2012 -- S 2445

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LC00465

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STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2012

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A N A C T

RELATING TO TOWNS AND CITIES - SOIL EROSION AND SEDIMENT CONTROL

     Introduced By: Senators Miller, McCaffrey, Lynch, Gallo, and Sosnowski

     Date Introduced: February 16, 2012

     Referred To: Senate Environment & Agriculture

It is enacted by the General Assembly as follows:

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     SECTION 1. Section 45-46-5 of the General Laws in Chapter 45-46 entitled "Soil

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Erosion and Sediment Control" is hereby amended to read as follows:

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     45-46-5. Model ordinance -- Soil erosion and sediment control. –

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      ARTICLE I

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      Section 1. Purpose.

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      (a) The (city or town) council finds that excessive quantities of soil are eroding from

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certain areas that are undergoing development for non agricultural uses such as housing

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developments, industrial areas, recreational facilities, and roads. This erosion makes necessary

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costly repairs to gullies, washed out fills, roads, and embankments. The resulting sediment clogs

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the storm sewers and road ditches, muddies streams, leaves deposits of silt in ponds and

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reservoirs, and is considered a major water pollutant.

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      (b) The purpose of this ordinance is to prevent soil erosion and sedimentation from

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occurring as a result of non agricultural development within the city or town by requiring proper

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provisions for water disposal, and the protection of soil surfaces during and after construction, in

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order to promote the safety, public health, and general welfare of the city or town.

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      ARTICLE II

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      Section 1. Applicability.

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      This ordinance is applicable to any situation involving any disturbance to the terrain,

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topsoil or vegetative ground cover upon any property within the city or town of ________ after

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determination of applicability by the building official or his or her designee based upon criteria

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outlined in article III. Compliance with the requirements as described in this ordinance shall not

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be construed to relieve the owner/applicant of any obligations to obtain necessary state or federal

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permits.

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      ARTICLE III

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      Section 1. Determination of applicability.

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      (a) (1) It is unlawful for any person to disturb any existing vegetation, grades, and

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contours of land in a manner which may increase the potential for soil erosion, without first

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applying for a determination of applicability from the building official or his or her designee.

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Upon determination of applicability, the owner/applicant shall submit a soil erosion and sediment

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control plan for approval by the building official or his or her designee, as provided in article IV.

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The application for determination of applicability shall describe the location, nature, character,

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and time schedule of the proposed land disturbing activity in sufficient detail to allow the

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building official or his or her designee to determine the potential for soil erosion and

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sedimentation resulting from the proposed project. In determining the applicability of the soil

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erosion and sediment control ordinance to a particular land disturbing activity, the building

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official or his or her designee shall consider site topography, drainage patterns, soils, proximity to

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watercourses, and other information deemed appropriate by the building official or his or her

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designee. A particular land disturbing activity shall not be subject to the requirements of this

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ordinance if the building official or his or her designee finds that erosion resulting from the land

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disturbing activity is insignificant and represents no threat to adjacent properties or to the quality

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of any coastal feature or watercourse, as defined in Article IX. The current "Rhode Island Soil

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Erosion and Sediment Control Handbook," U.S. department of agriculture soil conservation

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service, R.I. department of environmental management, and R.I. state conservation committee

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shall be consulted in making this determination.

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      (2) This ordinance shall not apply to existing quarrying operations actively engaged in

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excavating rock but shall apply to sand and gravel extraction operations.

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      (b) No determination of applicability is required for the following:

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      (1) Construction, alteration, or use of any additions to existing single family or duplex

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homes or related structures; provided, that the grounds coverage of addition is less than one

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thousand (1,000) square feet, and construction, alteration and use does not occur within one

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hundred (100') feet of any watercourse or coastal feature, and the slopes at the site of land

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disturbance do not exceed ten percent (10%).

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      (2) Use of a home garden in association with onsite residential use.

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      (3) Accepted agricultural management practices such as seasonal tilling and harvest

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activities associated with property utilized for private and/or commercial agricultural or

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silvacultural purposes.

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      (4) Excavations for improvements other than those described in subsection (b)(1) of this

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section which exhibit all of the following characteristics:

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      (i) Does not result in a total displacement of more than fifty (50) cubic yards of material;

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      (ii) Has no slopes steeper than ten feet (10') vertical in one hundred feet (100') horizontal

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or approximately ten percent (10%); and

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      (iii) Has all disturbed surface areas promptly and effectively protected to prevent soil

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erosion and sedimentation.

