Louisville and Jefferson County Erosion Prevention and Sediment Control Ordinance
Legislative History
January 1998
Overview
The purpose of this document is to provide an overview of important issues and legislative history in support of an Erosion Prevention and Sediment Control Ordinance (EPSC) for Jefferson County, Kentucky. This document will describe the Federal legislative history for erosion and sediment control, define the need for developing an ordinance specific to Jefferson County, provide a summation of prior actions by local government agencies to establish an ordinance, and discuss the enabling authority for such an ordinance.
A Review of Federal Legislation
Legislation has been used throughout the United States since the 1930's to control the damaging impacts of erosion and sediment. What began as a rural concern in the Midwest "Dust Bowl" has slowly spread to the explosive suburban growth areas to become one of our nation's most serious land use management issues. A succession of increasingly tougher laws and regulations has been enacted by Congress aimed at influencing land development and land disturbing activities. Though the initial intent of this legislation was to save and protect soil on farmland, the focus has become a federal concern over the protection of water quality in streams, rivers and lakes. In Jefferson County, the principal concern for controlling erosion and sediment has been in response to diminished water quality in local streams and the loss of water carrying capacity within stream channels. The following text provides a brief history of the federal legislation that has been enacted in response to soil erosion and sediment control.
The Soil Conservation Act of 1935
Public Law 74-62 enacted by Congress in 1935 acknowledged one of the first federal concerns for the catastrophic effects that wind and water erosion were having on the Great Plains. Drought, poor farming practices and a lack of understanding of erosion control resulted in the annual loss of millions of tons of topsoil. The Soil Conservation Act created a new federal agency, the Soil Conservation Service (SCS), which was empowered to provide technical and financial assistance to prevent the loss of soil on private and public lands. The SCS was renamed the Natural Resources Conservation Service (NRCS) in 1995.
The concept of Conservation Districts also resulted from this legislation and model programs were established by the United States Department of Agriculture (USDA). Eventually, all 50 states adopted some form of conservation district legislation. The focus of Conservation Districts was to provide farmers with information on proper cultivation, crop rotation, and growth of vegetative buffers and protection of adjacent natural resources.
The Watershed Protection and Flood Prevention Act
Public Law 83-566 was passed by Congress in 1954 to define the impact that watershed management would have on floodplain management. The issue of controlling erosion by limiting the amount of stormwater discharge from a given property originated within this legislation. Additionally, this law advocates a non-structural approach to controlling upland erosion.
Federal Water Pollution Control Act 1972 - (AKA "Clean Water Act")
The Clean Water Act (CWA) defined a national goal of eliminating the discharge of pollutants into navigable waters of the United States by the year 1985. This law influenced many states to pass stormwater management and sediment control legislation. The implementation of this law was strengthened by the formation of the U. S. Environmental Protection Agency in 1972. The focus in the 1970's began to shift from a non-point source, rural, soil loss problem, to a point source, urban, pollutant discharge problem. Additionally, the focus of the CWA turned from agricultural practices to the rapid growth in land disturbing activities associated with homebuilding, highway construction and shopping center development. Revisions to the CWA in the 1990's have resulted in the creation of the National Pollutant Discharge Elimination System (NPDES) permit program, which requires communities with populations of 100,000 or more to obtain a permit from the federal government to discharge stormwater into "waters of the United States." The NPDES program is administered by the Kentucky Division of Water, and is known as the KPDES permit program. The State of Kentucky has mandated the need for Jefferson County to prepare and adopt a soil erosion and sediment control ordinance to remain in compliance with state and federal laws associated with CWA.
State Erosion and Sediment Control Legislation
Supporting federal initiatives, states have slowly developed both legislation and implementation programs that satisfy these mandates. Two approaches for implementing legislation are most common. One has been a "prescriptive" approach, telling landowners what they can and cannot do for certain land disturbing activities. The other is a "performance-based" approach, setting goals and standards that must be achieved, but allowing landowners to choose the best land stewardship methods.
