Meeting Information
6:35 p.m.
CONSENT AGENDA
(1) (a) Consider approval of Commission Orders;
(b) Consider acquisition of right of way for culvert replacement project at 5.76N-15.50E (Michael Kelly)
REGULAR AGENDA
(2) Consider Conditional Use Permit final approval for proposed Penny's Sand excavation and extraction facility near N 1500 Road/E 1850 Road; CUP-12-00099 (Keith Browning)
(3) (a) Consider approval of Accounts Payable (if necessary)
(b) Appointments
(c) Public Comment
(d) Miscellaneous
(4) Adjourn
Gaughan called the regular meeting to order at 6:37 p.m. on Wednesday, August 28, 2013 with all members present.
CONSENT AGENDA 08-28-13
Gaughan moved approval of the following Consent Agenda:
► Commission Order Nos.13-021 and 13-024 (on file in the office of the Clerk); and
► Contract for acquisition of easement for Project N. 05761550; Road No. 51F (E1550 Road): Phyllis J. Gibler, 569 E1550 Road, Baldwin; Tract No. 1; and Kevin J. and Lori E. Gibler, 569 E 1550 Road; Baldwin; Tract No. 2.
Motion was seconded by Flory and carried 3-0.
PLANNING/PUBLIC WORKS 08-28-13
The Board considered CUP-12-00099, Conditional Use Permit final approval for the proposed Penny's Sand excavation and extraction facility near N 1500 Road and E 1850 Road.
Keith Browning, Director of Public Works, stated Douglas County's consultant, Conestoga-Rovers & Associates (CRA) has completed a pre-dredging report on the hydro geologic assessment of the proposed open pit mining operation for Penny's Sand and Concrete, LLC. The pre-dredging report was distributed to County Commissioners on July 29, 2013, and was placed on the Douglas County website on August 5, 2013 for public review.
Richard Murphy, CRA hydro geologist, stated in December 2012, Constenoga-Rovers (CRA) undertook a review of the information that had been submitted prior to the application and other available information to provide an opinion to the County as to the potential risks to the water source to the Eudora area. CRA did not identify any areas of concern with water quantity or water quality rising from the proposed operation. There were four key recommendations adopted by the County to be developed in the pre-dredging study: 1) install monitoring wells to establish the groundwater levels and flow patterns at the site; 2) a quantitative evaluation of the influence of dewater that may occur from the proposed operation; 3) check for existing contamination; and 4) establish base line conditions for the domestic wells in the area. In the spring of 2013, CRA drilled five monitoring wells and installed two staff gauges, which measured water levels in the wells. They Identified the water flow direction as a northeasterly water flow direction across the site, meaning the water flows from the southwest corner towards northeast with a discharge to the river. Murphy said this matches up with the river conditions. They next looked at the potential impact of the pit operation on the groundwater flow system. They developed a groundwater flow model. CRA found the changes in water levels are a foot or less in the immediate vicinity of the site and much smaller as you move further away from the site. They concluded the dewatering effect of the quarry will not significantly affect groundwater levels in the area and water supply conditions in the area. Next CRA did an environmental site inspection of the excavation a comprehensive records search for the area. No evidence of contamination was found. They then took soil samples and ran a chemical analysis which again had no indication of contamination. They also tested the groundwater at the site, collecting samples of the wells and found no contamination. Finally they inspected the domestic wells, looked at well records, and selected wells in close proximity of the site. Seven wells were chosen, six property owners allowed testing. The results showed no site area contamination. One domestic well had a higher than normal level of nitrate which was discussed with the landowner. The overall conclusion was the proposed aggregate operations are not anticipated to have a negative impact on water quality in the area.
Thellman stated her concerns that CRA's study stopped short of gathering data from the deeper levels chose to bedrock. She stated it is in these deeper areas where concerns about fast-moving, undissolved contaminants have been raised. One scientist says undissolved pollutants can travel at a much higher rate of speed in these in these deep beds arriving close to the Eudora wells in a matter of 5-8 years, not decades. She asked why this deeper data was not collected. Murphy responded the actual velocity of the water movement was not a real focal point because CRA felt comfortable with the range of possibilities. They collected data for which they can determine the rate of migration in that lower zone. The range of movement would be substantially higher than in the shallow zone with calculations running less than .8 feet to two feet of water migration per day. This still represents a very long time period for water to move from one location to another, from the site to the wells.
