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Uses are permitted or prohibited within the /WQ Water Quality Overlay Zone based on whether they occur outside or within the /WQ Management Area as follows:

(1) Uses Permitted Outside /WQ Management Area.

(a) The uses permitted on portions of a lot located outside of the /WQ Management Area are the same as those otherwise permitted on that lot without consideration of the /WQ Water Quality Overlay Zone; and

(b) Prior to issuance of a development permit, the city shall verify that the /WQ Management Area setback has been accurately demarcated by a prominent and continuous protective feature indicating a “No Disturbance Area.” No site preparation, including but not limited to vegetation removal, may take place within 50 feet of the /WQ Management Area, until such verification has been provided.

(2) Uses Permitted Within /WQ Management Areas. Subject to any applicable development permits, the following uses are the only uses permitted outright within the /WQ Management Area:

(a) Vegetation Planting and Management.

1. Plantings of plants and vegetation provided they are not Invasive, Non-Native Plant species as defined in EC 9.0500 Definitions; and

2. Mowing, replacing and pruning vegetation within lawn and garden landscaped areas existing as of June 10, 2009.

The use of native vegetation in the /WQ Management Area is preferred, in order to reduce the need to apply water, herbicides, pesticides and fertilizers;

(b) Removal of Plants and Vegetation.

1. Other than as permitted pursuant to EC 9.4780(2)(a)(2), or approved pursuant to EC 9.4780(3) or EC 9.8030(25), removal of plants and vegetation shall be limited to the following:

a. Removal of Invasive, Non-Native plant species;

b. A public entity’s removal of plants or vegetation from publicly owned property by mechanical or manual means within a strip not to exceed 15 feet in width where that property abuts private property that is not within a /WQ Management Area;

c. Removal of plants or vegetation that the city fire marshal has declared poses a potential fire hazard to existing structures. Written documentation of the fire marshal’s declaration, including a description of the location of the structure and the location of the plants or vegetation to be removed, shall be provided to the planning director prior to the removal. The removal shall be limited to the extent specified by the fire marshal’s declaration; and

d. Removal of hazardous tree(s), or removal of trees that create an unsafe condition due to proximity to existing structures, proposed construction, or interference with utility services or pedestrian or vehicular safety, so long as prior to removal the property owner is able to produce upon request a written evaluation of any tree proposed for removal prepared by a certified arborist declaring the tree(s) to be hazardous or creating an unsafe condition and recommending removal;

2. Areas of bare soil existing as a result of plant or vegetation removal shall be:

a. Protected or covered consistent with EC 6.625 through EC 6.645;

b. Replanted as soon as practicable, but no later than March 15 of the calendar year following disturbance; and

c. If not replanted within 15 days of disturbance, areas of bare soil shall be mulched and seeded with straw mulch and native seed for temporary stabilization within 15 days of disturbance.

(c) Maintenance, Repair and Reconstruction Activities.

1. Removal of refuse;

2. Removal of fill in response to a written determination from a regulating agency that the fill is in violation of local, state or federal regulations;

3. Maintenance, repair and reconstruction of streets, bridges, driveways, parking areas and pathways, including, but not limited to, sweeping, striping, sealing, and resurfacing, provided such activity is not a part of a broader project for which additional incursion into the /WQ Management Area is proposed;

4. Channel maintenance practices, including mowing and sediment removal necessary to maintain stormwater conveyance and flood control capacity or to protect water quality, as required by local policies, local, state, and federal regulations, and intergovernmental agreements;

5. Maintenance, repair, and reconstruction of utility facilities such as wastewater and stormwater pipes, culverts, electrical transmission lines, and television and cable systems, provided such activity is not a part of a broader project for which additional incursion into the /WQ Management Area is proposed; and

6. Maintenance, repair, and reconstruction of a fence that was legally established prior to June 10, 2009, provided that for any reconstruction it occurs in the same location and to the same dimensions as the pre-existing fence;

(d) Emergency Activities.

