TO: Ron Long, Assembly President
Members, Kenai Peninsula Borough Assembly
FROM: Milli Martin, Assembly Member
DATE: July 21, 2006
SUBJECT: Ordinance 2006-01 (Martin) Substitute, repealing KPB Chapter 21.26 and enacting KPB Chapter 21.29, Material Site Permits
Following are proposed amendments to the subject ordinance. A separate summary of the substantive changes accompanies this memo.
1. Insert a new KPB 21.29.010 as follows:
21.29.010. Material extraction exempt from obtaining a permit.
A. Material extraction which disturbs an area of less than one acre, does not enter the water table, and does not cross property boundaries does not require a permit.
B. Material extraction taking place on dewatered bars within the confines of the Snow River and the streams within the Seward-Bear Creek Flood Service Area does not require a permit, however, operators subject to this exemption shall provide the planning department with the information required by KPB 21.29.030(A)(1), (2), (4), (6), (7), (8)(a), (d), (e), (j), (k), (l), and (m).
C. A prior existing use under KPB 21.29.120 does not require a permit.
2. Insert a new KPB 21.29.020 as follows:
21.29.020. Material extraction and activities requiring a permit.
A. Counter permit. A counter permit is required for material extraction which disturbs no more than 2.5 cumulative acres and does not enter the water table. Counter permits are not subject to the notice requirements or planning commission approval of KPB 21.25.060. A counter permit is valid for a period of 12 months, with a possible 12-month extension.
B. Conditional land use permit. A conditional land use permit (CLUP) is required for material extraction which disturbs more than 2.5 cumulative acres, or material extraction of any size that enters the water table. A CLUP is required for materials processing. A CLUP is valid for a period of five years. The provisions of KPB Chapter 21.25 are applicable to material site CLUPS and the provisions of KPB 21.25 and 21.29 are read in harmony. If there is a conflict between the provisions of KPB 21.25 and 21.29, the provisions of KPB 21.29 are controlling.
3. Renumber KPB 21.29.010 as 21.29.030 and amend as follows:
21.29.010 030. Application procedure.
A. In order to obtain a [material site permit] counter permit or CLUP, an applicant shall first complete and submit to the borough planning department a permit application, along with the appropriate fee as established by resolution of the planning commission and approved by the borough assembly. The planning director may determine that certain contiguous parcels are eligible for a single permit. The application shall include the following items:
1. Legal description of the parcel, KPB tax parcel ID number, and identification of whether the permit is for the entire parcel, or a specific location within a parcel;
2. Expected life span of the material site;
3. A buffer plan consistent with KPB 21.29.[030]050(A)(2);
4. Reclamation plan consistent with KPB 21.29.[050]060;
5. The depth of excavation;
6. Type of material to be extracted and type of equipment to be used;
[7. Alternate backup warning system pursuant to 30 CFR, § 56.14132(b)(1)(iii)-(b)(3), for applicants with intent to haul material between the hours of 10:00 p.m. and 6:00 a.m.]
7 [8]. Any voluntary permit conditions the applicant proposes. Failure to include a proposed voluntary permit condition in the application does not preclude the applicant from proposing or agreeing to voluntary permit conditions at a later time;
8 [9]. A site plan and field verification prepared by a professional surveyor licensed and registered in the State of Alaska, including the following information:
a. location of excavation, and, if the site is to be developed in phases, the life span and expected reclamation date for each phase;
b. proposed buffers consistent with KPB 21.29.050(A)(2), or alternate buffer plan;
c. identification of all encumbrances including but not limited to easements;
d [b]. points of ingress and egress. Driveway permits must be acquired from either the state or borough as appropriate prior to the issuance of the material site permit.
