9.4778 /WQ Water Quality Overlay Zone – /WQ Management Area.
(1) Except as provided in subsections (2), (3) or (4) the /WQ Management Area is that area depicted on the city’s adopted Water Quality Waterways Map, including any amendments made to it.
(a) As depicted on the Water Quality Waterways Map, the /WQ Management Area is comprised of both the waterway channel, which for purposes of EC 9.4770 through 9.4790, and 9.8030(25), means the area between the top of high banks on each side of the waterway, and the applicable setback, as described in (b) or (c) below.
(b) For a waterway identified on the Water Quality Waterways Map as a waterway identified pursuant to section 303(d) of the federal Clean Water Act, or a tributary to such a waterway, the applicable setback is 25 feet from top of high bank (THB). For purposes of EC 9.4770 through 9.4790 and 9.8030(25), THB is the highest point at which the vertical rise of the waterway bank meets the horizontal grade of the adjoining topography.
(c) For waterways identified on the Water Quality Waterways Map as headwater streams, the applicable setback is 40 feet from the waterway’s centerline.
(d) The procedures used for mapping these setbacks on the Water Quality Waterways Map shall be more particularly described in an administrative rule adopted by the city manager in accordance with EC 2.019 City Manager – Administrative and Rulemaking Authority and Procedures.
(2) For a lot that is 6,000 square feet in area or less with a /WQ Management Area, alone or in combination with a /WR Conservation Area, that constitutes more than 33% of the lot, as part of the city’s consideration of an application for a development permit or land use approval, the city shall automatically reduce the applicable setback distance described in (1) above, provided:
(a) The lot was created pursuant to a planned unit development, subdivision, partition or property line adjustment application described in EC 9.4780(2)(i)(2);
(b) Unless precluded by (2)(d) below, the reduction in setback shall result in the /WQ Management Area constituting 33% of the lot area, alone or in combination with a /WR Conservation Area; and
(c) The new boundary shall be located:
1. Parallel to the original boundary (closer to the waterway); or
2. Through the application of setback averaging. Setback averaging shall be accomplished by expanding the /WQ Management Area in an undeveloped area of the development site, and reducing it in another area of the development site.
(d) In no case shall the setback boundary be located within the waterway channel.
(3) As part of the city’s consideration of an application for a development permit or land use approval, the city shall exclude from the /WQ Management Area:
(a) Those areas which the applicant has shown to have been developed prior to June 10, 2009. For purposes of this subsection, “developed areas” are those within the physical ground surface footprint of a legally constructed:
1. Structure (including a manufactured dwelling) with a permanent foundation, constructed or sited pursuant to an approved permit;
2. Utility facility (such as a transmission pole, utility transmission vault box, or pump station), telecommunication tower, telecommunication platform, satellite dish, sign or billboard;
3. Permanent deck or patio that is attached to a structure listed in subsection 1. above; or
4. Paved parking area, street, driveway, bike path, or pedestrian path.
Fences and landscaping do not cause an area to be “developed” to warrant exclusion from the /WQ Management Area. All other uses and structures that were legally established prior to June 10, 2009 but that do not comply with the allowed uses and standards of the /WQ Overlay Zone are subject to EC 9.1200 through EC 9.1240 Legal Nonconforming Situations; and
(b) Any land that is included in a:
1. /WP Waterside Protection area as described in EC 9.4720;
2. /WB Wetland Buffer area as described in EC 9.4820; or
3. /WR Water Resources Conservation area as described in EC 9.4920.
(4) Where an existing development under subsection (3)(a)(1) or 3. above or an existing developed street or sound wall physically isolates a portion of the /WQ Management Area, as part of the city’s consideration of an application for a development permit or land use approval, the city shall exclude that isolated portion from the /WQ Management Area.