Kentucky Resources Council, Inc.
Post Office Box 1070
Frankfort, Kentucky 40602
(502) 875-2428 phone (502) 875-2845 fax
On September 11, 2001, Commissioner Russ Maple introduced
weakening amendments to the Erosion Prevention and Sediment Control (EPSC) Ordinance. Despite a request by the Council that Fiscal Court defer introduction and first reading of the ordinance in order to allow further discussion, the ordinance was given first reading on that date. Second reading and a vote on the ordinance could occur as early as Tuesday, September 25.
The current EPSC Ordinance was the product of hundreds of hours of effort among interested parties neighborhood advocates, environmental groups, local and state agencies, homebuilders and others and involved give and take on all sides by all at the table. Citizens gave a lot in terms of enforcement in order to maintain protection of floodplains, lakes, wetlands, steep sloped and karst areas.
Commissioner Maple s proposal is a slap in the face of all of the parties who negotiated in good faith with the developers and homebuilders for over two years to produce the current consensus ordinance. These weakening changes take the heart out of the ordinance:
* By eliminating enhanced scrutiny and protection of sensitive features from erosion and sedimentation;
* By eliminating public notice and involvement in detailed plans
* By severing ties between the goals of the newly-adopted land use plan of protecting sensitive features from erosion and sedimentation, while placing the enforcement appeal in the hands of the Planning Commission where it is expected that an ordinance with a cumbersome enforcement mechanism will be f
* By broadening exemptions from the protections of the ordinance, allowing unlimited site preparation disturbances;
* By weakening remedial and enforcement obligations to properly install and maintain sediment controls and to install adequate sediment controls.
The changes have been represented as slight and as maintaining the current goals. In fact, the amendments are radical changes to the existing ordinance, substantially undercut the goals, and further erode the enforcement and scope of the ordinance and public confidence in the Fiscal Court s ability to stand up to interest groups. While being touted as necessary to address administrative problems, there have been no timely appeals of enforcement actions to date, raising a question as to what administrative problem would justify the placement of the enforcement appeals in the Planning Commission s hands.
Below is a section-by-section analysis of the changes to the ordinance, which could be approved without public hearing, and without involvement by the many citizens and agencies who gave countless hours of time and effort to craft a consensus document, as early as next Tuesday September 25, when the Fiscal Court next meets.
To contact Commissioners Maple, Delahanty and Owens and County-Judge Executive Jackson to express your position on these proposed changes to the ordinance by email:
firstname.lastname@example.org, email@example.com, firstname.lastname@example.org, email@example.com
or phone Commissioner Maple at 574-5754, Commissioner Owens at 574-6808 and Commissioner Delahanty at 574-5895, Co. Judge Jackson at 574-6161.
SECTION-BY-SECTION ANALYSIS OF NEW ORDINANCE TO REPEAL AND REPLACE EXISTING CHAPTER 159 GOVERNING EROSION PREVENTION AND SEDIMENT CONTROL ORDINANCE CHAPTER 159 PROPOSED BY COMMISSIONER RUSS MAPLE ON
TUESDAY SEPTEMBER 11, 20011
Section 159.01 C5
The new ordinance eliminates as a purpose the implementation of environmental resource protection goals and objectives of the new land use plan.
This change is contrary to the working assumptions of the committee that is rewriting the land development code, which is that those resource protection goals of protecting stream headwaters, minimizing sedimentation and streambank degradation and erosion would be satisfied in large part by implementation of this ordinance. The environmental protection standards of the land development code will not be developed and adopted for at least another year.
Section 159.01 D2(d)
This change eliminates from the definition of a concept EPSC plan the requirement that the plan include documentation of sufficient accuracy and detail to support review by the review bodies, and also eliminates the requirement that the concept EPSC plan be incorporated into the preliminary development plan. The amendment to the previous language eliminates the ability of a review agency to eject an insufficient concept plan.
