Bruce Shackleford, who has worked with city, state and local projects that more often than not require working near and even crossing streams points out that federal and state rules already require what Fayetteville's proposed streamside-protection ordinance includes. The problem is that local officials have for too long assumed higher authorities actually would ENFORCE the rules locally. A funny but sad comment by one person at Thursday's City Council meeting was that a city code-enforcement officer has come into his backyard and said he had to dispose of a brushpile near a stream. Code officers should be noting violations of watershed protection rules. Brushpiles in backyards provide desirable wildlife habitat

 Shackleford writes:
 What many people do not realize is that streamside protection is already the letter of the law.  As shown below is an excerpt from the ADEQ Stormwater Permit for Construction Activities that requires streamside buffer zones.  Item C provides an allowance for linear projects where staying away from a stream is unavoidable, such as sewer or water lines, trails, or roads that must cross streams to get from Point A to Point B. 

It appears that the author(s) of the draft ordinance have similar provisions, as indicated in their Zones 1 and 2 language.  My main point is, such buffer zones are already a requirement for landowners.  With Fayetteville being a regulated MS4, the City has the authority, and is actually required by the EPA/ADEQ MS4 program in a manner of speaking, to develop such protective measures.

Likewise, there are already flood plain ordinances in place that restrict what landowners can and cannot do; and rightfully so to protect other stakeholders.

Bottom Line - The proposed ordinance does not present anything profoundly new that is not already in place under existing state and federal programs, with the exception of small projects that may have exemptions from some of the requirements.  All of those small projects have obviously had a cumulative effect on water quality.  Some people are afraid of the ordinance because they fear it will jeopardize their landowner rights and they will not have the right to clear every tree up to the edge of the bank on their property. In actuality, the streams themselves are the property of the people of the United States, and mismanagement of land by adjacent landowners that adversely affects water quality jeopardizes the rights of the people of the United States.  Hmmm...Is not that a form of trespass?

The proposed ordinance will simply be a mechanism to monitor and manage activities at the local level for MANY small projects that larger state and federal agencies do not have time to monitor.  Soothsayers predict a crisis in times to come because we are an oil dependent society...and yes, I have certainly been a guilty participant in that society.  But I predict that if things do not change, the crisis we face will be water, not oil.  And the most embarrassing part is that we, supposedly the most highly evolved creatures on the planet, have failed to do a few simple things that could make a huge difference!  

Take care!

Bruce 

Excerpt from ADEQ General Stormwater Permit for Construction Activities (ARR150000)

13. Buffer Zones.

An undisturbed buffer zone as stated below shall be maintained at all times. Exceptions from this requirement for areas,

such as water crossings, limited water access, and restoration of the buffer are allowed if the permittee fully documents in

the SWPPP the circumstances and reasons for the buffer zone encroachment. Additionally, this requirement is not

intended to interfere with any other ordinance, rule or regulation, statute or other provision of law.

A. For construction projects where clearing and grading activities will occur, the SWPPP must provide at least twentyfive

(25) feet of buffer zone, as measured horizontally from the top of the bank to the disturbed area, from any named

or unnamed streams, creeks, rivers, lakes or other water bodies.

B. The Department may also require up to fifty (50) feet of buffer zone, as measured from the top of the bank to the

disturbed area, from established TMDL water bodies, streams listed on the 303 (d)-list, an Extraordinary Resource

Water (ERW), Ecologically Sensitive Waterbody (ESW), Natural and Scenic Waterway (NSW), and/or any other

uses at the discretion of the Director.

C. Linear projects will be evaluated individually by the Department to determine buffer zone setbacks

Bruce Shackleford, M.S., REM, REPA, CPESC

President, Environmental Consulting Operations, Inc.

17724 I-30, Suite 5A

Benton, Arkansas 72019

"Integrating ECOnomy and ECOlogy, since 1990"