Call to Order and Roll Call
The 2nd meeting of the Interim Joint Committee on Natural Resources and Environment was held on Thursday, July 2, 2015, at 1:00 PM, in Room 154 of the Capitol Annex. Senator Jared Carpenter, Chair, called the meeting to order, and the secretary called the roll.
Present were:
Members: Senator Jared Carpenter, Co-Chair; Representative Jim Gooch Jr., Co-Chair; Senators C.B. Embry Jr., Chris Girdler, Ernie Harris, Paul Hornback, Ray S. Jones II, John Schickel, Johnny Ray Turner, Robin L. Webb, and Whitney Westerfield; Representatives Hubert Collins, Tim Couch, Chris Harris, Reginald Meeks, Marie Rader, John Short, Fitz Steele, and Jim Stewart III.
Legislative Guest: Representative Jonathan Shell
Guests: Mr. Peter Goodmann and Mr. Carey Johnson, Division of Water, Energy and Environment Cabinet; Mr. Reagan Taylor, Madison County Judge Executive; Commissioner Greg Johnson, Mr. Mike Hardin, Ms. Karen Waldrop, Mr. Ron Brooks, Mr. David Waldner, and Mr. David Wicker, Kentucky Department for Fish and Wildlife Resources.
LRC Staff: Tanya Monsanto, Stefan Kasacavage, Lowell Atchley, and Kelly Blevins.
A quorum was present. After a motion and a second at the request of the chair, the June 4, 2015 minutes were approved.
Cleaning Kentucky’s waterways: storm damage, pollution control, and water quality in the Commonwealth
Peter Goodman, Director of the Division of Water (DOW) discussed the specifics of cleaning waterways after weather related disasters and DOW’s mission in aiding clean up. DOW has various roles in disaster clean up including protecting water quality, maintaining dam safety and planning, and implementing the Federal Emergency Management Agency’s (FEMA) Floodplain Management program.
During disasters, DOW aids in making communities responsive and resilient. Technical and other assistance is provided to communities for water and waste water. For example, DOW releases boil water advisories and provides technical assistance, and issues regulations and permitting for floodplain and water quality certifications. DOW does not provide financial assistance for cleaning streams and waterways.
The Natural Resource Conservation Service (NRCS) has a funding mechanism for local governments to clean waterways after a disaster, and NRCS pays up to 75 percent of the cost, if the community obtains a 25 percent match. The match can be in kind rather than financial. Typical uses of NRCS funds are for debris removal and reshaping eroded banks. FEMA also provided disaster assistance to local communities, but there must be county disaster declaration. FEMA provides assistance to both public agencies and individuals for problems not covered by insurance, but there may be requirements for floodplain construction permits. DOW is able to do expedited permits in conjunction with FEMA. There are also permits for several activities under KRS Chapter 151.250 and 401 KAR 4:050 and 060.
Removal of bedload does not help streams to handle the amount of surface runoff when there are high water events, but removal of woody debris does help. Capacity is generally not improved by cleaning out rock from the channel. There is a one-step removal process in place with DOW and communities that participate in that process can remove debris from the bank or bar but cannot work directly in the stream channel. This is to minimize disturbance to the stream channel and it helps communities by not requiring them to obtain a 404 permit.
The United States Army Corps of Engineers (USACE) issues a nationwide permit and DOW issues a water quality certification. DOW tries to ensure projects are under nationwide rather than individual permits because of the regulatory burdens associated with the individual permit. Those burdens make responding to disasters very difficult because of the need to respond quickly. If an individual permit is needed there is an emergency process, but the person needing the permit must contact DOW and USACE.
In response to a question about whether the one-step process is only for cities or counties, Mr. Goodman said no. Individuals can apply for the one-step process too.
One legislator commented that there are many streams that are overgrown and eroded and removing debris from the banks is too difficult. In response, Mr. Goodman stated that the one-step process does not exclude use of machinery but there needs to be a plan. Stripping a stream to bedrock does not help. DOW’s role is to provide technical assistance and help with a plan that is useful.
In response to a legislator’s comment that this meeting is a good opportunity to find solutions to our waterway clean up problems, DOW stated the state has exceeded the annual average flow from rainfall. DOW has a commitment to work with landowners and to ensure that clean up does not put them in jeopardy with various permitting agencies or federal or state law.
In response to a question about whether raw sewage from Virginia has been stopped by the Energy and Environment Cabinet and whether Kentucky filed a legal action or imposed a fine or other measure against Virginia for the environmental pollution, Mr. Goodman replied that the flow of sewage has stopped. DOW issued a do not swim advisory for Fishtrap Lake. Kentucky DOW did not take legal action against Virginia.
One legislator commented that Kentucky should fine states in the same way it fines coal companies. In response to a question about where the money would go if DOW did fine Virginia, Mr. Goodman replied that it would not go to DOW. It would go to the general fund.
One legislator stated that Fishtrap Lake has been referred to as “Trashtrap Lake” because of the amount of trash. In response to a question about whether DOW has tried to stop trash coming into the lake from out-of-state, Mr. Goodman replied that under Secretary Bickford there was a real emphasis placed on trash and the problems of trash above Cumberland Falls. He committed to research the problem further.