The effect of this is to allow concept plans without supporting documentation or detail to be submitted, and to eliminate the incorporation of those plans into the preliminary development plan, thus eliminating a legal obligation to follow the concept plan as part of the preliminary development approval.
This change replaces the MSD Board with the Planning Commission as the appeal board to which enforcement appeals are to be taken.
Ironically, permitting decision appeals remain with MSD s Board. Since the stated purpose of the ordinance was to eliminate the overlay of land use planning, it is illogical to have the Planning Commission hear appeals of MSD personnel actions.
This change weakens the current requirement that final stabilization , which is the time at which the developer s obligations are deemed satisfied, be demonstrated by providing a permanent vegetative cover of 70% or seeding and interim stabilization. Instead the applicant is merely required to provide a uniform cover or equivalent stabilization through mulching or geotextiles.
Under the change, final approval can be given even though no effort has been made to establish perennial vegetative cover a developer could merely mulch and receive a release.
Also, the standard for measuring equivalent stabilization is significantly weakened unlike the current definition which requires 70% vegetative cover or seeding plus stabilization to prevent erosion, the new definition would allow a release if mulch was spread on 70% of the disturbed area and no reseeding had occurred.
Section 159.02F further erodes the demonstration required for permit termination by allowing posting of a surety instead of achieving final stabilization.
A new definition of general permit is included. The definition is both illogical and inaccurate. It is inaccurate in that a permit is not an agreement between the regulator and regulated, but rather is a legal mechanism for application of regulatory requirements to a particular permit holder or site. It is illogical in that it defines the permit in a circular and meaningless manner as an agreement . . . which specifies conservation measures which must be implemented in the construction of activities specified in the terms of conditions of the general permit. In truth, a permit specifies erosion and sediment prevention measures, benchmarks, compliance and reporting obligations and other provisions that will be undertaken for any land disturbing activity regulated under the ordinance, not in the construction of activities . As read, to the extent that any sense can be made of the convoluted and circuitous definition, it could be read to eliminate the enforceability of the permit on the ground since the substantive obligations of the ordinance are keyed to land disturbing activities rather than construction of activities specified in the terms and conditions of the general permit.
The definition of land disturbing activity is one of the most significant in the ordinance. Formerly, the definition was couched in broad terms in order to effectuate the joint goals of satisfying the community s goals and objectives in the land use plan and to assist MSD in satisfying a legal obligation mandated by US E.P.A. and the Commonwealth of Kentucky for which MSD and this community have long been in default.
The definition formerly covered all construction, demolition, reconstruction, modification, extension and expansion of structures and parking areas, placement of fill, dumping, storage of earthen materials, excavation, land clearing, clearcutting tree removal vegetation removal and other such activities that change the natural land cover or topography creating a potential for erosion and contribution of sediment.
Specific exemptions were outlined in other sections of the ordinance, but the goal was to broadly obligate those disturbing land and creating the potential for erosion and sedimentation to utilize appropriate measures to control off-site effects.
The new regulation incorporates exemptions into the definition and restricts the scope of the ordinance in these ways:
* Rather than including all land disturbing activities,
subjection to enumerated exemptions, that create the potential for erosion and contribution of sediment, MSD is now restricted to regulating land changes which may result in soil erosion from water or wind and the movement of sediments into waters or onto lands.
Thus redefined, the imprecise phrase land changes could be read to prevent MSD from regulating timber or vegetation removal at all, and other disturbing activities that do not result in land changes . Also, it could be argued that MSD cannot
require any permit until such time as the erosion had occurred and had moved offsite, since the land changes have now been
linked to creation and movement of sediments into water or onto land. It is unclear whether land means the land in question or off-site lands.
* Previously, the ordinance at Section 159.01F enumerated the exempt land disturbing activities, but made those exemptions contingent on those activities being undertaken in a manner that presents no significant erosion and sediment potential.
