Ordinance

17.08.040 Obstructing or interfering with watercourses prohibited.

17.08.060 Construction of walls, drains, bulkheads, etc.--Permit conditions required.

17.08.070 Obstructions or structures declared nuisance when--Notice to remove--City to perform work when--Costs.

The City Council does find and declare that:

A. Public health and safety requires creek and watershed management and planning in order to control flood and erosion damages. Maintenance of natural channels, including removal of debris and erosion control.

B. A dependence on structural solutions for reduction of property damage such as creek channelization, culverting and channel riprapping, often has been found to result in the loss of property from unanticipated problems associated with their design. Channelization can result in changes in stream meander, bank erosion, channel filling and channel degradation, causing damages by the undercutting of bridges, homes and other structures or by the over-the-bank flows caused by channel filling. Culverts can result in upstream and downstream bank erosion problems and, because debris removal from them is difficult, they can back up flows and cause floods. Undersized culverts and culverts installed at the wrong slope can also cause flooding and serious bank erosion.

C. The use of riprap or other debris to stabilize banks can result in the erosion of streambanks up and downstream of the riprap. Riprap and other debris may decrease channel capacity contributing to potential flood damages.

D. Streams managed as close to a natural system as possible without interference from structures, maintain a geomorphic equilibrium or watercourse best suited for carrying stream flows, and carrying and depositing suspended bed loads.

E. Natural streams provide the most environmental amenities to the community and riparian owners.

F. Streams and their riparian environment should be held as an important public asset in an increasingly endangered environment that provides an unusual urban ecological habitat with recreational and aesthetic value.

G. Culverting or channelization of existing open creeks should only occur if there is an extreme hazard to public health or safety and no other alternatives can prevent the hazard.

H. It is in the interest of the City of Berkeley to encourage the removal of culverts and channels, prevent channel riprapping, and to restore natural watercourses whenever safely possible. (Ord. 5 961 -NS § 2, 1989)

Section 17.08.030 Definitions.

17.08.040 Obstructing or interfering with watercourses prohibited.

17.08.060 Construction of walls, drains, bulkheads, etc.--Permit conditions required.

17.08.070 Obstructions or structures declared nuisance when--Notice to remove--City to perform work when--Costs.

The following definitions shall be applicable in the construction and application of this chapter.

A. "Creek" means a watercourse which carries water from either a permanent or natural source, either intermittently or continuously; and which runs in a defmed channel or continuous swale or depression, which later merges with a larger watercourse. The definition includes a channel, swale, depression, or watercourse, whether or not culverted. The definition excludes any part of an engineered system which was developed by a public agency for collection of storm or flood waters, provided however that such part does not follow the original course of the creek. The City of Berkeley may maintain maps and other reliable records, reflecting such creeks for the guidance of the public. The word "creek" will be synonymous with "natural watercourse" as used in the chapter.

B. "Culverting" means the placement or construction of a pipe or box shaped conduit in a creek bed for the purpose of conducting water.

C. "Rehabilitation" means the improvement of a natural watercourse by the use of erosion control technology, revegetation, vegetation management and/or selective channel clearing with the objective to conserve and manage a natural waterway and riparian system.

D. "Restoration" means the unearthing of a culverted stream or natural watercourse and the design of a new open channel to re-create the original stream channel and environment.

E. "Reconstruction" means the partial re-creation of the original natural watercourse by allowing a portion of a culverted stream to flow to the surface and flow through a landscaped riparian environment.

F. "Riprap" means cobbles, rock, concrete pieces or other non-vegetative debris used to protect streambanks against erosion. Riprapping, the placement of riprap on streambanks.

G. "Cribwalls" means a rectangular framework of logs which is filled with soil and/or rocks and planted with cuttings.

H. "Brush matting" means the use of dead or live cuttings from riparian vegetation stacked and secured against streambanks to check erosion and revegetate banks.

I. "Fascines" (sometimes called, "wattles") means bundles of cuttings from riparian plants used to revegetate banks.

J. "Plant cuttings" means sticks cut from riparian shrub and tree branches in

their dormant state such as willows and alder, which are buried about halfway in the ground and take root.

K. "Brush layering" means the use of live branches or cuttings which are inserted into the streambanks perpendicular to the slope so that the rooting occurs back into the slope.

