04 January 2017

Comments on Wetland Regulations in Cherry County Development Plan and Zoning Regulations

Submitted at monthly meeting of Planning and Zoning Board; January 3, 2017. The comments herein indicated have been slightly modified from those provided at the meeting.
After reading my statement, none of the members of the board made any comment, and the chairman moved to the next agenda item. When a question was asked later in the meeting on how the board would address this matter, this request was once again basically ignored as no member of the zoning board made any effort — nor indicated any interest — to address this issue. It was obvious that the planning and zoning board members basically ignored this request to get the comprehensive plan and zoning regulations to have similar details.

The planning and zoning policy of Cherry county needs to be revised to indicate an accepted regulation based upon a clause indicated by the Cherry County Comprehensive Plan. Currently, this is not the situation.

Denoted in Implementation Strategy for Policy 4; Point A. Item 2 in the Cherry County Comprehensive Development Plan:

“All development (again, development does not include agriculture) potentially affecting wetlands must comply with state and federal wetlands protection programs.” (Cherry County Comprehensive Plan, 1997) “Development shall leave a naturally vegetated buffer surrounding all wetlands. Roads and utility lines may cross these buffers, but the project’s site plan should minimize such crossings.”

The verbiage is different in the zoning regulations where the provision indicates that all wetlands will be identified. Yet, there are no further indications of the purpose(s) for this clause.

The discrepancy is obvious. Therefore the variance needs to be actively considered and changed to indicate current conditions.

Any applicant should be required to provide written documentation with any Conditional Use Permit request to indicate compliance with, most notably, federal regulations, as well as any applicable state regulations regarding wetlands.

According to a representative of the Nebraska regulatory office of the Corps of Engineers at Omaha: "In order to determine if a wetland is isolated, and that the Corps does not have jurisdiction," an Approved Jurisdictional Determination should be completed by the person proposing the work, or the landowner. This determination would determine "whether a wetland or pond is a Waters of the U.S. (jurisdictional) or Waters of the State (not jurisdictional). "If it is jurisdictional a Clean Water Act Section 404 permit is required for impacts." ... "For the most part, the type of wetland is irrelevant to jurisdiction." The Corps cannot require that this determination be completed. An email response also indicated that only the Corps of Engineers can determine the "jurisdictional" status.

The zoning regulations should be updated to conform with the clause given in the county plan.