Executive Order 80. Workgroup for Topsoil Preservation Requirements in NPDES General Permit #2. Date: Friday, May 2 nd, 2014

Transcription

1 Executive Order 80 Workgroup for Topsoil Preservation Requirements in NPDES General Permit #2 Date: Friday, May 2 nd, 2014 Time: Location: 9 AM 12 PM DNR Central Office, Henry Wallace Building, 502 E 9th Street, Des Moines Room: 4 th Floor Conference Room (west side) Staff Support: Joe Griffin, Adam Schnieders In attendance: Pat Sauer, Iowa Storm Water Education Program; Creighton Cox, Home Builders Association of Greater Des Moines; Joe Pietruszynski, Hubbell Realty Company; Chip Classon, Jerry s Homes; Lucy Hershberger, Forever Green Nursery; Mark Watkins, McAninch Corporation; Chad Ingels, Environmental Protection Commission 1. Joe Griffin and Adam Schnieders handed out public comments and proposed language changes. 2. Meeting was opened at 9:07 AM by Chairperson Cox. 3. Joe Pietruszynski recommended revising the minutes of the meeting to correct the May meeting date from to , and moved for approval of the minutes. The motion was seconded by Chip Classon. 4. Lucy Hershberger requested that the April 24 th minutes be amended to reflect that the group would reach consensus instead of a majority vote. In her opinion the makeup of the group was biased with Creighton Cox, Joe Pietruszynski, Chip Classon, Mark Watkins and Commissioner Ingels opposed to the rule and Lucy Hershberger and Pat Sauer in support of the rule. Lucy expressed her opinion the makeup of the group was biased against retaining the 4 topsoil rule. Pat Sauer agreed with Lucy Hershberger. Chairman Cox stated the group did not appoint themselves, and any concerns about an imbalance should be addressed with the Governor and DNR staff. Joe Pietruszynski, Chip Classon, Mark Watkins and Chad Ingels objected to the opinion of Lucy Hershberger and Pat Sauer and that through the course of the EO-80 group, Lucy and Pat would get to know the other members and have a better understanding that best practices are used and the individuals in the group were not in favor of removing topsoil from sites. The group felt Lucy had the right to have her opinion reflected in the minutes. 5. The amendment was approved by Joe Pietruszynski, seconded by Chip Classon, and was voted for approval unanimously. 6. Adam Schnieders reviewed public comments with the workgroup. He mentioned that he was contacted by a reporter from the Cedar Rapids Gazette and was questioned about the process and asked for all public records. Adam Schnieders provided a spreadsheet of who applied for the workgroup. Adam shared that an article was published in the

2 Gazette. The workgroup discussed being approached by the paper and each member s stance. Pat Sauer shared with the group that she shared her views on the importance of preserving the existing topsoil language in GP#2 with the reporter from that paper. Other members declined to speak to the paper, citing the need to gain more information from the workgroup. 7. Adam Schnieders shared that he is an educational resource, and provided more written comments to the workgroup. He talked about the process for a public hearing and that he can help with organizing it. Adam Schnieders stated that the purpose of the group is a recommendation to the commission only. Recommendations can be alternatives, revisions, points of consensus, or actual language. He stated details are not necessary because the rule making process will take place after the commission votes. Adam Schnieders stated that changes are likely to occur that will not be the actual recommendation or specific information forwarded to the commission from the workgroup. Any language put forth may not be what the workgroup recommends to the commission. 8. The workgroup reviewed the public comments. Adam Schnieders summarized that comments to date were mostly concentrated from the Iowa City area, and focused on keeping the 4-inch rule. He stated there was a focus on the health of landscaping and lawns. 9. Chairperson Cox introduced that the rule can be met in a variety of ways, by the builder or developer. He stated that most of his review of the comments revealed a request or opportunity for a lusher yard and that folks are focused on the past. Cox stated that the export of soil, where keeping it on site is feasible, is illegal and should not be occurring in the Iowa City region. He shared that his view is most of the comments received are focused on past practices and not on the current law. Concern was raised by Joe Pietruszynksi and Mark Watkins that the comments received were based on methods used by a few poor developers prior to the 2012 federal rule changes and consideration is not given to practices and requirements in force today. Watkins stated that he took offense to comments because his company and his customers act legally and with care. Watkins reviewed the steps and measures that are involved in his earth moving operations to preserve and place soil. Pat Sauer raised concerns on how soil preservation is interpreted and she believes the 4-inch requirement is consistent with law. Sauer shared that there is a need for regulations and absolute measurements should be kept in place. Pat Sauer shared her experience with soil management and sited the Ankeny, Iowa research findings by ISU and NRCS on the impacts of development on soil health, and shared her discussions with the MS-4 cities in Iowa.. Pat Sauer shared that she believes cities she works with are in support of the 4-inch rule. Chairperson Cox, Chip Classon, and Joe Pietruszynski shared processes in place in the Des Moines Metropolitan area, and spoke of cities not in support of the rule. 10. Chairperson Cox, Lucy Hershberger, and Pat Sauer asked what is defined by cost. Joe Pietruszynski shared development costs associated with continuous soil movement, added erosion control measures, destruction of plant preservation areas and conservation development management, governmental scrutiny and associated costs, added professional costs associated with civil engineering, geotechnical survey and