L. "Retention basins" means open spaces which hold overbank stream flows and can be used as parks and other open space uses in drier seasons.

M. "Gabions" means wire baskets filled with rocks and soil and planted with seeds, cuttings and rooted plants. They can be used to rebuild streambanks. (Ord. 6716-NS § 1, 2002: Ord. 5961-NS § 2, 1989)

Section 17.08.040 Obstructing or interfering with watercourses prohibited.

17.08.040 Obstructing or interfering with watercourses prohibited.

17.08.060 Construction of walls, drains, bulkheads, etc.--Permit conditions required.

17.08.070 Obstructions or structures declared nuisance when--Notice to remove--City to perform work when--Costs.

It is unlawful for any person, organization, institution, corporation or the City of Berkeley to fill, or cause to be filled, to obliterate or cause to be obliterated, to obstruct or cause to be obstructed, to construct a building bridging a creek or cause such building to be constructed, or in any manner to interfere with or cause to be interfered with, any natural watercourse in Berkeley which carries off at any time of the year any storm water, or any surface waters, which have been precipitated by rains. This chapter does not apply to structures or conditions existing in creeks on or before the effective date of this chapter. (Ord. 5961-NS § 2, 1989)

Section 17.08.050 Setbacks for new construction required.

17.08.040 Obstructing or interfering with watercourses prohibited.

17.08.060 Construction of walls, drains, bulkheads, etc.--Permit conditions required.

17.08.070 Obstructions or structures declared nuisance when--Notice to remove--City to perform work when--Costs.

A. Except as otherwise provided in subsection B, it is unlawful for any person, organization, institution, corporation or the City of Berkeley to construct any structure having a roof supported by columns or walls, including dwellings, garages, other accessory buildings and commercial buildings, within thirty feet of the center line of any creek.

Approval for such construction may be granted only by appeal to the Zoning Adjustments Board for a variance. The decision of the Zoning Adjustments Board may be appealed to the City Council pursuant to Chapter 23B.44 of the Berkeley Zoning Ordinance.

B. A residential addition to an existing single-family home may be constructed through the issuance of a Conditional Use Pemilt pursuant to Chapter 23B.32 of the Berkeley Zoning Ordinance if the Zoning Adjustments Board or the City Council on appeal makes all of the following findings:

1. All portions of the creek on the subject parcel are enclosed within a culvert, which is located
2. below the surface of the land and there is no open creek within 30 feet of the proposed addition on any
3. adjacent parcel.
4. The existing single-family home is bisected by a culverted creek such that at least 30 percent of its footprint is located on both sides of the culverted creek.
5. No portion of the proposed addition is located on land or improvements directly above the culverted creek.
6. There is no feasible alternative for development of the proposed addition on an area outside of the setback required by subsection A because of physical conditions on the site and/or the limitations imposed by otherwise applicable development standards.
7. The existing single-family home has two or fewer bedrooms and is smaller than the median size of single-family homes within a 500 foot radius, measured from the property boundary line of the existing single-family home.
8. The proposed addition shall not increase the size of the home to be larger than the median size of single-family homes within the 500 foot radius in subsection B.5.
9. A report by an independent structural engineer selected by the City and funded by the applicant has concluded that the culvert is sound and structurally adequate to support the existing and proposed improvements or will be made so as part of the proposed project.
10. The proposed addition will not adversely affect the creek.
11. The proposed addition will not be detrimental to the health, safety, peace, morals, comfort or general welfare of persons residing or working in the area or neighborhood of such proposed use, or be detrimental or injurious to property and improvements of the adjacent properties, the surrounding area or neighborhood or to the general welfare of the City. (Ord. 6740-NS § 1, 2003: Ord. 5961 -NS § 2, 1989)

Section 17.08.060 Construction of walls, drains, bulkheads, etc.--Permit conditions required.

17.08.040 Obstructing or interfering with watercourses prohibited.

17.08.060 Construction of walls, drains, bulkheads, etc.--Permit conditions required.

17.08.070 Obstructions or structures declared nuisance when--Notice to remove--City to perform work when--Costs.

The intent of this section is to prohibit culverting and riprapping, unless there is strong evidence that there is no other reasonable means to prevent the erosion of adjacent supports, foundations or other structures.

