(A) Introduction; purpose; applicability.
(1) During the construction process, soil is highly vulnerable to erosion by wind and water. Eroded soil endangers water resources by reducing water quality and adversely affects aquatic habitat for fish and other desirable species. Eroded soil also necessitates repair of sewers, ditches and the dredging of lakes, ponds, and streams. In addition, clearing and grading during construction cause the loss of native vegetation necessary for terrestrial and aquatic habitat.
(2) The purpose of this section is to safeguard persons, protect property, and prevent damage to the environment in the city. This section will also promote the public welfare by guiding, regulating, and controlling the design, construction, use, and maintenance of any development or other activity that disturbs or breaks the topsoil or results in the movement of earth on land in the city.
(3) Unless specifically exempted, these regulations apply to all lands within the city in which the vegetative cover is removed, disturbed, or fill material has been brought onto the site requiring stabilization.
(B) Definitions. For the purpose of this subchapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning.
ARSD. Administrative Rules of South Dakota.
BEST MANAGEMENT PRACTICES (BMPs). Schedules of activities, prohibitions of practices, maintenance procedures, and other management practices to prevent or reduce the discharge of pollutants to waters of the state. BMPs also include treatment requirements, operating procedures, and practices to control plant site runoff, spillage or leaks, sludge, or waste disposal or drainage from raw material storage.
CLEARING. Any activity that removes the vegetative surface cover.
DRAINAGE WAY. Any channel that conveys surface runoff throughout the site.
GRADING AND EROSION CONTROL PLAN (GECP). A set of plans indicating the specific measures and sequencing used to control sediment and erosion on a construction site. (Required for all sites one-half acre or greater.)
GRADING PERMIT. A permit issued by the city for construction, excavating, clearing, and/or any land disturbing activity.
LAND DISTURBANCE/DISTURBING ACTIVITY. Any type of activity that involves grading, clearing, and/or moving topsoil, rock, or any other natural surface from property. This term also includes bringing fill material onto the site.
NOTICE OF STABILIZATION/RE-VEGETATION AGREEMENT. A signed agreement between a property buyer and property seller or a building contractor and property buyer where landscaping and re-vegetation will be required. This AGREEMENT determines responsibilities between the two parties for sediment and erosion control on the site.
PERIMETER CONTROLS. Erosion control measures which protect neighboring properties from non-storm water discharges.
SD DANR. South Dakota Department of Agriculture and Natural Resources.
STABILIZATION. The use of permanent or temporary landscape practices that prevent exposed soils from eroding including, but not limited to, grass, trees, sod, mulch, or other materials which prevent erosion and retain moisture.
STORM WATER POLLUTION PREVENTION PLAN (SWPPP). Required by SD DANR for storm water permit for construction areas disturbing more than one acre or industrial activities having a Standard Industrial Code (SIC) between 20 and 39.
WATERCOURSE. Any body of water including, but not limited to, lakes, ponds, streams, and other bodies of water delineated by the city.
WATERWAY. A channel that directs surface runoff to a watercourse or to a public storm drain.
WATERS OF THE STATE. All waters within the jurisdiction of this state, including all streams, lakes, ponds, impounding reservoirs, marshes, watercourses, waterways, wells, springs, irrigation systems, drainage systems and all other bodies or accumulations of water, surface or underground, natural or artificial, public or private, situated wholly or partly within or bordering upon the state, but not waste treatment systems, including treatment ponds or lagoons designed to meet the requirements of the CWA (Clean Water Act) other than cooling ponds as defined by the Code of Federal Regulations.
(C) Grading permit(s).
(1) Unless otherwise exempt, a grading permit will be required prior to persons engaging in a land disturbing activity exceeding 1,000 square feet. The following requirements must be met before the permit will be granted:
(a) General permit for storm water discharges associated with construction activities through SD DANR as required by state regulations for land disturbing activity of one acre or more;
(b) General permit for storm water discharges associated with Industrial Activities through SD DANR as required by state regulations. The requirements for this permit are governed by the Standard Industrial Code (SIC). There are no size requirements for this permit; and
(c) Approval of the SWPPP by the City Public Works Department. The SWPPP is a requirement for both divisions (1)(a) and (1)(b) above.
(2) A grading permit with a grading and erosion control plan (GECP) will be required for persons wishing to engage in land disturbing activity of one-half acre up to one acre upon obtaining approval of a GECP by the City Public Works Department.
