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HomeMy WebLinkAboutCOM 0049.001 2008-2010PUBLIC WORKS & INTERGOVERNMENTAL RELATIONS COMMITTEE MEETING TUESDAY 12/16/08 1:00 P.M. DOCUMENTS DROPPED AT HILO OFFICE C: BY DEPARTMENT OF PUBLIC WORKS 7' RE: COMM. 1480 (BILL 373) • PUBLIC MEETING NOTES • REVIEW OF CHAPTER 10 • CHAPTER 10 COMMUNITY MEETINGS (PUBLIC COMMENTS) * WAIMEA ELEMENTARY SCHOOL 11/18/08 * PAHOA COMMUNITY CENTER 11/19/08 * PAHALA NEIGHBORHOOD CENTER 11/20/08 * HILO AUPUNI CENTER 11/24/08 * GRADING & GRUBBING ORDINANCE REVISION COMMENTS • SUMMARY OF AMENDMENTS (BILL 373, DRAFT 2) • PROPOSED AMENDMENTS TO COUNTY GRADING CODE / FACT SHEET DATED SEPTEMBER 9, 2008 • COPY OF RES. 763-08 • COPY OF BILL NO. 373, DRAFT 2 TOTAL PAGES FROM: Laura L. Murashige, Executive Assistant to Council Chair J Yoshimoto Hawaii County Council, County of Hawaii 333 Kilauea Avenue Ben Franklin Building, 2.d Floor, Council Room Hilo, HI 96720 Phone: (808) 961-8016 / Fax: (808) 961-8912 Email: lmurashige@co.hawaii.hi.us 3 PAGES 14 PAGES 2 PAGES 2 PAGES 1 PAGE 2 PAGES 9 PAGES 5 PAGES 3 PAGES 2 PAGES 22 PAGES 65 PAGES 0 1: Comm. No. �7• Ref. To: p—C"eote WIC- Ref. Date ffr. 1'R 29M Enforcement: r*W >. ,- E(, - , ,'I__D This ordinance is not enforced. 2Ca3 0 E G 16 Aft 9 '17 Assign people to districts Cr); Not enough manpower to enforce. Do not add another layer Existing code not enforced. Enforcement mechanism not working Why is the public asked to police? Consequences to the bulldozer operator for violating ordinance; no use of machinery for 30 - days County cannot penalize operator. County could go after the land owner and fine them. Why is the bulldozer operator penalized? We follow the topographic drawing, but the land sometimes is not the same as the topographic Person who takes out the permit is responsible and should receive the citation. County switches blame to bulldozer operator, landowner and not to the county. Where do they fit? Who do we cite? That should be clear in the proposed changes Self-regulating should be in the code with penalties We need police to stop violators Outsource enforcement by districts and modify the fees to reflect this decentralized enforcement so they can respond quickly Not fixing the problem $1,000 violation per fine on each penalty Permit Fees: 30% increase does not do it This should be a separate fee—a call out fee Work is done without permits One -acre rule; only one acre in any calendar year can be grubbed without a permit What is the cost of permits? Education, historic sites, fragmented law Educate realtors. This was part of the recommendations in the'05 minutes of the group who composed changes to Chapter 10 r Problems not addressed in the Oceanside 1250 settlement agreement Comprehensive look at 4 ordinances are not addressed Water continues to flow on my property; land use changes. Historic sites County should System fragmented between State, County and Feds. Breakdown, in law 6C-42 this is a weakness Discussion on fragmented issues in County ord. 10 and 27 Improve and integrate fragmented system Are the civil and criminal fines adequate? State legislature has the authority to make the landowner liable No standards for Soil, Water, Conservation Districts Adjudicatory progress; swift, administrative, (no court) County is vacillating. Not addressing flooding Why is there land surveyor and licensed engineer? Strike land surveyor. Only a licensed engineer Public safety not true, public is not safe Each district is geographically different Human error Property owners liable Conservation in place Storm water drainage addressed in the construction stage of development. What about Agricultural operations and the increased generated in water runoff? I Review of Chapter 10 Hawaii County Ordinance Erosion and Sedimentation Control , This review of Chapter 10 was written in April 2007 shortly after the County released its revised Chapter 10 effort. I took some time to develop the commentary document because I felt if the County thought there should be a revision of Chapter 10, then it should be a meaningful document, based on current practices and standards, and technically correct. It should be unbiased and comprehensive. I did not find the original revision by the County to hold those attributes. There has been a subsequent revision by the County and I made a few additional comments on that second revision and note that some of the issues 1 raised in my first review were addressed. The comments included here are based on the original revision and there are some significant section number changes made from the original to the revision. I did not rework the original comments to fit the revised sections but it is generally clear from the heading what the section is, even though the number has changed. One of the reasons I did not make this revision is that in more instances than not, the original contained more pertinent information than the revision. I did spend some time reworking parts of the new Article 2 (Violations, Penalties, Enforcement) and Article 3 (Permits) as they were the most extensively reworked and reorganized. One of the major problems with a Chapter 10 revision to the Hawaii County Code is that it must address certain issues as mandated by the Hawaii Court as part of the Hokulia settlement. I did not know this on my first revision. Thus, what I wrote must be considered only a technical and editorial review of what was written. Because I do not have the conditions of the settlement agreement, I cannot comment on the broader picture. Therefore, take these review comments within the framework of their limited perspective. One of the major challenges is that flooding issues are to be addressed. Where is the proper place for that presentation? Chapter 27 might seem a reasonable place but Chapter 10, erosion and sedimentation can hardly be presented without addressing the movement of earth materials by some agent, typically water but sometimes wind and even gravity and mechanical means, including anthropomorphic action (man-made as by machines, from bulldozers to ATVs to walking). I have agreed to the request ofNoelani Whittington, Hawaii County Public Information Officer, to allow this review to be placed online. It may have some service as a point of discussion for some technical and editorial revisions. Hopefully, it will encourage others to submit input but I would suggest that my comments not be used as a straw -man document where the merits of my suggestions are discussed, but rather input your points on the County's revision of Chapter 10, especially through your Council representative. Whether or not you agree or disagree with me is not the issue. One thing that must be made clear is that there is a need or complete allowance for overlapping of regulation. One cannot separate flooding from sedimentation and erosion. They are cause and effect. We have seen it is too easy for a government to shirk its responsibility to the people it should be serving by passing the buck to someone else. To say that flooding is covered in Chapter 27 and not have a simultaneous revision of Chapter 27 fragments authority and responsibility. Thus, my review of Chapter 10 properly includes flooding concerns. It is no longer allowable to address only the work done on a single property but the affects to adjacent properties must be considered. One property owner can provide a very elaborate means of preventing flooding on the property in question but create an absolute flooding horror on adjacent land. Therefore, I do not accept the diversionary comment "Oh, that belongs in Chapter 27." Let it be so but only with concurrency, the same concept as having physical infrastructure in place before development. Then the resolution for Chapter 27 or related and subsequent additional chapters can address and revise Chapter 10, if neccesary. Beginning in November 2008, a series of Public Meetings are being held to discuss Chapter 10. After the first meeting on November 13, 2008, there were two major issues presented by the public. In fact, the details contained in the draft chapter 10 were over shadowed by these concerns. The first was enforcement. It does not matter what is in the regulation, if it is not enforced, there may as not be a regulation. The second issue was fees and penalties. They should be fair and significant to cover County costs and provide incentives to follow the regulations. All attending this first meeting had a story to tell about improper and often unpermitted grubbing and grading and the problems it caused for flooding and sedimentation on adjacent lots. The responsibility must be shared. Under current regulations, if unpermitted work is done, the fine is so little it is often more expedient to pay a fine than to seek proper plans and permits. One might think it is the owner who has the ultimate responsibility but there are situations in which the wrong lot has been worked on. The grading equipment operator may hear in good faith that the permit is pending and work can start. While it is easy to envision scenarios where the equipment operator is caught in a personal economic crisis and needs the job, in reality, the operator is only a phone call away to see if the permit has been issued or not. Thus, that decision must be based on what the operator considers reasonable risk and a share in the responsibility. Large fines, loss of license, and/or incarceration and revocation of permit approval for several years are very tough civil and criminal penalties. Yet, if not enforced, they have no bearing. It reduces to a common denominator - if you are going to do something, do it right. How nice it would be for development to be self regulating but experience has shown that not to be the case. Michael Reimer Kailua-Kona, November 23, 2008 Prepared April 9, 2007 by Michael Reimer, retired geologist, Kailua-Kona, Hawaii Modified November 17, 2008. For the most part, annotated comments follow the suggestions and are italics. Text changes are underlined. Bolded text represents comments on the revision and are inserted November 17, 2008. Remember that the following is a combination of both the original and revised County presentations and the numbering of the sections may be a little confusing but the titles are the real key to the suggestions, COMMENTS: 10.1 - reverse order of words "grading" and "grubbing" and change the following text to "...regulating grading and grubbing operations and establishing controls limiting soil erosion and sedimentation in agriculture and construction projects." (This has been done in the revision) Grading seems to have the hierarchical advantage in importance. Very little in Chapter 10 directly deals with agriculture. For the most part agricultural operations are exempted from permits as long as they follow accepted agricultural practices. Indeed that makes sense in that plowing operations could be considered grading and often more than 15 contiguous acres are involved at one operation. 