Chapter 4 Generally Applicable Development Standards Appendix 4H Erosion Prevention and Sediment Control Page 2 of 5

Appendix 4H

ORDINANCE NO. 26, SERIES 2001

AN ORDINANCE REPEALING CHAPTER 159 OF THE JEFFERSON COUNTY, KENTUCKY CODE OF ORDINANCES AND ADOPTING A NEW CHAPTER 159 RELATING TO EROSION PREVENTION AND SEDIMENT CONTROL.

WHEREAS, in 2000, Fiscal Court enacted an Erosion Prevention and Sediment Control Ordinance as Ordinance 28, Series 2000, codified in Chapter 159 of the Jefferson County, Kentucky Code of Ordinances, in order to control soil erosion and sedimentation arising from development and other land disturbing activities, to conserve, preserve, and enhance the natural resources of Jefferson County, to comply with all applicable federal and state requirements for clean water, as well as to achieve other public purposes; and

WHEREAS, it is the desire of Fiscal Court to repeal the existing Chapter 159 of the Jefferson County, Kentucky Code of Ordinances and adopt a new Chapter 159 to replace it;

NOW, THEREFORE, BE IT ORDAINED BY THE FISCAL COURT OF JEFFERSON COUNTY, KENTUCKY:

Section 1. The Fiscal Court of Jefferson County does hereby repeal Chapter 159 of the Jefferson County, Kentucky Code of Ordinances.

Section 2. A new Chapter 159 of the Jefferson County, Kentucky Code of Ordinances is hereby adopted to read as follows:

SECTION 159.01 GENERAL PROVISIONS

Title

This ordinance shall be known and may be officially cited as the "Louisville and Jefferson County Erosion Prevention and Sediment Control Ordinance." It is referred to in this Chapter as "this Ordinance."
Authority

This Ordinance is adopted pursuant to the powers granted and limitations imposed by Kentucky laws, including the statutory authority granted to Kentucky counties in Kentucky Revised Statutes (K.R.S.), Chapter 67.

This Ordinance is also adopted pursuant to the powers granted and limitations by the Federal Clean Water Act, 33 U.S.C. §1323, Part A., ef seq., and in particular those parts that authorize local governments to require any federal department or agency to comply with all local water pollution control requirements.
Purpose

The regulations set forth in this Ordinance are intended to protect the general health, safety, and welfare of the citizens of Louisville and Jefferson County, and more specifically are intended to:
1. Conserve, preserve, and enhance the natural resources of Jefferson County, including its soils, waters, vegetation, fish and wildlife;
2. Control soil erosion and sedimentation arising from development and other land disturbing activities (e.g., clearing and grading), to prevent adverse impacts and offsite degradation, including short-term and long-term damage to public and private property;
3. Comply with all applicable state and federal requirements for clean water, including limitations on the discharge of pollutants as set forth in the Kentucky Pollutant Discharge Elimination System (KPDES); and all applicable provisions of the Federal National Pollution Discharge Elimination System general permit for municipalities (Phase I and Phase II); and
  
  Provide definitive procedures in the area of erosion prevention and sediment control (hereinafter "EPSC") regulations and review, as applied in Jefferson County.
Definitions
1. General Provisions.
  