(Source: John Peterson, Erosion Control magazine, March/April 1997, page 10-13)
Definition of Need
The need for an EPSC Ordinance in Jefferson County can certainly be justified by the Federal and State mandates that originate from the legislation defined earlier in this report. However, Jefferson County is not only responding to a "federal mandate" in preparing and adopting such an ordinance; there are serious land and water management issues of concern to County residents that must be addressed and resolved. These concerns include the impacts on biodiversity, quality of life, pollution of local creeks and streams, loss of water carrying capacity in local streams, and the protection of public health, safety and welfare. The following text defines the need for this ordinance.
Cornerstone 2020 Goals and Objectives
Jefferson County has recently completed a four year process, that was led by citizens, to update its comprehensive growth management plan -- entitled "Cornerstone 2020." The goals and objectives of Cornerstone 2020 stress the importance of balancing economic growth and land use development with progressive environmental management and natural resource stewardship. Cornerstone 2020 offers specific goals and objectives that respond to the need for the preparation and adoption of an EPSC ordinance. Many of the goals and objectives defined under the Livability Strategy of Cornerstone 2020 address the need for erosion and sediment control. Specifically, under section one, Environmental Resources, subsection E, Land, Goal E1 states "Control soil erosion and the effects of sedimentation resulting from surface water runoff." The sole objective under this goal calls for the County to "Develop guidelines and standards to address soil erosion and sedimentation that will incorporate best management practices, provide measurable standards for stormwater quantity and quality, and establish strong deterrents to violation." Goal E4 addresses the need to "Protect steep slopes and sensitive soils." Objective E4.2 states that the County should "Develop guidelines and standards that define and set criteria for development on hilltops and steep slopes to protect water quality and prevent siltation of drainage channels."
Other Environmental Resource goals also address the need for an erosion and sediment control program. Under subsection B, Water, Objective B1.4 states that the County should "Develop and implement county-wide stormwater drainage control measures for new development that minimize off-site flooding, stream bank degradation, and erosion." Goal B2, Water Quality, states that the County should "Improve water quality throughout the metro region in order to preserve and enhance biological diversity and to support human use and contact recreation." All of the objectives under this goal, B2.1 through B2.7, address specific methods for accomplishing this goal.
Cornerstone 2020, a citizen-led initiative that serves as the basis for guiding the future growth of the County, clearly defines the need and provides a local mandate for the preparation and adoption of a county-wide erosion prevention and sediment control ordinance.
Protect Public Health and Safety
Every waterway in Jefferson County has been designated by the Kentucky Division of Water as unsafe for swimming and fishing due to pollution loads in the water and the amount of harmful bacteria in stream bottom sediment. Although there has been little research into the relationship between water quality and human health in America, the Center for Disease Control estimates that 900,000 people get sick and more than 1,000 die as a result of consuming contaminated water each year. The Environmental Protection Agency concludes that the most extensive causes of public use impairment to our rivers and streams are siltation (affecting 45 percent of impaired river miles), high levels of nutrients (37 percent), pathogen indicators (27 percent), pesticides (26 percent) and "heavy metals" (19 percent). All of these are by-products of stormwater discharge that originate from farmland, land under development and urban areas. This runoff is a lethal toxic soup that not only kills plants and animals, but in high concentrations is deadly to humans. Once these toxins wash into a local stream, they become trapped in sediment of the stream channel. Heavy siltation serves to trap more pollutants, transforming the stream into a lifeless, toxic, open sewer. Streams can and do recover, but offensive pollution and siltation must first be brought under control. The EPSC program proposed through this ordinance is an important first step toward making Jefferson County's waterways cleaner and safer for human contact activities. (Source: National Water Quality Inventory - 1992 Report to Congress by the EPA)
Public health and safety is also at risk from the danger of mudslides and improperly developed public and private construction. Development in Jefferson County has for the most part occurred in the relatively flat to gently rolling landscapes in the western part of the County. As development continues east, into the Floyd's Fork watershed, two landform issues will shape future growth: 1) steeper slopes and 2) soils not ideally suitable for traditional land development. While it may appear today that the risk of mudslides is low, future growth into the eastern parts of the County is likely to encounter this problem. A comprehensive sediment and erosion control program is needed now to reduce future threats to public health and safety.
