BY BOARD OF COUNTY COMMISSIONERS AN ACT TO BE ENTITLED

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1 BY BOARD OF COUNTY COMMISSIONERS ORDINANCE NO. AN ACT TO BE ENTITLED AN ORDINANCE AMENDING THE PASCO COUNTY LAND DEVELOPMENT CODE, ARTICLE 700, BY REPEALING EXISTING SECTION 702, ENVIRONMENTALLY SENSITIVE LANDS, AND REPLACING IT WITH A NEW SECTION 702, WETLAND PROTECTION, THAT PROVIDES FOR WETLAND CATEGORIZATION, DELINEATION, RESTRICTIONS ON IMPACTS AND MITIGATION REQUIREMENTS, UPLAND BUFFERS FOR POST DEVELOPMENT WETLANDS, AND RESTRICTIONS ON POST DEVELOPMENT WETLANDS AND UPLAND BUFFERS WITHIN RESIDENTIAL LOTS AND NON RESIDENTIAL PARCELS; PROVIDING FOR REPEALER, MODIFICATION, SEVERABILITY, APPLICABILITY, INCLUSION IN CODE, CONFLICT, AND AN EFFECTIVE DATE. WHEREAS, there exists a need in Pasco County to provide standards necessary to protect high value wetlands and establish buffer requirements with restricted uses to protect the surface and subsurface water quality, habitat value, storm water treatment and management in the County; and WHEREAS, Chapter 163, Part II, Florida Statutes, the Local Government Comprehensive Planning and Land Development Regulations Act requires that the County amend or enact land development regulations which are consistent with its adopted Comprehensive Plan; and WHEREAS, the Conservation Element of Pasco County s Comprehensive Plan 2025 includes an objective establishing protective buffers for Category I wetlands; and WHEREAS, the purpose of enacting a Wetlands Protection Ordinance is to carry out the objectives of Pasco County s Comprehensive Plan to protect, preserve, and enhance wetland function by establishing a regulatory framework; and WHEREAS, Pasco County has authority pursuant to Chapter 125, Florida Statutes, to adopt these regulations to protect the public health, safety, and welfare. NOW THEREFORE BE IT ORDAINED by the Board of County Commissioners of Pasco County, Florida, as follows: SECTION 1. FINDINGS. The foregoing Whereas clauses are hereby ratified and incorporated as the legislative intent of this Ordinance. 1

2 SECTION 2. PURPOSE It is the purpose of this chapter to preserve, protect and improve the public health, safety, and general welfare of the citizens of Pasco County, and to conserve and protect wetlands and to implement the Pasco County Comprehensive Plan. SECTION 3. AMENDMENTS TO SECTION 702 SECTION 702, Environmentally sensitive lands, is hereby replaced in its entirety as follows: SECTION 702. Wetland Protection Identification and Categorization of Wetlands. All applications for land use amendments, developments of regional impact, and rezoning and all Section 306 submittals shall include a map/plan that conceptually categorizes all wetlands on site pursuant to sections and a map/plan that shows proposed impacts to Category I wetlands. The wetlands designation on the Wetland/Lake Overlay on the Future Land Use Map (Map 2-5: Wetlands (SWFWMD)) shall be a conceptual indicator of wetlands and their categorization. The precise categorization of these areas shall be determined, based on the SWFWMD delineation, by the applicant and approved by County staff prior to construction plan approval through site specific studies and field determinations prepared by the applicant and approved by the County Category I Wetlands Definition. Category I wetlands shall mean those wetlands which meet at least one of the following criteria: A. Any wetland of any size that has a hydrological connection (not man made or by flood plains) to natural surface water bodies, such as natural lakes, rivers, and springs. B. Any wetland of any size that has a direct connection to the Floridan aquifer by way of an open sinkhole or spring. C. Any wetland of any size that is within a lake littoral zone. D. Any isolated uninterrupted wetlands 100 acres or larger. E. Any wetland of any size that provides critical habitat for Federal and/or State-listed threatened or endangered species Category II Wetlands Definition. Category II wetlands shall mean those wetlands which meet any of the following criteria: 2

