§ 13.10.220. Stream protection standards.

(a)

Intent. This Section is intended to provide for development adjacent to the Town's streams and waterways in a manner consistent with the Town's Master Plan goals, objectives and policies. Development shall be undertaken in a manner that will preserve the multiple functions and quality of the Town's streams and associated riparian areas, including wetlands. More specifically, it is the intent of these regulations to designate appropriate stream buffers that will:

(1)

Limit development to low intensity land uses in areas determined to be hazardous to life or property, including floodplains or highly erodible stream banks;

(2)

Preserve and utilize existing natural drainage ways for open space and stormwater detention and/or conveyance;

(3)

Maintain and provide required access for future maintenance of the Town's stream channels;

(4)

Protect and preserve wetlands;

(5)

Conserve and enhance existing vegetation communities;

(6)

Preserve critical wildlife habitat by ensuring that new development protects and sustains significant wildlife populations;

(7)

Minimize water pollution, including sediment and other pollutants in surface runoff, and maintain or improve water quality levels; and

(8)

Preserve or enhance the beauty of the landscape by encouraging the maximum retention of natural topographic features such as drainage swales, streams and wetlands.

(b)

Applicability. This Section shall apply to any land-disturbing activity and to all new development and subdivision, including the expansion, alteration or reconstruction of buildings, structures and impervious areas.

(c)

Stream buffer boundaries.

(1)

Applicability. Stream buffers shall be designated along all streams located in the Town. Projects shall provide stream buffers based on the one-hundred-year floodplain as identified by the Flood Insurance Rate Map (FIRM) for Douglas County, Colorado, and Incorporated Areas , dated March 16, 2016, and the map panels 0835C0069F, 0835C0202F, 0835C0088F, and 0835C0089F, which are dated September 30, 2005, including any subsequent amendments adopted by the Town, a copy of which is available for review at the Department of Engineering, hereafter referred to as the "Flood Insurance Rate Map."

(2)

Town's approval of boundaries. All stream, stream buffer and wetland boundary delineations are subject to the Town's approval.

(3)

Stream buffer for Cherry Creek. The stream buffer for Cherry Creek shall be the greater of:

a.

The one-hundred-year floodplain of Cherry Creek ("Cherry Creek Floodplain"), as described in the Flood Insurance Rate Map (a copy of which is available for review at the Department of Engineering), or as described in a site-specific survey prepared by a qualified professional and acceptable to the Town; or

b.

The area located within one hundred (100) feet of both sides of Cherry Creek, measured as a line extending perpendicularly from the stream bank of the active channel; or

c.

Twenty-five (25) feet from the outer boundary of a wetland hydrologically related to Cherry Creek (see Paragraph (6) below); or

d.

Setback lines indicated on the Drainage Master Plan for Cherry Creek, as adopted by the Town and the Urban Drainage and Flood Control District ("UDFCD"), and as amended from time to time.

(4)

Stream buffer for all other streams. The stream buffer for all streams other than Cherry Creek shall be the greater of:

a.

The one-hundred-year floodplain as described in the Flood Insurance Rate Map (a copy of which is available for review at the Department of Engineering), or as described in a site-specific survey prepared by a qualified professional and acceptable to the Town; or

b.

The area located within fifty (50) feet of both sides of the stream, measured as a line extending perpendicularly from the stream bank of the active channel; or

c.

Setback lines indicated on the Outfall Systems Plan for the particular stream, as adopted by the Town and the Urban Drainage and Flood Control District, and as amended from time to time; provided, however, that this Subsection shall not apply to that portion of Sulphur Gulch located within the Greater Downtown District, as defined in Section 13.04.110 of this Title.

(5)

Expansion of stream buffers. The Town may expand the boundaries of a stream buffer at any point to include land areas that, if developed or disturbed, may adversely affect the quality of the stream and/or the integrity of the stream banks. The Town may expand the stream buffer boundaries if it finds that the following conditions exist:

a.

The land area is located within one hundred (100) feet of the subject stream, measured as a line extending perpendicularly from the stream bank of the active channel; and

b.

The land area is classified as highly erodible on the most current available USDA soils survey map, or on any other plan, map or resource approved by the Town for this purpose; or

c.