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      (5) Grading, as a maintenance measure, or for landscaping purposes on existing

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developed land parcels or lots; provided, that all bare surface is immediately seeded, sodded or

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otherwise protected from erosive actions, and all of the following conditions are met:

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      (i) The aggregate area of activity does not exceed two thousand (2,000) square feet; and

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      (ii) The change of elevation does not exceed two feet (2') at any point; and

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      (iii) The grading does not involve a quantity of fill greater than eighteen (18) cubic

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yards; except where fill is excavated from another portion of the same parcel and the quantity

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does not exceed fifty (50) cubic yards.

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      (6) Grading, filling, removal, or excavation activities and operations undertaken by the

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city or town under the direction and supervision of the director of public works for work on

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streets, roads, or rights-of-ways dedicated to public use; provided, that adequate and acceptable

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erosion and sediment controls are incorporated, in engineering plans and specifications, and

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employed. Appropriate controls apply during construction as well as after the completion of these

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activities. All work shall be undertaken in accordance with the performance principles provided

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for in Article V, Section 1(c) and the standards and definitions that may be adopted to implement

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the performance principles.

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      ARTICLE IV

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      Section 1. Provisions of plan -- Procedures.

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      (a) Plan.

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      (1) To obtain approval for a land disturbing activity as found applicable by the building

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official or his or her designee under article III, an applicant shall first file an erosion and sediment

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control plan signed by the owner of the property, or authorized agent, on which the work subject

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to approval is to be performed. The plan or drawings, as described in article V, shall include

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proposed erosion and sediment control measures to be employed by the applicant or the

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applicant's agent.

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      (2) R.I. Freshwater Wetlands Permit: Where any portion of a proposed development

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requires approval under any provision of the general laws approved by the general assembly or

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where the approval contains provisions for soil erosion and sediment controls, that approved plan

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shall be a component of the overall soil erosion and sediment control plan required under this

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ordinance for the development.

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      (b) Fees.

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      The city or town adopting this ordinance may collect fair and reasonable fees from each

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applicant requesting approval of a soil erosion and sediment control plan for the purposes of

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administering this ordinance.

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      (c) Plan review.

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      (1) Within five (5) working days of the receipt of a completed plan, the building official

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or his or her designee shall send a copy of the plan to the review authorities which may include

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the public works department, the planning board or planning department, and conservation

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commission for the purpose of review and comment. The building official or his or her designee

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may also, within five (5) working days, submit copies of the plan to other local departments or

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agencies, including the conservation district that services their county, in order to better achieve

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the purposes of this chapter. Failure of these review authorities to respond within twenty-one (21)

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days of their receipt of the plan shall be deemed as no objection to the plan as submitted.

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      (2) The time allowed for plan review shall be commensurate with the proposed

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development project, and shall be done simultaneously with other reviews.

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      (d) Plan approval.

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      (1) The building official or his or her designee shall take action in writing, either

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approving or disapproving the plan, with reasons stated within ten (10) days after the building

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official has received the written opinion of the review authorities.

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      (2) In approving a plan, the building official or his or her designee may attach conditions

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deemed reasonably necessary by the review authorities to further the purposes of this ordinance.

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The conditions pertaining to erosion and sediment control measures and/or devices, may include,

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but are not limited to, the erection of walls, drains, dams, and structures, planting vegetation, trees

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and shrubs, furnishings, necessary easements, and specifying a method of performing various

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kinds of work, and the sequence or timing of the work. The applicant/owner shall notify the

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building inspector, or his or her designee, in advance of his or her intent to begin clearing and

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construction work described in the erosion and sediment control plan. The applicant shall have

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the erosion and sediment control plan on the site during grading and construction.

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      (e) Appeals.

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      (1) Administrative procedures: (A) If the ruling made by the building official or his or

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her designee is unsatisfactory to the applicant/owner, the applicant/owner may file a written

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appeal. The appeal of plans for soil erosion and sediment control shall be to the zoning board of

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review or other appropriate board of review, as determined by the city or town council.

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      (B) Appeal procedures shall follow current requirements for appeal to the above-

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mentioned boards.