Thellman said surface water and surface pollutants can mix with ground water in this pit and any undissolved pollutants can travel through the high velocity fields in a matter of 5-8 years, not decades. Murphy responded we are looking at a distance of thousands of feet and feels we are looking at changes in water levels, using the ground modeling, at a 8-15 year time frame.
Thellman asked again if the monitoring wells went to the bedrock. Murphy said one well was deeper as intended with the study and got a little higher level of permeability. They were determining groundwater elevations and flow for sample, not to look for most permeable deposits within the aquifer.
Gaughan asked Murphy to revisit the explanation of the groundwater flow testing and asked again the determination on the direction of the flow. Murphy said initially different information was being presented to the Commission last year indicating a northeasterly flow direction in the area. Other information detected an easterly flow. Some of the historical information from the Kansas Geological Survey showed a southwesterly flow direction. The investigation concluded the flow direction g s to the northeast towards the Kansas River in the site area.
Gaughan asked if the flow has changed over time or at different times has changed directions; and asked how long it takes to make a permanent change in the flow direction. Murphy said the groundwater levels will not change because of the monitoring wells or drilling. Once the pit operations start it will be an incremental effect. The well has a very small hole causing a very small disturbance to the water table with a modest affect. That will grow over time as the pond opens up.
Thellman stated when the testing was done. Murphy responded in early July.
Thellman asked how the direction of flow might change if the river is very full or if the ground is saturated, are there conditions that will cause water to flow toward the river versus veer away. Murphy said the springtime was wet but the third testing was in July which was dryer. There was a slight shift between May and July slightly to the northeast which is expected. He said he doubts the flow direction will change dramatically because of seasonal changes.
Thellman asked if a three month window gave enough information to definitively determine how the water will flow in a dry summer season. Murphy said the water flow is not the primary concern, though it should travel generally in a northeasterly direction. The main concern is the well fields. He d s not feel there is data there to determine definitively, but he d s not feel the wells are at risk.
Gaughan clarified the Boards options this evening are to accept the CUP, amend the conditions of the CUP or add new conditions, or withdraw the contingent approval of the CUP. He asked Mary Miller, Lawrence-Douglas County Metropolitan Planning Staff, to go over all 19 conditions on the proposed CUP.
Miller presented the series of conditions, stating any strike-through on the conditions means the condition has been complied with on the plan.
Gaughan asked if there were any additional conditions recommended by staff or if Murphy or CRA recommended any additional commendations by his firm. Miller and Murphy responded "no."
At 7:35 p.m., the Board took a five-minutes recess.
The Board returned to session at 7:40 p.m. Gaughan opened for public comment.
Carl McElwee, 1564 E 1850 Road, made comments on the CRA report. He stated he originally thought the CRA report was to help differentiate between the two reports given by the applicant's expert and him, and determine the groundwater table and flow direction. McElwee said the report d s cover this but is limited. He stated concerns about pollutants in the pond traveling quickly to the well fields because he feels the testing mostly covered the upper part of the aquifer. He talked about slug testing and feels the data from the testing has errors. In his opinion, three of the wells are useless because they do not go to the bedrock giving misleading or inaccurate conclusions. He feels the general groundwater moves about five feet per day. The model from CRA is reasonable but can't give exact answers. The data used to calculate the model was taken during a wet period when you have more water in the aquifer and moving toward the river. McElwee stated in his years of research it is not unreasonable for water levels to vary 10 feet, not close to river, between a dry and wet year. Other concerns included the water level in the recreational lake being 28 feet below ground level; and nitrate settling in the pond and flowing into the area well due to runoff of farming chemicals. The pit must be kept forever clean. According to McElwee, the CRA report has some weaknesses, but overall is a good report. In his opinion, it confirms the pit is a flow-through lake mixing groundwater and surface water sending it down the valley. Flow lines connect the pit and the Eudora well fields, and the water from the pit can be captured in a 5-7 year period.
