Northeast Ohio has led the state in the adoption of ordinances that establish setback requirements from streams and wetlands.  Buried within municipal codes is the requirement to stay out of buffer areas surrounding streams and wetlands. 

Homeowners, businesses and developers often learn of these requirements after they go to the City with their designs for additions, expansions or subdivisions. 

There is a lot of misinformation as to whether cities are required to adopt these ordinances.  Some municipalities are telling citizens and developers they were mandated by Ohio EPA to adopt them. While there was a very big effort to try and push adoption of these ordinances, let’s be clear, there is no legal mandate in Ohio at this time to adopt them. 

The two most common model ordinance that many municipalities have adopted are either the Northeast Ohio Storm Water Task Force and Chagrin River Watershed Partners model ordinances.  (The Chagrin River Watershed Partners website provide very good information regarding riparian setbacks and their purpose.)

What are municipalities required to do to control stormwater?

The legal requirement for local governments to adopt various stormwater control ordinances stems from Ohio EPA’s implementation of the MS4 program (Small Municipal Separate Storm Sewer Systems).  Each local government that has ownership and control over an MS4 is required to develop a Stormwater Management Program (SWMP).  There are certain required elements of the SWMP, including the adoption of certain storm water ordinances, including:

  • Pre-construction stormwater controls
  • Post-construction stormwater controls
  • Illicit discharge, detection and elimination
  • Erosion and sediment controls

As part of the post-construction stormwater program, the municipality must include information on any non-structural stormwater requirements it has imposed.  One possible non-structural stormwater control technique can be wetland and stream setbacks (buffers). 

Where are Ohio EPA’s legal requirements specified?

Ohio EPA’s NPDES General Permit for the MS4 program permit (Permit #OHQ000002) only requires a rational statement that discusses what non-structural BMPs were selected, including BMPs designed to protect riparian areas and buffers protecting sensitive water bodies. See, Section III.B.5.e.iii of Permit #OHQ00002. Ohio EPA’s permit  does not require the MS4 community to adopt riparian setbacks.

OAC Chapter 3745-39, which establishes the minimum regulatory requirements for MS4 program, does not mandate adoption of setbacks. It only discusses setbacks as one option for implementing non-structural stormwater controls. Ohio EPA’s comment below the regulation establishing minimum requirements for MS4 communities:

Non-structural best management practices are preventative actions that involve management and source controls such as: policies and ordinances that provide requirements and standards to direct growth to identified areas, protect sensitive areas such as wetlands and riparian areas, maintain or increase open space (including a dedicated funding source for open space acquisition), provide buffers along sensitive water bodies, minimize impervious surfaces, and minimize disturbance of soils and vegetation; policies or ordinances that encourage infill development in higher density urban areas, and areas with existing infrastructure; education programs for developers and the public about project designs that minimize water quality impacts; and measures such as minimization of per cent impervious area after development and minimization of directly connected impervious areas.

In other words, communities are free to consider a mix of non-structural controls which could include riparian setbacks.

What about distances of setbacks?

Model ordinances have between 25 – 300 feet as required buffers.  Does Ohio EPA mandate a specific distance?  No.

Ohio EPA has only included setbacks in a couple NPDES General Permits for specific sensitive water bodies (the Big Darby and the Olentangy). Here is the requirement from the Big Darby general construction stormwater permit:

The stream setback corridor (calculated using one of the methods in Part III.G.2.b of this permit) consists of up to 3 zones.  Zone 1 extends from 0 to 25 feet from the stream edge. Zone 2 extends from 25 to 100 feet from the stream edge, and Zone 3 extends from 100 feet to the outer edge of the setback corridor.

There is a formula for determining the stream setback corridor.  Then the Agency divides up the setback area into three zones.  Each zone has its own mitigation requirements.

While Ohio EPA has selected two sensitive rivers to mandate riparian setbacks, it is still not determined a minimum setback distance.  The NPDES General Permit for the MS4 program does not establish a minimum setback distance if a community elects to utilize this non-structural BMP.

OAC Chapter 3745-39 does not contain a rule specifying minimum distances for riparian or wetland setbacks. 

(For more information on the purpose of Riparian Setbacks, click here)