Loss of Water Carrying Capacity
Flooding is a well-documented problem in Jefferson County. The March 1, 1997 flood exemplified the magnitude of this problem. Maintaining the water carrying capacity of creeks and streams is a primary concern of MSD. Why? Sedimentation of Jefferson County's creeks and streams serves to exacerbate flooding problems. When the normal carrying capacity of these stream channels is diminished, smaller storm events have a greater negative impact on the community. The more frequent 2-year and 5-year storm events can cause localized flooding, resulting in annual economic losses for the community. One national study indicates that 85% of all rains are less than a few inches in depth, and can generate up to 70% of the total annual runoff. When stream capacity is diminished by siltation, runoff will overtop creek banks and flood surrounding homes and businesses. (Source: Urban Stormwater Toxic Pollutants, Water Environmental Research, May/June 1995)
Each year, the Metropolitan Sewer District spends approximately $500,000 to clean the waterways of siltation and debris that comes from erosion. MSD estimates that 10,000 cubic yards of excess silt must be removed from the more than 130 miles of waterways under its control. Failure to do so would greatly reduce capacity in the stream channel, resulting in more frequent flooding of homes and businesses. This work is an essential component of the flood protection system for Jefferson County. Some of this expense is avoidable through a comprehensive program aimed at controlling soil loss and sedimentation of Jefferson County's streams. (Source: MSD)
Public Nuisance
Sedimentation of creeks and streams also devalues local private and public property. Drainage ditches that are full of mud and laden with toxic pollutants emit an odor that is obnoxious. Mudslides into local streets and onto adjacent property create a hazardous, as well as unappealing landscape condition. It is difficult to place an economic value on the loss that is associated with these events. Public nuisance also results from the inability of drainage ditches to flow freely due to sedimentation. This has been a consistent problem in the Pond Creek Watershed and is one not easily resolved through current land use laws. As a result, neighbors have been known to sue other neighbors in order to resolve the drainage problem.
Protection of Public Facilities
Jefferson County is blessed with miles of creeks and streams, all of which eventually flow into the Ohio River. The communities' sanitary sewer and storm sewer systems follow virtually every mile of stream. As the County continues to urbanize, more miles of sanitary sewer pipe and storm drainage system will be installed to accommodate this growth. The cost to construct and maintain this system is currently valued in the hundreds of millions. Failure to properly check erosion and sedimentation will only add to these costs, and must be borne by the taxpayers of the County. It is far less expensive to install preventative measures now than to pay for costly clean up and retrofit in the future.
Sedimentation of Creeks, Streams and the Ohio River
Water resources are critically important assets to our nation's economy. Our food production, drinking water supply, navigation and recreation all depend on clean and adequate water resources. When water resources are improperly managed, or allowed to degrade, our communities suffer the full impact of this loss (not only in the lost use of the resource, but more importantly the economic impact that this has on a community). Estimates of the national costs of erosion and sedimentation as a result of poor land and water usage are reported to equal $13 billion annually (source: EPA). Urban erosion-related pollutants are estimated to compose up to $2.2 billion of these costs, which does not include flood damage and chemical contamination.
Erosion and sedimentation takes an economic toll on Jefferson County. Each year the County loses an estimated 100,000 cubic yards of topsoil to erosion. The value of this topsoil alone is worth millions to the community. Every cubic yard of topsoil lost is equivalent to $6.00 in nutrient value and $20.00 in replacement value. That adds up to almost $2.6 million in economic value lost each year. (Source: MSD)
The impact of erosion and sediment from Jefferson County does not by itself cause navigational problems within the Ohio River. However, the cumulative impact of erosion and sediment in the Ohio River valley has caused negative economic impacts on the river, and these costs are shared by residents of the County. For example, the discharge of sediment into the Ohio River by communities that lies along its route costs federal taxpayers $2.4 billion each year. The US Army Corps of Engineers spends $175,000 of federal tax money annually to dredge the McAlpine Lock and Dam on the Ohio River in order to maintain storage capacity. Locally, the Louisville Water Department reports that the dredging of reservoirs in the County costs $66,000 every 5-10 years.