1. Emergency repair of utility facilities (such as wastewater and stormwater pipes, electrical transmission lines, and television and cable systems) and transportation facilities (such as roadways, bridges, bikeways and pathways), failing slopes or eroding channel banks or channel beds; provided the city engineer has declared in writing that:

a. Immediate repair is necessary to avert an imminent threat to water quality, the environment, public health, public safety, or the structural integrity of the utility facilities, transportation facilities, stream channel banks or stream channel beds, or structural integrity of adjacent structure(s); and

b. The method of repair will minimize impacts to water quality and any emergency repairs resulting in bare soil conditions will comply with EC 9.4780(2)(b)(2);

2. Emergency response to spills of materials that threaten water quality;

3. Fire suppression and medical emergency response operations;

(e) Construction and Maintenance of Vegetated Stormwater Management Facilities. Swales, filter strips, constructed wetlands, and other vegetated stormwater management facilities for stormwater quality or flow control are permitted if otherwise approved through the provisions of EC 9.6791 through 9.6797 in accordance with the Stormwater Management Manual adopted by administrative order of the city manager;

(f) Public Improvement Projects. For purposes of this subsection (f), a public improvement project is defined as any improvement which upon construction and acceptance by a public entity shall become the entity’s responsibility to maintain, repair or replace. Public improvement includes, but is not limited to, local improvements or other structures or facilities constructed upon or under public or private property. Provided the city has on file the certification described in (f)(4) below, the following public improvement projects, are permitted:

1. Construction of a public water quality improvement project that is identified in an approved city plan (including but not limited to the repair or rehabilitation of stream channels and banks, installation of aeration features, construction of facilities for removing stormwater pollutants, plantings for improving pollutant filtration, channel shading, or erosion control);

2. Construction or improvement of parks, recreation facilities, open space, and habitat enhancements (including but not limited to footpaths, bike paths, pedestrian and bike bridges, site furniture, boardwalks, kiosks, signs, planting of native species, hydrology and landscape restoration, and barriers for species containment);

3. Construction of public infrastructure including but not limited to streets, bridges, sidewalks, stormwater facilities, and other public utilities provided:

a. Construction will take place within an existing public way, or at the location shown in a plan adopted by the city or another public entity prior to June 10, 2009;

b. The public facility is a water dependent structure or use such as a boat ramp, dock, bridge or an accessway to such a structure or use, which by its nature cannot be located anywhere except within the /WQ Management Area; or

c. The facility is intended to provide safe public access to the waterway for the purposes of public education or to provide protection of the waterway by managing access;

4. For any public improvement project authorized by (2)(f), the city shall have on file for city projects a certification from the city engineer, and for other public entities a certification from a licensed civil engineer with authority to represent the public entity, that all of the following were addressed in the project’s design:

a. Pervious surface materials have been considered for all pathways, bikeways, driveways and parking areas where well draining soils are present as defined by the requirements of the Stormwater Management Manual adopted by administrative rule of the city manager as authorized by EC 9.6790 Stormwater Management Manual;

b. Applicable stormwater development standards contained in EC 9.6791 through 9.6795 and erosion control requirements contained in EC 9.6792 and EC 6.625 through EC 6.645 are met;

c. For areas located outside the footprint of construction-related impervious surfaces:

(1) Soil permeability rates and sheet-flow drainage patterns are restored to pre-construction conditions or improved from preconstruction conditions by increasing soil permeability or enhancing sheet flow patterns; and

(2) Plants and vegetation are planted to the following specifications:

(a) 80% of the area is covered;

(b) Species planted are not Invasive, Non-Native species as defined in EC 9.0500;

(c) Species consist of a balance of trees, shrubs and forbs;

(d) Bio-engineering methods are used to stabilize stream banks and repair areas of erosion, including but not limited to bank failure, bank sloughing, and channel incision, or the city engineer has provided written approval of alternative methods;

(e) Based on the city’s Water Quality Function Rating System, (see EC 9.4782), the project will result in a water quality function rating equal to or greater than previously existed; and

(f) For a public improvement project allowed pursuant to (f)(2) or (f)(3), impervious surfaces are minimized by constructing the facility or infrastructure with as little impervious surface as allowed by city standards and the Americans With Disabilities Act;

(g) Authorized Enhancement and Restoration. Wetland, stream and riparian enhancement and restoration if the proposed activity is authorized:

1. Under a Mitigation Improvement Plan approved by the Oregon Department of State Lands (DSL) and, if required, by the U. S. Army Corps of Engineers (ACOE);

2. Under a wetland restoration permit or wetland enhancement permit approved by the DSL, and if required by the ACOE; or

3. By a “Finding of No Significant Impact” or a “Record of Decision” under the federal National Environmental Policy Act (NEPA) that identifies the restoration or enhancement activity as the final selected alternative;

(h) Other Activities.