The land area contains steep slopes of fifteen percent (15%) or greater.

(6)

Delineation of wetland boundaries.

a.

Qualified professional. A qualified person with demonstrated expertise in the field shall delineate all wetland areas.

b.

Mapped wetlands. Boundary delineation of wetlands shall be established by reference to the Douglas County Riparian Conservation Zone Map, as finally adopted and as amended from time to time.

c.

Unmapped/disputed wetlands. If a wetlands has not been mapped or its boundaries not clearly established, or if either the Town or developer disputes the existing boundaries, the developer shall retain a qualified person with demonstrated expertise in the field to delineate the boundaries of the wetland according to professional standards approved by the Town. The developer shall use The Corps of Engineers Wetlands Delineation Manual , Technical Report Y-87-1 (January 1987), as a guideline and reference for the wetland boundary determination. (Note: Subsequent revisions of the Delineation Manual shall not be incorporated into this delineation methodology.)

(7)

Requests for preliminary determination of stream buffer boundaries.

a.

Intent. This Subsection allows a landowner or applicant to determine, before investing significant resources in site planning and development preparation, whether the Town will likely classify an unmapped watercourse on a specific property as a stream subject to this Section's protection standards (as stream is defined in Chapter 13.02 of this Title). This process also allows a landowner or applicant to determine, again early in the development process, whether the Town will exercise its discretion to expand the base stream buffer boundaries as allowed in Paragraph (5) above.

b.

Procedure.

1.

At any time, a landowner or applicant may request that the Planning Department provide a preliminary determination of the stream buffer boundaries, if any, on a specific property. The landowner or applicant shall submit any relevant topographical or drainage maps of the property, or any other site-specific hydrologic information, for the Department to consider in its determination.

2.

Within forty-five (45) days of the landowner's or applicant's request, the Planning Department shall inspect the subject property and make a preliminary determination of the stream buffer boundaries on the property, if any. As applied to an unmapped watercourse, the Planning Director's preliminary determination shall be guided by the following criteria:

a)

Protection of the watercourse is consistent with the intent of these stream protection standards, as stated in Subsection (a) above, including, but not limited to, the protection of wildlife habitat, preservation of important vegetative communities, provision of open space and preservation of water quality.

b)

As applicable, the Town determines that protection of the watercourse is necessary to preserve and protect a significant historical or cultural resource.

c)

Effect of preliminary determination. The Planning Department's determination shall be based on the best available information at the time of the request. The Town may modify or change its preliminary determination only if new and substantial information is subsequently discovered that was not available at the time the preliminary determination was made.

(d)

Compliance with applicable federal wetlands laws or regulations.

(1)

Prohibited activities. No person shall engage in any activity that shall disturb, remove, fill, drain, dredge, clear, destroy or alter any area, including vegetation, within a wetlands that falls in the jurisdiction of the federal government and its agencies, except as may be expressly allowed under applicable federal laws or regulations. However, notwithstanding any contrary federal law or regulations, draining any wetlands that falls in the jurisdiction of the federal government and its agencies is prohibited.

(2)

Federal approvals prerequisite to Town approval. The Town shall not grant final approval to any development or activity, including subdivisions, in a wetlands that falls within the federal government's jurisdiction until the developer shows that all necessary federal approvals and permits have been obtained.

(3)

Mitigation plans. The Town shall not prohibit execution of a permitted mitigation plan or maintenance of those projects, nor shall it take responsibility for the mitigation project, even within areas to be accepted by the Town upon final acceptance of all improvements. A letter from the Army Corps of Engineers, accepting the mitigation, is required to release the development from further obligations.

(e)

Protection standards for all stream buffers.

(1)

Permitted uses and activities in stream buffers.

a.

No land-disturbing activity shall occur in a stream buffer, except as expressly allowed in this Subsection or other applicable Town laws and regulations.

b.

Any construction in the one-hundred-year floodplain shall comply with this Code and shall not result in a habitable structure.

c.

The stream buffer area shall remain in a natural state and shall not be modified in any manner except as expressly allowed in this Section.

d.

Any land-disturbing activity allowed in a stream buffer shall comply, as applicable, with:

1.

The Town of Parker Storm Drainage and Environmental Criteria Manual, as amended;

2.