  For purposes of this Ordinance, the terms and words set forth below shall be defined as set forth below. Any terms or words not defined here shall be defined as set forth in the Development Code for all of Jefferson County, KY, including the Zoning District Regulations and the Metropolitan Subdivision Regulations (hereinafter "the Development Code") dated November 1997, as it may be amended from time to time.
2. Specific Definitions.
  1. "Adverse impact" shall mean a material negative impact on land, water, and associated resources resulting from a land disturbing activity, the negative impact includes increased risk of flooding, degradation of water quality, increased sedimentation, reduced groundwater recharge, adverse effects on aquatic organisms, wildlife, and other resources, and threats to public health.
  2. "Ceased" shall mean one or more deliberate actions taken by the Permittee that, taken together, reasonably indicate a site is no longer active, including but not limited to removal of equipment and machinery or failure to maintain EPSC best management practices.
  3. "Certified Construction Reviewer (hereinafter 'CCR')" shall mean those individuals, having passed a training course sponsored or approved by the Louisville and Jefferson County Metropolitan Sewer District (hereinafter "MSD"), who provide on-site EPSC inspection for the permittee in accordance with this Ordinance.
  4. "Concept EPSC plan" shall mean a preliminary presentation of techniques, measures, and controls intended to prevent erosion and control sedimentation arising from land disturbing activities on a specific development site or parcel of land.
  5. "Construction Dewatering" shall mean the removal of water for construction activities by pumping, drainage or evaporation.
  6. "Contractor" shall mean a person who contracts with the permittee, landowner, developer, or another contractor (i.e., subcontractor) to undertake any or all the land disturbing activities covered by this Ordinance.
  7. "Co-Permittee" shall mean any person, other than the permittee, including but not limited to a developer or contractor who has or represents having financial or operational control over the land disturbing activity.
  8. "Detailed EPSC plan" shall mean an accurately-scaled plan and attendant documentation depicting and describing techniques, measures, and controls intended to prevent erosion and control sedimentation arising from land disturbing activities on a specific development site or parcel of land. The detailed EPSC plan includes full engineering and construction details for all proposed controls and shall be incorporated into the full construction plans.
  9. "Developer" shall mean a person undertaking, or for whose benefit, any or all the activities covered by this Ordinance are commenced or carried out.
  10. "Development Code" shall mean the Development Code for all of Jefferson County, Kentucky, including the Zoning District Regulations and the Metropolitan Subdivision Regulations, as amended from time-to-time.
  11. "EPSC" shall mean the prevention of soil erosion and control of solid material during land disturbing activity to prevent its transport out of the disturbed area by means of air, water, gravity, or ice.
  12. "EPSC Board" shall mean the Louisville and Jefferson County Planning Commission.
  13. "Erosion" shall mean the wearing away of land surface by the action of wind, water, gravity, ice, or any combination of those forces.
  14. "Final Stabilization" shall mean that 1) all land disturbing activities at the site have been completed, 2) there are no areas of active erosion evident, and 3)and that a uniform perennial vegetative cover with a density of 70% of the cover for the area has been established or equivalent stablization measures (i.e., mulches or geotextiles) have been employed.
  15. "General Permit" shall mean an agreement between the regulating authority and the Permittee which specifies conservation measures which must be implemented in the construction of activities specified in the terms and conditions of the general permit.
  16. "Grading" shall mean any stripping, cutting, filling or stockpiling of earth or land, including the land in its cut or filled condition, to create new grades.
  17. "Land Disturbing Activity" shall mean any land change which may result in soil erosion from water or wind and the movement of sediments into waters or onto lands, including but not limited to, clearing, grading, excavating, transporting and filling of land, except the term shall not include:
    1. Minor land-disturbing activities such as home gardens and individual home landscaping, repairs and maintenance work
    2. Installation, maintenance, or repair of any underground public utility lines when such activity occurs on an existing hard surfaced road, street or sidewalk provided such land-disturbing activity is confined to the area of the road, street or sidewalk which is hard surfaced provided appropriate sediment control practices are implemented for any long-term stockpiling of excavated or fill materials;
    3. Septic tank lines or lateral fields unless included in an overall plan for land-disturbing activity relating to construction of the building to be served by the septic tank system;
    4. Tilling, planting or harvesting of agricultural, horticultural, or forest crops or livestock feedlot operations; including soil conservation operations related to agriculture as follows: construction of terraces, terrace outlets, check dams, desilting basins, dikes, ponds, ditches, strip cropping, lister furrowing, contour cultivating, contour furrowing, and land drainage and land irrigation which does not cause an increase in storm water runoff and does not exacerbate erosion and sedimentation;
    5. Clearing and grading activities that disturb less than 2000 square feet AND are situated no closer than 50-feet to a solid or intermittent blue line stream, and which are not governed under a General Permit or Site Disturbance Permit;
    6. Emergency work to ensure health, safety and property and emergency repairs. However, if the land-disturbing activity would have required an approved erosion and sediment control plan if the activity were not an emergency, then the land area disturbed shall be shaped and stabilized in accordance with the requirements of this ordinance.
  18. "Landowner" shall mean a person, firm, or governmental agency holding legal title, or in possession or control of the land who indirectly or directly allows the land disturbing activity or benefits from it.
  19. "Permittee" shall mean the "Person Responsible for the Land Disturbing Activity".
  20. "Person" shall mean any individual, firm, partnership, joint venture, association, club, fraternal organization, corporation, estate, trust, receiver, organization, syndicate, city, county, municipality, district, or other political subdivision, or any other group or combination acting as a unit, and any agency or instrumentality thereof.
  21. "Person Responsible for the Land Disturbing Activity" shall mean the person holding legal title to the land upon which the land disturbing activity will take place or the person in possession or control of the land or who directly allows the land disturbing activity or benefits from it.
  22. "Qualified Plan Preparer" shall mean, at a minimum, a professional engineer or landscape architect licensed in the Commonwealth of Kentucky. MSD may, at a later date, develop a program to identify other qualified professionals.
  23. "Responsible Personnel" shall mean any foreman, superintendent or project engineer who is in charge of on-site clearing and grading operations or sediment control associated with land disturbance.
  24. "Sediment" shall mean solid particulate matter, both mineral and organic, that has been or is being transported by water, air, ice, or gravity from its site of origin.
  25. "Stop work order" shall mean an order directing a Permittee to cease and desist all or any portion of the work which violates the provisions of this ordinance.
Applicability