Gaughan responded the berms will be maintained to perpetuity. The 5-7 year period refers to a high connectivity area in the deep aquifer. He asked the period of time it would take a contaminate to flow the same length in a less deep portion of the aquifer. McElwee responded much longer.
Ruth Hughes, Mayor of Eudora, stated she has been concerned about the Sandpit all along. She agrees with Dr. McElwee, on his opinion that the CRA report is flawed because the research is not complete. Hughes said she cannot protect the citizens of Eudora, only the County Commissioners can with their "no" vote. The City of Eudora d s not have the money to setup a water treatment plant. She feels there is a possibility of contaminates to the well fields which would affect more than 6,000 people.
Jolene Born, Eudora City Commission, stated she d sn't want her kids or future kids or anyone else's children to be affected by contaminated water.
John Fiore, Eudora City Commission, stated his concerns about the high rate of speed water may move contaminates towards the wells. Fiore read an old CRA report that recommends preventing illegal dumping and limiting use for pollution and contaminates in the pit. He is concerned no one will monitor the berms. He said the City Commission of Eudora strongly recommends denial of this CUP.
Steve Layman, 24697 Alexander Road, said he feels there needs to be a noise study done. Even with mufflers installed on April 12, 2013 on the current river operations, the noise is still too loud. He is asking someone work with Penny to get the noise level to 40 db.
JoAnn Berkman, Douglas County resident, stated there is an error in the CRA report on page 4 under history of sand dredging. The Corp of Engineers decided to discontinue all dredging on the Kansas River but there are still eight including the Penny Company.
Kerry Altenbernd, 431 Forrest Avenue, said he wants to reinforce what the others have said. He had the understanding there would be a thorough depth survey which he feels did not happen. Altenbernd said the County should error on side of caution and he recommended to County not approve the CUP.
Murphy said he would not revisit the slug testing brought up by McElwee. He said CRA determines the groundwater flow action at 8-15 years. McElwee says seven. Regarding the concern about the groundwater flow directions and the possibility of reaching the Eudora wells from the site, under current conditions the flow is clearly to the northeast. As the pit gets developed, there could be some shift in the groundwater. There is a very tiny corner at the south end of the pit that shows a potential for water to move toward the wells. And that's why we cannot today exactly determine what the flow directions will be to a very fine point in the future under some conditions. There is not enough data to determine that. The concern over the well fields comes to what is the potential for contamination to enter into the pit lake. The pit itself is not the contamination, it is really the pathway. That's where his opinion differs from Mr. McElwee. Murphy feels there is a very limited possibility of contaminates to reach the pit lake with the provisions put forward. There's a long-term care acknowledgment and berming so runoff d s not go into the site. Therefore, he d s not see a risk of contaminate entering the water body as a real scenario.
Gaughan asked if that is because of the berms. Murphy said taking nitrate as an example. We do not have a nitrate diversion, runoff or application into the pit. There is occasional crop spraying in the area so perhaps there could be some overspray from surrounding fields that could reach the pit lake, which would be a very limited amount of nitrate that would generate any substantial concentration of nitrate within the lake. The lake itself would uptake nitrogen from plants and organizations living within the lake. As that moves down gradient there will be some diluted disbursements as it moves.
Gaughan asked if there is a difference in process of the nitrate disperses when the water level is higher in the aquifer or deeper. Murphy said generally the faster water moves the more it tends to disperse because there is more energy generated from the flow. He is not aware of examples were drown gradient has lead to groundwater contaminates in North America.
McElwee stated he disagrees. Kansas Geological Survey Report 2008-4 shows one study in northwest Wichita where a pattern of iron, magnesium and ammonia concentrates flowed into ground water flowing in a south to southeast direction at the study site, which fit a pattern of entrance of pit into groundwater.
Thellman asked what contaminates are we talking about. Murphy stated we are talking about fertilizers in the most general sense because nitrate can be applied in nitrogen forms, ammonia forms and as manure. Human septic and septic systems are also a common source of nitrates in domestic wells.
Murphy said McElwee's example references a site where surface water was being directed into a pit because they were essentially using the pit as astormwater pond. Where we have storm water runoff from rural area/agricultural areas that's where we have nitrate problems.