(3) The grading permit shall designate the name, address, and phone number for person(s) (including emergency contact information) responsible for erosion control measure implementation and maintenance.
(4) No grading permit will be required for the following activities:
(a) Any emergency activity that is immediately needed for the protection of life, property, or natural resources;
(b) Any nursery or agricultural operation that is permitted by zoning regulations as a main or accessory use; or
(c) Land disturbing activity of less than 1,000 square feet.
(5) All permits will remain active until permanent landscaping measures have been met on the site. Permanent stabilization/re-vegetation must be met by October 31 of the year following completion of the project or occupancy of the project. For example: if the project is completed in July of 2011, then permanent landscaping/re-vegetation must be complete by October 31, 2012. Projects larger than one-half acre may be required to be stabilized, landscaped, or re-vegetated in phases to prevent long-term exposure of soils.
(6) Persons not subject to a grading permit, but who are engaging in a land disturbing activity, are responsible for applying effective BMPs and will be subject to the penalties set forth in § 150.999.
(D) Application and bond.
(1) Before any such permit is issued, the person requiring the same shall make written application to the City Finance Officer, which shall state where such excavation is to be made, the extent thereof, in front of which lot or lots, and for what purpose the excavation is to be made. Before any permit is issued to any such person, a good and sufficient bond for $5,000 could be required to cover such excavation. Only one bond is necessary for any number of authorized excavations as long as the bond is in full force and in effect.
(2) In addition, there shall be required a certificate of insurance showing that the applicant has a liability policy covering business operations including coverage for explosion, collapse and underground utilities, commonly referred to as NCU coverage. If the City Finance Officer and/or Public Works Director, after careful examination, find that application is in proper order and in conformance with the provisions herein, and if said bond has been properly posted and a certificate of liability has been filed, he or she may issue said permit to the applicant.
(Prior Code, § 11.0604)
(E) Grading and erosion control plan. For sites of one-half acre or larger, the grading and erosion control plan must include:
(1) A legible map identifying area to be disturbed, slopes, and resources to be protected and also must include nearest downstream storm water inlets, drainage ways, and neighboring property lines. This plan must be approved and BMPs must be in place before any grading begins. The minimum map size for sites one-half to one acre is eight and one-half inches by 11 inches; for construction sites disturbing more than one acre and industrial sites, minimum map size is 11 inches by 17 inches;
(2) The SWPPP for divisions (C)(1)(a) and (C)(1)(b) above is required for submittal as the ESCP for this section;
(3) All BMPs necessary to achieve soil stabilization on the site itself and including stockpiles of any soil, rock or any additional landscaping materials on the site. The plan will also include a designated entry/exit point, a concrete washout area on the site, measures to protect nearest downstream storm water inlet(s) and explain measures to prevent mud-tracking from vehicles and equipment into the street; and
(4) Sites up to one-half acre which are not subject to a GECP will be required to apply all BMPs necessary to accomplish soil stabilization based upon the soil conditions and topography of the particular site. A GECP may be required in these areas when sites are consistently noncompliant with this code. Final stabilization requirements set forth in division (K) below are required for these sites.
(F) Deposit forfeited. If at any time within one year of the issuance of a permit in making excavation, the Public Works Director or Building Inspector shall find that the work for which the deposit on bond was made does not stand a satisfactory test or has not been properly refilled, then the Public Works Director or Building Inspector shall have the authority to cause such work to be put in proper and satisfactory condition and charge the cost thereof to the sum deposited or the surety bond furnished. This deposit shall be returned upon certification by the Public Works Director or Building Inspector that all work required has been performed satisfactorily.
(Prior Code, § 11.0605)
(G) Non-applicable to utility companies. No utility company which has been heretofore granted by franchise or contract, the right to use the streets, alleys, or other public places shall be required to furnish a bond for making any excavations to any public rights-of-way; provided that all of the sections of this chapter relating to excavations in public rights-of-way shall be binding upon such companies.
(Prior Code, § 11.0606)
(H) Protection of utilities. Public utilities or services shall be protected from damage caused by grading or excavation operations. Any damage this committed shall be fully compensated for by the person of whom the permit was granted to make said excavation.
(Prior Code, § 11.0607)
(I) Protection of adjacent property. Adjacent properties shall be protected from damage caused by grading operations. No person shall excavate on land sufficiently close to the property line to endanger any adjoining public streets, sidewalk, alley, or other public or private property, without supporting and protecting such property from any damage that might result.