3 A. Consists of isolated wetlands or formerly isolated wetlands which by way of man's activities are directly connected to other surface water drainage and are greater than five acres. B. Are less than 100 acres and do not otherwise qualify as a Category I wetland Category III Wetlands Definition. Category III wetlands shall mean those wetlands which meet both of the following criteria: A. Isolated wetlands less than five acres. B. Do not otherwise qualify as a Category I or Category II wetlands Wetland Delineation. The wetlands designation on the Land Cover and Classification Maps published by the Southwest Florida Water Management District (SWFWMD) and the Wetland/Lake Overlay on the Future Land Use Map (Map 2-5: Wetlands (SWFWMD)) shall serve as a conceptual indicator of wetlands. The precise delineation of wetlands shall be determined through sitespecific studies and field determinations by the applicant and SWFWMD prior to construction plan approval. Pasco County will defer to the SWFWMD for the delineation of wetland boundaries. The delineation of wetlands on any proposed development shall be determined prior to any Section 306 approval Restrictions on Impacts to Wetlands and Mitigation for Impacts. A. The removal, alteration, encroachment, dredging, filling, borrowing, or changes to the natural hydro period or water quality (hereinafter collectively referred to as "impacts") within Category I wetlands may only be authorized by the County in cases where no other feasible and practicable alternative exists that will permit a reasonable use of the adjacent property that is the subject of the application, except for public roadway infrastructure as set forth in Section C. The protection, preservation, and continuing viability of Category I wetlands shall be the prime objective of the basis for review of all proposed impacts within these areas. Where any impact to a Category I wetland is proposed as part of construction plan submittal, the applicant shall include with the application/submittal to the County a narrative statement of compliance with this criteria and the proposed mitigation for said impact. If this criteria is met, the County shall only authorize impacts to Category I wetlands if mitigation for the impacts, unless otherwise approved by the County based on a mitigation plan that provides mitigation of equal ecological function and water quality or better than required herein, consists of the preservation, enhancement, and/or restoration of uplands and wetlands located within or immediately adjacent to Critical Linkages, immediately adjacent to existing public conservation lands, immediately adjacent to 3

4 rivers and named tributaries, occur within the seasonal high waterline of natural lake systems in which the open water portions of the lakes are greater than 10 acres in size, or are contiguous with coastal marsh systems. No site development permit shall be issued until the County receives a copy of the SWFWMD permit also authorizing the impacts. B. Impacts within Category II and III wetlands may only be authorized by the County where SWFWMD rule criteria for impacts to wetlands are met. Where any impact to a Category II or III wetland is proposed, the applicant shall include with the application/submittal to the County a narrative statement of compliance with this criteria and the proposed mitigation for said impact or shall provide a copy of the issued SWFWMD Permit. If this criteria is met, the County shall only authorize impacts to Category II wetlands if mitigation for the impacts, where possible, consists of mitigation within or immediately adjacent to Critical Linkages or parcels immediately adjacent to existing public conservation lands or within ecological planning units in areas that are adjacent to conservation lands. No site development permit shall be issued until the County receives a copy of the SWFWMD permit authorizing the impacts. C. Notwithstanding the requirements of A. and B., public roadway (to include any non-gated roadway that is open to public travel, regardless of whether it is privately owned or maintained) improvements shall be, where feasible and practicable, located and designed to minimize acreage of adversely altered jurisdictional wetland areas, minimize direct and indirect impacts on rivers, lakes, and streams, and minimize impacts on endangered and threatened species and species of special concern. These criteria shall be deemed to be met where the other regulatory agencies within jurisdiction have issued the necessary permits. Further, mitigation for impacts shall be as required by the regulatory agencies with jurisdiction Upland Buffers for Post Development Wetlands. A. Upland buffers are integral to the maintenance of wetland structure and function and are necessary to protect the natural wetland ecosystem from significant adverse impact. B. Unless an applicant has an unexpired Environmental Resource Permit from the SWFWMD issued prior to January 26, 2007, or a variance is approved pursuant to section C., a minimum 25 foot upland buffer is required around all post development Category I wetlands. A post development wetland is a wetland or portion of a wetland that is not permitted for impacts. The upland buffer is not required at the location where an impact to a wetland is permitted. 4

5 C. A variance from the requirement of section B. may be applied for to establish the width of Category 1 wetland buffer necessary to protect the natural wetland ecosystem from significant adverse impact on a case by case basis. Absent scientific information which demonstrates that a larger or smaller buffer width will protect the natural wetland ecosystem from significant adverse impact, the required buffer width shall be as set forth in B. In determining the actual required buffer width pursuant to a variance application, the following factors shall be considered: 1. Type of activity and associated potential for adverse site-specific impacts; 2. Type of activity and associated potential for adverse offsite or downstream impacts; 3. Surface water or wetland type and associated hydrological requirements; 4. Buffer area characteristics, such as vegetation, soils, and topography; 5. Required buffer function (e.g. water quality protection, wildlife habitat requirements, flood control); 6. Presence or absence of listed species of plants or animals; and 7. Natural community type and associated management requirements of buffer. D. Upland buffers around post-development Category II and III wetlands and allowed/prohibited uses within said upland buffers shall be as required by SWFWMD or other regulatory agency with jurisdiction. E. No activity shall occur or be authorized within the required Category I buffer area for Category I wetlands except for drainage features such as spreader swales and discharge structures, provided the construction or use of these features does not adversely impact wetlands. Wetland creation/mitigation areas and floodplain compensation areas may be allowed within the required buffer if the presence of such areas within the buffer enhances the function of the wetland. Stormwater retention and detention facilities are discouraged within the required buffers for Category I wetlands. The above shall not be interpreted to prohibit the removal of non-native vegetation or the planting of native vegetation. 5