e [c]. anticipated haul routes;
f [d]. location and depth of test holes, and depth of groundwater, if encountered;
g [e]. location of wells of adjacent property owners within 300 feet of the proposed parcel boundary;
h [f]. location of any water body on the parcel, including the location of any riparian wetland as determined by "Wetland Mapping and Classification of the Kenai Lowland, Alaska" maps created by the Kenai Watershed Forum [determined by the U.S. Army Corps of Engineers];
Subsection i was moved from subsection m.
i. surface water protection measures for adjacent properties, including the use of diversion channels, interception ditches, on-site collection ditches, sediment ponds and traps, and silt fence; provide designs for substantial structures; indicate which structures will remain as permanent features at the conclusion of operations, if any;
j [g].location of any [processing] areas equipment on parcel, if applicable;
k [h]. north arrow;
l [i]. the scale to which the site plan is drawn;
m [j].preparer's name, date and seal;
n [k] field verification shall include staking the boundary of the parcel at sequentially visible intervals. The planning director may grant an exemption in writing to the staking requirements if the parcel boundaries are obvious.
[l. proposed buffers consistent with KPB 21.29.030(A)(1).
m. surface water protection measures for adjacent properties, including the use of diversion channels, interception ditches, on-site collection ditches, sediment ponds and traps, and silt fence; provide designs for substantial structures; indicate which structures will remain as permanent features at the conclusion of operations, if any.
10. The planning director may determine that certain contiguous parcels are eligible for a single permit.]
B. [11]. In order to aid the planning commission or planning director’s decision-making process, [T]the planning director shall provide vicinity, aerial, land use, and ownership maps for each application and may include additional information to aid the planning commission’s decision-making process.
[B. Following are the types of material site permits:
1. Counter Permits. A counter permit may be issued by the planning director without the notice requirements or planning commission approval of KPB 21.25.050 when the intent to extract material is primarily for commercial purposes other than a commercial material-site operation, provided that a four-foot vertical separation from the seasonal high water table is maintained. Material taken off-site must be deposited on a parcel under the same ownership as the parcel subject to the Counter Permit. Conditioning or processing of material under a counter permit is only allowed if the conditioning or processing takes place 300 feet from the boundaries of the subject parcel. The planning director may require the applicant to provide site plans or similar information to support the commercial purpose. A Counter Permit is valid for a period of 12 months, with a possible 12-month extension.
2. Conditional Land Use Permits. A conditional land use permit (CLUP) will be required where a site does not qualify for a counter permit. CLUPs are subject to the public hearing and notice requirements of KPB 21.25.050 and 21.25.060, and are approved by the planning commission.
C. Following are exemptions from the material site permit requirements:
1. Personal Use Exemption. A property owner may request a letter from the planning director recognizing a personal use site where no sale of the material takes place and there is no commercial use for the material. No on-site processing or conditioning of the material is allowed for off-site use. Extracted material may be disposed of off-site if there is no sale or bartering of the material. The extraction must be completed within 365 days of the date of the letter or the date extraction began, or the borough became aware of the extraction, whichever date is earlier. A personal use letter is appropriate for purposes other than commercial gravel extraction, such as when preparing an individual's own residential building site, installation of septic system, or driveway construction. The planning director may require the applicant to provide site plans or similar information to support the personal use application. The planning director may grant a one-year extension to the personal use letter upon finding that applicant still qualifies for a personal use and has valid reasons for not completing the extraction.
2. Dewatered Bar Exemption. Gravel mining taking place on dewatered bars within the confines of the Snow River and the streams within the Seward-Bear Creek Flood Service area (excluding that portion of the service area within Seward city limits), is exempt from the provisions of this chapter. Operators subject to this exemption shall register with the borough by providing the information required by KPB 21.29.010(A)(1)-(2) only. There shall be no fee for registration. All gravel mining operations exempt from the provisions of this chapter must re-register within five years from the date of initial registration.]
4. Renumber KPB 21.29.020 as 21.29.040 and amend as follows:
21.29.040 [020]. Standards for sand, gravel or material sites.