Flory asked Murphy to clarify that in his opinion the provisions made to avoid contamination of the pit are adequate and sufficient to avoid contamination. Murphy responded "that is correct," given the hydra-geologic environment and the three key items of taking basic precaution to keep contaminates from the pit which is: 1) to keep the runoff out; 2) have a fuel storage and handling plan in place, and 3) have a spill response plan in place. These conditions are built into the proposal approval of conditions.
Flory said the speed of the water d s not seem relevant. It seems the fact that the contaminate gets to the source seems to be the concern. He asked why the speed matters. Murphy said only speed makes a difference only when the time is short, days or weeks, and it depends on the contaminate. The time factor of 5, 10 or 15 years d sn't have a bearing.
Flory the monitoring wells are being characterized as being useless in detecting the flow of any potential contaminates. He asked Murphy if he agrees. Murphy responded "no." The monitoring wells are situated very close to the pit area. They are still going to detect whatever groundwater quality is moving away from that pit.
Flory asked if the monitoring wells we have now by constant monitoring will detect any potential contaminate in the pit. Murphy said contaminates moving in the groundwater "yes."
Gaughan asked for clarity that the monitoring wells are deeper than the domestic wells. Murphy replied they are roughly the same depth.
Thellman asked if a contaminate is detected in the groundwater and travels along, would there be mitigation, what would be done. Murphy responded it would depend on what was detected. First concern is what is happening with the water supply and there is a water supply well immediately next to the site that needs to be sampled, do well head treatment or find an alternative water supply. There would be years of travel time for the contaminate. The next step would be to look at the source of contamination, reduce and eliminate. Determine if a treatment for the pond is needed. The common response to nitrates is wetland vegetation. Treatment is specific to the contaminate.
Thellman asked if there is a plume that leaks out, is there a way to intervene or d s the city have to raise taxes to pay millions to build treatment plant in time to catch it. Murphy said concerning Nitrate, they would work hard to avoid that by eliminating the source to reduce Nitrate levels in the pond. Worse case, he said he would look at a pumping well to pump water out of the aquifer before it got to the well field.
Flory said he has heard legitimate fears and concerns by people who live in the Eudora area, based upon the study and analysis of the way the pit is to operate, he asked if Murphy he lived in Eudora and his children were drinking the water, d s he feel the pit can safely operate. Murphy stated he would feel very comfortable with the water supply.
Gaughan asked regarding the river bank, there is a series of conditions in the CUP that refers to studies or mitigation as a result of changes along the bank, he asked for more detail and who would conduct the studies. He is the studies are for Douglas County. Keith Browning, Director of Public Works, stated the condition was there would be a study by a competent fluvial geomorphology expert on how to address the breach revetment. George Butler, who did the cursory look, believed the revetment in its current state is directing water down the other channel, the opposite of what we want. Butler recommended a study to address that situation by either removing revetment or building it up in a different manner. Browning said the applicant would hire an engineer for this service and the County would review the finding. Browning stated he would engage the services of a consultant to help him review the results.
Gaughan inquired what Condition 10 means about the continued riverbank monitoring along the east bank of river and asked Browning to define what "continue" means. Browning replied there appears to be survey points out there now and has been monitored in the past. The recommendation is to continue monitoring the east bank on the west side of the site and also extend the monitoring points to the north and east, along the north side of the site, and to survey after any prolonged over bank flows and be able to take action from that.
Gaughan asked if you determine there needs to be mitigation as a result of studies from Condition10 what is the next step. Browning responded if there is a sustained overbank instability that causes concern mitigation measure would be needed and paid for by the applicant. Gaughan asked if the CUP can be approved but it pending the determination of the revetment approved by the Corp of Engineers.
Thellman stated there appears to be quarterly reports and monitoring reports which will go to zoning and Codes. Who will know what parameters are, will we be hiring an expert. Browning stated there may be times we would need to hire a consultant, but the reports are fairly basic as far as sand production. Browning will determine if we need outside assistance to determine results.
Gaughan asked if any of the reports would be submitted to other agencies. Browning replied the reports will come to the County. The applicant can address what is required from other regulatory agencies.
