1201.03  RIPARIAN AND WETLAND SETBACKS.
   (a)   Riparian Setback Map:
      (1)   The City shall use the latest edition of the official soil survey of Portage County Soil and Water Conservation District, as the map identifying designated watercourses and their riparian setbacks. The drainage features identified on the paper maps in the official soil survey and the information contained therein shall be believed to be accurate.
      (2)   At the time of application of this regulation, if any discrepancy is found between the Riparian Setback Map and the criteria for designated watercourses or riparian setbacks as set forth in these regulations, the most restrictive criteria shall prevail.
      (3)   In reviewing and interpreting such maps the City may consult with a representative of the Portage County Soil and Water Conservation District or other technical experts as necessary.
   
   (b)   The following conditions shall apply in riparian and wetland setbacks:
      (1)   Riparian and wetland setbacks shall be measured in a perpendicular and horizontal direction outward from the Ordinary High Water Mark of each designated watercourse and defined wetland boundary.
      (2)   Except as otherwise provided in this regulation, riparian and wetland setbacks shall be preserved in their natural state and shall be established prior to any soil disturbing or land clearing activities.
      (3)   Where the 100-year floodplain is wider than a riparian setback on either or both sides of a designated watercourse, the riparian setback shall be extended to the outer edge of the 100-year floodplain.
      (4)   Where wetlands are identified within a riparian setback, the minimum riparian setback width shall be extended to the outer boundary of the wetland. In addition, wetlands shall be protected to the extent detailed in these regulations.
      (5)   Wetlands shall be delineated by a site survey approved by the City using delineation protocols accepted by the U.S. Army Corps of Engineers and the Ohio EPA at the time of application of this regulation. If a conflict exists between the delineation protocols of these two agencies, the delineation protocol that results in the most inclusive area of wetland shall apply.
      (6)   The developer shall be responsible for delineating riparian and wetland setbacks, including any expansions or modifications as required by these regulations, and identifying these setbacks on all Site Plans, Development Plans, and/or applicable permit applications submitted to the City. This delineation may be done by a metes and bounds survey and shall be subject to review and approval by the Community Development Director.
      (7)   Prior to any soil-disturbing activity, riparian and wetland setbacks shall be clearly delineated on site by the developer, and such delineation shall be maintained throughout soil disturbing activities.
      (8)   No approvals or permits shall be issued prior to on-site delineation of riparian and wetland setbacks in conformance with these regulations.
      (9)   Upon completion of a Development or other improvement, riparian and wetland setbacks shall be permanently recorded on the final plat, pursuant to Section 1185.05.
   
   (c)   Wetland setbacks are established as follows:
      (1)   A minimum of 75 feet surrounding all Ohio EPA Category 3 Wetlands, or current equivalent Ohio EPA classification.
      (2)   A minimum of 50 feet surrounding all Ohio EPA Category 2 Wetlands, or current equivalent Ohio EPA classification.
   