A. These material site regulations are intended to protect against aquifer disturbance, road damage, physical damage to adjacent properties, dust, noise, and visual impacts. Only the conditions set forth in KPB 21.29.[030] 050 may be imposed to meet these standards:
1. protects against the lowering of water sources serving other properties;
2. protects against physical damage to other properties;
3. minimizes off-site movement of dust;
4. minimizes noise disturbance to other properties;
5. minimizes visual impacts; and
6. provides for alternate post-mining land uses.
5. Renumber KPB 21.29.030 as 21.29.050 and amend as follows:
21.29.050 [030]. Permit conditions.
A. The following mandatory conditions apply to counter permits and CLUPs issued for sand, gravel or material sites:
1. Parcel Boundaries. All boundaries of the subject parcel shall be staked at sequentially visible intervals where parcel boundaries are within 300 feet of the excavation perimeter. Field verification and staking will require the services of a professional land surveyor. Stakes shall be in place at time of application.
2 [1]. Buffer Zone. A buffer zone shall be maintained around the excavation perimeter or parcel boundaries. Where an easement exists, a buffer shall not overlap the easement.
a. The buffer zone shall provide and retain a basic buffer of:
i. 50 feet of undisturbed natural [or improved] vegetation, [plus a 2:1 slope thereafter to the excavation floor,] or
ii. A minimum six-foot earthen berm with at least a 2:1 slope, [plus a 2:1 slope thereafter to the excavation floor,] or
iii. A minimum six-foot fence [plus a 2:1 slope thereafter to the excavation floor].
b. A 2:1 slope shall be maintained between the buffer zone and excavation floor on all inactive site walls. Material from the area designated for the 2:1 slope may be removed if suitable, stabilizing material is replaced within 30 days from the time of removal.
c. The planning commission or planning director shall designate one or a combination of the above as it deems appropriate. The vegetation and fence shall be of sufficient height and density to provide visual and noise screening of the proposed use as deemed appropriate by the planning commission or planning director.
d. Buffers shall not cause surface water diversion which negatively impacts adjacent properties or water bodies. Specific findings are required to alter the buffer requirements of KPB 21.29.050(A)(2)(a) in order to minimize negative impacts from surface water diversion. For purposes of this section, surface water diversion is defined as erosion, flooding, dehydration or draining, stream turbidity, or channeling. Not all surface water diversion results in a negative impact.
[c]e. At its discretion, the planning commission may waive buffer requirements where the topography of the property or the placement of natural barriers makes screening not feasible or not necessary. Buffer requirements shall be made in consideration of and in accordance with existing uses of adjacent property at the time of approval of the [CLUP] permit. There is no requirement to buffer the material site from uses which commence after the approval of the [CLUP] permit.
3 [2]. Processing. In the case of a CLUP, a[A]ny equipment which conditions or processes material must be operated at least 300 feet from the parcel boundaries. At its discretion, the planning commission may waive the 300-foot processing distance requirement, or allow a lesser distance in consideration of and in accordance with existing uses of adjacent property at the time.
(The following Reclamation section was moved to No. 12.)
[3. Reclamation.
a. Reclamation shall be consistent with the reclamation plan approved by the planning commission or planning director as appropriate in accord with KPB 21.29.050.
b. As a condition of issuing the permit, the applicant shall submit a reclamation plan and post a bond to cover the anticipated reclamation costs in an amount to be determined by the planning director. This bonding requirement shall not apply to sand, gravel or material sites for which an exemption from state bond requirements for small operations is applicable pursuant to AS 27.19.050.]
4. Water Source Separation.
a. All permits shall be issued with a condition which prohibits any material extraction within 100 [300] horizontal feet of any water source existing prior to original permit issuance.
b. All counter permits shall be issued with a condition which requires that a four-foot vertical separation from the seasonal high water table be maintained.
c. All CLUPS shall be issued with a condition which requires that a two-foot vertical separation from the seasonal high water table be maintained.
d. There shall be no dewatering either by pumping, ditching or some other form of draining unless an exemption is granted by the planning commission. The exemption for dewatering may be granted if the operator provides a statement under seal and supporting data from a duly licensed and qualified impartial civil engineer, that the dewatering will not lower any of the surrounding property's water systems and the contractor posts a bond for liability for potential accrued damages.