Additionally, sedimentation of local creeks and streams cause other financial impacts. Farmers must dredge irrigation channels, or clean sediment and debris from water intake lines that siphon water from local streams. Private residential neighborhoods and golf courses must periodically dredge lakes and ponds that fill with sediment and foul smelling pollutants. Water dependent industries must spend annual revenues on the maintenance of intake structures to keep mud and debris out of their raw water systems. The Metro Parks Department must devote a certain amount of public funds toward the maintenance of public recreation resources that fill with sediment and debris. The costs add up, and nearly everyone in the County pays in one way or another.
Compliance with Federal and State Regulations
The Federal National Pollutant Discharge Elimination System Permit program that resulted from changes to the Clean Water Act has provided an impetus for the adoption of a local EPSC control ordinance. Jefferson County has been required to have an ordinance adopted and functioning since the February 1994. No such ordinance has been adopted, and the County and Kentucky Pollutant Discharge Elimination System (KPDES) permit holder MSD are technically in violation of this federal and state law. If an ordinance is not established by local government agencies (City and County), the State may impose an ordinance on the community, or fine the community for failure to comply.
Additionally, one of the goals of the Federal Clean Water Act is to make the nation's streams and rivers swimmable and fishable. The great majority of Jefferson County's do not currently satisfy this goal.
Protect, Improve and Restore Biodiversity
One of the greatest impacts from soil erosion and the siltation of creeks and streams are the devastating consequences to plant and animal habitat, and biological diversity. Large quantities of sediment can smother the natural habitat of plants and aquatic animals within hours. Heavy siltation of a stream channel can transform a biologically healthy stream into a lifeless open sewer within a matter of weeks. Even smaller quantities of sediment over a period of months or years can lead to dramatic changes in the biological health of a stream. Creeks, streams and rivers are in essence the bloodstream of the land. When they become clogged with excessive silt they become unhealthy and can not perform natural functions. Important ecological interrelationships are lost and, under certain conditions, this loss can extend beyond the banks of the stream channel. Streams are in fact living systems that serve as the home to thousands of plants and animals that comprise a complex and interdependent ecological unit that is not found anywhere else on Earth. Because water is such an important building block for all forms of life, streams in an urban environment become home to an estimated 90-percent of all urban wildlife. When a stream becomes degraded, the health of hundreds of native species is seriously impaired.
Poor water quality also leads to an imbalance in nature. Those plant and animal species that are tolerant of a particular pollutant or sediment load will thrive, while others will perish. From this condition a monoculture of species will develop which further threatens biodiversity. Sediment and overland pollution can quickly change the biological integrity of a stream. While people may have little interest in how or why this change has occurred, we do begin to notice the impacts when an odor emanates from the stream, when trees along the stream bank die, when the song birds disappear, and when fish disappear. All of these changes are related to sudden changes in the biological conditions of a stream channel.
Why should anyone care that the biological diversity of a stream has been impaired? A 1995 survey conducted by the National Homebuilders Association reveals that many Americans are still interested in buying homes in neighborhoods that possess an abundance of healthy natural resources, such as forests, streams and wildlife areas. Eighty percent of new homebuyers not only preferred to purchase a home adjacent to wooded open space, they were also willing to pay a premium for the home site. Americans love the outdoors and want to live in neighborhoods and communities with healthy outdoor resources. The outdoor recreation industry is one of the largest economic generators in the nation, and is closely linked with the travel and tourism industry. Tourism has become our nation's number one industry from an economic perspective. One of the largest sectors of the tourism industry is outdoor activities, including hiking, canoeing, hunting, fishing and bird watching, to name a few. Many of the locations that support these activities depend on healthy and biologically diverse waterways. Without this biodiversity, these locations quickly lose their appeal and visitation declines. The economic vitality of these landscapes is also lost.
Some might conclude that Jefferson County is not a place where outdoor activities and tourism should take place. The County should be a place where people build homes, factories and businesses. Recreation and tourism should occur elsewhere, and therefore the need to protect biological diversity carries less importance. In 1990, the President's Commission on Americans Outdoors found that the majority of Americans preferred healthy outdoor resources close to where they live and work. Jefferson County should do all that it can to protect biological diversity, to restore streams that have been damaged by siltation, and to implement programs that promote better stewardship of land and water. The proposed Erosion Prevention and Sediment Control Ordinance is one tool that will promote these initiatives.