   (d)   Procedure for wetland setbacks:
      (1)   Upon filing a  Site Plan or Preliminary Development Plan, the developer shall retain a qualified professional to survey the proposed Development site for wetlands. If no wetlands are found, the developer shall submit a letter with the Site Plan or Preliminary Development Plan verifying that a qualified professional has surveyed the site and found no wetlands. If wetlands are found, the following procedures shall be followed:
         A.   A qualified professional, acceptable to the Community Development Director, shall determine the presence of Ohio EPA Category 2 or 3 wetlands (or current equivalent Ohio EPA classification) on the proposed Development site using the latest version of the Ohio Rapid Assessment Method for wetland evaluation approved at the time of application of this regulation. Acceptance of this determination shall be subject to approval by the Community Development Director.
         B.   If Ohio EPA Category 2 or 3 wetlands (or current equivalent Ohio EPA classification) are located on the proposed Development site, the developer shall delineate these wetlands and the wetland setback in conformance with these regulations. The developer shall identify all delineated wetlands and their associated setbacks on all Site Plans or Preliminary Development Plans, and/or applicable permit applications submitted to the Community Development Department.
   (e)   Uses permitted in riparian and wetland setbacks:
      (1)   By-Right Uses Without A Permit:
         A.   Open space uses that are passive in character shall be permitted in riparian and wetland setbacks, including, but not limited to, those listed in these regulations. No use permitted under these regulations shall be construed as allowing trespass on privately held lands.
         B.   Recreational Activity. Passive recreational uses, as permitted by federal, state, and local laws, such as hiking, fishing, hunting, picnicking, and similar uses.
         C.   Removal of Damaged or Diseased Trees. Damaged or diseased trees may be removed.
         D.   Revegetation and/or Reforestation. Riparian and wetland setbacks may be revegetated with non-invasive plant species.
      (2)   By-Right Uses With A Permit:
         A.   Selective Harvesting of Timber.  Selective harvesting of timber may be allowed upon presentation of a Forest Management Plan pursuant to Section 1193.05 (Forest Management Plans) prepared by a Qualified Forester and approved by the Director.
            1.   Any landowner harvesting timber for sale shall post a $5,000 performance guarantee with the City. This performance guarantee shall be in the form of a Security Bond, Escrow Account, Certified Check or Cash, and it shall be held until completion of the timber-harvesting operation.
            2.   Due to the potential for felled logs and branches to damage downstream properties and/or to block ditches or otherwise exacerbate flooding, logs or branches resulting from permitted selective harvesting that are greater than 6 inches in diameter at the cut end shall be cut into sections no longer than 6 feet or removed from the 100-year floodplain. Harvested trees or felled logs/branches that are part of a designed and approved Streambank Stabilization and/or Erosion Control Measure shall be allowed to remain in a designated watercourse.
         B.   Streambank Stabilization and Erosion Control Measures. Streambank stabilization and erosion control measures designed to protect existing structures or uses may be allowed provided that such measures are ecologically compatible and substantially utilize natural materials and native plant species where practical. The streambank stabilization and erosion control measures shall only be undertaken upon approval of a Storm Water Management Plan by the Community Development Director.
         C.   Crossings. Crossings of designated watercourses and through riparian setbacks by easements, bridges, culverts, boardwalks, bike and hike pathways (paved or unpaved), publicly and privately owned sewer and/or water lines and public and private utility transmission lines shall only be allowed upon approval of a Utilities Plan by the Community Development Director, pursuant to Chapters 1187 (Design Standards), 1189 (Improvements) and 1339 (Technical Plan Review and Conformance). Such crossings shall minimize Disturbance in riparian setbacks and shall mitigate any necessary Disturbances.
If work will occur below the ordinary high water mark of the designated watercourse, proof of compliance with the applicable conditions of the U.S. Army Corps of Engineers Section 404 Permit shall also be provided to the City of Kent. Proof of compliance shall be the following:
            1.   A site plan showing that any proposed crossing conforms to the general and special conditions of the applicable Nationwide Permit, or
            2.   A copy of the authorization letter form the U.S. Army Corps of Engineers approving activities under the applicable Nationwide Permit, or
            3.   A copy of the authorization letter from the U.S. Army Corps of Engineers approving activities under an Individual Permit.
         D.   Conservation Easements.  Placing permanent conservation easements on riparian and wetland setback areas is encouraged by the City.
   (f)   Uses prohibited in riparian and wetland setbacks:
      (1)   Any use not authorized under these regulations shall be prohibited in riparian and wetland setbacks. The following uses are specifically prohibited; however, prohibited uses are not limited to those uses listed here.
      (2)   Construction. There shall be no structures of any kind.
      (3)   Dredging or Dumping. There shall be no drilling, filling, dredging, or dumping of soil, spoils, liquid, or solid materials, except for non-commercial composting of uncontaminated natural materials, and except as permitted under Subsection (e).
      (4)   Roads or Driveways. There shall be no roads or driveways permitted in riparian and/or wetland setback area, except as permitted under Subsection (e). There shall be no roads or driveways permitted in wetlands or watercourses without a permit issued by the U.S. Army Corps of Engineers and/or the Ohio EPA.
      (5)   Motorized Vehicles. There shall be no use of motorized vehicles, except as permitted under Subsection (e).
      (6)   Disturbance of Natural Vegetation. There shall be no Disturbance of the natural vegetation, except for such conservation maintenance that the landowner deems necessary to control noxious weeds; for such plantings as are consistent with this regulation; for such Disturbances as are approved under Subsection (e); and for the passive enjoyment, access, and maintenance of landscaping or lawns existing at the time of passage of this regulation. Nothing in this regulation shall be construed as requiring a landowner to plant or undertake any other activities in riparian and wetland setbacks.
      (7)   Parking Lots. There shall be no impervious parking lots or other human-made impervious cover, except as permitted under Subsection (e).
      (8)   New Surface and/or Subsurface Sewage Disposal or Treatment Areas. Riparian and wetland setbacks shall not be used for the disposal or treatment of sewage except in accordance with local county Board of Health regulations in effect at the time of application of this regulation.
      (9)   Crossings. Crossings of designated wetland setbacks by publicly and privately owned sewer and/or water lines and public and private utility transmission lines without a permit issued by the U.S. Army Corps of Engineers and/or the Ohio EPA.
   (g)   Nonconforming structures or uses in riparian and wetland setbacks:
      (1)   A nonresidential, nonconforming use within a riparian and wetland setback which is in existence at the time of passage of this regulation, and which is not otherwise permitted under these regulations, may be continued. However, the use shall not be changed or enlarged unless it is changed to a use permitted under these regulations.
      (2)   A nonconforming structure within a riparian and wetland setback which is in existence at the time of passage of this regulation, and which is not otherwise permitted under these regulations, may be continued. However, the existing building footprint or roof line may not be expanded or enlarged in such a way that would move the structure closer to the stream or wetland.
      (3)   A nonconforming use or deteriorated structure within a riparian and wetland setback which is in existence at the time of passage of this regulation, and which is discontinued, terminated, or abandoned for a period of two (2) years or more may not be revived, restored, or re-established. 
(Ord. 2013-110.  Passed 10-16-13.)