GROWTH AND RESOURCE MANAGEMENT DEPARTMENT PLANNING AND DEVELOPMENT SERVICES DIVISION 123 West Indiana Avenue, DeLand, Florida 32720 (386) 736-5959

TO: Planning and Land Development Regulation Commission (PLDRC)

DATE: August 17, 2021

SUBJECT: Revised Ordinance 2021-17 Amending Chapter 72, Code of Ordinances for Non-Exempt Excavations

I. ORDINANCE SUMMARY

Non-exempt excavations are regulated through the Special Exception process established by the Zoning Ordinance. Section 72-293(15)b.1.iv.D requires the top of bank of a non-exempt excavation to be 150 feet from any natural or manmade surface water body, watercourse, or wetland. The St. Johns River Water Management District (SJRWMD), who issues consumptive use (CUP) and environmental resource (ERP) permits, requires a minimum distance of 50 feet from wetlands and waterbodies. The Volusia County Council directed staff to make revisions to the ordinance that will allow an applicant to reduce the setback to wetlands, if s/he can prove through an industry-accepted model, that a reduced setback would not impact adjacent wetlands and waterbodies. The ordinance includes a monitoring requirement and a subsequent ordinance review to evaluate its effectiveness in protecting wetlands and waterbodies.

This item was previously heard by the PLDRC on June 17, 2021. At that time, the PLDRC requested some changes to address water quality, monitoring requirements, and the proposed evaluation period for the ordinance. The commission also requested that the proposed ordinance be reviewed by a professional familiar with water quality issues. The PLDRC stressed the importance of obtaining concurrence from the environmental community. This item incorporates the feedback from the PLDRC, environmental professionals, the environmental community, and the development community.

II. BACKGROUND/HISTORY

Non-exempt excavations typically include sand mines and borrow pits that involve the extraction of sand materials for use as fill for developments or roadway projects. This type of operation is commercial in nature and has the potential to impact adjacent properties and natural resources. Dewatering is often used to remove the water from the pit via pipes and pumps and return it to the ground after the excavation activities. Dewatering is intended to draw down the water table to dry out the sand. The existing ordinance includes the requirement for a hydrologic study to be submitted as part of the special exception process. It must include a detailed description of

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subsurface conditions, a groundwater contour map, a map depicting the thickness and depths of the materials to be excavated, a discussion on environmental impacts on existing area wells, and a recommendation of the necessity to install monitoring wells. A special exception for a non-exempt excavation is allowed in the Forestry Resource (FR), Prime Agriculture (A-1), Rural Agriculture (A-2), Rural Mobile Home (MH-3), Light Industrial (I-1), Heavy Industrial (I-2), Industrial Park (I-4), and Osteen Commercial Village (OCR) zoning classifications. Section 72-293(15)b.1.iv.D requires the top of bank of a non-exempt excavation to be 150 feet from any natural or manmade surface water body, watercourse, or wetland. There are no variance options for this required minimum distance. In response to a constituent request, the Volusia County Council directed staff in April 20, 2020 to review the current minimum setback of 150 feet between a non-exempt excavation and wetlands. Mining ordinances for surrounding counties were reviewed, and staff met with the SJRWMD to better understand their CUP and ERP requirements. Staff also spoke with private interests who provided background on their experiences with typical mining operations. The Growth and Resource Management Director presented the research findings to the Council on April 20, 2021 and requested direction on amending the ordinance. At that meeting, the Council directed staff to initiate an amendment to Section 72-293(15)b that would allow a mechanism to reduce the required wetland setback, under certain conditions. A commonly accepted hydrologic model would be required to demonstrate that short and long-term drawdowns from the excavation activity would not impact the surrounding wetlands and/or water bodies. The council also asked for a review of the revised ordinance after five years to establish a checks and balances on whether it is effective in protecting the adjacent wetlands and waterbodies. Ordinance 21-100, as presented to the PLDRC on June 17, is summarized, as follows; When dewatering is required, the setback will be measured from the dewatering area or the top of bank of the excavation, whichever point is closest to the wetlands. An applicant may request a reduction in the setback subject to review and approval of a detailed dewatering plan, prepared by a licensed professional engineer or hydrogeologist. The county reserves the right to charge the applicant for a third party engineering review. The plan shall demonstrate, using a commonly accepted hydrologic model, that there will be no short-term or long-term drawdown of the adjacent wetland or water body, and that includes an assurance that water extracted from the excavation site shall be directed to the wetland or water body, as appropriate. The plan must show that the water being pumped into the wetland or water body has an acceptable quality that will not result in degradation of the receiving wetland or water body. Finally, the plan must include a monitoring program to ensure that there will be no negative impacts to the wetlands or water body. The monitoring plan requires the placement of monitoring wells in strategic locations to ensure that the drawdown does not negatively affect groundwater levels. The ordinance also provides for a reporting mechanism to the county throughout the excavation process. Volusia County reserves the right to charge for third party review of the dewatering plan, the hydrologic study, and other technical documents submitted as part of the special exception application for a non-exempt excavation.