Prior Actions in Jefferson County
The Federal and State mandate to prepare and adopt an EPSC ordinance was put into effect in February 1994, through the issuance of the KPDES Permit. Various unsuccessful efforts have been made through the years to develop and enact such an ordinance. The following text provides a chronological summary of these efforts. The order of these events and many of the conclusions defined within this text are the result of information compiled by Adrian Freund, Director of the Jefferson County Department of Planning and Environmental Management.
In November 1992, MSD officially defined the need for an EPSC ordinance through its KPDES permit application. Wet weather data collected by MSD and other agencies during the 1980's and 1990's defined an overall decline in water quality as a result of increased sedimentation of local streams and pollution from point-source and non-point source discharges. MSD attributed this decline to an increase in land development and land disturbing activities, as well as a need to upgrade sanitary and storm water systems.
In February 1993, the Louisville and Jefferson County Planning Commission requested specific criteria be developed that would address controlling erosion and sediment discharge from new development. This request was based on a series of complaints that had been filed by local residents. The Planning Commission determined that it was necessary to integrate erosion and sediment control into the development review process, rather than create a freestanding provision or program outside this process.
In March 1993, "A" District Commissioner Steve Henry initiated a task force of citizens and agency representatives to prepare an erosion control ordinance. Also in March, MSD published a six-page paper entitled "General Specifications for Compliance with Clean Water Act" (Erosion and Sediment Control), which defined how single family subdivisions comply with the intent of the law. Commissioner Henry's draft ordinance took into account all land disturbing and land development activity on sites greater than 10,000 square feet, or on sites that moved more than 400 cubic yards of earth, or on sites that had 300 linear feet of stream frontage. MSD was designated as the principal administering agent for the ordinance, and would share enforcement duties with other city and county agencies.
Additionally, on March 31, 1993, the Homebuilders Association of Louisville (HBAL) expressed concern about the cost of implementing requirements of a proposed erosion and sediment control ordinance, and urged its members to participate in a voluntary erosion control program. One of the important results of this program was the education activities that were conducted by HBAL to make its members aware of the problems associated with erosion and sediment.
These efforts resulted in an MSD-City-County task force of agency staff, who began work on drafting an ordinance that would be integrated into the development review and approval process. Gordon Garner, Executive Director of MSD, formally requested that this action, in conjunction with the actions of Commissioner Henry and HBAL, result in the completion of an ordinance no later than March 1994, to comply with the KPDES permit schedule.
In September 1993, Jefferson County Judge David Armstrong appointed a regional water quality task force that considered a wide array of water quality related issues over a twelve-month period. The Task Force concluded that the Jefferson County Fiscal Court should adopt an erosion and sediment control ordinance by October 1994.
In April 1995, the Jefferson County Planning Commission began to implement some of the recommendations that resulted from the regional water quality task force, specifically calling for erosion control requirements on all plans. In July 1995, Gordon Garner once again expressed his concern about the failure to produce an ordinance, and the impact that this had on failing to meet objectives within the KPDES permit. The Kentucky Division of Water also stressed the importance of completing the ordinance and asked that Jefferson County place a top priority on the adoption of an erosion and sediment control ordinance.
In the spring 1996, the Jefferson County Department of Planning and Environmental Management (DPEM) circulated a draft for a new environmental component to the Jefferson County Development Code that included a section on erosion and sediment control. In September 1996, DPEM and MSD agreed on a joint approach for preparation of EPSC ordinance. By February 1997, a scope of work for the preparation of an ordinance had been agreed upon, and the consultant team of Clarion, Woolpert and Greenways Incorporated were jointly hired by both agencies to work with a citizens advisory committee to author an ordinance.
Bibliography
Urban Stormwater Toxic Pollutants: Assessment, Sources and Treatability, Pitt, Field, Lalor, Brown, Water Environment Research, Volume 67, Number 3, May/June 1995
Overview of Impacts from Storm Water Discharges, Environmental Protection Agency, Report to Congress on Storm Water Discharges Potentially to be Addressed by Phase II of the NPDES Storm Water Program, March 1995.
Dredging Report, Louisville and Jefferson County Metropolitan Sewer District, December 1997