(Prior Code, § 11.0608)
(J) Inspection notice. The Public Works Director and/or the Building Inspector shall be notified at least 24 hours prior to the start of work.
(Prior Code, § 11.0609)
(K) Final stabilization.
(1) All soil disturbing activities at the site have been completed and either of the two following criteria are met:
(a) Uniform (e.g., evenly distributed, without large bare areas) perennial vegetative cover with a density of 70% of the native background vegetative cover for the area has been established on all unpaved areas and areas not covered by permanent structures; and/or
(b) Equivalent permanent stabilization measures (such as the use of riprap, retaining walls or geotextiles) have been employed.
(2) When background native vegetation naturally covers less than 100% of the ground, the 70% coverage criteria is adjusted as follows: 70% of the total area covered by native vegetation must have total cover for final stabilization. For example, if native vegetation covers 50% of the ground, 35% would require total cover for final stabilization. In an area where limited vegetation is naturally found, less stabilization will be required.
(3) For individual lots in residential construction, FINAL STABILIZATION means that either:
(a) The property owner/contractor has completed final stabilization as specified under division (K)(1) above; or
(b) The property owner/contractor has established adequate temporary stabilization including perimeter controls for an individual lot prior to occupation of the property by the new property owner(s) and has informed the property owner(s) of the need for, and benefits of, final stabilization. A signed notice of stabilization/re-vegetation agreement form will acknowledge the landscaping requirements of the new owner.
(4) (a) For construction projects on land used for agricultural purposes (e.g., pipelines across crop or range land, staging areas for road construction, and the like), final stabilization may be accomplished by returning the disturbed land to its preconstruction agricultural use.
(b) Areas disturbed that were not previously used for agricultural activities, such as buffer strips immediately adjacent to a watercourse, and areas which are not being returned to their preconstruction agricultural use must meet the final stabilization criteria in divisions (K)(1) or (K)(2) above.
(5) Final stabilization must be completed on or before October 31 of the year following the certificate of occupancy, final inspection, or project completion, whichever occurs sooner.
(L) Additional requirements.
(1) It will be the responsibility of the grading permit holder to obtain approval of all required agencies for any waterway crossings to be installed if a wet watercourse will be crossed regularly during construction. (e.g., DANR, Corps of Engineers, FEMA, and the like).
(2) SWPPPs must be maintained on the site during the progress of the work.
(3) If control measures do not achieve stabilization, the permit holder may be required to submit an updated SWPPP or may be required to submit a GECP prepared by a professional engineer.
(4) Any on-site debris with potential to be wind-blown onto neighboring properties must be controlled and refuse containers must be covered with a cover intended for the container. Tarpaulins used to cover open dumpsters must be intact and in good repair during use.
(5) The City Public Works Department may enter the site to make inspections as needed.
(M) Stop work order.
(1) Whenever the Public Works Administrator or his or her designee finds a site maintained contrary to the provisions of this section, the Public Works Administrator or his or her designee is authorized to issue a stop work order for the site.
(2) The stop work order shall be in writing and issued to the permittee or assigned contractor. Upon issuance, the cited work shall immediately cease. The stop work order shall state the reasons for the order and the conditions under which the cited work will be permitted to resume.
(3) Any person who shall continue any work after having been served a stop work order, with exception to work required by the order, shall be subject to penalties set forth in § 150.999.
(N) Traffic control and protection of streets. Any person receiving a permit to make excavation shall during the progress and continuance of the work on such excavation erect and maintain around the same both by day and night suitable flaggers, barricades, fences, signs, and other safety devices so as to prevent injury to persons, animals, or vehicles on account of such excavation.
(Prior Code, § 11.0611)
(O) Hazard from existing grading. Whenever any existing excavation, embankment, or fill has become a hazard to life or limb, endangers structures, or adversely affects the safety, use, or stability of a public way or drainage channel, such excavation, embankment, or fill shall be eliminated.
(Prior Code, § 11.0612)
(P) Tracking of dirt onto public streets during excavations. Adequate cleaning of equipment to prevent the tracking of dirt and debris onto public streets shall be provided during excavating.
(Prior Code, § 11.0613)
(Q) Maintenance of waterway and irrigation canals. Precautionary measures to protect and maintain the flow of waterways and irrigation canals shall be taken.
(Prior Code, § 11.0614)
(R) Design standards. The grading design standards required here in shall be those found in nationally recognized standards.
(Prior Code, § 11.0616)
(Ord. 2022-09, passed 9-6-2022) Penalty, see § 150.999