1. Construction and maintenance of paths with no impervious surface for pedestrian or bicycle use not to exceed 5 feet in width;

2. Construction and maintenance of facilities for monitoring water quality and gauging stream flows;

3. Construction and maintenance of publicly accessible recreational/environmental interpretative signs with a ground disturbance not to exceed 12 square feet in area;

4. Construction or replacement of fences located at least 20 feet from THB, provided that they are not constructed with continuous footings or other obstructions to surface drainage;

5. Construction and maintenance of publicly accessible educational/ interpretive facilities including concrete pads for benches with a ground disturbance not to exceed 120 square feet in area;

6. Construction and maintenance of a slatted deck of no more than 120 square feet in area, with no impervious surface, and located at least 20 feet from THB;

7. Construction and maintenance of accessory structures that do not require a building permit such as a garden shed, playhouse or greenhouse of no more than a total of 120 square feet, located at least 20 feet from THB;

8. Installation and maintenance of erosion control measures that have been approved pursuant to EC 6.625 through 6.645;

9. Single family residential composting located outside the channel, and at least 10 feet from THB;

10. City placement and maintenance of fences or woody debris for purposes of habitat or species protection;

11. Construction of new underground utilities for providing service to an existing lot of record where there is no other alternative location; or

12. Maintenance, repair, replacement, upgrading and expansion of telecommunications facilities and facilities used for the transmission of television and radio signals, including towers, satellite dishes and related support structures such as foundations, footings, platforms, and wiring, that were legally established prior to June 10, 2009, provided that for any expansion, the applicant has submitted a certification signed by a professional referenced in EC 9.4782(2) that, based on the city’s Water Quality Function Rating System, the expansion will result in a water quality function rating equal to or greater than previously existed; and

(i) Prior Approved Development. Uses, structures, streets and utilities that are explicitly authorized, or that are necessary to carry out the uses or development explicitly authorized, by a city approval of:

1. An application for a development permit that was submitted prior to June 10, 2009; or

2. An application for a land use approval that was submitted prior to June 10, 2009 and was deemed by the city to be complete when first submitted or made complete by the submittal of all requested additional information within 180 days of the application’s submittal date.

(3) Uses Subject to Standards Review Within the /WQ Management Area. Unless prohibited by subsection (4), or permitted outright in subsection (2), the following uses are permitted, subject to the standards review process beginning with EC 9.8460. Consistency with the specific standards provided or referenced for each use below shall be used as the criteria for approval. These uses may require additional development permits pursuant to other provisions of this code.

(a) Construction of private water quality improvements, including stabilization or reconfiguration of channels and pond banks to improve stability and installation of aeration features. Subject to EC 9.4790 /WQ Water Quality Overlay Zone Development Standards (1) through (3) and (7) through (11);

(b) Realignment or reconfiguration of channels and pond banks to accommodate a proposed development:

1. Where, due to the physical constraints of the development area, including, but not limited to, slope/hillsides, natural hazards, natural resources, lot configuration or existing right of way, there is no other feasible option for locating the proposed development outside the /WQ Management Area;

2. Provided the realignment will not cause the /WQ Management Area to:

a. Occupy any portion of an adjacent lot not currently having the /WQ overlay zone, unless the standards review application is accompanied by an owner-authorized rezoning application to apply the /WQ overlay zone to the newly affected lot; or

b. Increase an existing /WQ Management Area on an adjacent lot, unless the standards review application is accompanied by the written consent of the affected lot owner(s);

3. Provided the applicant has submitted a certification signed by a professional referenced in EC 9.4782(2) that, based on the city’s Water Quality Function Rating System, the realignment will result in a water quality function rating equal to or greater than previously existed; and