The Cherry Creek Basin Water Quality Authority's Regulation No. 72, Paragraph 72.7(3)(c)(7), regarding best management practices for maximum removal of stormwater phosphorous; and

3.

Stream stabilization measures in accordance with UDFCD adopted Master Plans and Outfall Systems Plans.

e.

The Town Council may consider any or all of the stream buffer area as open space, subject to the standards stated in Section 13.07.145 of this Title.

(2)

Activity related to an existing agricultural use in the Cherry Creek floodplain. Any construction related to an existing agricultural use within the Cherry Creek floodplain is allowed; however, to the maximum extent feasible, such construction, including related land disturbance activity, shall be located and contained outside the first twenty-five (25) feet of the Cherry Creek stream buffer.

(3)

Location of platted lots in stream buffers other than the Cherry Creek stream buffer. The following development lot allowance shall apply in all stream buffers except the Cherry Creek stream buffer:

a.

Any lot contained within a preliminary plat that is to be used for the purpose, whether immediate or future, of sale or transfer of ownership (except to an approved homeowners' or similar association approved by the Town), or any lot that is created for the purpose of offering for development (collectively referred to as development lot ), shall be platted outside the stream buffer.

b.

The prohibition on development lots in this Subsection shall not preclude the designation of the stream buffer as a tract of land within the preliminary and final plat related to such real property, so long as there is a plat note on such preliminary and/or final plat that references that the stream buffer is subject to the terms and conditions of this Section, as amended.

c.

The Town Council may waive or modify this prohibition on the platting of development lots if the Town Council finds that:

1.

The proposed development lot is intended for nonresidential infill development or redevelopment within the boundaries of the Downtown Business (DB) Zoning District; and

2.

The waiver or modification meets the criteria for major modifications or variances stated in Subsection (g) below.

(4)

Public facilities allowed.

a.

Public facilities are allowed with the Town's approval, including, but not limited to, flood control structures, utility rights-of-way and road/street crossings, subject to Paragraph (5) below.

b.

Trails, based on the recommendations of the Open Space, Trails and Greenways Master Plan.

c.

Parks, subject to the Town's approval.

(5)

Stream buffer crossings: roads, bridges, trails and utilities. Roads, bridges, trails and utilities are permitted in the stream buffer and may cross the stream, subject to the Town's approval and subject to the following conditions:

a.

The proposed activity shall be supported by an analysis conducted by a qualified professional acceptable to the Town that:

1.

Shows no economically feasible alternative to location within the stream buffer is available; and

2.

Contains a mitigation plan to minimize impacts on the stream buffer.

b.

The applicant shall reclaim any disturbance of the stream buffer area by regrading and revegetation. Provisions for reclamation of the disturbed area shall be included in any development or subdivision agreement for the project, with adequate security to guarantee that the reclamation will be completed.

c.

The number of road crossings shall be minimized to the maximum extent feasible.

d.

Rights-of-way shall be the minimum width necessary for installation, access and maintenance.

e.

Utility corridors in stream buffer areas shall be located at the outside edge of the buffer and access roads for maintenance of utilities shall be located outside the stream buffer area.

f.

Access for maintenance of utilities in stream buffer areas should be at specific points rather than parallel to the utility corridor.

g.

The angle of any crossings shall be perpendicular to the stream or stream buffer in order to minimize clearing and other land disturbance.

h.

No more than one (1) fairway crossing associated with a permitted golf course shall be allowed for every one thousand (1,000) linear feet of stream buffer area.

i.

The Town may allow the use of low-water bridges for crossings intended for use only by pedestrians, equestrians, bicyclists or golf carts, but not by automobiles or other motor vehicles.

(6)

Stormwater management in stream buffers. Stormwater management structures, practices and activities may be permitted in the stream buffer, subject to the Town's approval and subject to the following conditions:

a.

The proposed stormwater facilities shall be supported by an analysis conducted by a qualified professional that shows:

1.

No economically feasible alternative location outside the stream buffer is available; and

2.

The project is either necessary for flood control or significantly improves the water quality or habitat in the stream.

b.

Stormwater management in new developments and subdivisions shall utilize on-site and nonstructural alternatives to the maximum extent feasible before larger facilities will be allowed within the stream buffer.

c.