10.2 Agriculture definition - should hydroponics, aquaculture or greenhouses be considered agriculture? Best management practices - makes reference to state water. Should it be expanded? Burial site definition — "...otherwise known to the owner, the permittee, and/or their contractors." This is important as it expands those who may have knowledge of archeological points of interest at the site and improves disclosure of those that may be found during the grading and grubbing operations. Conservationist - this has to be clarified as to meaning either an NRCS employee or some employee of the district. Engineer definition — eliminate or expand specific disciplines. Here the definition is limited to civil or structural engineers. I would either exclude this limitation here or expand it to include other engineering fields, such as Soils, Geological, Engineering Science, Bedrock, Construction, Agricultural, Industrial, Environmental, Survey. Others may be found at the Sloan Career Cornerstone Center. Engineer's soil report definition — "...means a report [en soils] that describes soil "and bedrock" conditions withrg ading and construction recommendations applicable to the soil "and bedrock" conditions Bedrock should be included with soil conditions. Here the definition introduces the specific disciplines of expertise of soils and foundations and is somewhat in contrast to the Engineer definition above. Erosion definition - should include ...wearing away... by wind and/or water or by man- made mechanical means. This would include erosion by repeated passage of vehicles as might be found in areas allowing ATV traffic. .Excavation - State land Use Commission and others are excluded on the original but there is no reason to exclude them and should be restored to include those. That makes it clear that they are not to be exempted Grubbing definition — including... "grasses ," ... Historic and archeological site definition- "...otherwise known to owner or his contractors. " This is for consistency. Maximum extent practicable definition — show acronym "MEP" This is somewhat redundant in non point source usage in this definition. Overburden definition — "... soil material overlaying another soil or geologic formation." This technical clarification is necessary because soils are characterized by horizon. Top soil (the A soil horizon) may not be included in this definition as it may overlie the B soil horizon that is another soil but not necessarily in contact with an underlying geologic formation. The same holds for C and D soil horizons. Permittee definition — This may need clarification to include trusts, estates, powers ofattorney, etc. 4 Sedimentation definition — "...displaced by erosion and transported by wind or water from [a high] one elevation to [an area of lower gradient] another where sediments are deposited [as a result of slack water]." This should include wind deposition as in the Erosion definition. If there is a need to include a reference to slack water, in order to include wind erosion, the reference could be stated as: "... as a result of a lower energy transport regime ". That is more technical but basically means if wind or water have enough energy to physically move soil material, when that energy drops, lower wind speed or lower water flow rate, the material being transported drops out and accumulates (the process ofsedimentation). " I would change the term lower energy transport regime to "sediment transport regine" to be more inclusive. The definition would be "The conditions and processes controlling the transportation and, deposition of materials in fluvial (water) or aeolian (wind), or mechanically influenced environments." There is another consideration, quite technical and not intended to be nitpicking, but there are occasions where water does flow "uphill." Wave action can carry water and sediment_ up_ the -topographic gradient as can backflow when water hits a barrier of some sort (levee wall). Non -point pollution sources should be defined. 10.3(a) does not support or is in conflict with 10.36(d). See comment on 10.36(d) for clarification. Another concern should be added: "On-site drainage shall be handled in such a way so as to control erosion, prevent damage to downstream properties and to return waters to the natural drainage course not negatively impact designated flood plains on adjacent properties." 10.3(6) 'free from dust" is a tough standard. This might mean free from nuisance or excessive dust. EPA has dust standards and should be referenced here. Some mainland western cities exceed those standards when the wind blows above a certain velocity! Section 10-5 Agricultural Operations. This should include greenhouses, hydroponic and aquaculture operations. Also there is a conservation plan to be developed and that should specify it should be by a licensed registered engineer. Section 10.6 Exclusions There was a general sense at the first meeting that agricultural operations should not be excluded On this point, I could concur. 5 In addition, an exclusion for grubbing and grading on individual cemetery plots should not be excluded It does not sped if these are existing plots and that means burial sties can be disinterred. Although one might argue this is a matter for the Health Department, it is important not to exclude them here. 10.6(5) "one site" should be defined. This should be consistent with article 4 regarding height and setbacks from property lines. 10.6(8) Specify engineer. Previous section 10-4 dealt with recovery of costs by the County. The County recommends deletion of this section but it should be retained unless discussed elsewhere in article 2. 10.5(b)(5)(C) Upon receipt of the notification and after timely site inspection by the public works department the director of public works shall issue a notice of violation in accordance with applicable provisions of this chapter. This addition is important because it will prevent reaction to a notice that may be at odds with all provisions of amended chapter 10. Timely maybe defined as within 2 business days or 48 hours. 10.7(a) "...any person is violating any provision of this chapter," "...the director shall serve the person with anotice of violation and order pursuant to this section." This is vague in that it indicates the person operating the equipment will be served. While that may be proper to provide for immediate cease and desist, it is not the only service that should be made. The equipment operator may not be familiar with or even understand the provisions of Chapter 10. Therefore, the service should also be to the contractor and owner, recognizing all three could be one in the same (operator, contractor, owner). 10.7(c)(3) To reimburse the county, some reasonable timeframe must be referenced. In emergency situations actions by the County will take place within 24 hours, or for non- emergency, action should be taken after appeals as specified in (d) of this part. Emergency actions are contained in section 10.10. (The above change appears to have been made.) Section (g) of this part should include an item (5), addressing (5) That appeals were not filed in timely fashion as provided in (e) of this partor show the judgment and exhaustion of the appeals process. In the case of emergency action taken by the County, reimbursement payment should be made within 30 days of the completion of the action under (1(3) of this part regardless of any standingin n an appeal process unless temporarily waived by the director. 10.15 (a), (b), and (c). It must be made very clear what is meant here by sections (a), (b), and (c). It seems that despite the extensive descriptions of permitting in Chapter 10, if there is an application for a grading permit, there is no need for a separate grubbing and stockpiling permits even if those activities are to take place. If that is true, better organization is required and this information and an explanation should be placed in the beginning of the Chapter, perhaps receiving its own Article designation. It becomes a major determining factor on how to interpret, apply and proceed with this Chapter on permitting regulations. Reference to 10.20(a) should be made (Conditions and limitations). It is possible to have an umbrella permit, designated as the grading permit, that can be either stand-alone or includes the provisions and requirements of the other two permits --addressed in this -chapter. -It is also possible- that -grubbing _and stockpiling can be stand alone permits but not hierarchical, meaning a grubbing permit does not encompass or include a stockpiling permit. However, it must be made clear that all provisions for any permit apply to the others. That is, the provisions in Chapter 10.3 must be reemphasized Copied here is the section in question showing in its entirety the language that is confusing in any regard and needs clarification. The other issue is that the application for a grading permit should not exempt omission of discussion, plans, and documentation of the effects ofgrubbing and stockpiling. Further, fees for all operations should still be collected. As a minimum, the draft text should be identified as 10.15 (a) and the section making sure the other operations are discussed should be expressed as section 10.15(6) as: 10.15 (b) The application for arg ading permit where it includes grubbingand/or nd/or stockpiling operations, must contain all relevant discussion documentation plans specifications, and identifying the BMP addressing those activities Fees for all applicable operations, including