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A performance bond for the costs of reparations is required to prevent permanent damage to the wetlands or wetland buffers due to lowering of the groundwater level. Regardless of the hydrologic evaluation, pursuant to the county’s wetland regulations, a minimum buffer of 25 feet would still be required outside of the Natural Resource Management Area (NRMA) and 50 feet within the NRMA. An environmental impact assessment is also required for properties located in the NRMA. Following the PLDRC discussion and public input, county staff was asked to make some revisions and bring the item back to the PLDRC for a second review prior to sending it to the County Council. Members expressed concern that the ordinance did not include a provision for water quality. They wanted a mechanism included that would provide for an evaluation of pre and post groundwater levels and water quality. They expressed concern about public comments that they had received requesting a strengthening of the ordinance. The PLDRC also wanted a third party environmental professional to review the proposed revisions. Finally, the PLDRC stressed the importance of garnering the support of environmental interests before the second PLDRC hearing. To address these concerns, Professional Engineers from the Public Works and Engineering Departments who regularly participate in the review of excavation projects were consulted. The ordinance was also distributed to E Sciences, an Environmental Engineering firm who is active in the Volusia Association for Responsible Development (VCARD). Additionally, it was distributed to the Volusia/Flagler Environmental Coalition and those residents who provided comments during the first PLDRC hearing. No other comments were received by the county prior to the publication of this staff report. The attached ordinance and exhibit incorporate the relevant changes. The word “water quality” was added throughout, and references to state surface water and groundwater quality standards were added. A requirement for pre and post development water quality sampling was added. The review period to evaluate the new ordinance was reduced from five to two years to determine its effectiveness in protecting the water resources. III. STAFF RECOMMENDATIONS Staff recommends that the commission find the Ordinance 2021-17 consistent with the Comprehensive Plan and forward it to the County Council for final action with a recommendation of approval. IV. ATTACHMENTS • Ordinance 2021-17 with Exhibit • June 17, 2021 Draft PLDRC Minutes

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Ord 2021-17 Page 1 of 3

ORDINANCE 2021 - 17 1 2

AN ORDINANCE OF THE COUNTY COUNCIL OF VOLUSIA3 COUNTY, FLORIDA, AMENDING THE CODE OF4 ORDINANCES OF THE COUNTY OF VOLUSIA; AMENDING5 SECTION 72-293(15)(b), CODE OF ORDINANCES,6 COUNTY OF VOLUSIA, SPECIAL EXCEPTION CRITERIA 7 FOR EXCAVATIONS; AMENDING THE MINIMUM8 DISTANCE OF A NON-EXEMPT EXCAVATION FROM A 9 NATURAL OR MANMADE SURFACE WATER BODY,10 WATERCOURSE, OR WETLAND; PROVIDING FOR A -11 REVIEW PERIOD AFTER IMPLEMENTATION; PROVIDING12 FOR SEVERABILITY; PROVIDING FOR CONFLICTING13 ORDINANCES; AUTHORIZING INCLUSION IN CODE; AND14 PROVIDING AN EFFECTIVE DATE.15

