DATE: September 16, 2005 City of Johnston, Iowa TO: Review Participants SUBJECT: Draft Ordinance 710 (revised date: 9-16-2005); Erosion and Sediment Control FROM: Deb Schiel-Larson Review of the Iowa DNR requirements included in the City s MS4 permit: The City of Johnston s Municipal Separate Storm Sewer System (MS4) permit, issued by the Iowa Department of Natural Resources requires a Construction Site Runoff Control Ordinance: An ordinance shall be developed and enforced on all sites for which NPDES permits are required that requires proper soil erosion and sediment control. This ordinance shall also address waste at construction sites that may cause adverse impacts to water quality such as building materials, concrete truck washout, chemicals, solid waste and sanitary waste. Authority to issue an order to terminate activities due to failure to implement or maintain pollution control BMPs and penalties for non-compliance shall be included. The ordinance shall require site plan and pollution prevention plan review and approval by the permittee prior to issuance of any permits for the site by the permittee. The ordinance shall require compliance with the Department s Storm Water General Permit no. 2 and inspections by the permittee of all sites for which coverage under General Permit no. 2 is required. The ordinance shall require each of these sites be inspected by the permittee at least once each calendar quarter.. The City of Johnston has existing requirements for a grading permit through Ordinance 608, Erosion and Sediment Control (approved September 4, 2001). The existing Ordinance has worked well, but needs to be updated to reflect the specific requirements of the city s MS4 permit. Strengths of the city s existing Ordinance include: 1. Requirement of a grading permit, where an approved site plan or plat do not already exist; and Page 1 of 9
2. Replacement requirements for trees cleared in violation of the Ordinance. Page 2 of 9
Work on this ordinance at the City of Johnston began early in 2005. Johnston city staff s sources for background on the on-going development of this draft include: 1. Meetings with Iowa Storm Water Partnership (ISEP) member cities and organizations. This is a state-wide organization. 2. Discussions with developers and homebuilders on jobsites. 3. Meetings with Chuck Thomas (Home Builder s Association and Developer s Council) and Chuck Becker (Belin Law Firm) and review of their letter and model ordinance (dated: 4-20-2005). 4. Discussions with developers and homebuilders at the City s quarterly inspections, scheduled at City Hall on September 15, 2005. 5. Discussions with the City Attorney (Laden & Pearson) and the Ahlers Law Firm. 6. Review of the model Construction Site Erosion and Sediment Control Ordinance, now called COSESCO. This model was developed by volunteer participants: the Iowa Storm Water Education Partnership (ISEP), the Model Ordinance Committee (MS4 cities, Iowa Department of Natural Resources, URBAN, Natural Resources Conservation Service and the Ahlers and Cooney Law Firm). Meetings were coordinated by the Iowa Association of Municipal Utilities. 7. Discussions with City of Altoona staff. Our MS4 permit deadlines are similar, and we share the same firm as our City Attorney (Laden & Pearson). 8. Discussions with City of Johnston staff, working on issues regarding day to day procedures and how these ordinance requirements could be streamlined with the Iowa DNR requirements that developers/homebuilders are already facing. 9. Public discussions at the Johnston Planning & Zoning Commission s regular meetings on March 14, 2005 and August 29, 2005. 10.General updates and questions from Council members at various public City Council meetings. Page 3 of 9
Summary of issues addressed in this draft version: Page 3, Paragraph D Page 5, Paragraph R Page 5, Paragraph U Page 6, Section 12.12.040, Paragraph C Amendment to the definition of Building Official to include Enforcement Officer, recognizing that other city staff members may be on site, enforcing erosion and sediment control issues. Amendment to the definition of person, recognizing the fact that the City is in the position of regulator and regulated. Amendment to the definition of sedimentation. This is related to the discussion of wind erosion as a nuisance issue that sometimes needs to be addressed in the urban environment. The intent of Section 12.12.040 is to provide an opportunity for qualified applicants to obtain a grading permit, separate from the review process associated with site plans, plats and construction plans where the same information is already provided by applicants and reviewed by the City. Pages 6 7; Section 12.12.060 Grading Permit Exceptions However, there are several issues to address: Construction plans are submitted by developers, then reviewed and approved by City Council for subdivisions. These construction plans include surface water flowage easements and surface elevations design to direct water flow. Houses are being built in these subdivisions with no regard for the construction plans (example: walk-out basements which impair surface water flow). The exhibit required in this paragraph is not intended meet the full definition of a SWPPP, but to address the specific needs of a specific lot intended for development prior to issuance of a Building Permit. The changes from existing text are included (strike to delete, bold font to add). Paragraph 6 (shown deleted) has been abused in the years Page 4 of 9
since this ordinance was approved, primarily by people who are developing properties they own but do not use as their residence. Also, it was felt that an attempt to quantify disturbed area is not appropriate. The new paragraph 6 (shown in bold font) was considered and deleted, with the thought that the City may need to be in a position to require a Grading Permit even if the disturbed area is less than 1 acre (the threshold requirement for Iowa DNR s General Permit #2). In other words, a Grading Permit could be required even if Iowa DNR does not require General Permit #2. Paragraph 7 (also shown deleted) would not automatically be exempt. Example: the transfer of liability agreements currently required by some developers. Pages 7-11; Section 12.12.070 Grading Permit Contents This Section has been amended to require evidence of compliance with Iowa DNR requirements. The City s MS4 permit does not allow the City to issue permits unless there is compliance with Iowa DNR. Paragraph K, items #5 and #6. The City must address the interpretation of the MS4 permit requirement to review and approve the SWPPP. This draft ordinance would also require the applicant for a Grading Permit to be responsible for completeness/accuracy of the documentation. Page 9; Section 12.12.070, Paragraph 6 and sub-paragraphs Sub-paragraphs (d) (f) have generated considerable discussion. Should cities always require a SWPPP to be prepared and amended -- by a licensed engineer? Developers worried that this would add to the cost of their work. The compromise appears to be in the existing requirement of the Iowa Code: when design is required to be done by a licensed engineer. Consider that the name listed on General Permit #2 by Iowa DNR may not be the same person/entity who originally made the application or prepared the SWPPP. There is some concern by developers that a requirement to Page 5 of 9
