A tiered permitting structure, more noticing of permit applications and more safeguards for land reclamation are among the highlights of a 27-page overhaul of the section of Kenai Peninsula Borough code governing material site permits approved by the borough assembly last week.
The unanimous vote in support of the ordinance caps more than a year of work by an assembly material site subcommittee, dozens of amendments and hours of public testimony on the proposed changes to how the borough regulates material extraction from public and private land.
Kenai Peninsula Borough code requires people to obtain permits before they use borough land for certain purposes, such as commercial gravel and material sites. Throughout the review process, the assembly has worked to balance the need for material like gravel to support economic development within the borough with concerns about how extraction operations may negatively impact the general welfare of residents.
The last time the borough assembly reviewed its material site code was in 2018, however, the final legislation failed during an assembly meeting the following year. The assembly took the issue back up in 2021 in response to “continued conflict” over the regulations, which resulted in expensive administrative and court appeals.
As part of the code review that’s been underway since last year, the assembly created a new subcommittee in 2022 exclusively tasked with reviewing the material site policies. The committee considered more than 60 amendments, made more than 100 motions and voted on nearly 90 separate items related to the legislation over the course of 21 meetings.
Assembly President Brent Johnson and then-assembly member Lane Chesley, who chaired the material site committee, wrote in an Aug. 24 memo to assembly members that the ordinance is intended to shift material site permitting away from a one-size-fits-all approach.
The legislation retains existing elements of borough code meant to protect the general welfare of borough residents, while also offering a flexible system that can meet the needs of each permit application, Johnson and Chesley wrote. While building the legislation, the memo says the assembly worked to balance support for businesses with residential and recreational use properties.
“We believe the substitute ordinance strikes a fair balance between regulation to protect public health, safety, and general welfare, and the importance of responsible development of material site resources,” the memo says.
First updated by the ordinance passed last week is the process by which the borough publicly notices applications for new conditional land use permits.
The noticing rules do not apply to counter permits and say that borough staff will review applications for 30, rather than 21, days. Further, notices of permit applications will no longer be posted in a newspaper, but rather on the Kenai Peninsula Borough website.
The second piece of the legislation completely repeals and replaces Chapter 21.29 of the Kenai Peninsula Borough Code of Ordinances, which addresses material site permits.
The ordinance adds two new sections of code stating the intent and purpose of the code section and clarifying the types of operations subject to the borough’s material site permitting rules. Borough code now clarifies that the rules regarding material site permits apply to both private land and public land outside of incorporated cities.
In addition to counter permits, which cover property between 1 and 5 acres in size and do not allow processing or conditioning of materials, the new code delineates three types of conditional land use permits that operators can apply for any or all of.
Conditional land use permits address activities not covered by counter permits — those activities that occur within 2 feet of a piece of land’s seasonal high water table. The seasonal high water table refers to the highest level that groundwater rises to each year.
The first endorsement, called a Type I endorsement, is required for operators extracting material on 5 or more cumulative acres. Type I endorsements do not allow the permit holder to condition or process materials, nor does it allow a permit holder to extract materials within 2 feet of the seasonal high water table.
The second type of endorsement, a Type II endorsement, is required for all material conditioning and processing.
The third type of endorsement, a Type III endorsement, is required for any material extraction or excavation within 2 feet of the seasonal high water table.
Previous borough code only offered one type of permit, which covered material extraction disturbing more than 2.5 acres or entering the water table.
Regardless of whether an operator is pursuing a counter permit or a conditional land use permit, applicants must first submit a permit application and application fee to the borough. Among other things, that application must include the expected lifespan of the material site, the type of material to be extracted, the depth of excavation and buffer and reclamation plans.
Applicants for borough permits must also demonstrate that they are in compliance with state and federal laws and permitting with regard to air quality, water quality and use and storage of hazardous materials.
The ordinance also updates the conditions an operator must meet before the borough will issue them a permit for material extraction. Conditions are grouped by whether or not they apply to all permits or by the type of permit endorsements, and are intended to protect residents and the environment from the negative impacts of material site operations.