16 RECITALS 17

18 WHEREAS, this amendment is a land development regulation that does not amend the list of19 permitted, conditional, or prohibited uses in a zoning district;20

21 WHEREAS, the Volusia County Council determines that a default set back of one hundred and22 fifty feet from a natural or manmade surface waterbody, watercourse, or wetland is a reasonable 23 standard to protect the health, safety, and welfare of the citizens of Volusia County and to protect24 the dewatering of the waterbodies and wetlands of Volusia County; and25

26 WHEREAS, the County Council also determines that technological advances and a detailed27 dewatering plan may mitigate for a reduction of a setback to below the default one hundred and28 fifty feet and would also protect the dewatering of the waterbodies and wetlands of Volusia 29 County; and 30

31 WHEREAS, the County Council determines that a minimum setback of 25 feet from a wetland 32 buffer, regardless of a detailed dewatering plan, is a minimum necessary to protect the 33 waterbodies and wetlands of Volusia County; and34

35 WHEREAS, the County Council determines that this ordinance, and the amendments to section36 72-293(15) of the Code, shall be reviewed two (2) years from the effective date of the ordinance37 in order to determine whether to revert to the 150 foot setback in order to protect the citizens38 and waterbodies of Volusia County; and 39

40 WHEREAS, this ordinance was reviewed by the Volusia County Planning and Land 41 Development Regulation Commission pursuant to section 163.3174, Florida Statutes; and 42

43 WHEREAS, due public notice for this ordinance, pursuant to section 125.66, Florida Statutes, 44 were met. 45

46

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Ord 2021-17 Page 2 of 3

BE IT ORDAINED BY THE COUNTY COUNCIL OF VOLUSIA COUNTY, FLORIDA, AS 1 FOLLOWS: 2 3

(Words in strike through type are deletions; words in underscore type are 4 additions.) 5

6 SECTION I: RECITALS - The above recitals are incorporated into this Ordinance as 7

legislative findings of fact and intent. 8

SECTION II: AMENDMENT - Section 72-293(15)(b) of Chapter 72 of the Code of 9

Ordinances of the County of Volusia is hereby amended as provided in the attached “Exhibit 10

A,” attached and incorporated herein. 11

SECTION III: TWO-YEAR REVIEW – This ordinance, as well as the amendments to 12

Section 72-293(15)(b), shall be reviewed two years from the effective date of this ordinance to 13

determine the effectiveness of the ordinance and whether to return to the default setback of 150 14

feet from a natural or manmade waterbody, watercourse, or wetland. 15

SECTION IV: SEVERABILITY - Should any word, phrase, sentence, subsection or 16

section be held by a court of competent jurisdiction to be illegal, void, unenforceable, or 17

unconstitutional, then that word, phrase, sentence, subsection or section so held shall be 18

severed from this ordinance and all other words, phrases, sentences, subsections, or sections 19

shall remain in full force and effect. 20

SECTION V: CONFLICTING ORDINANCES - All ordinances, or part thereof, in conflict 21

herewith are, to the extent of such conflict, repealed. 22

SECTION VI: AUTHORIZING INCLUSION IN CODE. The provisions of this ordinance 23

shall be included and incorporated into the Code of Ordinances of the County of Volusia, as 24

additions or amendments thereto, and shall be appropriately renumbered to conform to the 25

uniform numbering system of the Code. 26

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Ord 2021-17 Page 3 of 3

SECTION VII: EFFECTIVE DATE. This ordinance shall take effect upon electronic filing 1

of a certified copy with the Department of State. 2

ADOPTED BY THE COUNTY COUNCIL OF VOLUSIA COUNTY, FLORIDA, IN OPEN 3 MEETING DULY ASSEMBLED IN THE COUNTY COUNCIL CHAMBERS AT THE THOMAS C. 4 KELLY ADMINISTRATION CENTER, 123 WEST INDIANA AVENUE, DELAND, FLORIDA, 5 THIS ____ DAY OF ____A.D., 2021. 6 7 8 COUNTY COUNCIL 9 ATTEST: VOLUSIA COUNTY, FLORIDA 10 11 12 13 _____________________________ ___________________________ 14 George Recktenwald Jeffrey S. Brower 15 County Manager County Chair 16 17 18