3 acceptance by a geotechnical engineer, and other associated development costs like interest carry and lost sales. Increased costs due to the rule equated to over $5,000 per lot in the data provided. Mr. Pietruszynski shared site analysis and photos. Chip Classon shared the cost for additional soil mining and stockpiling, and stated that the developer spreads all top soil. Classon and Watkins spoke on how difficult it is to meet absolute measures and that developers take all measures to keep soil on site. Classon spoke of legal liability and cities passing on increased review costs and legal risk. Classon spoke of the 4-inch rule hindering home affordability. Lucy Hershberger spoke of her experiences in Johnson County and the surrounding area where developers there are not routinely respreading topsoil onto home lots. She talked about the need to re-spread top soil before lawns are established to reduce the cost of post construction soil quality restoration to homeowners. She spoke of clients who wished more soil was left on their site to improve the ability of their lots to absorb and retain moisture and nutrients. Lucy shared soil restoration costs of $800 - $1,700 per home and practices that are currently being paid for by homeowners and cities to improve existing sites where poor soils result in nonfunctional lawns. Hershberger shared the need for a measurable enforceable standard to assure that contractors respread topsoil for environmental benefits and storm water management. Pat Sauer spoke of the need to keep soil at an absolute measurement to maximize water retention and provide a basis to respread soil. Sauer stated that there is a cost to eliminating the 4-inch requirement to homeowners and the greater public that after development are left with compacted lawns with very little topsoil that shed runoff and have very little infiltration of stormwater. Pat Sauer stated that controls need to be in place to ensure developers comply with the rules, and provide a means for change. Sauer stated that States can incorporate standards above the federal rules to enhance storm water quality. She went on to mention that the 4 requirement can be interpreted as not being more stringent than the Federal language (provides more specificity rather than providing for more room for misinterpretation statewide) and is reasonable when considering that there are many places in Iowa where the depth of topsoil can range from 3 to 5 feet. If the preserve topsoil general language only were used some may interpret the requirement as having to preserve and respread all topsoil onsite. Hershberger agreed with Sauer that Iowa s rules should encourage enhanced methods of storm water management, provide for infiltration of the water quality volume, reduce runoff and provide for better growing conditions for lawns. Hershberger suggested that contractors could benefit from credits given for stormwater management practices on site that would allow them to reduce other expenses such as reducing the size of stormwater pipe or retention basins. She offered the city of Coralville s storm water ordinance as an example of taking into account good practices to reduce expenses. Chairman Cox stated those developers that had been exporting topsoil previously were likely operating under the previous NPDES #2 and it would be illegal for them to do so under the current rule using the federal language. Cox also stated that a tradeoff or credits for good practices would be nice, but the reality in the Des Moines metro area was that cities stacked regulations on each other instead of balancing new regulations with the elimination and adjustment of older regulations. Cox