install erosion and sediment control practices to Statewide Urban Design and Specifications (SUDAS) standards would increase costs. Also that the SUDAS standards for erosion and sediment control are not finalized yet (expected by the end of this year). For their part, cities are already requiring SUDAS standards in their public improvement projects. In Johnston, the requirement is authorized by Resolution. Sub-paragraph (f) references the soil loss equation. RUSLE 2 is the version of the equation adapted to the urban environment by the Natural Resources Conservation Service (NRCS) and local districts. It is an attempt to quantify the evaluation of a SWPPP, and provide developers with best management choices based on the variables of slope, type of protection, time of year, rainfall intensity, etc. This paragraph may need further development and clarification to clarify this intent. Reference the Certified Professional in Erosion and Sediment Control program, or CPESC. Page 10, Section 12.12.070, Paragraph 7c and 7d The transfer of liability has been difficult for city staff to address. There is consensus that the contractor who is responsible for the problem (example: mud in the street) should be responsible for addressing it. However, the actual written documents which transfer this liability are as varied as the projects themselves. Johnston staff has seen one page documents and multiple page documents. We need standard language for this transfer that we can recognize, to facility the issuance of building permits, etc. And if the transfer has taken place, what is the SWPPP that must be referenced? Pages 10-11, Section 12.12.070, Paragraph 9 Page 11, Section 12.12.070, Paragraph 11 The Minimum Protection Elevation is currently used by the City of Ankeny. The developers are concerned that there could be a delay in issuing a city permit(s) and would like to see this timing defined. I used 30 days we need to discuss if this is reasonable/accurate. Page 6 of 9
Page 14, Section 12.12.160, Paragraph B Pages 14 15; Section 12.12.170 Developers have been concerned that the reference to wind erosion in this text could be abused in its enforcement. The intent is to regulate wind erosion in the urban environment, where it becomes a nuisance issue, but must be addressed immediately (typically the same day as the complaint if possible). This Section, addressing acceptable principals for control is intended to be a tool box of options. There has been some concern expressed that it could duplicate the State NPDES General Permit #2; however, the city may issue a grading permit in situations where the General Permit #2 is not required. Paragraph L was struck when the reference to sediment yield (the RUSLE 2 formula) and the NRCS Soil and Water Conservation Districts was added. However, this requirement (soil loss not to exceed five tons per acre per year) is in the Iowa Code). Paragraph M was added at the request of the Johnston building inspectors, who feel that holding up an inspection of the building foundation until erosion and sediment control measures are in place is the most appropriate time. Pages 15 16; Section 12.12.175 Inspection Procedures. When construction begins? For the purpose of our discussion on September 20 th, I left the Inspection and Monitoring (next Section) text as it was in the Ahlers Model Ordinance (in italic text), so we can all start from the same place. Bold font shows possible additions. These were Sections that Chuck Becker and I spent considerable time discussing, trying to understand how the ordinance would be exercised in day to day activities. Here is a summary: Is Inspection actually when construction begins? Would this be prior to excavation? Does this actually reference the initial SWPPP? But on large sites, some excavation must be done at the beginning to actually dig the retention basin. Is this an issue? Page 7 of 9
The bill of particulars seems awkward, and the 24-hour timeframes could be difficult for cities and developers (delays, scheduling, etc.). Could the bill of particulars simply be the inspection log that city staff is already keeping on the site, as part of our MS4 requirements? This would simplify the process and not make even more work for cities. A written copy of this inspection log could be provided by city staff on request. Include the option to stop work until compliance with the SWPPP is achieved. This is fully supported by the Johnston building inspectors. Developers we talked with during our quarterly inspections on September 20 th also supported the stop work order, expressing the frustration that when lots are sold, they don t have enforcement power either. There has been some discussion about voluntary stop work orders in erosion and sediment control situations, to avoid the risk of stopping work on a project that may later be proved not to have been in violation. However, Johnston building inspectors feel that a voluntary stop work order would not have the desired result. Pages 16 17; Section 12.12.177 Monitoring Procedures. Does this address on-going procedures? Pages 17 19 Developers have a problem with the language in paragraph A: applicant has an absolute duty Is the self-reporting of an incident actually the inspection log and SWPPP already required by General Permit #2? Sections regarding: Abatement of Soil Accumulations, Removal of Soil Accumulations By City and Assessment of Costs. Page 8 of 9
It may be advisable for the City to remove these sections. The City of Council Bluffs recently did so, after finding that city staff ended cleaning up a number of construction sites, adjacent properties, etc. Another risk what if the City cleaned the mud from the street and then an Iowa DNR or EPA inspector failed it during an inspection? A more reasonable choice (for cities, developers and home builders) may be the stop work order and the municipal infraction. Emergency situations (public health/safety) may need to be addressed separately. Page 19, Section 12.12.210 Appeal. Developers would like to see the schedule of the public hearing defined in this section. A majority vote of the Board of Appeals present is required. What about a quorum? Page 9 of 9