonable controls governing structures and uses within a wetland and riparian setback along designated watercourses in the City.

(Ord. 2020-56. Passed 4-20-20.)

1001.02 APPLICABILITY, COMPLIANCE AND VIOLATIONS.

(a) This regulation shall apply to all zoning districts in the City.

(b) This regulation shall apply to all structures and uses on lands containing a designated watercourse as defined in this regulation, except as provided herein.

(c) No approvals or permits shall be issued by the City without full compliance with the terms of this regulation. (Ord. 2020-56. Passed 4-20-20.)

1001.03 CONFLICTS WITH OTHER REGULATIONS AND SEVERABILITY.

(a) Where this regulation imposes a greater restriction upon land than is imposed or required by any other provision of law, regulation, contract, or deed, the provisions of this regulation shall control.

(b) This regulation shall not limit or restrict the application of other provisions of law, regulation, contract, or deed, or the legal remedies available thereunder, except as provided in Section 1001.03(a) of this regulation.

(c) If any clause, section, or provision of this regulation is declared invalid or unconstitutional by a court of competent jurisdiction, validity of the remainder shall not be affected thereby. (Ord. 2020-56. Passed 4-20-20.)

1001.04 DEFINITIONS.

For the purpose of this regulation, the following terms shall have the meaning herein indicated:

(a) CITY: Throughout this regulation, this shall refer to the City of Beachwood or its designated representatives, boards, or commissions.

(b) COMMISSION: Throughout this regulation, this shall refer to the City of Beachwood Planning and Zoning Commission.

(c) DAMAGED OR DISEASED TREES: Trees that have split trunks; broken tops; heart rot; insect or fungus problems that will lead to imminent death; undercut root systems that put the tree in imminent danger of falling; lean as a result of root failure that puts the tree in imminent danger of falling; or any other condition that puts the tree in imminent danger of being uprooted or falling into or along a watercourse or onto a structure.

(d) DESIGNATED WATERCOURSE: A watercourse within the City that is in conformity with the criteria set forth in this regulation.

(e) FEDERAL EMERGENCY MANAGEMENT AGENCY (FEMA): The agency with overall responsibility for administering the National Flood Insurance Program.

(f) IMPERVIOUS COVER: Any paved, hardened, or structural surface regardless of its composition, including but not limited to buildings, roads, driveways, parking lots, loading/unloading areas, decks, patios, and swimming pools.

(g) IN-LINE POND: A permanent pool of water created by impounding a designated watercourse.

(h) NOXIOUS WEED: Any plant species defined by the Ohio Department of Agriculture as a "noxious weed" and listed as such by the Department. For the purposes of this regulation, the most recent version of this list at the time of application of this regulation shall prevail.

(i) 100-YEAR FLOODPLAIN: Any land susceptible to being inundated by water from a base flood. The base flood is the flood that has a one percent (1%) or greater chance of being equaled or exceeded in any given year.

(j) OHIO ENVIRONMENTAL PROTECTION AGENCY: Referred throughout this regulation as the "Ohio EPA."

(k) ORDINARY HIGH WATER MARK: The point of the bank or shore to which the presence and action of surface water is so continuous as to leave a district marked by erosion, destruction or prevention of woody terrestrial vegetation, predominance of aquatic vegetation, or other easily recognized characteristic. The ordinary high water mark defines the bed of a watercourse.

(l) RIPARIAN AREA: Land adjacent to watercourses that, if appropriately sized, helps to stabilize streambanks, limit erosion, reduce flood size flows, and/or filter and settle out runoff pollutants, or performs other functions consistent with the purposes of this regulation.

(m) WETLAND AND RIPARIAN SETBACK: The real property adjacent to a designated watercourse located in the area defined by the criteria set forth in this regulation.

(n) SOIL AND WATER CONSERVATION DISTRICT: An entity organized under Chapter 1515 of the Ohio Revised Code referring to either the Soil and Water Conservation District Board or its designated employee(s), hereinafter referred to as the Cuyahoga County SWCD.

(o) SOIL DISTURBING ACTIVITY: Clearing, grading, excavating, filling, or other alteration of the earth's surface where natural or human made ground cover is destroyed and which may result in, or contribute to, erosion and sediment pollution.