4. Subject to EC 9.4790 /WQ Water Quality Overlay Zone Development Standards (1) through (3) and (7) through (11);

5. If a realignment under 2. above is approved, necessitating a correction to the Water Quality Waterways Map, the planning director shall update that Map to reflect the correction. If the correction results in the complete removal or relocation of the /WQ Management Area from a lot, or a determination that the /WQ Overlay Zone should be removed or relocated from a lot, the planning director shall update the Eugene Overlay Zone Map to reflect the determination;

(c) Construction of public improvements not already permitted under subsection (2) above (including but not limited to streets, bridges, boardwalks, paths, flood control structures, and public utilities):

1. Where, due to the physical constraints of the development area, including, but not limited to, slope/hillsides, natural hazards, natural resources, lot configuration or existing right of way, there is no feasible option for locating the proposed improvements outside the /WQ Management Area;

2. Provided the applicant has submitted a certification signed by a professional referenced in EC 9.4782(2) that, based on the city’s Water Quality Function Rating System, the construction will result in a water quality function rating equal to or greater than previously existed; and

3. Subject to EC 9.4790 /WQ Water Quality Overlay Zone Development Standards (1) through (11);

(d) Construction of a private stream crossing with a culvert or bridge for an access road or pedestrian use:

1. Where, due to the physical constraints of the development area, including, but not limited to, slope/hillsides, natural hazards, natural resources or lot configuration, no point of access to an adjacent street or road is available within the applicant’s real property ownership that is outside the /WQ Management Area;

2. Where the number of stream crossings is the minimum necessary for the approved use; and

3. Subject to EC 9.4790 /WQ Water Quality Overlay Zone Development Standards (1) through (3), (5), (6), (8), (10) and (11);

(e) Construction of a private street and related infrastructure including utilities not already permitted under subsection (2) above:

1. Where, due to the physical constraints of the development area, including, but not limited to, slope/hillsides, natural hazards, natural resources or lot configuration, or access location restrictions by the city, there is no feasible option for locating the street outside of the /WQ Management Area;

2. Provided the applicant has submitted a certification signed by a professional referenced in EC 9.4782(2) that, based on the city’s Water Quality Function Rating System, the construction will result in a water quality function rating equal to or greater than previously existed; and

3. Subject to EC 9.4790 /WQ Water Quality Overlay Zone Development Standards (1) through (3), (5), (6), (10) and (11);

(f) Construction of new underground utility lines not already permitted under subsection (2) above:

1. Where, due to the physical constraints of the development area, including, but not limited to, slope/hillsides, natural hazards, natural resources, lot configuration or existing right of way, no reasonable alternative route exists outside the /WQ Management Area to provide service to an unserved area or to connect to an existing line; and

2. Subject to EC 9.4790 /WQ Water Quality Overlay Zone Development Standards (1) through (4) and (10) and (11);

(g) Construction of water dependent structures and uses not already permitted under subsection (2) above, and access ways to those structures and uses, which, by their nature, cannot be located anywhere except within the /WQ Management Area, such as boat ramps or docks. Subject to EC 9.4790 /WQ Water Quality Overlay Zone Development Standards (1) through (3), (5), (10), and (11); and

(h) Non-emergency repair or stabilization of a failing slope or eroding channel bank that is not already permitted under subsection (2) above:

1. Subject to EC 9.4790 /WQ Water Quality Overlay Zone Development Standards (1) through (3), (9) through (11); and

2. Provided the applicant submits to the planning director a report from a registered engineer or an Oregon licensed engineering geologist that, based on the city’s Water Quality Function Rating System, the repair or stabilization will result in a water quality function rating equal to or greater than previously existed.

(4) Uses Prohibited Within the /WQ Management Area. Uses that are not specifically allowed under subsections (2) or (3) are prohibited within the /WQ Management Area unless an adjustment is granted pursuant to EC 9.8030(25)(c)(1) Such prohibited uses include, but are not limited to the piping of a waterway (other than culverts explicitly permitted), storage of wood, building materials, vehicles, machinery, or other items or materials, and dumping, piling, or disposal of refuse, fill, yard debris, pet waste, or other material.

(Section 9.4780 added by Ordinance No. 20430, enacted March 9, 2009, effective June 10, 2009; amended by Ordinance No. 20521, enacted January 13, 2014, effective March 1, 2014.)