For all types of permits, operators must establish a 30-foot buffer zone between the material extraction area and the boundaries of the parcel on which they are operating. That’s less than the previous borough buffer zone requirement of 50 feet, however, operators must now also provide for street-level, dust and noise screening. If one of the material site’s boundaries is a coastal bank, the minimum buffer distance is 100 feet.
Material extraction below or within 2 feet of a parcel’s seasonal high water table is not allowed without a Type III endorsement, and all material extraction is prohibited within 100 feet of any water source. Sites must also have one monitoring well per 10 acres of excavated area.
The ordinance also cut the amount of time operators can conduct material extraction activities each day by one hour. Hours of operation may also be set by the borough planning director and commission and be waived if the extraction project is deemed necessary by the borough planning commission.
The new code language gives both the borough planning director and the planning commission discretion to implement additional rules specific to a proposed material extraction site before issuing its operator a permit. Examples of site-specific conditions that may warrant further action include proximity to a public campground or location within a special impact zone.
Additional policies apply to operators with Type II and Type III endorsements.
For a permit with a Type II Endorsement, equipment that conditions or crushes material must be operated at least 300 feet away from the parcel boundary and may only be operated between 8 a.m. and 7 p.m., among other rules.
For a permit with a Type III endorsement, which allows material extraction within 2 feet of the seasonal high water table, operators must consult with a professional to install monitoring wells that determine the flow of groundwater and to prepare a report outlining the potential adverse effects to area water.
Permit holders with Type III endorsements must also measure groundwater flow direction monthly, implement petroleum spill prevention measures in accordance with the Environmental Protection Agency and adhere to additional setbacks from drinking water sources.
One element of material site permitting is reclamation, which refers to the ways an operator will rehabilitate the land once they’ve finished extracting material from it. The borough already required operators to include a reclamation plan as part of their permit, but operators must now include a site plan as part of that plan and must submit a new five-year plan each time they renew their permit.
Reclamation plans are also newly required in all cases where a permit is closed out, either by expiration, termination or revocation. That means operators still have to implement a reclamation plan even if their permit becomes inactive.
The borough is also employing a new strategy for reclamation of land affected by material site extraction.
Previous borough code required operators as part of their reclamation plan to include revegetation of the land with a non-invasive plant species. That is no longer a requirement, however, borough code newly describes $750 per acre bonds to ensure that the borough has enough money to restore the land in a way that is consistent with the reclamation plan.
Elements of reclamation plans that are unchanged by the new material site ordinance include stabilizing the area in a way that allows for revegetation, treating topsoil such that it is reasonably free of debris, backfilling trenches and removing brush piles. Reclamation must occur in a way that “is not harmful to public health, safety, and general welfare.”
The plans must now also identify drainage features entering or exiting the property.
Prior existing use
Material site operations that predate the Kenai Peninsula Borough’s permitting system, referred to as prior existing use, are allowed to continue operating under the new code language. Those that predate the borough permitting system refer to those that existed before May 21, 1996, and are still in operation when the new ordinance goes into effect next year.
Starting Jan. 1, 2026, all prior existing use operations will be required to bring themselves into compliance with the new borough code regarding reclamation plans. Any prior existing use operation that is discontinued for five years or more is subject to the updated code if they resume operations.
The ordinance also clarifies and codifies the process by which permit issuance may be decided, denied, renewed, modified and closed out. Among other things, applicants are newly prohibited from immediately reapplying for a permit if their application is denied, renewals must be requested via an application rather than in writing and operators are responsible for recording costs.
Kenai Peninsula Borough material site permits are also transferable, subject to approval by the borough planning director. Operators are no longer required to obtain a permit to extract material needed for construction on the same property. Additional definitions for words and phases like “public campground,” “reclamation” and “qualified professional” are also newly added to that section of borough code.
More information about Ordinance 2022-36 can be found on the borough’s website at kpb.legistar.com.
Reach reporter Ashlyn O’Hara at email@example.com.