It is unlawful for any person, organization, institution, corporation or the City of Berkeley to construct or cause to be constructed, any wall, culvert, drain, bulkhead, or other structure in any natural watercourse or creek in the City of Berkeley, or to place riprap or any debris in the channel or on the banks, without first obtaining a permit therefor from the City Engineer. If a permit for construction is granted, the City Engineer shall require the applicant to submit plans and specifications for such a wall, bulkhead, culvert, drain, structure or bank protection work which shall specify the exact location and extent of the project. Any work that has been granted a permit, shall be carried out under the supervision of the City Engineer, or his/her designated representative.

Such a permit will not be granted if any one or more of the following alternatives, or any other is available to solve the problem.

A. Excavating to restore a natural meander, stream geometry and channel roughness.

B. Clearing debris cleanup.

C. Flood proofing: e.g. minor redesign of buildings, relocation of porches or other minor structures, sheds, garages; raising of such structures; raising the grade of adjacent land.

D. Removal of structures where feasible.

E. Bank stabilization using vegetation or combination revegetation construction (soil bioengineering) that does not degrade the existing natural environment. This may include the use of vegetated and dirt filled gabions, vegetated wood cribwalls, live and dead brush matting, fascines, brush layering and cuttings, and other similar strategies based on employing plants as the long-term stabilizing materials.

F. Vegetation management that can include selective clearing that retains a riparian canopy and root structure to preserve riparian habitat, control unwanted undergrowth, and stabilize banks.

G. Set-back levee construction: flood wall construction on the flood plain.

H. Changes in site design

The request for any permit to culvert or perform any construction in a natural watercourse must conform to the requirements of the California Environmental Quality Act (C.E.Q.A.) and its current amendments and guidelines.

If the City engineer recommends the granting of a permit for culverting or any other construction in any natural watercourse, the matter shall be referred to the Public Works Commission for review. If the City engineer denies a pennit, the applicant may appeal to the Public Works Commission for review and recommendation. In all cases the decision of the Public Works Commission will be final, unless the matter is appealed within fifteen days to the City Council by the applicant, City staff or an interested party. (Ord. 5961-NS § 2, 1989)

Section 17.08.070 Obstructions or structures declared nuisance when--Notice to remove-City to perform work when--Costs.

17.08.040 Obstructing or interfering with watercourses prohibited.

17.08.060 Construction of walls, drains, bulkheads, etc.--Permit conditions required.

17.08.070 Obstructions or structures declared nuisance when--Notice to remove--City to perform work when--Costs.

Any structure, wall, bulkhead, culvert, drain, riprap or dam hereafter constructed, erected or maintained in violation of any of the provisions of Sections 17.08.040 and 17.08.050 hereof, any structure, wall, bulkhead, culvert, drain, riprap or dam heretofore erected or constructed in such manner or of such materials that the same does now or will hereafter obstruct the flow of any natural watercourse in the City, shall be and the same is declared to constitute a public nuisance, and the City Attorney of said City shall, upon order of the City Council, immediately commence action or proceedings for the abatement and removal and enjoinment thereof in the manner provided by law, and shall take such other steps and shall apply to such courts as may have jurisdiction to grant such relief as will abate and remove such building, obstruction, or structure, and restrain and enjoin any person, firm, or corporation from setting up, erecting, building, maintaining, or using any such building, obstruction or structure or using any property contrary to the provisions of this chapter. The remedies provided for herein shall be cumulative and not exclusive.

Any violation of this chapter shall be deemed an infraction punishable as set forth in Chapter 1.20 of the Berkeley Municipal Code. (Ord. 5961 -NS § 2, 1989)

Section 17.08.080 Failure to enforce chapter.

Failure to enforce any part of this chapter, will not give rise to any civil or criminal liabilities. (Ord. 5961-NS § 2, 1989)

Section 17.08.090 Fees.

The City Council may establish by resolution the fees for administration of this chapter. (Ord. 6716-NS § 2, 2002)

17.08.040 Obstructing or interfering with watercourses prohibited.

17.08.060 Construction of walls, drains, bulkheads, etc.--Permit conditions required.

17.08.070 Obstructions or structures declared nuisance when--Notice to remove--City to perform work when--Costs.