§ 17.40.040. Environmental sensitive habitat (ESH) overlay zone.

A.

Purpose.

1.

The purpose of the environmentally sensitive habitat overlay zone or "ESH" overlay zone is to protect and preserve areas in which plant or animal life or their habitats are either rare or especially valuable because of their special nature or role in an ecosystem and which could easily be disturbed or degraded by human activities and development. Environmentally sensitive habitat overlay zones shall extend not only over an ESH area itself but shall also include buffers necessary to ensure continued protection of the habitat areas. Only uses dependent on the sensitive resources and which do not result in significant disruption of habitat values shall be permitted in the ESH overlay zone. The ESH overlay zone may apply to areas not currently mapped as ESH designation.

2.

New uses and expansions of existing uses allowed in the primary zone classification shall not be permitted unless specifically listed as allowed in the ESH overlay district. Proposed uses may require review and approval by the State Department of Fish and Game. Proposed uses may require permits from the Department of Fish and Game or may be prohibited.

B.

Uses Allowed Without a Conditional Use Permit.

1.

Wetlands. The following uses are permitted in wetlands: wildlife refuge; wildlife habitat management; noncommercial clamming and related activities on mudflats; passive recreation; noncommercial fishing and other educational or scientific activities including bird watching and nature study on the waters covering mudflats during high tides.

2.

Estuary. The following uses are permitted in estuaries: wildlife refuge; wildlife habitat management; educational or scientific studies including bird watching and nature study; passive recreational uses, including boating and fishing.

3.

Sand Dunes, Sandspits. The following are permitted uses on sand dunes and sandspits: wildlife refuge; wildlife habitat management; passive recreation that does not significantly impair dune vegetation; scientific and educational activities.

4.

Stream Corridors. The following are permitted uses in stream corridors: wildlife refuge; wildlife habitat management; educational and scientific activities.

5.

Restricted. The following are permitted uses in restricted areas: wildlife refuge; wildlife habitat management; scientific and educational activities.

6.

Other Environmentally Sensitive Habitat Areas. The following are conditionally permitted in other environmentally sensitive area; wildlife refuge; wildlife habitat management; scientific and educational activities; controlled public access and passive recreational activities.

C.

Uses Allowed Only with a Conditional Use Permit.

1.

Wetlands. The following are conditionally permitted uses in wetlands: road and bridge replacements, very minor, incidental public facilities when there is no other feasible, environmentally less-damaging alternative; other scientific and educational work; restorative measures; and commercial mariculture where no alteration of the wetland is necessary.

2.

Estuaries. The following are conditionally permitted in estuaries: road and bridge replacements, restorative measures; commercial mariculture; and diking, dredging or filling, where there is no feasible, less environmentally damaging alternative, where feasible mitigation measures have been provided to minimize adverse environmental effects and where the functional capacity of the estuary is maintained or enhanced for the following purposes only:

a.

New or expanded energy or coastal dependent industrial facilities;

b.

Maintaining existing, or restoring, previously dredged depths in existing navigational channels, berthing and mooring areas and boat launching ramps;

c.

New or expanded boating facilities;

d.

Incidental public service purposes, including but not limited to burying cables and pipes or inspection of piers and maintenance of existing intake and outfall lines;

e.

Restoration purposes;

f.

Nature study, aquaculture, or similar resource dependent activities;

g.

Road and bridge replacements;

h.

Biological mitigation program areas.

3.

Sand Dunes, Sandspits. The following are conditionally permitted uses: road and bridge replacements, incidental public facilities such as buried cables or pipelines where there is no other feasible, less environmentally damaging alternative and where feasible mitigation measures have been provided to minimize adverse environmental effect.

4.

Stream Corridors. The following are conditionally permitted uses: controlled public access, including public trails within the buffer; necessary pipelines and water supply projects where no alternative location exists; flood control projects where no other method for protecting existing structures in the floodplain is feasible and where such protection is necessary for public safety or to protect existing development; road and bridges where no alternative route/location is feasible and if support structures are not sited in the environmentally sensitive habitat.

5.

Restricted Area. There are no conditionally permitted uses allowed.

6.

Other Environmentally Sensitive Habitat Areas. The following are conditionally permitted: all other resource-dependent uses which do not significantly degrade the habitat values.

D.

Special ESH Zone Standards.

1.

General Application and Requirement for Uses. The ESH overlay zone shall be applied to all environmentally sensitive habitat areas and to buffers around such habitat areas necessary to ensure continued protection of the habitat values.

2.

Expressly Prohibited Uses.

a.

Significant Disruption. No uses which will cause significant disruption to the ecosystem or habitat values shall be permitted.

b.

Vehicular Traffic. Vehicular traffic shall be prohibited on wetlands and dune areas (this does not apply to previously filled wetlands landward of an established bulkhead or revetment)

c.

Spoil Disposal. Further dredge spoil disposal shall be prohibited on the sand spit.

3.

Types of Environmentally Sensitive Habitat Areas. A number of types of environmentally sensitive habitat areas exist within the city. The nature of these ecosystems and their susceptibility to possible degradation by different human activities varies among habitat types. Uses acceptable in one type of habitat area may be unacceptable in a more sensitive one. Therefore, environmentally sensitive habitat areas must be classified into one of the following types before determining permitted uses:

a.

Wetlands. Lands which may be covered periodically or permanently with shallow water, including saltwater marshes, freshwater marshes, open or closed brackish water marshes, swamps, mudflats and fens.

b.

Estuary. A coastal water body usually semi-enclosed by land, but which has open, partially obstructed, or intermittent exchange with the ocean and in which ocean water is at least occasionally diluted by freshwater runoff from the land. The salinity may be periodically increased above the open ocean by evaporation. In general, the boundary between "wetland" and "estuary" is the time of extreme low water;

c.