(p) SUBSTANTIAL DAMAGE: Damage of any origin sustained by a structure whereby the cost of restoring the structure to its before damaged condition would be equal to, or would exceed, fifty percent (50%) of the market value of the structure before the damage occurred.

(q) WATERCOURSE: Any brook, channel, creek, river, or stream having banks, a defined bed, and a definite direction of flow, either continuously or intermittently flowing.

(r) WETLAND: Those areas that are inundated or saturated by surface or ground water 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, including swamps, marshes, bogs, and similar areas. (40 CFR 232, as amended). (Ord. 2020-56. Passed 4-20-20.)

1001.05 ESTABLISHMENT OF DESIGNATED WATERCOURSES, RIPARIAN, AND WETLAND SETBACKS.

(a) Designated watercourses shall include those watercourses meeting any ONE of the following criteria:

(1) All watercourses draining an area equal to or greater than one-half (1/2) square mile; or

(2) All watercourses draining an area less than one-half (1/2) square mile and having a defined bed and bank. In determining if watercourses have a defined bed and bank, the City may consult with a representative of the Cuyahoga County SWCD or other technical experts as necessary. Any costs associated with such consultations may be assessed to the applicant.

(b) Wetland and riparian setbacks on designated watercourses are established as follows:

(1) A minimum of one hundred and twenty (120) feet on either side of all watercourses draining an area equal to or greater than twenty(20) square miles and up to three hundred (300) square miles.

(2) A minimum of seventy five (75) feet on either side of all watercourses draining an area equal to or greater than one-half (1/2) square mile and up to twenty (20) square miles.

(3) A minimum of twenty five (25) feet on either side of all watercourses draining an area less than one-half (1/2) square mile and having a defined bed and bank as determined by the City in accordance with this regulation.

(1) Fifty (50) feet from the outermost boundary of a category 3 wetland; or

(2) Thirty (30) feet from the outermost boundary of a category 2 wetland; and

(3) Where a wetland is wider than the minimum required riparian setback on either or both sides of a designated watercourse, the minimum riparian setback shall be extended to include the outermost boundary of the wetland, plus the following additional setback widths based upon the particular wetland category; and

(4) Wetlands shall be delineated through a site survey prepared by a qualified wetlands professional using delineation protocols accepted by the U.S. Army Corps of Engineers and Ohio EPA at the time an application is made.

(d) Wetland and Riparian Setback Guide Map. The City shall create a guide map identifying designated watercourses and their wetland and riparian setbacks. Said guide map is attached hereto and made part of this regulation and is identified as Exhibit A. The following shall apply to the Wetland and Riparian Setback Guide Map:

(1) It shall be used as a reference document and the information contained therein shall be believed to be accurate.

(2) It shall be a guide only.

(3) The map was prepared as a Wetland and Riparian Setback Guide Map by the City in accordance with Section 1001.05 of Chapter 1001. Digital data is a representation of recorded plats, surveys, deeds, and other collected information for use within a Geographic Information System for purposes of analysis. These and other digital data do not replace or modify land surveys, deeds, and/or other legal instruments defining land ownership or use. The City assumes no legal responsibility for this information.

(4) Nothing herein shall prevent the City from amending the Wetland and Riparian Setback Guide Map from time to time as may be necessary.

(5) If any discrepancy is found between the Wetland and Riparian Setback Guide Map and this regulation, the criteria set forth in Section 1001.05(a) and (b) shall prevail.

(e) The following conditions shall apply in wetland and riparian setbacks:

(1) Wetland and riparian setbacks shall be measured in a horizontal direction outward from the ordinary high water mark of each designated watercourse, except for in-line ponds as addressed in Section 1001.05.

(2) Except as otherwise provided in this regulation, wetland and riparian setbacks shall be preserved in their natural state.

(3) Where the 100-year floodplain is wider than a minimum wetland and riparian setback on either or both sides of a designated watercourse, the minimum wetland and riparian setback shall be extended to the outer edge of the 100-year floodplain. The 100-year floodplain shall be defined by FEMA. If a FEMA defined floodplain does not exist for a designated watercourse, the City may require a site-specific floodplain delineation in conformance with standard engineering practices and approved by the City. Any costs associated with reviewing this site-specific floodplain delineation may be assessed to the applicant.