Subject to the exemptions set forth in subsection F. below, the EPSC provisions of this Ordinance shall apply to all land disturbing activities undertaken in Jefferson County.
Exemptions

The following land disturbing activities shall be exempt from compliance with the provisions of this Ordinance, provided all such exempt activities are undertaken in a manner that presents no significant erosion or sedimentation potential:
1. Agricultural operations required to adopt and implement an individual agriculture water quality plan pursuant to the requirements set forth in the Kentucky Agriculture Water Quality Act (K.R.S. 224.71-100 et sec/.), as it may be amended from time to time;
2. Usual and customary site investigation and surveying activities, such as soil testing, rock coring, test pits, boundary and topographic surveying, monitoring wells, and archaeological excavations, undertaken prior to submittal of an application for preliminary subdivision or development approval; provided any land disturbance is incidental to necessary equipment access and performance of investigation and surveying activities.
3. Following preliminary subdivision or development approval but prior to site disturbance permit approval and issuance, clearing necessary to provide access for survey work, rock soundings, or other usual and customary site investigations, provided the following conditions are met:
  1. Preliminary site investigations that have been planned to minimize the amount of clearing required;
  2. Clearing shall follow proposed roadway centerlines and shall not result in a clear access way of more than 20 feet in width;
  3. Cleared access ways beyond proposed roadways to assess individual lots shall not exceed 12 feet in width and No trees 8 inches or greater in diameter measured at breast height (dbh) shall be removed without prior approval by the Jefferson County Division of Planning and Design Services (hereinafter "DPDS").
4. Minor land disturbing activities that disturb 2000 square feet or less of land area and not within 50 feet of a drainageway. This exemption shall not apply to land disturbance activities subject to the general permit provisions set forth in Section 159.02.1. below (e.g., land disturbance activities by utilities or in connection with single-family home construction).
Relationship to other ordinances and codes
1. Conflicts with Other Regulations. When the provisions of this Ordinance are inconsistent with one another or when the provisions of this Ordinance conflict with the provisions found in other adopted ordinances or regulations, the more restrictive provision that provides maximum EPSC shall govern.
2. Relationship with Other County Ordinances/Codes Regulating Land Development.
  1. Wherever practicable, the provisions of this Ordinance, which require review and approval of EPSC measures prior to the commencement of land disturbing activity, shall be applied concurrently with the administering agencies' obligations to review and/or approve subdivision plans, general or detailed development plans, construction plans, building plans and floodplain permits.
  2. It shall be the Permittee's responsibility to determine and comply with all other applicable city, county, state, or federal ordinances or regulations governing land development and land disturbing activities, some of which may be conditions of approval under this ordinance (i.e., KPDES general permit).
Transitional provisions