Sand Dunes, Sandspit. "Sand dunes" are mounds of sand deposited by wind and frequently vegetated by characteristic plant species. The "sandspit" is that geographic portion of the city surrounded on three sides by water and separating Morro Bay from the open ocean; much of the spit is covered by sand dunes;

d.

Stream Corridors (Streams and Adjacent Riparian Habitats). A "stream" is a natural water course as designated on the most recently published United States Geological Survey map, or any well-defined channel with distinguishable bed and bank that shows evidence of having contained flowing water as indicated by scour or deposit of rock, sand, gravel, soil or debris. A "riparian habitat" is an area characterized by an association of plant species which grow adjacent to freshwater watercourses, including perennial and intermittent streams, lakes and other bodies of fresh water;

e.

Restricted Areas. Those habitats which have resources so environmentally sensitive that even passive recreational uses must be prohibited;

f.

Other. All other environmentally sensitive habitat areas designated on the zoning map not herein defined. The zoning map indicates the location of known environmentally sensitive habitat areas by type; additional areas may be added to this map as further information is developed related to sensitive habitats in the city.

4.

Buffers Required, General. The following minimum buffers shall be applied to environmentally sensitive habitat areas, except as provided elsewhere in this chapter.

a.

Wetlands. The minimum buffer surrounding wetlands shall be one hundred feet; review area: minimum of two hundred fifty feet.

b.

Streams. The minimum buffer for streams shall be one hundred feet in non-urban areas and fifty feet in urban areas.

c.

Sand Dunes. The minimum buffer for sand dunes shall be one hundred feet, in non-urban areas and fifty feet in urban areas.

d.

Other. The minimum buffer for estuaries, restricted areas and all other environmentally sensitive habitat areas shall be one hundred feet.

5.

Greater Buffers Required. In some habitat areas, a buffer greater than that called for in Section 17.40.040(D)(4) shall be required if an initial study and/or environmental impact report prepared according to the California Environmental Quality Act indicates that such buffers are necessary for the protection of the habitat values.

6.

Reducing Buffers.

a.

In all cases, except for wetlands, buffers may be reduced in accordance with the following standards if the application of the buffer specified in Section 17.40.040(D)(4) on a previously subdivided parcel would render that subdivided parcel unusable for its designated use.

b.

Accommodation of Designated Use. Buffers may be reduced only to the point where the designated use is accommodated but in no case shall it be less than fifty percent of the width called for in Section 17.40.040(D)(4). Said reduction in setbacks may be permitted by the city, as provided above, only after consultation with the California Department of Fish and Game; the applicant shall implement as part of the development all mitigation measures deemed necessary for habitat protection after such consultation. All permitted reductions in buffer areas shall be found consistent with Policies 11.01, 11.05, 11.06 and 11.14 of the coastal land use plan.

7.

Uses in Buffer Area.

a.

General. The uses permitted in buffers shall generally be limited to those permitted in the adjacent habitat area.

b.

Permanent Structures. No permanent structures shall be permitted within buffer areas except for those of a minor nature such as:

i.

In residential areas:

(A)

Fences;

(B)

Eaves;

ii.

In other districts:

(A)

At grade improvements for pedestrian or equestrian trails;

(B)

Instructional or informational signs;

(C)

Designated observation areas, or other public access or educational facilities;

(D)

Fences;

(E)

Eaves;

Applications for all such improvements shall be submitted to the Department of Fish and Game for review and comment before the issuance of a coastal development permit.

8.

Subdivisions Prohibited. The further subdivision of any ESH area shall be prohibited except where the sensitive habitat area is to be transferred in fee to a public agency for a wildlife refuge or for a wildlife management area.

9.

Performance Standards. All other sections of this chapter notwithstanding, no uses shall be permitted unless the following performance standards are met, as applicable, in new developments:

a.

Significant Adverse Effects. New development shall not result in significant adverse effects upon habitat values.

b.

Revegetation. Where permitted uses require the removal of riparian or dune related plant species, such removal shall be limited to the minimum amount necessary and revegetation with:

i.

Native vegetation in the habitat areas of rare or endangered species; or

ii.

Native, drought-tolerant plants where determined feasible and approved by the city. All such proposals calling for removal of vegetation and subsequent revegetation shall be submitted to the Department of Fish and Game for review and comment.

c.

Walkways, Trails and Similar Uses. Walkways, bicycle trails, overlooks and other structures for nature study and passive recreational use shall be designed to minimize the disturbance of wildlife and vegetation. For example, in dune areas elevated walkways may be required.

d.

Culverts, Ponds. Any culverts or ponds created as part of a permitted use shall be sited and designed to insure against the risk of flood damage to adjacent properties.

e.

Diking, Dredging, Filling. Any permitted diking, dredging or filling activities in wetlands and estuaries shall maintain or enhance functional capacity of the habitat.

f.

Breeding and Nesting Season Restrictions. On dune habitats, all permitted uses shall be regulated to protect critical bird habitats during the breeding and nesting seasons. Any mitigation measures deemed necessary after consultation with the Department of Fish and Game, including but not limited to access controls and noise abatement, shall be implemented.

g.

Other Agency Permits. Prior to any construction, alteration or other improvement in areas designated as wetlands or estuaries the following shall be presented to the city:

i.

404 Permit. A Section 404 permit (or its equivalent successor) from the U.S. Army Corps of Engineers.

ii.

Letter from CDFG. A letter from the California State Department of Fish and Game stating compliance with Sections 1601 and 1603 (or their equivalent successors) of the State Fish and Game Code.

(Ord. 445 § 3 (part), 1995)