grubbing and stockpiling will still be collected as provided in section 10.17. The director shall issue no permit until he has ascertained that the request is in compliance with the regional Community Development plan and the County general Ian, This latter part must be included as CDPs are evolving. ARTICLE 2. Violations, Penalties, and enforcement. This section is in the revised draft of Chapter 10. It is really the heart of the revision because without enforcement, the code means nothing. Ido not know if it is proper in this Chapter to specify that adequate staff must be provided for active enforcement. It could be done by contract rather than hiring County employees. I will make a few comments here using the numbering of the revised section 10-8 Administrative enforcement. This must go beyond the equipment operator. Therefore, it must state as in the 419108 document 10.7(a) that it is also the owner, developer, contractor, etc. who shares responsibility. The equipment operator is the one most likely to be on site. Equipment operators should be thorough enough to put some protective clause in their contracts that the owner must cover their costs if the work is not done according to permitting requirements. The County should then have some format for hearing a plea form the operator that could absolve him of wrongdoing. In 10-8(c), I do not agree with the fine structure as it appears to be factorial and progressive. The fine of $1000 per day of violation is adequate; as written, each day is considered a new violation so that day 3, there is a new $1000 fine but the fine for past days is now increased as well. Day 2 total would be $1000, and day I would be $3,000. So the total fine on day three would be $6000. That will get attention, fast! 10-8(e) There should be some coment on non -timely appeals See 419107 section 10.7(g) and (p. S) notes. Sections 10-8 and 10-9 need to be linked. Does a violation automatically trigger criminal prosecution? Article 3. Permits This is a very important section. Under 10-16, there should be a subsection (d). If no permit has been issued, violations under article 1 are still enforced. 10-17(a)(3) lists general engineer. This should be changed to include license and registration. 10-17(x)(5) should include Community Development Plans as well as County General Plan. 10-17(e) as pointed out before is too dangerous. No action does not automatically trigger a permit. See note at 4/9107 at 10.16(e). Section 10-18 Fees The fees must be realistic to cover county costs. There is some base cost regardless of the project size and that should be reflected here. The County Council voted down impact fees so the permit fees must cover expenses. Ido not know if fees go into the general revenue fund or back to the Department. The base fee should be $200. This includes the clerk's receipt and filing of the application and processing for the Commission review. Costs for various earth moving regimes should be 0-500 cu. yds. $15 per yd; 501 to 2000 $20 per yd.; 2001 and greater - $30 per cu yd. I do not know how the Department derived their figures but those I list j are arbitrary. Just for clarification, to move 500 cubic yard would cost $7,500. The fees for grubbing are not realistic. They must cover costs. How much money does it cost for an inspector to visit the site and how many trips should he make for inspection and compliance? Section 10-19 work with no permit. h This must be harsher than presented in the revision. Proceeding without a permit should trigger a penalty of no permit issued for a period of one year and in the meantime, the land must be restored. Administrative and criminal fines and penalties apply. How do you replace a 200 year old tree? Multiple violations by the same individual should have harsher penalties. For example, if a developer routinely proceeds with grubbing and grading without a permit, 3 violations would revoke his right to conduct business in the County for 5 years, including his participation in another company. The same should apply to owner, contractor, and operators. ! Section 10-22 Expiration. The permit shall become void after the passage of 1-year if significant work has not been performed. "Significant" must be defined but it means more than taking in a lawnmower and cutting 100 sq ft or bringing in a bucket of dirt. This is needed because various regulations and requirements change and a permit cannot be grandfathered in forever using old standards for development See former 10-13 There needs to be an appeals process stated. 10-24(b) Approval by Director can be a gift from the administration. This must be deleted. 10-25 continues the gift. Place a period after "with this chapter." Delete the remainder of the wording. Artilce 4 needs to be refigured with regard to other discussions of setback and relief on a properly. Unweathered rock and plasticity can become defaults 10-29 Maximum cleared areas What defines the distance between adjacent areas? A pencil width?. 10-30 Topsoil should be stockpiled. 10.37 Drainage. Retention and collection ponds should be considered here. * *---Beginning of quoted draft text --- Article [2-.13. Permits. Section [}0-91 10-15. Required. Note here that in the latest revision this is Article 3, Permits, Section 10-16 ,Required. A subsection (d) should be added. [(a)] Except as excluded in section [49-3e] 10=5: [(Ifl (a)_ _ No -grading work shall_ be commenced or -.-performed without a grading permit. [(�] (1?1 No grubbing work shall be commenced or performed without a grubbing permit except where grubbing concerns land for which a grading permit has been issued. PA - UC No stockpiling work shall be commenced or performed without a stockpiling permit[,], except where stockpiling concerns land for which a ap ra ovedrg ading plan. (d) If no Permit has been issued, violations as presented in Article 2 are still in effect as well as penalties for not obtaining a permit before work commenced. See 10-18(a) below for subsection addressing penalties. **---end of quoted draft text---** 10.16(e) This is now 10-17(e) in the revision. This is a DANGEROUS provision and must be modified and made specific. It needs a provision for things 'falling through the cracks. " An effort must be made for 10 subsequent contact. A way to address this is with complete revision of 10.16(e) as follows: The applicant shall be notified that an application has been received and if all material deficiencies in required materials No application will be processed unless considered complete and all required information (including approvals from other agencies as needed) is received. When all materials are received the applicant will be notified again and the date of that notification shall be deemed the initiation date of the permit processing. After 30 days of a complete application being received and the applicant being notified of the start of the processing date if the applicant has not been informed of any action the applicant shall immediately notify the permitting department by any documentable and traceable means (e.g.,e-mail, telephone to department head telefax certified mail personal delivery) that no statement of action has been received• the permitting __department within 5 business days shall respond to the applicant with an action or a provisional permit. No on-site operations shall begin without a provisional or final permit 10.17(d) "When grading, grubbing, or stockpiling is performed by or on behalf of the County, State, or Federal government or for all -affordable homes projects public health facilities whether for profit or non- rofit, the director of public works shall waive the collection of any permit fee required in subsections (a), (b), and (c) above." This expands the fee waiver to other worthwhile projects. If a private development includes plans for major operations that will be to the benefit of the County and transferred to the county, such as providing areas for parks, recreation, public safety uses, schools, libraries, hospitals, etc., consideration of waiving fees for that section of the project should also be considered. 10.18 This is an interesting section in that it presumes unauthorized (non permitted) work will seek a permit. Although restoration provisions are included if tile work ceases and does not continue, there should be a single .set fine for not getting a permit. In addition, this provision should apply to operations that commence before a permit is granted In effect, there is less liability to proceed without a permit than to begin without one. Suppose important historical sites are destroyed or modifications to the land are so extensive that original water flow paths are unrecognizable. Doubling the permit fee is hardly a penalty. A fat fine also needs to be included. A section on how to deal with temporary dangerous conditions should be added. 11 (a) Where work for which a grading, grubbing or stockpiling permit is required by this chapter is started or proceeded with before obtaining the permit, a flat fine of $1,000 per day shall be levied and the fees shall be doubled or increased by an additional $200, whichever is greater,... (d) All work shall cease and a permit request must be submitted Any partial work if presenting a dangerous or hazardous conditions must be remediated immediately while a permit application is pending If a permit is denied the applicant may follow appeal procedures or correct deficiencies and real2RlY. Here a penalty in reapplication time might be of importance. Compliance with General Plan and local community development plans should be addressed. 10.19 Bond should be rewritten in clearer language. There are 136 words in the first sentence. 10.22(a) An appeal process for denial should be described. Perhaps that in 10.7 (df could be referenced or serve as a model. 10.22(b) Failure of the director of public works to observe or recognize hazardous conditions or the director's failure to deny the grading, grubbing or stockpiling permit _shall not relieve the permittee or the permittee's agent from being responsible, or cause the County, its officers or agents, as long as they are acting in good faith and with due diligence on the engineering reports and information contained in the application to be held responsible for the conditions or damages resulting therefrom, If there is outright incompetence, the county should not be held unaccountable. 