26. Water Resource Protection ordinance
CITY F
CUPEIUINO
City Hall
10300 Torre Avenue
Cupertino, CA 95014-3255
(408) 777-3354
FAX: (408) 777-3333
PUBLIC WORKS DEPARTMENT
Summary
AGENDA ITEM
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AGENDA DATE January 16. 2007
SUBJECT AND ISSUE
Conduct the first reading of Ordinance No. 07-199;... : "An Ordinance of the City of Cupertino
Adding Chapter 9.19 to the Cupertino Municipal Code: Water Resource Protection for Properties
Adjacent to a Stream."
BACKGROUND
In mid 2002 the Santa Clara Valley Water District (SCVWD) proposed amending their Water
Resource protection Ordinance to extend their jurisdiction for activities on properties adjacent to
a stream from the existing 50 feet from the top of the stream or creek bank to 150 feet from the
top of the bank. Santa Clara County and all fifteen cities in the County appeared at the Water
District Board meeting in November of 2002 objecting to this amendment and some cities also
raised the prospect of litigation in the belief that the District did not have jurisdiction over land
use regulation on any property adjacent to a stream.
The cities argued that land use regulation is under the jurisdiction of local governments, not
special districts. The situation was quickly becoming a serious jurisdictional confrontation with
uncertain outcomes. Fortunately, in all the excitement, cooler heads quickly prevailed.
Water Resource Protection Collaborative
A proposal by some city staff members to set aside the controversy by establishing a formal
"collaborative" venture to reach consensus on a solution was strongly supported by the Water
District staff. As a result the District Board of Directors agreed to withhold the adoption of the
new ordinance to pursue that venture. There was precedent for this proposal as the Water District
and the City of San Jose, among others, had successfully formed a collaborative venture to solve
some serious environmental issues related to construction of flood protection measures around
and within the Guadalupe River through downtown San Jose in the mid 1990's.
Therefore, the Collaborative was initiated in December 2002 in order to address land use issues
near streams in response to the proposal by the Water District to expand its jurisdiction over
streamside permits. The Collaborative's mission as specifically stated was to review and assess
the current state of water resources protection measures in Santa Clara County and to propose
appropriate management strategies and institutional arrangements to implement these strategies.
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Printed on Recycled Paper
The District Board agreed that the Collaborative was to include all fifteen cities, the County and
the District along with other stakeholders in the region. This eventually included a number of
business groups such as the Chamber of Commerce, the Homebuilders Association, Silicon
Valley Leadership Group of major corporations, and the League of Women Voters, along with
environmental and conservation groups including the Audubon Society, the Guadalupe Coyote
Conservation District and Clean South Bay. The final group included twenty-seven different
entities and was formally named the Water Resources Protection Collaborative.
Management and Outcomes of the Collaborative
Due to the nature of the controversy along with issues of trust, objectivity and so much
uncertainty among the many players, it was deemed essential to have this venture managed and
facilitated by an outside neutral party with experience in these types of issues. The facilitation
firm, CONCUR Inc. from Berkeley, California was selected because of its unique experience in
similar activities and because of their earlier success as the facilitator for the Guadalupe River
proj ect.
It is important to note that the District Board had generously agreed to cover the cost of the
facilitation contract for the duration of the Collaborative's work. In return, the Collaborative
members committed to stay with the venture all the way through to completion and also to
commit a high level staff person who could commit to recommending courses of action to their
principals.
For cities this meant the continued presence of either the public works director or the planning
director who could recommend actions as appropriate through the city manager to the city
council. Further, the Collaborative members met these commitments by formally meeting
together every single month for a full day over what would become a period of three and a half
years to ensure the continuity, momentum and consensus of this effort.
The work of this next phase proceeded in late 2003, and by August 2005 the Collaborative had
completed and ratified its second set of agreements and work products. These included several
foundational elements of the proposed guidelines and standards, including designation of the
streamside review area, definition of a stream, criteria to identify or verify a watercourse as a
stream and definition of the top of bank (of a stream). It also included agreements and work
products related to early consultation, adaptive management, and the water district's
comprehensive plan.