By embedding exemptions into the definition of land disturbing activity this safeguard which allowed the ordinance to be applied to otherwise-exempt activities that are being conducted in a reckless manner, is lost.
* Previously, minor land disturbing activities of 5,000 square feet or less of land were exempted only if they did not require a building, demolition or wrecking permit. This included gardens, landscaping, fences and similar structures or activities.
The new ordinance eliminates any square-foot limitation on that exemption, allowing unlimited home repaid, landscaping and maintenance without having to comply with the ordinance.
* Installation of septic tank lines and lateral fields are exempted.
* The agricultural exemption, including timber operations, are exempted categorically, and land drainage and land irrigation not increasing runoff or exacerbating erosion and sedimentation is exempted, regardless of whether they are currently required to control erosion and sedimentation under the Kentucky Agricultural Water Quality Act. Formerly, those activities were exempt only to the extent that they were governed under the Agriculture Water Quality Act, which requires conservation plans and provides a separate implementation and enforcement scheme.
The scope of this new agricultural exemption would allow exemption of numerous activities that have caused substantial erosion and sediment problems, including sod scalping, and unlimited clearcutting and vegetative removal in advance of site development under the guise of harvesting of forest crops .
* Formerly, site investigation and surveying activities were exempt only if limited to 5,000 square feet of land. The limitation has been eliminated.
* Formerly, no site clearing was allowed until after review and approval of a preliminary subdivision or development plan except roadways and site investigation (of 5000 sq. ft. or less). Further, no trees over 8 inches in diameter or greater could be removed unless first approved by DPDS, and sensitive features were required to be protected. Access ways could not encroach into proposed open space lots.
Now, accessways can be cleared through proposed open space without limit. Unlimited site investigation damage can occur. Up to 2,000 square feet of clearing and grading activities can occur as close as 50 feet to a blue line stream . A new exemption for emergency work allowing work which otherwise would have required a plan can be conducted with no plan as long as stabilized and shaped afterwards, with emergency work including work to ensure health, safety and property and emergency repairs . MSD would have no approval authority over whether an emergency really exists, and as defined, any property repair can be considered an emergency whether it is in fact or not.
Section 159.01D.2.(w) (deleted)
The ordinance eliminates the definition of sensitive features, which formerly were defined as site characteristics requiring special attention to prevent adverse impacts from erosion and sedimentation and which included:
- the local regulatory conveyance zone/floodplain
- stream corridors including blue line and intermittent
- karst features with a well-defined surface opening,
- lakes and impoundments
- jurisdictional wetlands
- greater than 20% slopes
- erodible and highly erodible soils
-sites with the potential to drain storm water directly
into these features or a designated greenway.
In order to understand the radical change proposed in the elimination of this definition, the context of the term in the current ordinance must be understood.
Under the current ordinance, any land disturbing activity that is not exempted must either be conducted under an authorized general permit or an approved EPSC plan. Type I review is provided for subdivisions, developments requiring general or detailed development plans, conditional uses and developments requiring rezoning. Additionally, for any other land disturbing activity not otherwise exempt, MSD could require Type I review if the activity occurs on lands containing sensitive features.
Only Type I activities require concept EPSC plans as well as detailed plans.
Type II activities are those not exempt which require no land use approval, but for which MSD has not issued a general permit. Included in Type II are those land disturbing activities (except Type I) for which MSD believes individualized review is needed because of the presence of sensitive features.
Once sensitive features are identified on a site, the current ordinance requires the applicant to either accommodate the features by avoidance or to implement mitigation techniques to protect such features from erosion and sedimentation.
The proposed changes eliminate sensitive features from consideration in the development of the plan. The effect of this removal of sensitive features is to:
1. Hamstring MSD from requiring that detailed and
concept plans incorporate measures to specifically address these features. While some MSD officials may believe that they still have authority to require additional measures to protect such features, an argument can be made that the elimination of that provision creates a legislative history reflecting an intent to preclude additional consideration of and protection of such features.