10.23(b) An appeal process for revocations should be described. Perhaps that in 10.7 (d f could be referenced or serve as a model. Additionally, some discussion on restoration for revocation should be included (see final additional comment). 10.25(d) This needs clarification. Does this mean that the permittee is denied any future permits for any site or does it reference and apply only the specific site for the permit for which there were violations? This should be made clear. Partial text as is copied below: ++-- beginning of text--- �F " the permittee and any person connected with execution of the work authorized by the permit shall be denied a grading, grubbing, or stockpiling permit for such work until the permittee has complied and initiated action satisfactory to the director of public works to comply with the provisions of this chapter[-.] pursuant to section 10-7." r 12 * *---end of text---* * That is, "such work" could be interpreted as similar work elsewhere. After 3 violations, the owner, developer or contractor should have their license or rights suspended for a certain amount of time. 10.27 Consistency with section 10.26 is needed. For example, in 10.26, a vertical cut of 15 feet requires an 8 -foot wide bench at 7.5 feet height. In 10.27, a vertical cut of 15 feet requires it be 6 feet from the property line. It should be clarified that the cut adjacent to the property line must first comply with 10.26. Therefore the distance should not be measured from the top of the slope but rather the bottom of the cut, cut slope. or slope and it then complies with 10.26. 10.28 should clarify in the beginning that this is the maximum amount to be cleared at any one time. Use the word "contiguous" in the first sentence. The maximum contiguous area of land that may be cleared at any one time for grading or grubbing is [twenty] fifteen acres. 10.29 refers to an engineer's soils report and is an example of why not to limit the definition of an engineer to a civil or structural engineer. 10.30 insert "grading" in list of means to remove vegetation. 10.32 US EPA has dust standards as well. 10.35(c) Service by mail should be retained — suppose the person is off island? And this is consistent with other service notifications in this Chapter. "The" notice of violation is acceptable as each violation should require a separate notice. The first sentence in (c) contains 119 words. It is understandable whereas 10.19 is not. 10.36(a) Another option such as ponds should be added. a) "Adequate provisions shall be made to prevent surface waters from damaging the cut face of an excavation or the sloping surfaces of a fill. All drainage provisions shall be designed to carry surface waters to a [street,] storm drain[;] system, natural watercourse, or other area, approved by the director of public works as a safe place to deposit and receive such waters. The director of public works may require such drainage structures and pipes, retention or detention onds to be constructed or installed, which in his opinion, are necessary to prevent erosion damage and to satisfactorily carry off surface waters." 10.360 Development -generated runoff shall not be directed off-site[.] unless a proper drainage system is designed by an engineer and subsequently 13 Seethe comment on 10.3(a). This is a particularly restrictive provision and perhaps needed but in some instances will be difficult to comply with. A housing development is likely to create an impermeable footprint of 80 percent of the land use from roofs, sidewalks, and paving. This is a tremendous amount of water. Just one inch of precipitation on 12 acres (80 percent of 15 acres) generates an acre foot of water, about 350, 000 gallons, Precipitation events of 2-3 inches per hour are not uncommon on Hilo side or Kona side. If that water could be directed into an approved storm drain that goes off property and does not impact other properties, it should be allowed. 10.38 makes reference to an engineer and the definition should be expanded to include competent, licensed engineers from other disciplines. 10.39 Section 4. There should there be a statement on grandfathering. What happens to projects in progress? Projects substantially underway may be grandfathered, but those that are substantially not underway should have to.adhere to these changes. Additional comment regarding revocation: There should be a section addressing what happens if a permit is revoked (in progress) and no compromise is approved for continuation of the project. Basically, the land should be restored as much as possible to original conditions. Perhaps relevant sections in 10.18 could serve as a model. The party responsible for this restoration should be identified and this final action should be discussed under the Bond provision. 14 Chapter 10 Community Meeting Waimea Elementary School Cafeteria 11/18/08 6:00 — 8:00 P.M. Public Comments 1. "Settlement Agreement?" - a. Originates from Oceanside 1250 2. Chapter 10 amendments are great. 3. Disagree with definition of "fill" (see 10-2). a. "or any other material" b. Suggestion: Tighten up the definition of "fill." c. Suggestion: Be more consistent with wording. d. Suggestion: Take out "or any other material." i. Removal will only allow fill to be composed of soil, sand, gravel, & rock.. e. Green waste is not prohibited — common practice 4. Ag — "No Exemptions" are allowed a. Need a permit from DPW or conservation permit b. Disagree: People in remote areas need permits. i. If exemption allowed, anyone could claim their lot is in a remote area. c. Suggestion: Provide exemptions for some remote areas. 5. Passing proposed changes will require additional resources for enforcement. a. Suggestion: Council should address issue. 6. Equipment Operator being liable. a. Q: Should operator know the law before running a bulldozer? b. Q: Those held liable too general? c. Disagree with equipment operator being held liable. d. A: Issues of liability have been reviewed by the Office of the Corporation Counsel. 7. Flood control — not addressed by Chpt: 10, though some redundancy occurs. 8. 10-3(c) — Vegetation a. Q: Enforcement — will this address flooding & fires? b. A: Call DPW when violations occur — inspector will be sent. 9. Q: Most cost effective way of getting rid of grubbing? a. A: Where and when allowed, bur or bury grubbing. 10. 10-3(B) —Minimum BMP's a. Q: Dust control? b. A: County does not enforce. c. See Hawaii Administrative Rendes, Chapter 11-60 entitled "Air Pollution Control," which is enforced by DOH. 11. Concerned with Ag Operations a. Suggestion: Consideration should be given to ag operations (traditional) i, i.e. Plowing, grading, sewing. 12. NRCS — provides conservation plans for free. 13. Wording a 10-3(B) "within and outside" vs. 10-24 "within and beyond" b. Suggestion: Use "outside" for section 10-24. 14. Moving fallen trees with bulldozer. a. No agency is known to regulate. 15. Consistent wording/Formatting a. 10-3(c) & 10-22 — "water course" or "watercourse"? - Consistency b. 10-8(c) — Formatting — indent to left. Chanter 10 Community Meeting Pahoa Community Center 11/19/08 6:00 — 8:00 P.M. Public Comments I. Why since origination is it being acted upon? a. Originated to provide coastal protection, among other issues. b. Laws were old/out of date — needed updating. c. Seems the process of approving the amendments is being rushed. Has the public meetings for the Chpt. 10 amendments been adequately publicized?' E-mailed? 2. Chpt. 10 amendments not about the big developer, but impacts the little people. a. Reads technically, as though written by an engineer — no thought to the increase in cost for property development — estimated increase of $20 — $30,000 to get all the permits and plans that are required. b. Suggestion: Identify specific areas this. should affect — not all encompassing for the entire island. c. Currently does not allow free homesteading (farming) on property. 3. Size of land that does not need a permit. a. Concern: Historic value can be found on property smaller than minimum requirements for permits. 4. S WCD — all volunteer — are farmers overseen? a. No. But, if they violate Chpt. 10, will be held liable — treated in same manner as any other violator. 5. Chpt. 10 has no minimums for fines, only `imp to" amounts. Could minimum fines be added to Chpt.? a. All involved could be fined if they violate Chpt. 10. 6. Funding for proper enforcement seems to be a problem. 7. It seems the current Community Development Plan (CDP) has not even been looked at inconsideration to Chpt. 10. a. Suggestion: Discuss CDP as it relates to Chpt. 10 — go back to the drawing board. b. Addressing the concerns and issues through law is a process. c. Suggestion: After consideration of public input, allow for more public input. 8. Does not protect natural/native rainforest (no preservation). a. Suggestion: Really firm regulations need to be adopted. 9. How does this fix the damage already done to lands? a. Suggestion: Need to provide measures to fix the destruction of native and historic areas. 10. Enforcement needs to be strong. 11. Why was the brochure, obtainable through the Big Island RC&D, which provides information on how to build properly in the forest, denied from being distributed at the DPW counter? a. Request to display free brochure was redirected to planning as that is the first stop in process of developing land. b. Brochure should be allowed with a disclaimer, if need be. 12. Greater respect for land (historical, cultural, native forests, etc.) needs to be addressed. a. Suggestion: Minimum sizes, as identified in Chpt. 10, needs to be removed. 13. Map with `iwi & heiau identified is not being used when property is being developed. 14. Bring this discussion back ASAP. 15. County must first listen and pay attention to the issues'of those "connected" to the - -- `aina —who respect it. 16. Suggestion: Graders must be washed. 17. Suggestion: Mandatory fines to ALL in violation. 18. Suggestion: Map where native forests are and direct people to not be allowed to clear there. 