Of key importance was an outcome eliminates one step in the permitting process. Historically
any work on a property adjacent to a stream would require two permits: a building permit from
the City and an encroachment permit from the Water District. This requires the developer/builder
to interact separately with two different jurisdictions operating under different rules and to deal
with the time consuming (and potentially expensive) uncertainty that this represents. Eliminating
one of the steps in this process goes a long way toward responding to this concern.
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The outcome of this three and half year cooperative venture is that a consensus has been reached
to ensure an orderly, expeditious, and successful process that meets the common goal of water
resource protection and benefits all stakeholders.
New SCVWD Water Resources Protection Ordinance
On October 24, 2006 the Santa Clara Valley Water District Board of Directors adopted
Ordinance 06-1, entitled the Water Resources Protection Ordinance, which will be effective on
February 28,2007. As of this date, permits for activities within 50 feet ofa stream will no longer
be issued by the District. In so doing, the new ordinance acknowledges that it will be the cities
that will issue permits on properties adjacent to steams. The District would only issue
encroachment permits for work done within its own property or easements, not on private or
public property within the jurisdiction of the cities.
For the cities part, each Collaborative representative committed to recommend to their City
Councils appropriate steps toward implementation of this outcome. In accordance with that
commitment staff has drafted an amendment to the Cupertino Municipal Code adding chapter
9.19 regarding water resource protection for properties adj acent to a stream.
NEW CITY ORDINANCE REGARDING WATER RESOURCE PROTECTION
The recommended amendment establishes the requirement to obtain a Stream Modification
Permit under certain conditions for modifications to streamside properties within the City of
Cupertino and establishes procedures for the administration and issuance of such Permits.
In addition it provides for a Resolution that the Council may approve and may from time to time
amend that would adopt a comprehensive set of Guidelines and Standards which shall form the
basis for the evaluation of land use on streamside properties and the issuance as appropriate of
Streamside Modification Permits. These Guidelines and Standards are defined in the ordinance
as a set of model guidelines, standards, procedures, and recommendations developed for land use
activities near streams, for streamside properties, and for the protection of streams and
streamside resources.
In order to provide for some flexibility in the application of the Guidelines and Standards to
address any particular situation that may be present in a proposed development, the ordinance
provides that, notwithstanding the criteria provided in the Guidelines and Standards, the Director
of Public Works is authorized to make adjustments in the criteria and provisions of the
Guidelines and Standards, if in his or her professional opinion, such adjustments are necessary to
fit the specific conditions of the property for which the Streamside Modification Permit is to be
issued.
The ordinance, if approved by the Council on January 16, 2007 would have its second reading on
February 6, 2007 and would be effective 30 days later to generally coincide with the effective
date of the Districts ordinance. A resolution adopting the guidelines and standards will be
recommended to the Council concurrently with the enactment of the ordinance should that occur
on February 6,2007.
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FISCAL IMPACT
With respect to City costs, enforcement of the proposed ordinance will require some minor
additional effort by Public Works and Planning staffs during permit review and inspection. The
need for additional staff is not anticipated at this time, but will be evaluated as part of the overall
workload as may be necessary in the future.
RECOMMENDATION
It is recommended that the Council conduct the first reading of Ordinance No. 07- I ~9).: "An
Ordinance of the City of Cupertino Adding Chapter 9.19 to the Cupertino Municipal Code:
Water Resource Protection for Properties Adjacent to a Stream."
Submitted by:
Approved for submission:
~~:Sr.~aUd
Director of Public Works
~/[d afulood 1:17
David W. Knapp 1/',
City Manager
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ORDINANCE NO. 07-1992
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
CUPERTINO ADDING CHAPTER 9.19 TO THE CUPERTINO
MUNICIP AL CODE REGARDING WATER RESOURCE PROTECTION
FOR PROPERTIES ADJACENT TO A STREAM
THE CITY COUNCIL OF THE CITY OF CUPERTINO DOES HEREBY
ORDAIN that Chapter 9.19 of the Cupertino Municipal Code shall be added to read as
follows:
9.19.010 Purpose of Chapter
This Chapter establishes the requirement to obtain a Stream Modification Permit under
certain conditions for modifications to streamside properties within the City of Cupertino
and establishes procedures for the administration and issuance of such Permits.
9.19.020 Definitions
For the purposes of this chapter, the definitions contained in Section 9.18.020 shall apply
to this chapter in addition to those definitions contained in this section. The following
words and phrases shall have meanings ascribed to them by this section, unless the
context or provision clearly requires otherwise.