6 F. The County may require the planting and maintenance of suitable native species by the developer/landowner within the required upland buffer for Category 1 wetlands to promote recovery of impaired or previously damaged Category I wetlands, or to off-set any impact/removal of vegetation for drainage features allowed by Section E Restrictions on Post Development Wetlands and Upland Buffers within Residential Lots and Nonresidential Parcels A. Post development wetlands and the required upland buffers shall not be platted within residential lots or non residential parcels within future land use classifications of RES-3 and higher or within platted non residential parcels within AG, AG/R, and RES-1 land use classifications, and shall be platted as conservation area(s) in compliance with section E. B. Post development wetlands and the required upland buffers may be platted within residential lots greater than one acre within the future land use classifications of RES-1, AG/R and AG; however, building setbacks will be measured from the upland buffer line and a conservation easement for the post development wetland and upland buffer shall be conveyed to the homeowner s association or community development district. Limited Family Subdivisions shall be exempt from the conservation easement requirement. C. When a non-residential project is required to be platted, the post development wetlands and required upland buffer shall not be platted within the non residential parcel and shall be platted as conservation area(s) in compliance with section E. D. When a non-residential project is not required to be platted, the post development wetlands and required upland buffer may be within the non residential parcel, however, building setbacks will be measured from the upland buffer line and a conservation easement shall be conveyed to the County for the post development wetlands and the required upland buffer prior to issuance of the first certificate of occupancy (CO) or where a CO is not required prior to final inspection. E. All wetland and upland buffer areas platted as conservation areas shall be, concurrent with platting, deeded to the 6

7 mandatory homeowners association/community development district/merchants association as required within the County s Land Development Code. The homeowners association/community development district/merchants association documents shall provide that the homeowners association/community development district/merchants association be responsible for the payment of taxes, if any, on and maintenance of the Conservation Areas. To the extent not inconsistent with requirements of issued permits/approvals from regulatory agencies with jurisdiction, maintenance shall be specifically defined in said documents as ensuring that no activity shall occur within the wetlands and upland buffers and that the buffers retain the existing undisturbed vegetation and remain in their undisturbed condition except for planting of native vegetation; removing non-native vegetation from the wetlands and upland buffers and controlling and removing litter from the wetlands and upland buffers and maintenance of features allowed by Section E. F. Nothing contained in this ordinance shall require the platting, deeding or conveyance of wetlands and wetland buffers within Conservation Subdivision Open Space, which is governed by other regulations within the Land Development Code Relationship to other requirements relating to the protection of wetlands. In addition to meeting the requirements of this Chapter for the protection of wetlands, all development orders/permits shall also comply with applicable federal, state, and water management district regulations Development within wetlands and required upland buffers. Except as otherwise permitted in this Chapter and by regulatory agencies with jurisdiction, no development activity shall be undertaken within wetlands and required post development upland wetland buffers. SECTION 4. REPEALER All provisions of the Land Development Code of Pasco County, as amended, and ordinances or parts of ordinances in conflict herewith are hereby repealed to the extent of any conflict. Specifically, this ordinance repeals existing section 702 and replaces sections 702 of the Pasco County Land Development Code. 7

8 SECTION 5. MODIFICATION. It is the intent of the Board of County Commissioners that the provisions of this ordinance may be modified as a result of considerations that may arise during public hearings. Such modifications shall be incorporated into the final version of the ordinance adopted by the Board and filed by the Clerk to the Board pursuant to Section 10. SECTION 6. SEVERABILITY. It is declared to be the intent of the Board of County Commissioners of Pasco County, Florida, that if any section, subsection, sentence, clause, or provision of this Ordinance shall be declared invalid, the remainder of this Ordinance shall be construed as not having contained said section, subsection, sentence, clause, or provisions and shall not be affected by such holding. SECTION 7. APPLICABILITY. This Ordinance shall apply to all approvals after the effective date of this Ordinance, unless the County and the applicant agree to an earlier application date. However, Sections B. and C. and B. and D. shall not become effective until the date the Comprehensive Plan Amendment to Conservation Element Policy CON becomes effective. SECTION 8. INCLUSION IN CODE. It is the intent of the Board of County Commissioners that the provisions of this Ordinance shall become and be made a part of the Pasco County Land Development Code, and that the sections of this Ordinance may be renumbered or re-lettered and the word ordinance may be changed to section, article, regulation, or such other appropriate word or phrase in order to accomplish such intentions. SECTION 9. CONFLICT. To the extent of any conflict between any other County ordinance or prior development permits/orders and this ordinance, this ordinance shall be deemed to be controlling. SECTION 10. EFFECTIVE DATE. A certified copy of this Ordinance shall be filed with the Department of State by the Clerk to the Board within ten (10) days after adoption of this Ordinance, and this Ordinance shall take effect upon filing with the Department of State; however, the amendments in this Ordinance shall apply to any public hearing occurring after its adoption. ADOPTED this day of,

9 (S E A L) ATTEST: BOARD OF COUNTY COMMISSIONERS OF PASCO COUNTY, FLORIDA BY: JED PITTMAN, CLERK CHAIRMAN 9