19. Suggestion: NRCS/SWCD should get some funding help. 20. Suggestion; Allow landscape architects to do Erosion & Sedimentation Control Plans. 21. Suggestion: Property owners pay to have mandatory inspections to see what is on the property. a. County provide mandatory guidance for everyone who wants to develop', land of any size to prevent destruction of native forests & historical sites. 22. PDCP addressed grading and grubbing, but was ignored in this revision. Chanter 10 Community Meeting Pahala Neighborhood Center 11/20/08 6:00 7:30 P.M. Public Comments 1. Where is the manpower to enforce violations to the code? a. Codes do not address the details re: manpower b. System is currently complaint driven 2. G&G adversely affects existing drainage. a. County should do something b. Hold the contractor and landowner responsible 3. Lots smaller than 15,000 sq feet a. This is an oversight b. Drainage is blocked by dozing c. In Puna operator dozed the wrong lot d. Suggest—Posting 30 days on the lot in advance of the permit, so neighbors can verify this is the right lot to be dozed e. Subdivisions that pre -date 1975 i. These may be not surveyed properly happens in the Puna area; Volcano Village, Hawaiian Acres. ii. Natural topography is dozed and there is water runoff iii. These out- of -sync subdivisions are not addressed in this ordinance or by the law iv. Suggest Chapter 10 link to all Community Development Plans v. Posting 30 days in advance of G&G for all lots f. Suggestion: There should be a clause for a contractor and land owner or operator who are repeat offenders by more than 3 times g. People are being harmed. Law should be changed to protect people. h. People are hurt from the activity caused by the lot above 4. Clarify Article 2, Section 10-8 ( e) for director to grant automatic approval, once all permits are completed by various agencies. Chapter 10 Community Meeting Hilo Aupuni Center 11/24/08 6:00-8:00 P.M. Public Comments 1. Why increase permitting fees? Is it fair to increase them? a. Increased fees to get in line with State. b. Must join soil & conservation to get a permit. c. Need to have an idea of what work needs to be done (i.e. plowing), and then engage in how to go about doing it. 2. 0.82 acre lot did some grubbing and wants to remove the rocks. Need a permit? a. Depends on ownership. If private property, no. If State land, not allowed. 3. Problem: Having to use an engineer to do all the planning/inspection keeps some from being able to afford even to grub the property after all engineering fees are paid. a. Suggestion: Include an overall estimated expense for all engineering involvement, fees, etc. one would expect to encounter. 4. NRCS — Free service a. May help farmers with costs. 5. What are the fees used for? a. Pay for Engineering Division's costs incurred. b. Suggestion: Use fees for other public needs and enforcement. 6. Accountability? a. Administrative fines/day. b. Have plans go through Planning Department first, to catch mistakes. 7. Suggestion: Require developer to get permits when developing a subdivision. Require larger scale grading/grubbing to be required if it will be better as a whole to the area, which will also reduce the number of permits required. 8. Does this Ordinance apply to Hawaiian Homelands? a. According to the Hawaiian Homelands office, yes, it does apply. b. The past has shown separate treatment (i.e. Walmart — no permits were obtained prior to grubbing and grading, where as Hawaiians receiving land as their inherent right, cannot develop the land without first obtaining the proper permits). c. Q: What gives the County jurisdiction/authority over Hawaiian Homelands? 9. Need a good topo map to know whether property will trigger requirements based on the different volume/area requirements. 10. One permit is issued per lot. 11. Native, historical & flooding issues: a. Disagree with cutting, grading, grubbing bit by bit going unnoticed. b. Suggestion: Since these add to erosion, address this issue in Chpt. 10. 12. How is this changing how property is developed? a. Generally, I acre is the trigger. b. Erosion/sedimentation control plan is different from grading permit. c. One acre needsapermit from the County and with NPDES. 13. Lot coverage suggestion: Preserve native forests & reward people for keeping 1/3 of property natural & plant native hardwood. 14. Suggestion: Apply laws to the areas in ways that reflect the needs of the areas instead of a blanket law (throw -net vs. drift -net). 15. Conduct a CHARRETTE: a. Bring all government agencies with a stake in this to meet concerning where changes are required. i. Have a preliminary meeting to identify all the stakeholders. -ii. Then the County -and possibly the -State -stakeholders meet, then on to the Feds. iii. Must have legislators involved. 16. Suggestion: Allow opportunity to opt out from having to see certain regulatory agencies. 17. TILLING THE SOIL REQUIRES A PERMIT? a. DOES NOT HELP SUSTAINABILITY BECAUSE OF ALL THE RED TAPE IT CREATES. FEW WILL READ/FOLLOW REQUIREMENTS. (In caps per request of speaker). b. How often is a new permit required? Every two years, if not an ag. operation plan. 18. Suggestion: Address the impacts on all affected. (i.e. How many farmers are going -to -become -criminals once -laws apply? The implications on -affordability & sustainability.) 19. County ordered to amend Chpt. 10. Why? a. To protect water quality & shores as affected by grading and grubbing. 20. How much time do fanners have to get a conservation plan? a. What constitutes ag. Activity that triggers a conservation plan? Grading`and Grubbing Ordinance Revision Comments 19 November 2008 Jillian Marohnic Hundreds of island residents signed a petition this past year, asking for forest I` protection within the Grading and Grubbing Ordinance. Supporters gave 5 hours of testimony in'front'of County Council —discussing the vital connections between forest clearing and erosion, between forest clearing and aquifer depletion, between forest clearing and reef destruction, between forest clearing and the diminishing quality of life on the island. People whose properties are flooding out due to large-scale clearing above them have pleaded with you to restrict forest clearing. Yet you have failed to include measures for forest preservation in the revised ordinance. The Volcano Community Association published a brochure on "Building in the Forest" and asked you to display it where people get their grubbing permits. You l refused them. The Natural Resources Working Group of the Puna Plan requested to meet with you to discuss a proposal for retention of forested buffers around cleared lots. You evaded them. You have had years to produce a well -researched and responsible revision of this ordinance. You have failed. You are failing to meet the requests of the people. You are failing to protect the island's future. Your lack of responsiveness to the island's people and to the island'Is problems should not be tolerated any longer. We demand strong provisions for forest preservation in this ordinance. I Native Forest Preservation in Current 1-18-08 Draft Grading & Grubbing Ordinance Revision (Chapter 10 Erosion And Sedimentation Control) The word "forest" does not appear, "native" does not appear. There are two references to "vegetation": "Whenever feasible, natural vegetation, especially gruaaaeeeA , should be retained." Hawaii County (ode, Chapter 10 (draft), Section 10-3(c) Minimum BMPs "Whenever feasible, natural vegetation should be retained by becoming part of the erosion co tro'1 plan during construction or part of the permanent landscaping plan if applicable," j Hawaii County (ode, Chapter 10 (draft), Section 10-31 Vegetation "Fires threaten Hawaii's native plant and animal communities. Non-native grass species such as beardgrass, broomsedge, buffet grass, fountain grass, and molasses grass have invaded native plant communities and provide extremely combustible fuel for fires in the dry season. The light fuel of non-native grasses combined with wind can carry fires into areas that would otherwise be unharmed. Non-native grasses° rapidly take root and establish on land historically home to endemic, native plant communities thereby adding fuel to future wildfires." Newsletter of the Division of forestry and Wildlife, Hawaii State Department of Land & Natural Resources, Vol I No I Summer 2005 {' I. "During the 2007 fiscal year the Division was involved in 23 wildfires statewide, consuming 20,445 acres. Suppression costs are estimated at $900,000." Newsletter of the Division of Forestry and Wildlife, Hawaii State Department of Land ,& Natural Resources, Vol 3 Not Summer 2007 "In the case of our forests, we pay no bill for the capture and filtering of rainwater that replenishes our island aquifers, no bill for natural efiossn cont, l and clear nearshore waters. We pay no bill for the uptake of carbon dioxide and the supply of oxygen... (ontemplote the cost of replicating just one or these essential services through feats of technology or engineering and you begin to appreciate the contribution our forests make to our economy and quality of life." Hawaii Nature Conservancy / State Department of Lund and Natural Resources— Last Stand brochure WATER AND THE FOREST Rain a 7ways follows the forest -Hawaiian proverb The forest brings the rain The forested mountains force warm ocean air upwards, cooling and condensing it to form rain. Rainfall in the surrounding ocean is only 25 inches per year. jl Water collection is an essential function of the forest The forest captures water in the form of mist, fog, and rain -- absorbing and releasing it into streams and underground aquifers. The Hawaiian forest is highly efficient at capturing water Millions of years of evolution have made the Hawaiian forest perfectly suited to our island. Its ability to pull moisture from passing clouds elevates water capture by as much as 30% above total rainfall. The Hawaiian forest is a conserver of water The tall closed canopy reduces water loss to evaporation. Dense vegetation blocks wind from pulling moisture from the land. The many layers store water and slowly release. When we destroy our forests, we risk our water supply On an island, fresh water is not unlimited. coverage of our forests. Its availability is linked to the health and ilawaa