To the maximum extent feasible, permitted stormwater management facilities should be located outside the first twenty-five (25) feet of the stream buffer.

d.

When constructing stormwater management facilities (i.e., Best Management Practices or "BMPs"), the area cleared shall be limited to the minimum required for construction and adequate access for maintenance, as outlined in the most recent edition of The Town of Parker Storm Drainage and Environmental Criteria Manual.

e.

Materials dredged or otherwise removed from a BMP shall be stored outside the stream buffer.

(7)

Restoration projects allowed.

a.

Stream, stream bank and vegetation restoration projects are allowed where the goal is to restore the stream or stream buffer to an ecologically healthy state, as approved by the Department of Engineering—Stormwater Utility.

b.

Wildlife and fisheries management activities are allowed when the Town determines they are consistent with the purposes of the Federal Endangered Species Act or consistent with the regulations, policies and habitat improvement programs of the Colorado Division of Wildlife.

(8)

Water quality monitoring allowed. Water quality monitoring and stream gauging are allowed within the stream buffer, as approved by the Town.

(9)

Tree and vegetation removal. All existing, healthy trees and vegetation within the stream buffer area shall be preserved and, where necessary to provide adequate screening or to repair damaged riparian areas, supplemented with additional native planting and landscaping approved by the Town. This provision shall not prohibit removal of dead trees/vegetation, noxious weeds, nonnative trees/vegetation that threatens native species growth or reintroduction, or any other tree/vegetation that is a threat to the public health or safety. See Section 13.10.110 of this Chapter for applicable tree preservation standards.

(10)

Parks allowed, subject to the Town's approval and subject to the following conditions:

a.

The applicant shall reclaim any disturbance of the stream buffer area by regrading and revegetation. Provisions for reclamation of the disturbed area shall be included in any development or subdivision agreement for the project, with adequate security to guarantee reclamation will be completed.

b.

The impact to the topography within the streamside corridor shall be minimized.

c.

Access to parks in stream buffer areas should be specific points, rather than parallel to stream.

d.

Parks shall not be permitted to occur within the Floodway, as identified by the Flood Insurance Rate Map, or in the area located within fifty (50) feet of both sides of the stream, measured as a line extending perpendicularly from the stream bank of the active channel.

(f)

Minor modifications.

(1)

General. For purposes of this Section, a minor modification is a reduction in stream buffer width over a portion of a property in exchange for an increase in buffer width elsewhere on the same property, such that the average buffer width remains equal to or greater than the width required by Subsection (c) above.

(2)

Intent and purpose. A minor modification is intended to provide relief to accommodate practical difficulties associated with a specific parcel's shape, topography or other unique physical features. A minor modification is intended to facilitate development proposals that respect the natural contours and features of a site and that are consistent with the intent and purposes of these stream protection standards as stated in Subsection (a) above.

(3)

Limits on scope of minor modifications. No minor modification shall reduce the required stream buffer width at any one (1) point to less than seventy-five (75) feet for the Cherry Creek stream buffer, and twenty-five (25) feet for all other stream buffers.

(4)

Review procedure and criteria.

a.

An applicant may request a minor modification in writing to the Planning Department, according to the procedures stated in Subsections 13.03.030(b) and (c) of this Title.

b.

An applicant for a minor modification shall submit documentation that approval of the minor modification will not result in a reduction in water quality, and that any land-disturbing activity shall comply with all applicable erosion and sedimentation control regulations and best management practices.

(g)

Major modifications or variances.

(1)

General. Any modification or reduction in stream buffer width that does not comply with the standards in Subsection (f) above may be submitted as a request for a variance, as governed by Section 13.04.260 of this Title.

(2)

Additional review criteria. In addition to the variance criteria and standards stated in Section 13.04.260 of this Title, requests for variances from this Section's stream buffer width and boundaries shall comply with all of the following specific criteria:

a.

The variance is necessary because the requirements of this Section represent an extreme hardship such that no reasonable economic use of the land is available without reducing the width of the required stream buffer.

b.

The size, shape or topography of the property is such that it is not possible to construct a residential or nonresidential structure, as the applicable zoning may permit, without encroaching into the required stream buffer.

c.