Flory stated he understands the City of Eudora has a right to monitor. Browning stated the City of Eudora has a right to access the wells and also get date.
Flory asked if the private wells and the City of Eudora wells also access the aquifer, d s the same danger exist to contaminate the aquifer if they are not properly protected or cared for. Murphy responded "yes." They can be a pathway fro surface water runoff.
Dan Watkins, attorney representing the applicant, stated this process has lasted over a year and has done what it is supposed to do which is review an operation that is needed. The 19 conditions, which according to Watkins are really about 50, are very detailed and designed to protect the health, safety and welfare of the public. Regarding the noise issue, the noise study showed an ambient noise level of 65 db, with nothing going on. It was still 65 db with the dredge going. Watkins stated if he were to quit talking, the level in the room would be 60 db. A 40 db is not is a reasonable request. This operation will be moving south off river. On the revetment of the riverbank, Penny is liable for what comes out of the study. Watkins feels the conditions will address anything that shows up.
Gaughan said the conditions say mufflers should be installed, operated and maintained on the dredge to reduce noise levels associated with dredging. Gaughan asked for a copy of the noise study so we can determine if the level on the study has been met. Watkins says the noise level stated in the study is 65 db. The level in the room is 60 db. A study will be produced.
Thellman stated she is concerned there are no conditions limiting access to the pit. Watkins stated this falls under state conditions and it is on private property. Thellman asked if there will be security or signage. Watkins said he believes the conditions set are sufficient.
Phil Stubble, LandPlan Engineering, stated under the Mine Safety Act, "no trespassing" signs will be posted every 50 feet.
Gaughan stated he feels the reason we hired a consultant was to address whether or not we could move forward. We gave conditional approval contingent upon the results of the report, and tried to address some of the discrepancies between the two scientists. The report looked at the ground flow direction. Gaughan said he d sn't think we can identify the exact circumstances that would identify the worst possible outcome and set the permit and process to hinge on that is an exceedingly burdensome process. We have setup a rigorous high bar for any future sandpit applicant to get a permit in Douglas County. The Army Corp of Engineers is very serious about getting dredging off the river and that is a positive outcome for the Kaw. There are three resources: sand, soil and the river we are trying to balance. City of Eudora has a set of concerns we are trying to address of which we hired a consultant. On the discussion what happens to the banks and river, we've been trying for years to get dredging off the river. We are still working on the bank with continued study. He feels we have seen CUPs were the bar was not high enough and commissioners made decisions with a few minutes of discussion. This Commission had meetings and made conditions, gone outside of our experts to get a better understanding of what we're dealing with. Gaughan said he thinks the quarterly monitoring, and the threshold the next applicant will have to go through is a testament to the care and thought of not just the commission and staff, but those advocating for and against this proposal. It has resulted in a good product. The CUP itself is now viewed as a strong CUP. Gaughan said he is grateful for the issues have been worked through.
Gaughan moved to approve CUP-12-00099, a Conditional Use Permit for Penny Sand Pit with the revised conditions as set forth by staff:
1. CONTINGENT APPROVAL.
a. If the Board of County Commissioners vote to contingently approve the CUP, this approval is contingent upon the evaluation of the results of the pre-dredging report to be prepared by an independent 3rd party consultant.
b. The County Commission will contract with a 3rd party independent consultant, to conduct the necessary studies and prepare the pre-dredging report following the execution of an agreement between the property owner and the County Commission which specifies that the property owner shall reimburse the County Commission for the expense following completion of a pre-dredging report which is accepted by the County Engineer. This agreement shall be executed and recorded prior to the commencement of work on the pre-dredging report.
c. The Conditional Use Permit will be returned to the County Commission following the completion of the pre-dredging report. Based on the results of the pre-dredging report and the recommendations of the consultant, the Commission may take one of the following actions:
1) Approve the CUP with revised conditions,
2) Approve the CUP with additional conditions,
3) Withdraw the contingent approval of the CUP.