2. Preclude MSD from requiring Type I or Type II individualized review for sites because those sites contain sensitive features.
3. Eliminate the requirement that the concept and detailed EPSC plans identify measures to avoid, protect and mitigate impacts on sensitive features.
4. Eliminate the requirement for public notice of any public meeting or hearing on Concept EPSC plans.
5. Eliminate the requirement that MSD inspectors note sensitive features during site investigations.
In short, the protections and enhanced scrutiny for environmentally sensitive areas that was a cornerstone of this ordinance has been entirely removed.
By repealing and replacing existing Chapter 159 rather than amending the previous ordinance, the grandfathering and transition provisions of the former ordinance are carried forward, thus creating a second, unjustified and unnecessary transition period in which a number of pending applications for land use changes are grandfathered in whole or in part and exempted from compliance with the ordinance when it is repealed and re-enacted.
The role of the Technical Review Committee of the Planning Commission in reviewing and commenting on the EPSC plans and in providing input for public review of plans affecting sensitive features, is eliminated, thus eliminating an avenue for public notice and input as well.
Formerly, if substantial construction or development had not occurred in the timeframe outlined in the land use approval, the detailed EPSC plan would lapse and reapplication would be required.
That standard has been lowered to allow a permittee to avoid lapse merely by conducting any land disturbing activity . The effect is to lessen the ability of the agency to review older plans and update them to reflect current science.
The ability of DPDS to review detailed plans to assure no conflicts with other land development policies, including environmental performance standards, is eliminated. Not only are sensitive features no longer protected under these changes, but if and when environmental performance standards are adopted by the Planning Commission, this change will prevent DPDS from reviewing plans to assure that the erosion permit does not undercut those other standards.
This change eliminates TRC review of Type I detailed EPSC plans, thus eliminating public input on the plans. Formerly, where a site would otherwise be subject to a Type II review but the site had or was in proximity to sensitive features, MSD was to refer it to TRC for public and agency input and notice was had thereon. This is deleted.
This change eliminates the exemption from general permits for individual residential building lots containing sensitive features that were not part of a previously reviewed subdivision plan. Formerly such sites were required to obtain a type II permit.
This change guts the enforceability of the implemented plans under the ordinance. Currently, all EPSC plans are to be reviewed for compliance with the overall design goal of achieving 80% removal efficiency goal, and all such measures are required to be installed to accomplish that goal.
The requirement in the current ordinance that the EPSC measures be installed to accomplish that goal is eliminated from this section.
The current section requires that the transfer of soil, mud and dust onto public rights-of-ways be prevented.
The new ordinance lowers the compliance goal to one of minimization thus lowering the standard of performance and complicating any enforcement of the standard.
Section 159.04 A.3.
The deletion of the phrase or inadequate in conjunction with the deletion of installed from 159.03A1, eliminates the enforceable obligation of the permittee to prevent adverse impacts from inadequate controls.
Thus, if the proposed controls are clearly inadequate to achieve the 80% removal goal, due to improper installation or other reasons, MSD cannot investigate the extent of damage, cannot require the permittee to correct and clean-up the damage, and cannot recover costs incurred because of off-site damage from inadequate controls.
With this change, the ability of the agency to order remedial actions as part of an enforcement action is undercut, creating a conflict between 159.04A.3. and 159.05D.3.(a).(ii).(2).
Sections 159.05.A.2., 3.
The changes to this section lessen review and scrutiny of effects of modifications to approved plans.
This change allows a free bite to a permittee with an inadequate sediment control plan, and arguably one who improperly installs or fails to maintain sediment control, even where there is off site damage, provided that the problem is fixed after discovery on the same day.
This change eliminates the ability to request cessation of other site activities where corrective action is needed for problems.
1 This analysis was prepared by Tom FitzGerald, Director, Kentucky Resources Council, Inc.