Encroachment into the required stream buffer shall be limited to the maximum extent feasible.

d.

The applicant shall commit, to the satisfaction of the Town, to mitigation measures that substantially offset any potential adverse impacts of the proposed encroachment during site preparation, construction and post-construction.

e.

Approval of the variance will not result in a reduction in water quality.

f.

Any land-disturbing activity on the subject property shall comply with all applicable erosion and sedimentation control regulations and best management practices.

(h)

Review procedures for development sites adjacent to protected streams and wetlands.

(1)

General. The Town shall review and approve all land-disturbing activity, including new development and subdivision, for compliance with this Section's stream and wetlands protection standards at the same time the Town reviews an application for preliminary subdivision plat, site plan or construction/building permit approval, whichever review occurs first.

(2)

Review of single-family detached development.

a.

Subject to administrative site plan review. Development of single-family detached dwellings that is subject to this Section's standards shall be reviewed for compliance with this Section's standards according to the site plan procedures stated in Chapter 13.06 of this Title, except that the Planning Director shall take final action on all such site plans. The Planning Director shall take action on the application within ten (10) days from the end of the ten-day working day review completed by staff according to Paragraph 13.06.040(a)(3) of this Title. The Director shall either approve, approve with conditions or deny the site plan application.

b.

Notice of decision. The Planning Director shall provide written notice of his or her final decision on the site plan application to the applicant and to the secretary of the Planning Commission within five (5) working days from the date of his or her decision.

c.

Appeals. The applicant may appeal the Planning Director's decision on a site plan for single-family detached dwellings to the Planning Commission. The applicant shall initiate this appeal to the Planning Commission in a written report outlining the nature of the request within ten (10) days of the Planning Director's decision. The Town will schedule the appeal request for the next available date on the Planning Commission's agenda. The applicant's report shall be submitted no later than ten (10) working days prior to the Planning Commission's meeting on the appeal. The Planning Commission, after a review of the application and the Planning Director's action, may approve, approve with conditions or deny the appeal. The Planning Commission's decision on the appeal shall be final.

(i)

Definitions.

Active channel means the area of a stream channel that is subject to frequent flows (approximately once per one and one-half [1.5] years), and that includes the portion of the channel below where the floodplain flattens.

Land-disturbing activity means any grading, scraping, excavating or filling of land, clearing of trees or vegetation and any construction, reconstruction or significant alteration of a structure.

Riparian area means the land areas adjacent to a stream, wetlands or other body of water that contain vegetation, habitats and ecosystems associated with bodies of water or dependent on the flow of water in the adjacent stream, wetlands or other water body. A riparian area will vary in width depending on the particular stream, wetlands or other body of water.

Stream means all of the following:

a.

Any stream or river (or portion thereof) shown on the Flood Insurance Rate Map (a copy of which is available for review at the Department of Engineering); or

b.

Any other perennial or intermittent natural or man-made watercourse identified by the Town, including, but not limited to, minor stream tributaries and man-made canals, channels and ditches.

Stream bank or bank means the uppermost limit of the active stream channel, usually marked by a break in the slope, as determined by the Town.

Stream buffer means, typically, a vegetated area, including trees, shrubs and herbaceous vegetation, that exists or is established to protect:

a.

Streams, their floodplains and associated riparian areas, including wetlands;

b.

Lakes; and

c.

Reservoirs.

Stream channel means part of a natural watercourse that contains an intermittent or perennial base flow of groundwater origin. Base flows of groundwater origin can be distinguished by any of the following physical conditions:

a.

Hydrophytic vegetation, hydric soil or other hydrologic indicators in the area where groundwater enters the stream channel, in the vicinity of the stream headwaters, channel bed or channel banks;

b.

Flowing water not directly related to a storm event; or

c.

Historical records of a local high groundwater table, such as well and stream gauge records.

Wetlands means an area that is inundated or saturated by surface water or groundwater at a frequency and duration sufficient to support, and under normal circumstances does support, a prevalence of vegetation typically adapted for life in saturated soil conditions.

(Ord. 3.171.3 §2, 2016; Ord. 1.467 §32, 2015; Ord. 3.171.2 §1, 2006; Ord. 3.171.1 §1, 2003; Ord. 3.171 §1, 2001)