[d. All CLUPS shall be issued with a condition which requires that a two-foot vertical separation from the seasonal high water table is maintained.]
5. Excavation in the Water Table. Excavation in the water table [will require] may be permitted with the approval of the planning commission based on the following [information]:
a. certification by a qualified independent civil engineer or professional hydrogeologist that the excavation plan will not negatively impact the quantity of an aquifer serving existing water sources.
b. the installation of a minimum of three water monitoring tubes or well casings [equal in amount to the number of property boundaries of the subject parcel or] as recommended by a qualified independent civil engineer or professional hydrogeologist adequate to determine flow direction, flow rate, and water elevation. [Location of tubes or wells may be discussed with planning department staff prior to installation to ensure adequate coverage.]
c. groundwater elevation, flow direction, and flow rate for the subject parcel, measured in three-month intervals by a qualified independent civil engineer or professional hydrogeologist, for at least one year prior to application. Monitoring tubes or wells must be kept in place, and measurements taken, for the duration of any excavation in the water table
d. operations shall not breach an aquifer-confining layer.
6[8]. Waterbodies. (moved from No. 8 to No. 6; )
a. An undisturbed buffer shall be left and no earth material extraction activities shall take place within 100 linear feet from a lake, river, stream, or other water body, including riparian wetlands and mapped floodplains as defined in KPB 21.06. This regulation shall not apply to man-made waterbodies being constructed during the course of the materials extraction activities. In order to prevent discharge, diversion, or capture of surface water, an additional setback from lakes, rivers, anadromous streams, and riparian wetlands may be required.
b. Counter permits and CLUPS may contain additional conditions [Each permit shall contain a condition, based on findings made following a planning department staff site visit,] addressing surface water diversion.
[c. In order to prevent erosion, an additional setback from lakes, rivers, anadromous streams, and riparian wetlands may be required, based on findings made following a planning department staff site visit.]
7[6]. Fuel Storage. Fuel storage for containers larger than 50 gallons shall be contained in impermeable berms and basins capable of retaining 110 percent of storage capacity to minimize the potential for uncontained spills or leaks. Fuel storage containers 50 gallons or smaller shall not be placed directly on the ground, but shall be stored on a stable impermeable surface.
8[7]. Roads. Operations shall be conducted in a manner so as not to damage borough roads as required by KPB 14.40.175 and will be subject to the remedies set forth in KPB 14.40 for violation of this condition.
9. Subdivision. Any further subdivision or return to acreage of a parcel subject to a conditional land use or counter permit requires the permittee to amend their permit. The planning director may issue a written exemption from the amendment requirement if it is determined that the subdivision is [not inconsistent] consistent with the use of the parcel as a material site and all original permit conditions can be met.
10. Dust control. Dust suppression is required on haul roads within the boundaries of the material site by application of water or calcium chloride.
11. Hours of Operation.
[a. Operations shall not be conducted between 10 p.m. and 6 a.m.]
[b.] [Processing and conditioning] Rock crushing equipment shall not be operated between 10 [7] p.m. and 6 a.m.
[c. Hauling may be conducted between the hours of 10:00 p.m. and 6:00 a.m., provided the permittee does not use an automatic reverse-activated signal alarm. The permittee's alternate back-up warning system pursuant to 30 CFR, § 56.14132, (b)(1)(iii)-(b)(3) shall be included in the permit application.]
