Louisville and Jefferson County
Erosion Prevention and Sediment Control Ordinance

Legislative History
January 1998

Overview
The purpose of this document is to provide an overview of important issues and legislative history in support of an Erosion Prevention and Sediment Control Ordinance (EPSC) for Jefferson County, Kentucky. This document will describe the Federal legislative history for erosion and sediment control, define the need for developing an ordinance specific to Jefferson County, provide a summation of prior actions by local government agencies to establish an ordinance, and discuss the enabling authority for such an ordinance.

A Review of Federal Legislation
Legislation has been used throughout the United States since the 1930's to control the damaging impacts of erosion and sediment. What began as a rural concern in the Midwest "Dust Bowl" has slowly spread to the explosive suburban growth areas to become one of our nation's most serious land use management issues. A succession of increasingly tougher laws and regulations has been enacted by Congress aimed at influencing land development and land disturbing activities. Though the initial intent of this legislation was to save and protect soil on farmland, the focus has become a federal concern over the protection of water quality in streams, rivers and lakes. In Jefferson County, the principal concern for controlling erosion and sediment has been in response to diminished water quality in local streams and the loss of water carrying capacity within stream channels. The following text provides a brief history of the federal legislation that has been enacted in response to soil erosion and sediment control.

The Soil Conservation Act of 1935
Public Law 74-62 enacted by Congress in 1935 acknowledged one of the first federal concerns for the catastrophic effects that wind and water erosion were having on the Great Plains. Drought, poor farming practices and a lack of understanding of erosion control resulted in the annual loss of millions of tons of topsoil. The Soil Conservation Act created a new federal agency, the Soil Conservation Service (SCS), which was empowered to provide technical and financial assistance to prevent the loss of soil on private and public lands. The SCS was renamed the Natural Resources Conservation Service (NRCS) in 1995.

The concept of Conservation Districts also resulted from this legislation and model programs were established by the United States Department of Agriculture (USDA). Eventually, all 50 states adopted some form of conservation district legislation. The focus of Conservation Districts was to provide farmers with information on proper cultivation, crop rotation, and growth of vegetative buffers and protection of adjacent natural resources.

The Watershed Protection and Flood Prevention Act
Public Law 83-566 was passed by Congress in 1954 to define the impact that watershed management would have on floodplain management. The issue of controlling erosion by limiting the amount of stormwater discharge from a given property originated within this legislation. Additionally, this law advocates a non-structural approach to controlling upland erosion.

Federal Water Pollution Control Act 1972 - (AKA "Clean Water Act")
The Clean Water Act (CWA) defined a national goal of eliminating the discharge of pollutants into navigable waters of the United States by the year 1985. This law influenced many states to pass stormwater management and sediment control legislation. The implementation of this law was strengthened by the formation of the U. S. Environmental Protection Agency in 1972. The focus in the 1970's began to shift from a non-point source, rural, soil loss problem, to a point source, urban, pollutant discharge problem. Additionally, the focus of the CWA turned from agricultural practices to the rapid growth in land disturbing activities associated with homebuilding, highway construction and shopping center development. Revisions to the CWA in the 1990's have resulted in the creation of the National Pollutant Discharge Elimination System (NPDES) permit program, which requires communities with populations of 100,000 or more to obtain a permit from the federal government to discharge stormwater into "waters of the United States." The NPDES program is administered by the Kentucky Division of Water, and is known as the KPDES permit program. The State of Kentucky has mandated the need for Jefferson County to prepare and adopt a soil erosion and sediment control ordinance to remain in compliance with state and federal laws associated with CWA.

State Erosion and Sediment Control Legislation
Supporting federal initiatives, states have slowly developed both legislation and implementation programs that satisfy these mandates. Two approaches for implementing legislation are most common. One has been a "prescriptive" approach, telling landowners what they can and cannot do for certain land disturbing activities. The other is a "performance-based" approach, setting goals and standards that must be achieved, but allowing landowners to choose the best land stewardship methods.

(Source: John Peterson, Erosion Control magazine, March/April 1997, page 10-13)

Definition of Need
The need for an EPSC Ordinance in Jefferson County can certainly be justified by the Federal and State mandates that originate from the legislation defined earlier in this report. However, Jefferson County is not only responding to a "federal mandate" in preparing and adopting such an ordinance; there are serious land and water management issues of concern to County residents that must be addressed and resolved. These concerns include the impacts on biodiversity, quality of life, pollution of local creeks and streams, loss of water carrying capacity in local streams, and the protection of public health, safety and welfare. The following text defines the need for this ordinance.