(4) Where a wetland is identified within a minimum wetland and riparian setback, the minimum wetland and riparian setback width shall be extended to the outermost boundary of the wetland. Wetlands shall be delineated through a site survey prepared by a qualified wetlands professional retained by the landowner using delineation protocols accepted by the U.S. Army Corps of Engineers at the time an application is made under this regulation. Any costs associated with reviewing these delineations may be assessed by the City to the applicant.

(5) The minimum wetland and riparian setback on an in-line pond existing at the time of application of this regulation shall be measured from the ordinary high water mark of the designated watercourse as it enters said pond and through the impoundment along the centerline of the designated watercourse as it flows through the in-line pond. Wetland and riparian setbacks on in-line ponds existing at the time an application is made under this regulation shall be expanded to include wetlands and floodplains as detailed in Section 1001.05. The creation of new in-line impoundments shall not be permitted under these regulations.

(Ord. 2020-56. Passed 4-20-20.)

1001.06 APPLICATIONS AND SITE PLANS.

(a) The applicant shall be responsible for delineating wetland and riparian setbacks as required by this regulation and shall identify such setbacks on any Site Development Plan included with all subdivision plans, land development plans, and/or zoning/building permit applications submitted to the City. The Site Development Plan shall be prepared by a professional engineer, surveyor, landscape architect, or such other qualified professional as determined by the City and shall be based on a survey of the affected land. Two (2) copies of the Site Development Plan shall be submitted. The Site Development Plan shall include the following information:

(1) The boundaries of the lot with dimensions.

(2) The locations of all designated watercourses.

(3) The limits, with dimensions, of the wetland and riparian setbacks.

(4) The existing topography at intervals of two (2) feet.

(5) The location and dimensions of any proposed structures or uses, including proposed soil disturbance, in relationship to all designated watercourses.

(6) North arrow, scale, date, and stamp bearing the name and registration number of the qualified professional who prepared the site plan.

(7) Other such information as may be necessary for the City to ensure compliance with this regulation.

(b) The City may, in reviewing the Site Development Plan, consult with the Cuyahoga County SWCD or other such experts. Any costs associated with this review may be assessed to the applicant.

(c) If soil disturbing activities will occur within fifty (50) feet of the outer boundary of the applicable wetland and riparian setback as specified in this regulation, the wetland and riparian setback shall be clearly identified by the applicant on site with construction fencing as shown on the Site Development Plan. Such identification shall be completed prior to the initiation of any soil disturbing activities and shall be maintained throughout soil disturbing activities.

(d) No approvals or permits shall be issued by the City prior to identification of wetland nd riparian setbacks on the affected land in conformance with this regulation.

(Ord. 2020-56. Passed 4-20-20.)

1001.07 USES PERMITTED IN WETLAND AND RIPARIAN SETBACKS.

(a) By Right Uses Without a Permit. Open space uses that are passive in character shall be permitted in wetland and riparian setbacks, including, but not limited to, those listed in this regulation. No use permitted under this regulation shall be construed as allowing trespass on privately held lands.

(1) Recreational Activity. Hiking, fishing, hunting, picnicking, and similar passive recreational uses, as permitted by federal, state, and local laws.

(2) Removal of Damaged or Diseased Trees. Damaged or diseased trees may be removed.

(3) Revegetation and/or Reforestation. Wetland and riparian setbacks may be revegetated and/or reforested with native, noninvasive plant species.

(b) By Conditional Use Permit Granted by the Commission: When granting Conditional Use Permits for the following uses, the Commission may, for good cause, attach such conditions as it deems appropriate. Permits issued under this regulation are issued to the applicant only, shall not be transferred, and shall be void if not implemented within one (1) year of issuance.

(1) Crossings: Crossings of designated watercourses through wetland and riparian setbacks with roads, driveways, easements, bridges, culverts, utility service lines, or other means may be permitted provided such crossings minimize disturbance in wetland and riparian setbacks and mitigate any necessary disturbances. Such crossings shall only be undertaken upon approval of a Crossing Plan by the Commission. Any costs associated with review of Crossing Plans may be assessed to the applicant.