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      (C) During the period in which the request for appeal is filed, and until the time that a

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final decision is rendered on the appeal, the decision of the building official or his or her designee

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remains in effect.

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      (2) Expert opinion: The official, or his or her designee, the zoning board of review, or

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other board of review, may seek technical assistance on any soil erosion and sediment control

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plan. The expert opinion must be made available in the office of the building official, or his or her

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designee, as a public record prior to the appeals hearing.

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      ARTICLE V.

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      Section 1. Soil Erosion and Sediment Control Plan.

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      (a) Plan preparation.

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      The erosion and sediment control plan shall be prepared by a registered engineer, or

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landscape architect or a soil and water conservation society certified erosion and sediment control

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specialist, and copies of the plan shall be submitted to the building official or his or her designee.

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      (b) Plan contents.

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      The erosion and sediment control plan shall include sufficient information about the

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proposed activities and land parcels to form a clear basis for discussion and review and to assure

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compliance with all applicable requirements of this chapter. The plan shall be consistent with the

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data collection, data analysis, and plan preparation guidelines in the current "Rhode Island Soil

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Erosion and Sediment Control Handbook," prepared by the U.S. department of agriculture, soil

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conservation service, R.I. department of environmental management, R.I. state conservation

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committee, and at a minimum, shall contain:

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      (1) A narrative describing the proposed land disturbing activity and the soil erosion and

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sediment control measures and stormwater management measures to be installed to control

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erosion that could result from the proposed activity. Supporting documentation, such as a

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drainage area, existing site, and soil maps shall be provided as required by the building official or

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his or her designee.

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      (2) Construction drawings illustrating in detail existing and proposed contours, drainage

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features, and vegetation; limits of clearing and grading, the location of soil erosion and sediment

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control and stormwater management measures, detail drawings of measures; stock piles and

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borrow areas; sequence and staging of land disturbing activities; and other information needed for

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construction.

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      (3) Other information or construction plans and details as deemed necessary by the

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building official or his or her designee for a thorough review of the plan prior to action being

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taken as prescribed in this chapter. Withholding or delay of information may be reasons for the

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building official or his or her designee to judge the application as incomplete and providing

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grounds for disapproval of the application.

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      (c) Performance principles.

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      The contents of the erosion and sediment control plan shall clearly demonstrate how the

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principles, outlined in this subsection, have been met in the design and are to be accomplished by

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the proposed development project.

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      (1) The site selected shall show due regard for natural drainage characteristics and

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topography.

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      (2) To the extent possible, steep slopes shall be avoided.

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      (3) The grade of created slopes shall be minimized.

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      (4) Post development runoff rates should not exceed pre development rates, consistent

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with other stormwater requirements which may be in effect. Any increase in storm runoff shall be

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retained and recharged as close as feasible to its place of origin by means of detention ponds or

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basins, seepage areas, subsurface drains, porous paving, or similar technique.

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      (5) Original boundaries, alignment, and slope of watercourses within the project locus

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shall be preserved to the greatest extent feasible.

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      (6) In general, drainage shall be directed away from structures intended for human

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occupancy, municipal or utility use, or similar structures.

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      (7) All drainage provisions shall be of a design and capacity so as to adequately handle

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stormwater runoff, including runoff from tributary upstream areas which may be outside the locus

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of the project.

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      (8) Drainage facilities shall be installed as early as feasible during construction, prior to

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site clearance, if possible.

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      (9) Fill located adjacent to watercourses shall be suitably protected from erosion by

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means of riprap, gabions, retaining walls, vegetative stabilization, or similar measures.

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      (10) Temporary vegetation and/or mulching shall be used to protect bare areas and

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stockpiles from erosion during construction; the smallest areas feasible shall be exposed at any

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one time; disturbed areas shall be protected during the non growing months, November through

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March.

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      (11) Permanent vegetation shall be placed immediately following fine grading.

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      (12) Trees and other existing vegetation shall be retained whenever feasible; the area

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within the dripline shall be fenced or roped off to protect trees from construction equipment.

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      (13) All areas damaged during construction shall be resodded, reseeded, or otherwise

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restored. Monitoring and maintenance schedules, where required, shall be predetermined.

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      (d) Existing uses and facilities.