12. Reclamation.
a. Reclamation shall be consistent with the reclamation plan approved by the planning commission or planning director as appropriate in accord with KPB 21.29.060 [050].
b. As a condition of issuing the permit, the applicant shall submit a reclamation plan and post a bond to cover the anticipated reclamation costs in an amount to be determined by the planning director. This bonding requirement shall not apply to sand, gravel or material sites for which an exemption from state bond requirements for small operations is applicable pursuant to AS 27.19.050.
13 [12]. Other permits. Permittee is responsible for complying with all other federal, state and local laws applicable to the material site operation, and abiding by related permits. These laws and permits include, but are not limited to, the borough's flood plain and habitat protection regulations, those state laws applicable to material sites individually, reclamation, storm water pollution and other applicable Environmental Protection Agency (EPA) regulations, clean water act and any other U.S. Army Corp of Engineer permits, any EPA air quality regulations, EPA and ADEC water quality regulations, EPA hazardous material regulations, U.S. Dept. of Labor Mine Safety and Health Administration (MSHA) regulations (including, but not limited to noise and safety standards), and Federal Bureau of Alcohol, Tobacco and Firearm regulations regarding using and storing explosives. Any violation of these regulations or permits reported to or observed by borough personnel will be forwarded to the appropriate agency for enforcement.
14[13]. Voluntary permit conditions. Conditions may be included in the permit upon agreement of the permittee and approval of the planning commission for CLUPs or the planning director for counter permits. Such conditions must be consistent with the standards set forth in KPB 21.29.[020]040(A). Planning commission approval of such conditions shall be contingent upon a finding that the conditions will be in the best interest of the borough and the surrounding property owners. Voluntary permit conditions [permanently] apply to the subject parcel and operation, regardless of a change in ownership. A change in voluntary permit conditions may be proposed at permit renewal or amendment.
15. Signage. For permitted parcels on which the permittee does not intend to begin operations for at least 12 months after being granted a conditional land use permit, the permittee shall post notice of intent on parcel corners or access, whichever is more visible. Sign dimensions shall be no more than 15" by 15" and must contain the following information: the phrase “Permitted Material Site” along with the permittee’s business name and a contact phone number.
6. Renumber KPB 21.29.040, prior existing uses, as 21.29.120.
7. Renumber KPB 21.29.050 as 21.29.060 and amend as follows:
21.29.060. Reclamation plan.
A. All material site permit applications require a reclamation plan.
B. The applicant shall revegetate with a non-invasive plant species and reclaim all disturbed land upon exhausting the material on-site, or within a pre-determined time period for long-term activities, so as to leave the land in a stable condition. Reclamation must occur for all exhausted areas of the site exceeding five acres before a five-year renewal permit is issued, unless otherwise required by the planning commission. If the material site is one acre or less in size and has been granted a CLUP due to excavation in the water table, reclamation must be performed as specified by the planning commission or planning director in the conditional use or counter permit.
C. The following measures must be considered in preparing and implementing the reclamation plan, although not all will be applicable to every reclamation plan.
1. Topsoil that is not promptly redistributed to an area being reclaimed will be separated and stockpiled for future use. This material will be protected from erosion and contamination by acidic or toxic materials and preserved in a condition suitable for later use.
2. The area will be backfilled, graded and recontoured using strippings, overburden, and topsoil to a condition that allows for the reestablishment of renewable resources on the site within a reasonable period of time. It will be stabilized to a condition that will allow sufficient moisture for revegetation.
3. Sufficient quantities of stockpiled or imported topsoil will be spread over the reclaimed area to a depth of four inches to promote natural plant growth that can reasonably be expected to revegetate the area within five years. The applicant may use the existing natural organic blanket representative of the project area if the soil is found to have an organic content of 5% or more and meets the specification of Class B topsoil requirements as set by Alaska Test Method (ATM) T-6. The material shall be reasonably free from roots, clods, sticks, and branches greater than 3 inches in diameter. Areas having slopes greater than 2:1 require special consideration and design for stabilization by a licensed engineer.