Cornerstone 2020 Goals and Objectives
Jefferson County has recently completed a four year process, that was led by citizens, to update its comprehensive growth management plan -- entitled "Cornerstone 2020." The goals and objectives of Cornerstone 2020 stress the importance of balancing economic growth and land use development with progressive environmental management and natural resource stewardship. Cornerstone 2020 offers specific goals and objectives that respond to the need for the preparation and adoption of an EPSC ordinance. Many of the goals and objectives defined under the Livability Strategy of Cornerstone 2020 address the need for erosion and sediment control. Specifically, under section one, Environmental Resources, subsection E, Land, Goal E1 states "Control soil erosion and the effects of sedimentation resulting from surface water runoff." The sole objective under this goal calls for the County to "Develop guidelines and standards to address soil erosion and sedimentation that will incorporate best management practices, provide measurable standards for stormwater quantity and quality, and establish strong deterrents to violation." Goal E4 addresses the need to "Protect steep slopes and sensitive soils." Objective E4.2 states that the County should "Develop guidelines and standards that define and set criteria for development on hilltops and steep slopes to protect water quality and prevent siltation of drainage channels."

Other Environmental Resource goals also address the need for an erosion and sediment control program. Under subsection B, Water, Objective B1.4 states that the County should "Develop and implement county-wide stormwater drainage control measures for new development that minimize off-site flooding, stream bank degradation, and erosion." Goal B2, Water Quality, states that the County should "Improve water quality throughout the metro region in order to preserve and enhance biological diversity and to support human use and contact recreation." All of the objectives under this goal, B2.1 through B2.7, address specific methods for accomplishing this goal.

Cornerstone 2020, a citizen-led initiative that serves as the basis for guiding the future growth of the County, clearly defines the need and provides a local mandate for the preparation and adoption of a county-wide erosion prevention and sediment control ordinance.

Protect Public Health and Safety
Every waterway in Jefferson County has been designated by the Kentucky Division of Water as unsafe for swimming and fishing due to pollution loads in the water and the amount of harmful bacteria in stream bottom sediment. Although there has been little research into the relationship between water quality and human health in America, the Center for Disease Control estimates that 900,000 people get sick and more than 1,000 die as a result of consuming contaminated water each year. The Environmental Protection Agency concludes that the most extensive causes of public use impairment to our rivers and streams are siltation (affecting 45 percent of impaired river miles), high levels of nutrients (37 percent), pathogen indicators (27 percent), pesticides (26 percent) and "heavy metals" (19 percent). All of these are by-products of stormwater discharge that originate from farmland, land under development and urban areas. This runoff is a lethal toxic soup that not only kills plants and animals, but in high concentrations is deadly to humans. Once these toxins wash into a local stream, they become trapped in sediment of the stream channel. Heavy siltation serves to trap more pollutants, transforming the stream into a lifeless, toxic, open sewer. Streams can and do recover, but offensive pollution and siltation must first be brought under control. The EPSC program proposed through this ordinance is an important first step toward making Jefferson County's waterways cleaner and safer for human contact activities. (Source: National Water Quality Inventory - 1992 Report to Congress by the EPA)

Public health and safety is also at risk from the danger of mudslides and improperly developed public and private construction. Development in Jefferson County has for the most part occurred in the relatively flat to gently rolling landscapes in the western part of the County. As development continues east, into the Floyd's Fork watershed, two landform issues will shape future growth: 1) steeper slopes and 2) soils not ideally suitable for traditional land development. While it may appear today that the risk of mudslides is low, future growth into the eastern parts of the County is likely to encounter this problem. A comprehensive sediment and erosion control program is needed now to reduce future threats to public health and safety.

Loss of Water Carrying Capacity
Flooding is a well-documented problem in Jefferson County. The March 1, 1997 flood exemplified the magnitude of this problem. Maintaining the water carrying capacity of creeks and streams is a primary concern of MSD. Why? Sedimentation of Jefferson County's creeks and streams serves to exacerbate flooding problems. When the normal carrying capacity of these stream channels is diminished, smaller storm events have a greater negative impact on the community. The more frequent 2-year and 5-year storm events can cause localized flooding, resulting in annual economic losses for the community. One national study indicates that 85% of all rains are less than a few inches in depth, and can generate up to 70% of the total annual runoff. When stream capacity is diminished by siltation, runoff will overtop creek banks and flood surrounding homes and businesses. (Source: Urban Stormwater Toxic Pollutants, Water Environmental Research, May/June 1995)

Each year, the Metropolitan Sewer District spends approximately $500,000 to clean the waterways of siltation and debris that comes from erosion. MSD estimates that 10,000 cubic yards of excess silt must be removed from the more than 130 miles of waterways under its control. Failure to do so would greatly reduce capacity in the stream channel, resulting in more frequent flooding of homes and businesses. This work is an essential component of the flood protection system for Jefferson County. Some of this expense is avoidable through a comprehensive program aimed at controlling soil loss and sedimentation of Jefferson County's streams. (Source: MSD)

Public Nuisance
Sedimentation of creeks and streams also devalues local private and public property. Drainage ditches that are full of mud and laden with toxic pollutants emit an odor that is obnoxious. Mudslides into local streets and onto adjacent property create a hazardous, as well as unappealing landscape condition. It is difficult to place an economic value on the loss that is associated with these events. Public nuisance also results from the inability of drainage ditches to flow freely due to sedimentation. This has been a consistent problem in the Pond Creek Watershed and is one not easily resolved through current land use laws. As a result, neighbors have been known to sue other neighbors in order to resolve the drainage problem.

 Legislative History, Part 2 of 2

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