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      (1) The building official and/or his or her designee shall accept plans for existing uses

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and facilities which by their nature may cause erosion and sedimentation, such as excavation and

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quarrying operations; provided, that this section shall not apply to article III, section 1(a)(1).

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Plans or satisfactory evidence to demonstrate that the existing operations accomplish the

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objectives of the section shall be submitted to the building official and/or his/her designee within

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one hundred twenty (120) days from the date of the determination of applicability.

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Implementation of the plan shall be initiated upon approval of the plan.

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      (2) When the preexisting use is a gravel extraction operation, the property owner shall

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conduct the operation in a manner so as not to devalue abutting properties; to protect abutting

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property from wind erosion and soil erosion due to increased runoff, sedimentation of reservoirs,

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and drainage systems; and to limit the depth of extraction so as not to interfere with the existing

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nearby water table.

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     (e) Alternative Paving Materials. An alternative paving material is one of the following:

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     porous asphalt; porous concrete; permeable interlocking concrete pavers; permeable pavers; hard

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surface elastomeric paving; decomposed granite; crushed rock; gravel; restrained systems (a

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plastic or concrete grid system confined on all sides to restrict lateral movement, and filled with

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gravel or grass in the voids); Hollywood Driveways (two strips of concrete or pavers over dirt or

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vegetation); or recycled rubber. Alternative paving material are permitted for use in every parking

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area, automobile storage area, automobile, manufactured home or trailer sales area, and

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driveways, subject to the following:

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     (1) Any product installed within areas designated by the fire department as a fire lane

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must be approved by the fire department.

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     (2) Permeable interlocking concrete pavers and permeable pavers shall have a minimum

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thickness of 80mm (3.14 inches).

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     (3) If plantings are an element of the alternative paving material, the irrigation system

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shall not utilize potable water except for plant establishment.

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     (4) Products and underlying drainage material shall be installed per manufacturers’

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specifications. Sub-grade soils shall be compacted as required per the product installation

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specifications.

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     (5) Decomposed granite, crushed rock and gravel shall only be allowed for driveways and

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parking areas serving only one or two residential units.

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     (6) All projects shall be compliant with all other provisions of the municipal code and

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any applicable standards or guidelines.

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     (7) The requirements of this section shall not apply to the use of alternative paving

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materials on residential property.

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     ARTICLE VI. Enforcement.

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      Section 1. Performance bond.

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      (a) Performance bond.

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      (1) Before approving an erosion sediment control plan, the building official or his or her

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designee may require the applicant/owner to file a surety company performance bond, deposit of

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money, negotiable securities, or other method of surety, as specified by the building official or his

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or her designee. When any land disturbing activity is to take place within one hundred feet (100')

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of any watercourse or coastal feature or within an identified flood hazard district, or on slopes in

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excess of ten percent (10%), the filing of a performance bond shall be required. The amount of

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the bond, as determined by the public works department, or in its absence, the building official or

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his or her designee, shall be sufficient to cover the cost of implementing all erosion and sediment

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control measures as shown on the plan.

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      (2) The bond or negotiable security filed by the applicant shall be subject to approval of

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the form, content, amount, and manner of execution by the public works director and the city or

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town solicitor.

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      (3) A performance bond for an erosion sediment control plan for a subdivision may be

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included in the performance bond of the subdivision. The posting of the bond as part of the

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subdivision performance bond does not, however, relieve the owner of any requirements of this

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ordinance.

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      (b) Notice of default on performance secured by bond.

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      (1) Whenever the building official or his or her designee finds that a default has occurred

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in the performance of any terms or conditions of the bond or in the implementation of measures

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secured by the bond, written notice shall be made to the applicant and to the surety of the bond by

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the municipal solicitor. The notice shall state the nature of default, work to be done, the estimated

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cost, and the period of time deemed by the building official or his or her designee to be

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reasonably necessary for the completion of the work.

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      (2) Failure of the applicant to acknowledge and comply with the provisions and

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deadlines outlined in the notice of default means the institution, by the city or town solicitor,

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without further notice of proceedings whatsoever, of appropriate measures to utilize the

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performance bond, to cause the required work to be completed by the city or town, by contract or

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by other appropriate means as determined by the city or town solicitor.

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      (c) Notice of default on performance secured by cash or negotiable securities deposit.