2. PRE-DREDGING REPORT.
a. The independent 3rd party consultant shall provide a pre-dredging report to the County for review. The CUP will be placed back on the County Commission's agenda for discussion of the results of the pre-dredging report and recommendations provided by the 3rd party consultant. The County Commission may revise the conditions of the CUP based on the results of this report. The pre-dredging report shall:
b. Determine the potential zone of influence through the following steps:
i. Take field measurements to determine the current groundwater table and flow direction.
ii. Determine the anticipated maximum dewatering influence from maximum rate of sand and water extraction, evaporation, and any other water consumption. The information provided should include the proposed rate of sand and water extraction or taking from the pond while recognizing the recycling of water. (Page 5 of Conestoga-Rovers Assoc.'s independent review report explains that this assessment could be completed based on existing information.)
iii. The results and an exhibit of the potential zone of influence shall be included with the pre-dredging report.
c. Confirm existing groundwater and/or soil quality to ensure there is no significant contamination from existing site area and operations, including an initial environmental site assessment (ESA) of potential sources and existence of contamination (if an ESA has not already been conducted) through the following:
i. Installation and sampling of groundwater wells in down-gradient area in locations approved by the County Engineer.
ii. Soil assessment to determine suitability of soils for placement below water with reclamation.
iii. The results shall be included in the pre-dredging report.
The County Engineer will determine if further investigation and remedial actions are necessary based on the results. Should potential contaminant sources be identified during the ESA process, the test pits shall be installed and additional soil testing shall be conducted per the County Engineer's recommendation.
d. Establish baseline water quality and quantity conditions within potential zone of influence through a private water well survey of both up-gradient and down-gradient wells. Such survey is subject to landowner access permission. This information shall be included in the pre-dredging report.
e. Determine the location and number of groundwater monitoring wells to be installed by the applicant. The location of these wells must approved by the County Engineer and an exhibit showing their location included in the pre-dredging report.
3. The applicant shall prepare and submit a fuel/chemical handling and spill response plan for the County Engineer's approval.
Ongoing Conditions -
Best Management Practices and Precautionary Measures:
(These conditions are to be listed on the CUP plan)
4. Document the sand production levels and effective water consumption on an annual basis to aid in interpretation of monitoring data. Provide an annual report to the Zoning and Codes Department.
5. Monitor groundwater levels in adjacent private water supply wells (subject to property owner's permission) within the potential zone of influence on a quarterly basis. This information shall be provided to the Zoning and Codes Department in a quarterly report.
6. Monitoring of groundwater levels in monitoring wells on a quarterly basis. (In early years, monitoring while extraction is occurring in the NW part of the site will help confirm the zone of influence.) This information shall be provided to the Zoning and Codes Department in a quarterly report.
a. If any changes are determined in the potential zone of influence, adjustments will be made to the monitoring wells as deemed necessary by the County Engineer.
7. Install berms along the perimeter of the pit to prevent runoff from entering the pit.
8. The Zoning and Codes Department shall be notified if any fill import is proposed throughout the operation of the pit. Any fill import must be sampled and analyzed for chemical suitability and the results provided to the Zoning and Codes Department for approval prior to installation.
9. Remediate/report any spills in accordance with the fuel/chemical handling and response plan.
10. Continue river bank monitoring along the east bank of the KS River. Extend monitoring points north to the point the river bends from north to east, and also extend monitoring points east from the river bend along the north side of applicant's property. The locations of these monitoring points shall allow for surveying the river bank along the west and north sides of applicant's property. The river bank along the west and north side of applicant's property shall be surveyed by a licensed land surveyor following all overbank flooding events lasting more than one week in duration, and the results of the survey shall be conveyed to County Engineer.
11. The applicant will be responsible for the cost of any mitigation measures needed, as determined by County Engineer, as a result of river bank movement on applicant's property. The cost of mitigation includes the cost of engineering design of the mitigation measures as well as the construction cost of the measures. Any mitigation measures are subject to USACE-KCD approval.
12. The revetment in the northwest portion of property breached in 1993 shall be studied by a competent engineer experienced in fluvial geomorphology hired by the applicant, and removed or modified and additional revetments on the east bank shall be installed following river engineering study if the County Engineer, the United States Army Corps of Engineers-Kansas City District (USACE-KCD), and other permitting agencies find the changes appropriate. The applicant shall hire the engineer, and the study shall be commenced, prior to any excavation for the sand pit.