Mature Conservancy /Stole Department of Lurid and Natural Resources —Lest stood kothora FOREST Roho'olawe Rain falling on bare earth causes erosion When forest is removed, water -retaining upper layers of soil are washed away, leaving the less permeable clays. Water runs off the clay instead of filtering down to the aquifer. Removing forest removes defense against drought and flood The forest is a living sponge, reducing immediate water flow in wetter times, maintaining it in dry. Streams that emanate from deforested mountains flood, during rains and run dry when the rains stop. Health of our reefs and beaches is tied the forest Without a forest to.anchorthe soil, sediment washes off our steep mountains and into the ocean — polluting streams, destroying coral reefs, degrading coastal fishing. The Hawaiian forest provides these services for free: - Capture and filtering of rainwater that replenishes our island aquifers'! - Flood mitigation - Erosion control - Sedimentation control Without the forest, we will pay for these services. Hawaii Nature Conservancy State Department of Load and Hamel Resourr,es—LostSiondjhrorhure ii Hawaii : Forested Area by Ownership Ownership Type: ® Federal ® State scowh -- County - _ Private I I 59;rLITH KO 4LA HAttAiSUA V H 1 i� State of Hawaii Department of Land and Natural Resources Division of Forestry and VMlife f&p Na. FW - 0657 Department of Land.ondNatural Resources, Division of Forestry and Wildlife— Forest Health report April 7006 0 Ohia Distribution Legend N ='Ghia Forest and Shrubland' Aggregatirig the following landcover classes: Closed Koa-Ohia Forest: {{{ Closed Ohia Forest Native Wet Forest and Shrubland: Chia Forest: Open Koa-Ghia Forest: Open Chid Forest ' State of Hawaii GIS, Hawaii GPAP Program, March 30, 2006 0 i i O -C 'O C w 9:f Cw-. aoi 3 � c L o L c � = 6 E o Lm E ti o 0 0 c c o w � 6 L O O � d7 O �+ � � n 0 o as c a '- N O G L Q1 O) T O O O � � E CU C C L O > O d } O F C O O N L d � 3 ci v o c N } L C O N 0 3 � - o E a as x o d � 0 C w E � v o E a> X � L E O C � � L V m Qi m X O N CL +_ Q O V y.. EI DETRITUS Muni Mae leases ane branches iaa w the fOfEslflOQ, tWbring storee caroonaleng fortheritC-. wo-eNnls Of 8 forest$' aptufcd Carbon ends up onthegroundorininesoft s All s 1% II?TRUNK The layers of a Kee's tro nk. act as Its circulatory v1stan The inner bark transports sugar throughout the punt. I; Cl ROOTS Ban roots and MYCarrhitae: orhautiko hingi, usesugars mark Via PIIIRVylfth]siS to gree, releasing CJ=as a FN TNECARRON CYCLE, it's ootiust about the individust tree ---tire andira forest playa a ruts. Loaves tape in carbon &ox- ide, cone 6bg if to sugar, which is carbon -based. Some of the sugar is used inmad'atelyfor energy, converted back to CDI,end released into the atmosphere. The rest is stared in Wing wood ordead matter, such as fallen leans and branch". Old-growth forests, in particular, storovastaaaaunds of carbon while continuing he absorb M —NOLLV WEWER ILLUSTRATION BY AIEKE R4714 }lstuta]kwrtasDd,,-w C.*, until —11n £wh rrm ti-amaSpring Do a SUMMARY OF AMENDMENTS BILL 373 DRAFT 2 (CHAPTER 10 EROSION AND SEDIMENTATION CONTROL) MAJOR CHANGES: • New provisions for Agricultural Operations. • New provisions for sedimentation control (Best Management Practices - BMPs). • New provisions for penalties and enforcement (Administrative Enforcement). • All grading plans to be prepared by a licensed engineer or land surveyor. • Erosions control plans required prepared by a licensed engineer or land surveyor for grading greater than 15,000 sq. ft. and grubbing more than 1 acre. • New fee structure. • New provisions requiring bonding of large projects. • New provision requiring the posting of the permit at the job site. • Deleted provisions for extension of time. DETAILED LISTING OF CHANGES: (Does not include grammatical corrections, renumbering and related changes.) • New Section 10-1. Purpose. Existing code does not have a purpose section. • Section 10-2 (formerly 10-1). Definitions. . "Agriculture" or Agricultural operations'.. New, for Section 10-5. Agricultural Operations "Best management practices" or "BMP" . New, for Section 10-3. Minimum BMPs. "Burial site.. ............................................. New, for Section 10-7. Application, additional information. "Conservation plan.. ................................ New, for Section 10-5. Agricultural Operations. "Conservationist.. .................................... New, for Section 10-5: Agricultural Operations. "Contractor'.... ........................................ New, existing code has no definition. "Engineer'. ............................................... Replaced "registered" with "licensed." "Engineer's Soils report.. ......................... Clarifies content of report. "Excavation," "cut" or borrow" ................. Deleted last sentence, no reason for inclusion. "Fill.. ........................................................ Deleted last sentence, no reason for inclusion. "Grubbing.. .............................................. Clarifies definition. "Historic and archaeological sites'.......... Replaces "Designated historic and archaeological sites." 1 ,Land Surveyor" ..................................... "Maximum extent practicable' ............... "Permittee" ............................................. Replaced "registered" with "licensed."" New, for Section 10-3, Minimum BMPs. Clarifies who is a permittee. "Person" .................................................. New, existing code has no definition. "Public utility" .......................................... New, existing code has no definition. New Section 10-3. Minimum BMPs. Similar to NPDES permit sedimentation control requirements. All grading/grading/grubbing/stockpiling should have BMPs whether a permit is needed or not. Section 10-4 (formerly 10-2). Hazardous conditions. Added "grubbed vegetation" to list; deleted written notification requirement. New Section 10-5. Agricultural Operations. Requires all agricultural operations to have a conservation plan prepared by an engineer or conservationist and approved by the appropriate Soil and Water Conservation District (SWCD). This sectio6 does not apply construction work that must comply with other applicable County State or Federal regulations such as Building and Zoning Codes and State NPDES permit requirements. Section 10-6 (formerly 10-3). Exclusions. ' o (a) Added reference to minimum BMPs (Section 10-3). Note: Reference to 10-38 is in error should be 10-29 (Erosion & Sedimentation Control Standards and Guidelines). o (b)(2) Replaced "Grading" with "Excavation" to limit exclusion toI excavation for structures under an approved building permit. Filling within building lines is no longer excluded. o (b)(4) Deleted "rubbish dump" and referenced to solid waste facilities. o (b)(8) All subsurface testing involving less than 50 cubic yards is excluded provided DPW Director is given written notification at least 10 -days prior to start of work. o (b)(9) Exclusion to cover installation and maintenance of all underground and overhead public utilities including street lights, traffic signals, septic tanks, drywells and BMPs. o MO 0) Excluded work regulated wholly by other permits. o (b)(11) Grubbing of trails for survey lines and soil exploratory equipment was formerly found under Section 10.10(c). o Deleted exclusion for agricultural operations. See new Section 10-5I. . Former Sections 10-4, 10-6 through 10-8 replaced with new Article 5. i Former Sections 10-5, Waivers, replaced with new Article 4, Variances.) • Section 10-7 (formerly 10-9). Required. o Former Section 10-9(b) that has been replaced with new Section 10-8(a)(4) and (5). o (c) Revised to state that a stockpiling permit is not required when work is covered by a grading permit. • Section 10-8 (formerly 10-10). Application o (a) Clarifies who can apply for a permit. o (a)(4) New section requiring SHPD review and approval. o (a)(5) New section requiring Planning Director's review and approval. Work must be a legal use of the property. o (b) Grading plans and specifications must be prepared by an engineer or surveyor. Increased number of sets of grading plans and specs from 2 to 3. Deleted "licensed in the State of Hawaii" as it is unnecessary. o (b)(1)(C) Added new site information requirements to assist SHPD review. Last phrase moved to item (b)(1)(D). o (b)(1)(D) New item to locate buildings on adjacent properties within 15 feet of grading work. o (b)(1)(E) Revised to clarifying content of a grading plan. o (b)(1)(G) New requirement to locate known watercourses. o (b)(1)(H) New requirement to locate temporary and permanent BMPs. o (b)(2) Erosion control plan, prepared by a engineer or land surveyor, required for grading more than 15,000 square feet. o (c) Increased number of sets of plot plans for grubbing permits from 2 to 3. Erosion control plan, prepared by a engineer or land surveyor, required for grubbing more than I acre. o (d) Increased number of sets of plot plans for stockpiling permits from 2 to 3. o (e) 30 days to begin after submission of a completed application with approval from SHPD and the Planning Department. • Section 10-9 (formerly 10-11). Fees. Increases fees for all permits to be comparable to other counties. • New Section 10-10. Grading, grubbing or stockpiling without a permit. This section expands former section 10-11(d). New provisions include: o Minimum penalty of $200. o Subject to penalties found in Article 2 of this chapter. o Performance bond will be required if violator fails to perform restoration work. • New Section 10-11. Bonding. Requires a performance bond before issuing a permit for grading or stockpiling that has more than 1,000 cubic yards of work or when excavation or fill more than 15 feet in vertical height or for incremental work. • Section 10-12. Conditions and limitations. o (b) Stating applicant's responsibility to get state permits required by HRS 6E, 205, 205A and 343. 