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      If a cash or negotiable securities deposit has been posted by the applicant, notice and

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procedure are the same as provided for in subsection (b) of this section.

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      (d) Release from performance bond conditions.

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      The performance bonding requirement shall remain in full force and effect for twelve

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(12) months following completion of the project, or longer if deemed necessary by the building

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official or his or her designee.

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      Section 2. Approval -- Expiration -- Renewal.

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      (a) Every approval granted in this ordinance shall expire at the end of the time period

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established in the conditions. The developer shall fully perform and complete all of the work

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required within the specified time period.

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      (b) If the developer is unable to complete the work within the designated time period, he

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or she shall, at least thirty (30) days prior to the expiration date, submit a written request for an

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extension of time to the building official or his or her designee, stating the underlying reasons for

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the requested time extension. If the extension is warranted, the building official or his or her

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designee may grant an extension of time up to a maximum of one year from the date of the

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original deadline. Subsequent extensions under the same conditions may be granted at the

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discretion of the building official.

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      Section 3. Maintenance of measures.

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      Maintenance of all erosion sediment control devices under this ordinance shall be the

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responsibility of the owner. The erosion sediment control devices shall be maintained in good

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condition and working order on a continuing basis. Watercourses originating and located

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completely on private property shall be the responsibility of the owner to their point of open

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discharge at the property line or at a communal watercourse within the property.

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      Section 4. Liability of applicant.

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      Neither approval of an erosion and sediment control plan nor compliance with any

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condition of this chapter shall relieve the owner/applicant from any responsibility for damage to

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persons or property, nor impose any liability upon the city or town for damages to persons or

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property.

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      ARTICLE VII.

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      Section 1. Inspections.

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      (a) Periodic inspections.

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      The provisions of this ordinance shall be administered and enforced by the building

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official or his or her designee. All work shall be subject to periodic inspections by the building

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official, or his or her designee. All work shall be performed in accordance with an inspection and

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construction control schedule approved by the building official or his or her designee, who shall

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maintain a permanent file on all of his or her inspections. Upon completion of the work, the

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developer or owner shall notify the building official or his or her designee that all grading,

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drainage, erosion and sediment control measures and devices, and vegetation and ground cover

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planting has been completed in conformance with the approval, all attached plans, specifications,

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conditions, and other applicable provisions of this ordinance.

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      (b) Final inspection.

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      (1) Upon notification of the completion by the owner, the building official or his or her

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designee shall make a final inspection of the site in question, and shall prepare a final summary

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inspection report of its findings which shall be retained in the department of inspections, and in

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the department of public works' permanent inspections file.

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      (2) The applicant/owner may request the release of his or her performance bond from the

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building official or his or her designee twelve (12) months after the final site inspection has been

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completed and approved. In the instance where the performance bond has been posted with the

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recording of a final subdivision, the bond shall be released after the building official or his or her

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designee has been notified by the city or town planning director of successful completion of all

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plat improvements by the applicant/owner.

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      ARTICLE VIII. Notification.

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      Section 1. Noncompliance.

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      If, at any stage, the work in progress and/or completed under the terms of an approved

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erosion and sediment control plan does not conform to the plan, a written notice from the building

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official or his or her designee to comply shall be transmitted by certified mail to the owner. The

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notice shall state the nature of the temporary and permanent corrections required, and the time

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limit within which corrections shall be completed as established in section 2(b) of this article.

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Failure to comply with the required corrections within the specified time limit is considered a

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violation of this ordinance, in which case the performance bond or cash or negotiable securities

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deposit is subject to notice of default, in accordance with sections 1(b) and 1(c) of article VI.

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      Section 2. Penalties.

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      (a) Revocation or suspension of approval.

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      The approval of an erosion and sediment control plan under this chapter may be revoked

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or suspended by the building official and all work on the project halted for an indefinite time

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period by the building official after written notification is transmitted by the building official to

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the developer for one or more of the following reasons:

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      (1) Violation of any condition of the approved plan, or specifications pertaining to it;

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      (2) Violation of any provision of this ordinance or any other applicable law, ordinance,

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rule, or regulation related to the work or site of work; and

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      (3) The existence of any condition or the performance of any act constituting or creating

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a nuisance, hazard, or endangerment to human life or the property of others, or contrary to the

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spirit or intent of this ordinance.