Other Conditions:
13. The approval is contingent upon the issuance of all State and/or Federal permits which are required for this operation.
14. An affidavit designating responsibility for the ongoing maintenance of the berms and lake to the property owner and outlining the ongoing maintenance and protection measures shall be executed and recorded with the Register of Deeds prior to the release of the CUP plans to the Zoning and Codes Office. This affidavit shall note that the future use of the lake will be 'private recreation' and that no boats with larger than 10 horsepower engines will be permitted on the lake. The removal of these restrictions would require approval of a Conditional Use Permit. A copy of the affidavit shall be provided to the Planning Office for the file.
With the transfer of property ownership of any land containing the water feature or surrounding berms, the new owner shall file a maintenance bond, or similar protection means acceptable to the Board, to insure maintenance/protection of the berms and water feature.
15. A copy of the easement for the off-site access drive shall be provided to the Planning Office for the file prior to the release of the CUP plans to the Zoning and Codes Office.
16. The applicant shall obtain a Flood Plain Development Permit from the Director of Zoning and Codes prior to the release of the CUP plans.
17. The reclamation plan shall be revised with the following changes prior to release of the CUP plans:
a. The plan shall note the requirement that the lake that is being created will have a varied shoreline and will appear natural in appearance.
b. The plan shall note that the intended use of the lake, when mining and reclamation is complete, is to be a private recreational feature and note that boats with larger than 10 horsepower engines will not be permitted on the lake. The removal of these restrictions would require approval of a Conditional Use Permit.
c. The plan shall note the maximum slope of the lake shoreline for a specified depth to insure that the slopes are of a grade that it would be possible for a person or animal that accidentally entered the lake to exit.
d. The plan shall explain the sequential nature of the reclamation process; that overburden produced in one phase will be used to reclaim previously excavated areas.
e. The reclamation plan shall note that topsoil will be placed over the overburden in areas that are to be reclaimed as farmland, shoreline, or berms. If topsoil is to be stockpiled and stored it must be vegetated to prevent erosion.
f. The reclamation plan shall be revised to reflect the increased setback and vegetated riparian buffer required on the north/northwest side of the property and the reduced area on the south, with Phase 20 being the final phase.
18. The applicant shall submit a revised CUP plan with the following changes:
a. The additional setback and vegetated riparian buffer area shown on the north/northwest corner of the property per the County Engineer's approval.
i. The applicant will develop a general landscaping plan for the buffer area with assistance of the KS Forestry Service and/or the United States Army Corps of Engineers-Kansas City District (USACE-KCD) and provided with the CUP plan. The buffer area vegetation shall be planted and maintained per this plan.
ii. The general landscape plan must be approved prior to the release of the CUP to the Zoning and Codes Office.
iii. Planting shall commence in accordance with the landscaping plan when the weather is appropriate and shall be completed within 1 year of the issuance of the Conditional Use permit.
b. The sand pit will terminate at the area identified as the south boundary of Phase 19 on the August 13, 2013 revised CUP plan with no dredging activities to occur south of this phase. The CUP plan shall be revised to reflect the reduced area of the sand pit. The operation plans shall also be revised to reflect the reduced area of the sand pit and the additional buffer area.
c. A detailed landscaping plan for the buffer area surrounding the McElwee house will be submitted.
d. The Book and Page number of the recorded easement for the off-site access road shall be noted on the CUP plan.
e. The ownership shall be noted as Van, LLC as well as Penny's Concrete Inc. on the CUP plan.
f. The on-site residential structure on the east side of the property will be shown on the CUP plan as on the reclamation plan.
g. If stockpiling of overburden is to occur on the subject property, the CUP or operation plan should note the maximum height and approximate location. The stockpiles should be placed as far from the existing residences as possible.
h. List the following CUP conditions on the plan:
i. Hours of operation are 6:30 AM to 6:30 PM, Monday through Friday.
ii. A muffler system shall be installed, operated, and maintained on the dredge engine to reduce the noise levels associated with the dredging activity.
iii. The approval for this Conditional Use is valid for 30 years. An extension request for the CUP must be submitted prior to the expiration date or a new CUP application must be submitted. The Zoning and Codes office shall conduct 5 year administrative reviews to insure compliance with the CUP, operation, and reclamation plans.