4 also stated the DNR and the rule making procedure did not allow for the implementation of tradeoffs or credits. 11. Adam Schnieders discussed with the group that State of Iowa law cannot be less stringent than federal requirements. Adam discussed the state requirements and stated he would review the state s rules with an attorney. He shared with the group that it was the workgroup s job to understand the established rule and determine if the rule meets federal regulation, exceeds it, or if modifications need to be made. Mr. Schnieders stated that the state refined its expectations as it interpreted federal law, but those expectations have been interpreted differently by all cities. He stated that the group is reviewing the law because it has been put forth that costs are higher than expected to implement the rule as it is written, and that concern was raised by the homebuilding and development industry. Schnieders shared that cities can be more restrictive than Iowa law, but the state cannot be more restrictive than federal law. 12. Pat Sauer stated that meeting the federal law is a matter of interpretation. Sauer believed that business should not be as usual and more regulation and defined methods are necessary to meet federal requirements for cleaner storm water. Sauer shared her recommended code language with the workgroup and explained the need to adopt is as part of other regulations. Pat Sauer indicated that with subsurface compaction reduction and 4 of topsoil respreads on a site, that soil conditions are improved to manage the water quality volume such that more favorable curve numbers can be used in stormwater calculations. This could result in the downsizing of stormwater basins for flood management that could result in cost savings to a developer. Joe Pietruszynski indicated that not all cities are willing to accept that information for sizing of basins. Sauer shared that there is growing concern for storm water issues nationwide and there needs to be added measures and language to change development practices to reduce runoff. 13. Chip Classon recommended that the state adopt a means by which the developer signs an affidavit that soil is preserved on site. Classon recommended that the developer and earthmoving contractor can prove topsoil is kept and re-spread, in addition to meeting all other mandates. Classon shared the homebuilder could do the same. Chip Classon stated this would meet the rule, add a level of accountability, but remove the cost associated with absolute measuring processes and requirements. 14. Chad Ingels recommended that the group find consensus on what is agreed upon and what is not. Ingles stated that the commission will weigh in on these perspectives, both for and against. Ingles stated he did not believe the workgroup will take a shared perspective on all points made. The workgroup was in agreement with Ingels perspectives. 15. The workgroup is in agreement that it is important that top soil be preserved on-site, soil should be used to minimize storm water velocity and erosion, a developer should be allowed to manage soil under reasonable soil logistics methods, there should be accountability in the development and homebuilding process, and that federal guidelines shall be met. Comment [SP1]: A state can be more restrictive than federal law.

5 16. The group was not in unanimous consensus on the 4-inch rule being kept in place, uniform spreading requirements, absolute measurements, and interpretation of federal requirements as it pertains to the state law exceeding federal law requirements. 17. It was moved by Joe Pietruszynski and seconded by Chad Ingels that the consensus items be adopted as the group s shared position. The vote was unanimous in favor of the consensus items. 18. The workgroup discussed the need for a public hearing. The hearing would be an opportunity for the public to speak to the workgroup. Chairperson Cox asked that it be run by IDNR, start at 10 AM and end by noon. He asked that the public get 3 minutes to share input on the issue at hand. Mr. Cox also asked that a workgroup meeting take place after public comment to try and reach consensus points and offer a recommendation to the commission. Adam Schnieders offered to schedule the hearing at IDNR headquarters. 19. Chairperson Cox asked the workgroup that the hearing include a meeting purpose, public announcement, and a statement of common ground. Adam Schnieders stated he would work on communications, a format, date, and time, and consult with the workgroup. 20. Adam Schnieders told the workgroup that he would continue to forward written public comments via as he received them. 21. The meeting was adjourned at 12:20 PM. The motion to close the meeting was given by Chairperson Cox, and seconded by Lucy Hershberger. The vote to close was unanimous.