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      (b) Other penalties.

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      In addition, whenever there is a failure to comply with the provisions of this ordinance,

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the city or town has the right to notify the applicant/owner that he or she has five (5) days from

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the receipt of notice to temporarily correct the violations and thirty (30) days from receipt of

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notice to permanently correct the violations. Should the applicant owner fail to take the temporary

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corrective measures within the five (5) day period and the permanent corrective measures within

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the thirty (30) day period, the city or town then has the right to take whatever actions it deems

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necessary to correct the violations and to assert a lien on the subject property in an amount equal

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to the costs of remedial actions. The lien shall be enforced in the manner provided or authorized

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by law for the enforcement of common law liens on personal property. The lien shall be recorded

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with the records of land evidence of the municipality, and the lien does incur legal interest from

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the date of recording. The imposition of any penalty shall not exempt the offender from

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compliance with the provisions of this ordinance, including revocation of the performance bond

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or assessment of a lien on the property by the city or town.

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      (c) In addition to any other penalties provided in this section, a city or town is authorized

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and empowered to provide by local ordinance for penalties and/or fines of not more than two

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hundred fifty dollars ($250) for failure to submit plans on or before the date on which the plan

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must be submitted, as stated in the determination of applicability. Each day that the plan is not

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submitted constitutes a separate offense.

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      ARTICLE IX.

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      Section 1. Definition of selected terms.

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      (a) Applicant: - Any persons, corporation, or public or private organization proposing a

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development which would involve disturbance to the natural terrain as defined in this ordinance.

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      (b) Coastal feature: - Coastal beaches and dunes, barrier beaches, coastal wetlands,

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coastal cliffs, bluffs, and banks, rocky shores, and manmade shorelines as defined in "The State

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of Rhode Island Coastal Resources Management Program" as amended June 28, 1983.

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      (c) Cut: - An excavation. The difference between a point on the original ground and a

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designated point of lower elevation on the final grade. Also, the material removed in excavation.

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      (d) Development project: - Any construction, reconstruction, demolition, or removal of

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structures, roadways, parking, or other paved areas, utilities, or other similar facilities, including

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any action requiring a building permit by the city or town.

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      (e) Erosion: - The removal of mineral and/or organic matter by the action of wind, water,

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and/or gravity.

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      (f) Excavate: - Any act by which earth, sand, gravel, or any other similar material is dug

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into, cut, removed, displaced, relocated, or bulldozed, and includes the resulting conditions.

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      (g) Fill: - Any act by which earth, sand, or other material is placed or moved to a new

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location above ground. The fill is also the difference in elevation between a point of existing

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undisturbed ground and a designated point of higher elevation of the final grade.

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      (h) Land disturbing activity: - Any physical land development activity which includes

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such actions as clearance of vegetation, moving or filling of land, removal or excavation of soil or

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mineral resources, or similar activities.

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      (i) Runoff: - The surface water discharge or rate of discharge of a given watershed after a

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fall of rain or snow, and including seepage flows that do not enter the soil but run off the surface

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of the land. Also, that portion of water that is not absorbed by the soil, but runs off the land

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surface.

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      (j) Sediment: - Solid material, both mineral and/or organic, that is in suspension, is being

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transported, or has been moved from its site or origin by wind, water, and/or gravity as a product

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of erosion.

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      (k) Soil erosion and sediment control plan: - The approved document required before any

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person may cause a disturbance to the natural terrain within the city or town as regulated by this

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ordinance. Also, referred to as erosion and sediment control plan, approved plan.

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      (l) Watercourse: - The term watercourse means any tidewater or coastal wetland at its

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mean high water level, and any freshwater wetland at its seasonal high water level, including, but

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not limited to, any river, stream, brook, pond, lake, swamp, marsh bog, fen, wet meadow, or any

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other standing or flowing body of water. The edge of the watercourse shall be used for

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delineation purposes.

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     SECTION 2. This act shall take effect upon passage.

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LC00465

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N A C T

RELATING TO TOWNS AND CITIES - SOIL EROSION AND SEDIMENT CONTROL

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     This act would establish guidelines for the use of alternative paving materials for non-

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residential driveways and parking lots under the soil erosion and sediment control model

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ordinance.

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     This act would take effect upon passage.

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LC00465

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