3 i o (c) Clarifies that an NPDES permit may be obtained after receiving a grading permit; and that in case of conflict the more restrictive shall apply. o (d) New requirement to post the permit on-site while work is being done. •' Section 10-13. Expiration. Extending permit duration to 2 -years and d i feted provision for extensions. • Section 10-14. Denial. Item (a) - Reworded to clarify that denial is based on a hazardous condition; deleted "undesirable surface runoff' from the list factors of consideration as it is too subjective. • Section 10-16. Construction prohibited prior to grading. Revised to allow construction of structures to start upon issuance of a grading permit, rather than completion of grading work unless otherwise allowed by the Director of Public Works. • Section 10-17. Inspections. o (b) Notification based on working days so weekends are excluded. o (c) Reference made to section 10-35, Administrative enforcement. o (d) Reference made to section 10-35, Administrative enforcement. • Section 10-19. Distance from property line of cut or fill slope. Item (b) -'Added language to allow for changes in the Building Code for retaining walls; deleted "professional" as it is unnecessary. I • Section 10-20. Maximum cleared area - Reduced to maximum area to 15 acres; non- contiguous areas may be cleared if it is allowed by an NPDES permit; added erosion, sedimentation and/or other requirements for the clearing of additional land. • Section 10-21. Fill materials. o (a) Clarifies density requirement by adding "minimum". o (b) Language is from 10-22(a) and added "Hazardous materials shall not be stockpiled." • Section 10-22. Vegetation. Changed title by deleting "Preparation of grIound surface". • New Section 10-23. Debris prohibited. Grading work shall not cause rocks, soil or debris to enter adjoining properties, streets or watercourses. • New Section 10-24. Dust control. To be controlled in compliance with HAR 10-60. • New Section 10-25. Noise control. To be controlled in compliance with HAIR 11-46. • New Section 10-26. Water quality standards. To comply with HAIR 11-54 and 55. • Section 10-27 (formerly 10-24). Special Conditions and requirements. o (c) Reference made to section 10-35, Administrative enforcement and added language to clarify remedial action by the County. i o (d) Deleted reference to director in the last sentence. o Deleted Item (e), this is addressed by new Section 10-24. 4 • Section 10-28 (formerly 10-25). Drainage. o (a) Deleted "street' as a street may or may not have an adequate storm drain system. Deleted last sentence, it is unnecessary and makes the County liable for the work being required. o (b) Added "public safety" to define type of hazard; and deleted "nuisance" as it too subjective. • Section 10-29 (formerly 10-26). Erosion and Sedimentation Control - Added reference to HRS 342D (Water Pollution). • Section 10-30 (formerly 10-23). Report after grading; notification on completion. Item (a) - Clarifies that the report is to be prepared by an engineer and the report shall include monitoring data. • New Article 4 (formerly 10-5). Variances. Establishes procedures to request variances from the requirements of the Chapter. • New Article 5 (formerly 10-4, 10-6 through 10-8). Violations, Penalties, Enforcement. Incorporates administrative enforcement provisions similar to those found in the Building Code to be the primary means of enforcement. Significant provisions include: o Section 10-35 Violations may be issued to all persons who performs or causes to be performed the violation, including the contractor and equipment operator; violations may be issued to more than one person. o Section 10-35(a) Work without a permit would also be a violation subject to fines and other remedies of this Article. o Section 10-35(d) Fines may continue to accumulate during an appeal process. Section 10-40. Adoption of rules - New section giving DPW Director the authority to promulgate rules pursuant to HRS 91. 5 SUMMARY OF AMENDMENTS BILL 373 DRAFT 2 (CHAPTER 10 EROSION AND SEDIMENTATION CONTROL) MAJOR CHANGES: • New provisions for Agricultural Operations. • New provisions for sedimentation control (Best Management Practices - BMPs). • New provisions for penalties and enforcement (Administrative Enforcement). • All grading plans to be prepared by a licensed engineer or land surveyor. • Erosions control plans required prepared by a licensed engineer or land surveyor for grading greater than 15,000 sq. ft. and grubbing more than 1 acre. • New fee structure. • New provisions requiring bonding of large projects. • New provision requiring the posting of the permit at the job site. • Deleted provisions for extension of time. DETAILED LISTING OF CHANGES: (Does not include grammatical corrections, renumbering and related changes.) • . New Section 10-1. Purpose. Existing code does not have a purpose section. • Section 10-2 (formerly 10-1). Definitions. "Agriculture" or Agricultural operations'.. New, for Section 10-5. Agricultural Operations "Best management practices" or "BMP" . New, for Section 10-3. Minimum BMPs. 'Burial site.. ............................................. New, for Section 10-7. Application, additional information. "Conservation plan.. ................................ New, for Section 10-5. Agricultural Operations. "Conservationist .. .................................... New, for Section 10-5. Agricultural Operations. "Contractor" ............................................ New, existing code has no definition. "Engineer ................................................ Replaced 'registered" with 'licensed." "Engineer's Soils report.. ......................... Clarifies content of report. "Excavation," "cut" or borrow.. ................. Deleted last sentence, no reason for inclusion. "Fill.. ........................................................ Deleted last sentence, no reason for inclusion. "Grubbing" .............................................. Clarifies definition. "Historic and archaeological sites............ Replaces "Designated historic and archaeological sites." 1 'Land Surveyor' ...................................... Replaced "registered" with "licensed."" "Maximum extent practicable.. ................ New, for Section 10-3, Minimum BMPs. Permittee' .............................................. Clarifies who is a permittee. "Person" .................................................. New, existing code has no definition. I "Public utility" ........................................... New, existing code has no der inition. •� New Section 10-3. Minimum BMPs. Similar to NPDES permit sedimentation control requirements. All grading/grading/grubbing/stockpiling should have BMPs whether a i permit is needed or not. i •i Section 10-4 (formerly 10-2). Hazardous conditions. Added "grubbed vegetation" to list; deleted written notification requirement. j •' New Section 10-5. Agricultural Operations. Requires all agricultural operations to have a conservation plan prepared by an engineer or conservationist and approved by the appropriate Soil and Water Conservation District (SWCD). This section does not apply construction work that must comply with other applicable County State or Federal regulations such as Building and Zoning Codes and State NPDES permit requirements. • Section 10-6 (formerly 10-3). Exclusions. i o (a) Added reference to minimum BMPs (Section 10-3). Note•: Reference to 10-38 is in error should be 10-29 (Erosion & Sedimentation Control Standards and Guidelines). o (b)(2) Replaced "Grading" with "Excavation" to limit exclusion toi excavation for structures under an approved building permit. Filling within building lines is no longer excluded. o (b)(4) Deleted "rubbish dump" and referenced to solid waste facilities. j o (b)(8) All subsurface testing involving less than 50 cubic yards is excluded provided DPW Director is given written notification at least 10 -days prior to start of work. o (b)(9) Exclusion to cover installation and maintenance of all underground and overhead public utilities including street lights, traffic signals, septic tanks, drywells and BMPs. o (b)(10) Excluded work regulated wholly by other permits. o (b)(11) Grubbing of trails for survey lines and soil exploratory equipment was formerly found under Section 10.10(c). o Deleted exclusion for agricultural operations. See new Section 10-5. • I Former Sections 10-4, 10-6 through 10-8 replaced with new Article 5. • Former Sections 10-5, Waivers, replaced with new Article 4, Variances • Section 10-7 (formerly 10-9). Required. I o Former Section 10-9(b) that has been replaced with new Section 10-8(a)(4) and (5). 2 o (c) Revised to state that a stockpiling permit is not required when work is covered by a grading permit. • Section 10-8 (formerly 10-10). Application o (a) Clarifies who can apply for a permit. o (a)(4) New section requiring SHPD review and approval. o (a)(5) New section requiring Planning Director's review and approval. Work must be a legal use of the property. o (b) Grading plans and specifications must be prepared by an engineer or surveyor. Increased number of sets of grading plans and specs from 2 to 3. Deleted "licensed in the State of Hawaii" as it is unnecessary. o (b)(1)(C) Added new site information requirements to assist SHPD review. Last phrase moved to item (b)(1)(D). o (b)(1)(D) New item to locate buildings on adjacent properties within 15 feet of grading work. o (b)(1)(E) Revised to clarifying content of a grading plan. o (b)(1)(G) New requirement to locate known watercourses. o (b)(1)(H) New requirement to locate temporary and permanent BMPs. o (b)(2) Erosion control plan, prepared by a engineer or land surveyor, required for grading more than 15,000 square feet. o (c) Increased number of sets of plot plans for grubbing permits from 2 to 3. Erosion control plan, prepared by a engineer or land surveyor, required for grubbing more than I acre. o (d) Increased number of sets of plot plans for stockpiling permits from 2 to 3. o (e) 30 days to begin after submission of a completed application with approval from SHPD and the Planning Department. • Section 10-9 (formerly 10-11). Fees. Increases fees for all permits to be comparable to other counties. • New Section 10-10. Grading, grubbing or stockpiling without a permit. This section expands former section 10-11(d). New provisions include: o Minimum penalty of $200. o Subject to penalties found in Article 2 of this chapter. o Performance bond will be required if violator fails to perform restoration work. • New Section 10-11. Bonding. Requires a performance bond