If work will occur below the ordinary high water mark of the designated watercourse, proof of compliance with the applicable conditions of a US Army Corps of Engineers Section 404 Permit (either a Nationwide Permit, including the Ohio State Certification Special Conditions and Limitations, or an Individual Permit, including Ohio 401 water quality certification), shall also be provided to the City. Proof of compliance shall be the following:

A. A Site Development Plan showing that any proposed crossing conforms to the general and special conditions of the applicable Nationwide Permit, or

B. A copy of the authorization letter from the U.S. Army Corps of Engineers approving activities under the applicable Nationwide Permit, or

C. A copy of the authorization letter from the U.S. Army Corps of Engineers approving activities under an Individual Permit.

(2) Streambank Stabilization Projects. Streambank stabilization projects along designated watercourses may be allowed, provided that such measures are ecologically compatible and substantially utilize natural materials and native plant species to the maximum extent practicable. Such streambank stabilization measures shall only be undertaken upon approval of a Streambank Stabilization Plan by the Commission. Any costs associated with review of Streambank Stabilization Plans may be assessed to the applicant.

If streambank stabilization work is proposed below the ordinary high water mark of the designated watercourse, proof of compliance with the applicable conditions of a US Army Corps of Engineers Section 404 Permit (either a Nationwide Permit, including the Ohio State Certification Special Conditions and Limitations, or an Individual Permit, including Ohio 401 water quality certification) shall be provided to the City. Proof of compliance shall be the following:

A. A Site Development Plan showing that any proposed stabilization conforms to the general and special conditions of the applicable Nationwide Permit, or

B. A copy of the authorization letter from the U.S. Army Corps of Engineers approving activities under the applicable Nationwide Permit, or,

C. A copy of the authorization letter from the U.S. Army Corps of Engineers approving activities under an Individual Permit.

(3) Landscaping: The removal of natural vegetation within a wetland and riparian setback and the subsequent cultivation of lawns, landscaping, shrubbery, or trees may be allowed provided that such cultivation is done in conformance with a Landscaping Plan approved by the Commission. Any costs associated with review of Landscaping Plans may be assessed to the applicant. Landscaping Plans shall meet the following criteria:

A. Maintain trees in the wetland and riparian setback larger than nine (9) inches in caliper (diameter) as measured fifty-four (54) inches above the ground to the maximum extent practicable.

B. Maintain trees, shrubbery, and other non-lawn, woody vegetation in the wetland and riparian setback to the maximum extent practicable.

(Ord. 2020-56. Passed 4-20-20.)

1001.08 USES PROHIBITED IN WETLAND AND WETLAND AND RIPARIAN SETBACKS.

Any use not authorized under this regulation shall be prohibited in wetland and riparian setbacks. By way of example, the following uses are specifically prohibited, however, prohibited uses are not limited to those examples listed here:

(a) Construction. There shall be no buildings or structures of any kind.

(b) Dredging or Dumping. There shall be no drilling, filling, dredging, or dumping of soil, spoils, liquid, or solid materials, except for noncommercial composting of uncontaminated natural materials and except as permitted under this regulation.

(d) Roads or Driveways. There shall be no roads or driveways, except as permitted under this regulation.

(e) Disturbance of Natural Vegetation: There shall be no disturbance of natural vegetation within wetland and riparian setbacks except for the following:

(1) Maintenance of lawns, landscaping, shrubbery, or trees existing at the time of passage of this regulation.

(2) Cultivation of lawns, landscaping, shrubbery, or trees in accordance with an approved Landscaping Plan submitted in conformance with this regulation.

(3) Conservation measures designed to remove damaged or diseased trees or to control noxious weeds or invasive species.

(f) Parking Spaces or Lots and Loading/Unloading Spaces for Vehicles: There shall be no parking spaces, parking lots, or loading/unloading spaces.

(g) New Surface and/or Subsurface Sewage Disposal or Treatment Areas. Wetland and riparian setbacks shall not be used for the disposal or treatment of sewage, except as necessary to repair or replace an existing home sewage disposal system and in accordance with recommendations of the Cuyahoga County Board of Health.

(Ord. 2020-56. Passed 4-20-20.)

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