iv. Only exterior lighting in the areas to be excavated will be the dredge lighting as required by the U.S. Coast Guard.
v. The scale house, processing plant, sediment pond, and stockpile area, approved with CUP-2-2-79, will be used to serve the subject property.
vi. Sales of overburden, topsoil, sand or aggregate products will occur only on the portion of the property that contains the scale house on the CUP plan.
vii. Truck traffic will utilize Noria Road (E 1750 Road), and is restricted from using N 1500 Road or E 1850 Road.
viii. If any jurisdictional wetlands are located on the property, the applicant shall work with the Army Corps of Engineers to determine how the existing wetlands will be treated. The applicant will provide documentation to the Planning Office on the wetlands indicating whether the wetlands will be maintained on site or if they will be mitigated elsewhere. If the wetlands will be maintained on site, the operation plan will be revised to include the protection measures and the property owner shall submit a revised CUP plan for administrative review/approval of the wetland setbacks. If the wetlands are to be mitigated, a revised CUP plan shall be submitted to note the removal of the wetlands.
19. The road and intersection improvements listed below are required with this CUP. A permit for the Conditional Use may be issued when a road improvement contract for these improvements is in place and the County has accepted Penny's arrangements to finance the improvements. Dredging activities may not commence until after the road improvements are completed.
a. Realignment of the entrance to the sand facility so that it opposes the Noria Road intersection at N 1500 Road.
b. Pavement of a 100 ft long section of the site access drive just north of N 1500 Road, as recommended in the TIS.
c. Reconstruction of pavement in the Noria Road (E 1750 Road)/N 1500 Road intersection. The existing surfacing is likely a crushed rock base that has been chip sealed. This will not stand up to the increased truck traffic crossing N 1500 Road.
d. Construction of an eastbound right turn lane on Route 442 (N 1400 Road) at Route 1057 (E 1900 Road). This is mentioned as a desirable improvement in the TIS. Pavement on the existing shoulder at this location is not adequate for the projected amount of truck traffic.
20. The applicant shall install monitoring wells as recommended by an independent 3rd party consultant in the pre-dredging report. These wells shall be installed prior to the release of the Conditional Use Permit. The City of Eudora shall be allowed to monitor those wells on an ongoing basis.
21. Dredging on the subject property shall not occur concurrently with dredging on the property to the north as approved with CUP-2-2-79.
Flory seconded the motion. Flory stated when he considered this earlier; he was concerned with the water issue. After hearing the experts, he feels confident Constenoga Rovers' information is accurate. CRA feels with the conditions set out, this dredging can be a safely run operation and not affect the water for the City of Eudora. The City of Eudora and other users of the aquifer need to make sure the pathways are kept free of contaminates. Flory said he thinks the Commission has done what needed to be done to come up with an objective determination. Flory said there are numerous conditions that will allow us to move forward safely. If there is a problem this item can immediately come back before the board though he doubts there will be a need.
Thellman said she stands with the City of Eudora and agrees with the mayor that this is a risk that is too big. The residents are relying on the Commission to protect the aquifer which will be much more vulnerable because of a very large sandpit. Thellman stated long after we are gone, this will be a responsibility. She asked what role the County will play if there is a contaminate. She said Dr. McElwee, who lives in the middle of this area, represented the City of Eudora and has considered the welfare of his community. She feels hearing the concerns of the professional, who teaches those at Constenoga Rovers, means a lot. She feels his information was compelling. Thellman said she adamantly opposes the CUP.
Motion carried 2-1 with Thellman in opposition.
NOTE: Miller to send final list of conditions to the Commissioners.
ACCOUNTS PAYABLE 08-28-13
Gaughan moved to approve accounts payable in the amount of $3,505,441.09
to be paid on 08/29/13. Motion was seconded by Flory and carried 3-0.
Gaughan moved to adjourn the meeting; Flory seconded and the motion carried 3-0.
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Mike Gaughan, Chair Nancy Thellman, Vice-Chair
ATTEST:
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Jamie Shew, County Clerk Jim Flory, Member
Time and Date