In follow up, the legislator commented that USACE refused to aid because the agency treats the lake as flood control rather than recreation and asked for a meeting to be set up for legislators and DOW to look at the lake. Mr. Goodman commented that the water quality has been good with Fishtrap Lake, so more information is needed at this time. A meeting can be scheduled to look at the lake and discuss the problem further.
A legislator stated that the fact that Kentucky did not notice raw sewage flowing into Kentucky’s streams from another state is a cause for concern. In response to a question about whether there is a protocol in place for states to inform each other of environmental emergencies, Mr. Goodman replied that there is a protocol. The Ohio River Valley Water Sanitation Commission (ORSANCO) has a method to inform states of potential environmental problems.
In a response to a question about whether water quality testing was done, Mr. Goodman said that water testing is performed, but up to six weeks can pass before DOW is informed of the problem.
One legislator stated that there was no testing done at the time when the pollution was the greatest and later samples might be diluted. It does not appear Virginia cares about what happens to Kentucky’s water.
In response to a question about how often DOW tests major waterways, Mr. Goodman stated that the frequency of tests depends on the program and the objectives. For example, there are reference streams that are tested on a rotating basis and some waterways are tested every six months. There is also a network of testing that is on a six month basis. Total Maximum Daily Loads (TMDLs) are sampled throughout the year. There is also a lake and fish tissue sampling program.
In response to a question on how often coal companies are required to test water quality for a mountain top development, Mr. Goodman said it depends on the parameters but could be on a monthly basis.
Storm Damage and cleanup issues in Madison County
Mr. Reagan Taylor, Madison County Judge Executive, stated that his county has suffered a series of weather related disasters which prompted his office to reach out to local landowners to discern specific problems associated with cleaning up the waterways on their properties. Many property owners complained that DOW imposed fines on property owners for getting into the creeks with dozers. There needs to be a long-term fix to the problem of recurrent storms causing debris in waterways rather than just contacting DOW for a one-step process. It is the responsibility of local government to find the solution. One method is to set aside funds annually for a storm. Also, DOW’s advice not to put anything on the banks is counterintuitive. Large rock is good for erosion control. There are trees in the water channel that are so big that removal is impossible without heavy equipment and creeks can become so clogged with debris that the water changes direction and that can cause flooding and other problems. The channels can be deepened to allow better water flow. FEMA has funding but funding is not distributed in a timely manner. The solutions proposed by DOW and FEMA sound good but those agencies do not work in reality. The state needs a plan that could use FEMA money to implement a program to regularly clean out streams, perhaps on a yearly basis. The rock removed could be used for crushed stone and create dense grade rock for roads and construction. The life and safety of property and residents is more important than a little grease in the creek.
One legislator remarked that Representative Damron had a bill to allow farmers to remove gravel without a permit. Another legislator commented that growth affects drainage and sedimentation. The federal government is in an “anti-use” mode, meaning residents cannot use their own property.
Fees-in-Lieu Program Overview
Mr. Greg Johnson, Commissioner of Kentucky Department of Fish and Wildlife Resources (KDFWR) and Mike Hardin, KDFWR, described the goals, processes, and requirements for the Fee-In-Lieu-Of (FILO) program. The federal government takes jurisdiction of certain navigable waterways including intermittent and ephemeral streams. USACE has oversight and enforcement of the FILO program. USACE regulates any fill or debris placed in streams and wetlands and if there is permanent loss of a portion of the waterway then the permittee must pay compensation or mitigate. Permittees have the option to mitigate themselves, buy credits from a mitigation bank, or pay into a FILO program. The FILO program operates under agreement with USACE who prescribes the rules, restrictions and creates a mitigation interagency review team (IRT). Officially, the United States Environmental Protection Agency (USEPA) is not a signatory to the IRT but USACE does consult with USEPA. FILO cannot do projects for water supply or sewage.
FILO is fully funded from fees collected on Section 404 Clean Water Act permits. No general fund or federal dollars are used for mitigation projects. FILO mostly services state Department of Transportation projects. In fact 61 percent of the revenue has come from transportation. FILO addresses eroding banks, sedimentation, and permanent protection.
FILO operates in ten geographic service areas. The mitigation is done in the service area where the funds are generated.
In response to a series of questions regarding FILO and the purchase and use of Wildlife Management Areas, Mr. Hardin said that in some circumstances FILO money has been used to purchase WMAs such as Veterans Memorial. FILO was used to leverage the purchase price and there are some FILO projects on WMA properties. Access has not been an issue. When KDFWR purchases land for a WMA, that land is open or will be opened to the public.
In response to a question about why KDFWR and the IRT does not use Natural Resource Conservation Service (NRCS) engineers rather than hire outside consultants at a higher cost, Mr. Hardin said that federal law will not allow federal funds to be used to pay for regulatory staff a NRCS. The legislator said that 61 percent of federal transportation dollars are used since the cost of the restoration is so expensive.
In response to a question about whether there were enough wetlands in Kentucky for permittees to pay into for mitigation, Mr. Hardin said if an applicant pays then there will be a project for a stream or wetland. There is still ample opportunity for projects.
In response to a question about the amount of administrative overhead charged for a project, Mr. Hardin said that 10-20 percent is administrative. There is an amount that goes to a reserve fund as well.
In response to a question about whether FILO was once used for restoration in 2000 after a resolution passed directing use of money for sewers, Mr. Hardin said that in 2000 a letter was submitted to USACE who rejected the proposal.
The meeting was adjourned at 2:45 PM (EDST).