MEMORANDUM
TO: Ron Long, Assembly President
Members, Kenai Peninsula Borough Assembly
FROM: Milli Martin, Assembly Member
DATE: March 2, 2006
SUBJECT: Ordinance 2006-01 (Martin) Substitute
After serious review of the comments made during the public process regarding Ordinance 2006-01 and additional meetings with staff, I am proposing a substitute ordinance. The primary thrust of this substitute is to meet some concerns expressed about water protection and to alleviate some provisions in Ordinance 2006-01 that may present difficulty for material site operators. There are also some housekeeping items suggested by staff included. Below I detail the differences between this ordinance and the original Ordinance 2006-01.
1. A fifth whereas clauses is added that refers to Goal 7.1, Objectives 1 and 2, of the comprehensive plan, which addresses working with other agencies to protect the public health and environment within the borough. This provision in the comprehensive plan supports the requirement in proposed KPB 21.29 that the borough refer violations of federal and state laws and permits to the appropriate agency for action.
2. A sixth whereas clause is added which references Goal No. 1 of the Mining and Minerals Processing section of the Coastal Management Program, which recognizes both the protection of environmental quality and other resource users.
3. An eleventh whereas clause is added as a matter of housekeeping, which references that KPB 21.25 is the authority for the requirement of CLUPs in the rural district.
4. KPB 21.29.010(A)(1) is revised to require that the application include the KPB tax parcel ID number since this is how borough staff identifies parcels on the borough's mapping systems.
5. KPB 21.29.010(A)(2) is revised at staff's request to delete the reference to a phased development, and this provision is inserted in the site plan requirements at KPB 21.29.010(A)(9)(a) instead.
6. KPB 21.29.010(A)(5) is revised at staff's request to delete the estimated distance to groundwater, and the depth of groundwater is relocated to the site plan requirements under KPB 21.29.010(A)(9)(d).
7. KPB 21.29.010(A)(7) is inserted to require an alternate backup warning system for operators who intend to haul material between the hours of 10:00 p.m. and 6:00 a.m. It is important that operators be allowed to haul at night given our short construction season. Alternate non-audio warning systems, e.g., a warning person or strobe light are less intrusive to the adjacent property owners.
8. KPB 21.29.010(A)(9)(d), proposed depth of excavation, is deleted as it already appears in the narrative portion of the application. (See proposed KPB 21.29.010(A)(5).)
9. The depth of test holes and groundwater, if encountered, is added to the site plan at KPB 21.29.010(A)(9)(d).
10. KPB 21.29.010(A)(9)(m) requires that the applicant include surface water protection measures on their site plan.
11. KPB 21.29.010(B)(1) is revised at staff's request to allow material taken off site to a parcel under the same ownership as the parcel subject to the counter permit. Additionally, a provision is added that the planning director may require the applicant to provide site plans or similar information to support the commercial purpose justification for the counter permit. Additionally, a time frame of 12 months, with a possible 12-month extension, is placed on counter permits. These measures are added to assist the administration in ensuring that counter permits are appropriate, rather than a conditional use permit. The reference to a $200 fee is deleted in favor of having the planning commission recommend a fee to the assembly for approval.
12. In KPB 21.29.010(B)(2), the reference to a $300 fee is deleted in favor of having the planning commission recommend a fee to the assembly for approval.
13. KPB 21.29.010(C)(2), dewatered bar exemption, was revised to include the streams in the Seward-Bear Creek Flood Service Area outside Seward and the Snow River (which is not within the boundaries of the flood service area).
14. In KPB 21.29.030(A)(1)(a), a 2:1 slope is added to the six-foot earthen berm and six-foot fence buffers. The stabilizing effects of a 2:1 slope are just as important for an earthen berm or fence as a vegetative buffer in preventing the buffer from collapsing into the material site.
15. KPB 21.29.030(A)(1)(b) is revised to delete the provision that a buffer shall be at least ten feet high for parcels at least 20 acres in size if extraction is to be conducted within 300 feet of the parcel boundaries. This provision may be needlessly onerous on operators, and the planning commission retains flexibility in establishing the most appropriate buffer given site conditions.
16. KPB 21.29.030(A)(4) is revised to prohibit material extraction within 300 feet of an existing water source, as opposed to 100 feet.
17. KPB 21.29.030(A)(4)(d) is added, which requires that all CLUPs be issued with a condition that requires a two-foot vertical separation from the seasonal high water table.
18. KPB 21.29.010(A)(5) is added to clarify the circumstances when excavation would be allowed into the water table. Excavation into the water table will require certification by an engineer or hydrogeologist that the excavation plan will not negatively impact the quantity of an aquifer serving existing water sources, and water monitoring tubes will be required in order to measure groundwater elevation, flow direction, and flow rate, which will be measured in three-month intervals for at least one year prior to application to excavate in the groundwater.
19. KPB 21.29.030(A)(8) has been revised regarding wetlands as it is too difficult for staff to determine the extent of all wetlands which are already regulated by U.S. Army Corps of Engineers. In an effort to protect anadromous streams as much as possible, a setback from riparian wetlands is included. Riparian wetlands are identifiable by available mapping. Each permit must contain a condition based on a planning department staff site visit regarding surface water diversion. Additionally, in order to prevent erosion, an additional setback from lakes, rivers, and anadromous streams may be required. This condition must also be based on findings supported by a staff site visit.
20. KPB 21.29.030(A)(11) is revised to allow hauling of material between the hours of 10:00 p.m. and 6:00 a.m. as long as the operator has an alternative warning system to the reverse-activated signal alarm. This accommodates operators who must haul at night in order to meet deadlines mandated by our short construction season while reducing the intrusiveness of the noise in the pit to adjacent properties.
21. KPB 21.29.030(A)(13) is amended to include habitat protection regulations and MSHA regulations in the list of permits and other laws to which an applicant must adhere.
22. KPB 21. 29.070, voluntary permit termination, is revised at staff's request to note that a permittee may request termination of their permit and that a site inspection will be conducted by the planning department to ensure code compliance and site reclamation prior to granting the termination. This revision is made to avoid an operator unilaterally terminating his permit without complying with reclamation and other provisions of the code.
23. The violation provisions are revised in order to make them more effective. KPB 21.29.100 is added to cross-reference the penalties and remedies chapter codified at KPB 21.24. Additionally, the fine for failing to obtain a land use permit is increased to $300, and a fine for violation of permit conditions is proposed. The administrative fine charged in KPB 21.24.070 is raised to $300 per day.
24. Proposed KPB 21.29.100(B) provides that any owner or operator who has been cited for three material site violations (KPB 21.24, 21.25, or 21.29) within a three-year period may be required to post bonding in a form and amount adequate to protect the borough's interest as determined by the planning director. This revision is made to curtail repeat offenders who are willing to violate the code and pay the penalty rather than comply with the regulations.