4. Exploration trenches or pits will be backfilled. Brush piles and unwanted vegetation shall be removed from the site, buried or burned. Topsoil and other organics will be spread on the backfilled surface to inhibit erosion and promote natural revegetation.
[5. Any roads, airstrips, or other facilities constructed to provide access to the mining operation shall be reclaimed (unless otherwise authorized) and included in the reclamation plan.]
[6]5. Peat and topsoil mine operations shall ensure a minimum of two inches of suitable growing medium is left or replaced on the site upon completion of the reclamation activity (unless otherwise authorized).
[7]6. Ponding may be used as a reclamation method as approved by the planning commission.
D. The plan shall describe the total acreage to be reclaimed each year, a list of equipment (type and quantity) to be used in reclamation, and a time schedule of reclamation measures.
8. Renumber KPB 21.29.060 as 21.29.070 and amend as follows:
21.29.070 [060]. Permit extension, renewal and revocation [and renewal].
A. [Permits may be revoked pursuant to KPB 21.25.080.]
[B] [Material site] Conditional land use permittees must submit a request in writing for permit [renewal] extension every five years after the permit is issued. Requests for permit extension must be made at least 30 days prior to permit expiration. Counter permittees must submit any request for a 12-month extension at least 30 days prior to the expiration of the original 12-month permit period. [Failure to submit a request for renewal subjects the permittee to permit revocation proceedings. Renewal may be denied if reclamation required by this chapter and the original permit has not been performed or the permittee is otherwise in noncompliance with the original permit conditions.] New subsections B and D below were created from the last two sentences of this subsection.
B. A [renewal] permit extension certificate for a CLUP may [shall] be granted by the planning director after 5 years, and after one year for a counter permit where no modification to operations or conditions are proposed.
C. Permit extension may be denied if (1) reclamation required by this chapter and the original permit has not been performed; (2) the permittee is otherwise in noncompliance with the original permit conditions; or (3) the permittee has had a permit violation in the last two years and has not fulfilled compliance requests. Permittees subject to Subsection 21.29.070(E) must submit a permit modification application, which shall be processed as set forth in KPB 21.29.070(D).
D. A [renewal] modification application shall be processed pursuant to KPB 21.29. [010-030] 030-050 with public notice given as provided by KPB 21.25.060 when operators request modification of their permit conditions based on changes in operations set forth in the modification application.[:
1. request modification of their permit conditions based on changes in operations set forth in the renewal application,
2. are currently out of compliance with their permit, or
3. have had permit violations within the last two years.]
E[C]. There shall be no fee for permit [renewal applications] extensions approved by the planning director. The fee for a [renewal] permit modification processed under KPB 21.29.[060(B)(1), (2), and (3)] 070(D) will be the same as an original permit application.
[D. Renewals of permits shall be subject to the law in place at the time of renewal application.]
[E]F. Failure to submit a request for extension will result in the expiration of the permit. The borough may issue a permit termination upon expiration. Once a permit has expired, a new permit application approval process is required in order to operate the material site.
G. Permits may be revoked pursuant to KPB 21.25.080.
9. Renumber KPB 21.29.070 as 21.29.080.
10. Renumber KPB 21.29.080 as 21.29.090.
11. Renumber KPB 21.29.090 as 21.29.100 and amend as follows:
21.29.[090] 100. Recordation.
All permits, permit extensions, modified [amended] permits, prior existing uses, and terminations shall be recorded. Failure to record a material site document does not affect the validity of the documents.
12. Renumber KPB 21.29.100 as 21.29.110.
13. In Section 4, amend the definition of “commercial” to reflect revisions from the current code, and delete the definition of “on-site use” as follows:
Commercial means any [use] provision of services, sale of goods, or use operated for production of income whether or not income is derived, including sales, barter, rental, or trade of goods and services[, and including all activities directly subsidiary].
[On-site use means material used entirely within the boundaries of the parcel from which it was extracted.]