before issuing a permit for grading or stockpiling that has more than 1,000 cubic yards of work or when excavation or fill more than 15 feet in vertical height or for incremental work. • Section 10-12. Conditions and limitations. o (b) Stating applicant's responsibility to get state permits required by HRS 6E, 205, 205A and 343. o (c) Clarifies that an NPDES permit may be obtained after receiving a grading permit; and that in case of conflict the more restrictive shall apply. o (d) New requirement to post the permit on-site while work is being done. • Section 10-13. Expiration. Extending permit duration to 2 -years and deleted provision for extensions. • Section 10-14. Denial. Item (a) - Reworded to clarify that denial is based on a hazardous condition; deleted"undesirable surface runoff' from the list factors of consideration as it is too subjective. I • Section 10-16. Construction prohibited prior to grading. Revised to allow construction of structures to start upon issuance of a grading permit, rather than completion of grading work unless otherwise allowed by the Director of Public Works. • Section 10-17. Inspections. o (b) Notification based on working days so weekends are excluded. o (c) Reference made to section 10-35, Administrative enforcement. o (d) Reference made to section 10-35, Administrative enforcement. • Section 10-19. Distance from property line of cut or fill slope. Item (b) -I Added language to allow for changes in the Building Code for retaining walls; deleted "professional" as it is unnecessary. • Section 10-20. Maximum cleared area - Reduced to maximum area to 15 acres; non- contiguous areas may be cleared if it is allowed by an NPDES permit; added erosion, sedimentation and/or other requirements for the clearing of additional land. • I Section 10-21. Fill materials. I o (a) o (b) Clarifies density requirement by adding "minimum". i Language is from 10-22(a) and added "Hazardous materials shall not be stockpiled." • Section 10-22. Vegetation. Changed title by deleting "Preparation of ground surface'. • New Section 10-23. Debris prohibited. Grading work shall not cause rocks, soil or debris to enter adjoining properties, streets or watercourses. • New Section 10-24. Dust control. To be controlled in compliance with HAR 10-60. • I New Section 10-25. Noise control. To be controlled in compliance with HAIR 11-46. • New Section 10-26. Water quality standards. To comply with HAIR 11-54 and 55. • Section 10-27 (formerly 10-24). Special Conditions and requirements. o (c) Reference made to section 10-35, Administrative enforcement and added language to clarify remedial action by the County. o (d) Deleted reference to director in the last sentence. o Deleted Item (e), this is addressed by new Section 10-24. 9 • Section 10-28 (formerly 10-25). Drainage. o (a) Deleted "street' as a street may or may not have an adequate storm drain system. Deleted last sentence, it is unnecessary and makes the County liable for the work being required. o (b) Added "public safety" to define type of hazard; and deleted "nuisance as it too subjective. • Section 10-29 (formerly 10-26). Erosion and Sedimentation Control - Added reference to HRS 342D (Water Pollution). • Section 10-30 (formerly 10-23). Report after grading; notification on completion. Item (a) - Clarifies that the report is to be prepared by an engineer and the report shall include monitoring data. • New Article 4 (formerly 10-5). Variances. Establishes procedures to request variances from the requirements of the Chapter. • New Article 5 (formerly 10-4, 10-6 through 10-8). Violations, Penalties, Enforcement. Incorporates administrative enforcement provisions similar to those found in the Building Code to be the primary means of enforcement. Significant provisions include: o Section 10-35 Violations may be issued to all persons who performs or causes to be performed the violation, including the contractor and equipment operator; violations may be issued to more than one person. o Section 10-35(a) Work without a permit would also be a violation subject to fines and other remedies of this Article. o Section 10-35(d) Fines may continue to accumulate during an appeal process. Section 10-40. Adoption of rules - New section giving DPW Director the authority to promulgate rules pursuant to HRS 91. Harry Kim Mayor ( 0unt u£'tttuai i DEPARTMENT OF PUBLIC WORKS Aupuni Center 101 Pauahi Street, Suite 7 - Hilo, Hawaii 96720-4224 (808)961-8321 - Fax (808) 961-8630 www.co.hawaii.hi.us Proposed amendments to County grading code Hawaii County Code, Chapter 10 Erosion and Sedimentation Control Fact Sheet Updated September 9, 2008 Bruce C. McClure Director For a copy of the proposed ordinance and a summary of the proposed changes go online to the County website at www.co.hawaii.hi.us. Click on Projects Update and scroll to County of Hawaii. What is the purpose of Chapter 10 of the Hawaii County Code? This is a new section to reflect the ordinance's emphasis on the protection of water quality. "The purpose of this chapter is to provide minimum standards to protect property, promote public health, safety and welfare, and to preserve and enhance the natural environment, including water quality, by regulating grubbing and grading operations and controlling soil erosion and sedimentation in construction and in agricultural operations within the County." How did these changes originate? A team of individuals from the State Dept of Health, Hawaii Coast Zone Management program, and County agencies, members of the Outdoor Circle, the Hawaii Society of Professional Engineers, members of the Soil and Water Conservation District and Natural Resources Conservation Service staff assisted Wilson Okamoto Corporation, a planning and engineering consulting firm in developing these revisions. They met in March, May and July in 2005 to review Chapter 10. Additional changes and revisions were made and appear in the summary. The last revision to Chapter 10 was done in 1975. The proposed changes would require: ■ Conservation plans prepared by a registered engineer or a conservationist for Ag operations. No exemptions. • For urban construction, not Ag operations: County of Hawai'i is an Equal Opportunity Provider and Employer. o Best management practices prevent or reduce pollution to state waters. o Permits posted at the job site. o The permit is limited to only 2 years with no extensions. o Erosion control plans would be prepared by a licensed engineer or land surveyor would be required for grading more than 15,000 sq. ft and grubbing more than an acre. o Equipment operators, contractors and property owners could be held responsible for violating the law under proposed penalties and enforcement rules. o Permit applications would also require approval by the Planning dept to comply with the General Plan and accepted land use regulations. This is in addition to the State Historic Preservation Division approvals. o Grading permit applications submitted to the County must be prepared by an engineer or land surveyor licensed in the State of Hawaii. o A new fee increase of 30% or more in permit fees. o Bond required for larger projects to complete grading more than 500 cubic yards, excavations or fill more than 15- sq. feet in height and incremental work of 500 cubic yard or less. o Withholds building construction until a grading permit for the required area is issued by Public Works. If an Ag operation violates the grubbing and grading law, under this proposal, can they be fined? Under the proposed changes, if the Ag operation is not conforming to the approved conservation plan, the soil and water conservation district directors will notify the director of public works. A notice of violation will be issued and enforcement applicable to provisions of Article 2 of this chapter will be applied. See page 7 in the Amended Chapter 10 for details on the violations. What if 1 don't agree with the violation? You may appeal it before the County board of appeals What is a Conservation Plan? Natural Resources Conservation Service (NRCS) defines the plan as a list of scheduled activities to help private land owners and managers conserve their soil, water, and other natural resources. For a copy of the NRCS Strategic Plan, click on http://landcare.sc.egov.usda.gov/ or call 1-888-LANDCARE. Who approves farm, or ranching activities? Soil and Water Conservation Districts, are a group of volunteers, farmers and ranchers themselves, who meet monthly to approve conservation plans for agricultural operations. They also seek federal funds and work closely with NRCS. The districts are under State jurisdiction and under State law must serve Agricultural operations for the County. County of Hawaii is an Equal Opportunity Provider and Employer. What if my application is not Ag related? You file an application with the County of Hawaii, engineering division. How will these changes affect us? All agricultural operations will be required to have a conservation plan. Conservation plans for farms and ranch operations must be reviewed every five years by the soil and water conservation districts. This is to insure the entity is confirming to the practice, if not then soil and water conservation districts may terminate the plan. Public Works would follow up with a violation notice and appropriate action under these proposed changes. Grading, grubbing and or stockpiling applications not covered by a conservation plan will be required to have Best Management Practices (BMP), regardless if a permit is required or not. Is the County requiring a license for a bulldozer operator? Equipment operators and the property owner could be held responsible for violating the law under proposed penalties and enforcement rules. What are the impacts? Tougher enforcement and stiffer penalties directed to the property owner and the person or firm doing the work. The County can recover costs for corrective work if the violation becomes an imminent danger to public health and safety. Are flooding and drainage problems addressed in Chapter 10? No. Chapter 10 does not address existing or pending flood or drainage problems. Neither does this ordinance address pin -to -pin land clearing, which is a land use issue. County of Hawaii is an Equal Opportunity Provider and Employer.