This subsection addresses the applicability of new procedural and substantive standards enacted by this Ordinance to activities, actions, and other matters that are pending or occurring as of the effective date of this Ordinance.
1. Completion of Land Disturbing Activity or Development Commenced or Approved Prior to the Effective Date of this Ordinance.
  1. Buildings or Developments with Previously Issued Building Permits or Approved Construction Plans. Any building, structure, development, or land disturbing activity for which a valid building permit was granted or for which construction plans were approved prior to the effective date of this Ordinance shall be permitted to proceed to construction even if such activity or construction does not conform to the technical provisions of this Ordinance. If construction is not completed within the time allowed under the original building permit, construction plan approval or any extension granted, then the building or development shall be constructed or completed only in compliance with all requirements of this Ordinance.
  2. Buildings or Developments with Complete Applications for Construction Plan Approval. Any building, structure, development, or land disturbing activity for which a complete application for construction plan approval has been submitted to MSD prior to the effective date of this Ordinance shall be permitted to finish the approval process, and if approved, proceed according to the approved plans even if such construction or activity does not conform to the technical provisions of this Ordinance. If construction is not completed within the time allowed under the original construction plan approval or any extension granted, then the building or development shall be constructed or completed only in compliance with all requirements of this Ordinance.
  3. Developments or Other Activities with Applications for Approval Pending. Any development or land disturbing activity that has submitted an application for preliminary subdivision, development plan, conditional use, or any other type of land use or grading/clearing approval other than for construction plan approval, but for which no final action has been taken by the appropriate reviewing body on such application prior to the effective date of this Ordinance, shall be approved only if the development or land disturbing activity complies with all provisions of this Ordinance.
2. Grandfathered Development/Activities Still Subject to Enforcement & Penalties Provisions. Developments or land disturbing activities for which complete applications for construction plan approval have been submitted or approvals/permits have been granted prior to the effective date of this Ordinance may proceed as provided in Section 159.01.H.l.(b) above, provided that all such development and land disturbing activities undertaken after the effective date of this Ordinance, and not otherwise exempt from this Ordinance, shall be in accordance with the previously approved plans. Failure to develop in accordance with such previously approved plans or failure of the previously approved plans to prevent offsite sedimentation shall subject the development to all provisions of this Ordinance, including those provisions dealing with inspection, enforcement and penalties.
Rules of construction & interpretation
1. Meaning & Intent. All provisions, terms, phrases, and expressions contained in this Ordinance shall be construed according to this Ordinance's stated purpose and intent.
2. Text Controls. In case of any difference of meaning or implication between the text of this Ordinance and any heading, drawing, table, or figure, the text shall cont
3. Delegation of Authority. Whenever a provision of this Ordinance requires the head of a department to perform an act or duty, that provision shall be construed as authorizing the department head or officer to delegate the authority to subordinates, unless the terms of the provision specify otherwise.
Severability

If a court of competent jurisdiction declares that any section, subsection, or provision of this Ordinance is invalid, that ruling shall not affect the validity of any other Part of this Ordinance or the Ordinance as a whole, which shall remain in full force and effect.
Liability disclaimer

Nothing contained in this Ordinance, and no action or failure to act under this Ordinance shall be construed to:
1. Impose any liability on the County, MSD, or other administrating or enforcement agency or entity for the recovery of damages caused by such action or failure to act; or
2. Relieve the Permittee of the duties, obligations, responsibilities, or liabilities arising from or incident to the operations associated with the land disturbing activity.