1. "Bank". The portion of the stream cross section that restricts lateral movement
of water.
2. "Development". A land development or land development project.
3. "Director of Public Works". The Director of Public Works and his or her duly
authorized agents and representatives.
4. "Guidelines and Standards". A set of model guidelines, standards, procedures,
and recommendations developed for land use activities near streams, for streamside
properties, and for the protection of streams and streamside resources.
5. "Modification". Any alteration to streamside properties or structures therein,
including but not limited to activities that are part of a development.
6. "Person". Any person, firm, association, organization, partnership, business
trust, joint venture, corporation or company, and includes the United States, the State of
California, the County of Santa Clara, special purpose districts, and any officer or agency
thereof.
Ordinance No. 07-1992
7. "Riparian Vegetation". Vegetation growing on or near the banks of a stream or
other body of water on soils that exhibit some wetness characteristics during some
portion of the growing season.
8. "Stream". A body of water that flows at least periodically or intermittently
through a bed or channel having banks. The body of water may include a surface or
subsurface flow that supports or has supported riparian vegetation, fish and/or aquatic
life.
9. "Streamside Modification Permit". The permit issued by the City of Cupertino
to the applicant required for undertaking any modifications on streamside properties.
10. "Streamside properties". All properties containing or abutting a stream.
9.19.030 Streamside Modification Permit
A. Permit Required. No person shall do or cause to be done any modification
located on properties adjacent to a stream unless a Streamside Modification Permit for the
modification has been issued and is in effect. A Streamside Modification Permit applies
to the property for which it was issued and therefore transfers when the property
ownership is transferred, unless its specific conditions provide otherwise.
B. Exceptions. The following modifications are exempt from the requirement of
obtaining a Streamside Modification Permit, if the modification is not within a stream
including up to the top of bank.
1. Less than 3 cubic yards of earthwork provided it does not damage, weaken,
erode or reduce the effectiveness of the stream to withhold storm and flood
waters.
2. A fence that is six feet or less in height or is otherwise permitted by the City.
3. An accessory structure 120 square feet or less in size.
4. Interior or exterior additions or alterations to structures within the existing
footprint.
5. Landscaping on existing single-family lots.
C. Applications. All requests for a Stream Modification Permit must be filed with
the City on an application form established and maintained by the City. The person
proposing the modification for which the permit is required must sign the application. In
the case of an application filed by a public agency, the person duly authorized to make
such application must sign the application.
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Ordinance No. 07-1992
D. Conditions of Approval. A Stream Modification Permit will be issued subject
to the conditions required by the City and the conditions will be commensurate with the
nature and magnitude of the request and may include a time limit on the life of the permit.
19.19.040 Streamside Modification Permit - Guidelines and Standards
A. Adoption. The Council shall adopt by Resolution and may from time to time
amend by Resolution a comprehensive set of Guidelines and Standards as defined in
Section 9.19.020.4 which shall form the basis for the evaluation of land use on streamside
properties and the issuance as appropriate of Streamside Modification Permits.
B. The application of the Guidelines and Standards shall be administered by the
Director of Public Works in accordance with the purpose of this chapter.
C. Notwithstanding the criteria provided in the Guidelines and Standards, the
Director of Public Works is authorized to make adjustments in the criteria and provisions
of the Guidelines and Standards, if in his or her professional opinion, such adjustments
are necessary to fit the specific conditions of the property for which the Streamside
Modification Permit is to be issued.
19.19.050 Time Limit for Commencing Use of Permit
Unless specific language in Stream Modification Permit provides otherwise, the
permit shall expire 730 days after its effective date unless the permittee has preformed
substantial work in compliance with the conditions of the permit.
This ordinance shall take effect and be in force thirty (30) days after its passage.
INTRODUCED at a regular meeting of the City Council of the City of Cupertino
the 16th day of January, 2007 and ENACTED at a regular meeting of the City Council of
the City of Cupertino the day of , 2007, by the following
vote:
Vote
Members of the City Council
AYES:
NOES:
ABSENT:
ABSTAIN:
ATTEST:
APPROVED:
City Clerk
Mayor, City of Cupertino
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