19

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EXHIBIT A

Sec. 72-293. - Special exceptions. 1

(15) Excavations. 2

b. The following requirements and conditions must be met for any nonexempt 3 excavation. A nonexempt excavation requires a special exception to this 4 article and issuance of a permit in accordance with the final site plan 5 procedures of division 3 of the Land Development Code [article III]. 6

1. Each application for a special exception shall be accompanied by plans, 7 drawings, and information prepared by a Florida registered engineer 8 depicting, at a minimum: 9

i. Existing and proposed topography at one-foot contour interval. Such 10 topography shall extend a minimum of 150 feet beyond the top of the 11 bank of excavation. 12

ii. Proposed side slopes and depths which meet these minimums: All 13 sides of the excavated area shall, at a minimum, comply with the 14 following: 15

A. One foot vertical for each four feet horizontal to a depth of two 16 feet below the seasonal low water table elevation as determined 17 by a geotechnical engineer, unless waived by the county council. 18

B. For depths greater than two feet below the seasonal low water 19 table elevation, the slope may be one foot vertical for each one 20 foot horizontal. 21

Unless waived by the county council, and notwithstanding section 22 72-282 of this article, any excavation in excess of the aforementioned 23 slope shall be fully enclosed by a six-foot-high chain link fence 24 approved by the CDE, which shall include a gate that shall be closed 25 and locked at all times during which the excavation pit is not in use. 26 Unless determined otherwise by the CDE, said fencing shall be 27 completely installed prior to initiation of the excavating activity and 28 shall remain in place until the excavation is satisfactorily reclaimed. 29

iii. Wet and dry season water elevations and the existing surface 30 drainage pattern. 31

iv. Notwithstanding any other minimum yard sizes required by this 32 article, the top of the bank of an excavation shall be set back the 33 following minimum distance: 34

A. One hundred fifty feet from the right-of-way of any public street, 35 road or highway. 36

B. One hundred fifty feet from abutting residential or mobile home 37 classified property. 38

C. B. One hundred fifty feet from any other abutting property. 39

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EXHIBIT A

D.C. One hundred fifty feet from any natural or manmade surface 1 water body, watercourse or wetland. When dewatering is 2 required, the setback will be measured from the dewatering area 3 or the top of bank of the excavation, whichever point is closest 4 to the wetlands. An applicant, as part of the special exception 5 process, may request a reduction in the setback subject to 6 review and approval of a detailed dewatering plan, prepared by 7 a licensed professional engineer or hydrogeologist that: 8

i. demonstrates, using a commonly accepted hydrologic model, 9 that there will be no short-term or long-term drawdown of the 10 adjacent wetland or water body. This includes an assurance that 11 water extracted from the excavation site shall be directed to the 12 wetland or water body, as appropriate, and that dewatering 13 activities will not negatively impact state water quality standards 14 for surface waters (62-302, FAC) and groundwater (62-520, 15 FAC). 16

ii. assures that the water being pumped into the wetland or water 17 body has an acceptable quality that will not result in degradation 18 of the receiving wetland or water body or groundwater. 19

iii. includes an established a monitoring program to ensure that 20 the pre-development ground water level and quality shall be 21 maintained throughout the excavation and post excavation 22 reclamation so that once the excavation is complete there will be 23 no negative impacts to the wetlands or water body or water 24 quality. The monitoring plan shall include the placement of 25 monitoring wells in strategic locations to ensure that the 26 drawdown does not negatively affect groundwater levels or water 27 quality. The monitoring plan shall identify the frequency and 28 reporting to county staff. Volusia County reserves the right to 29 charge for third party review of the dewatering plan, the 30 hydrologic study, water quality testing, and other technical 31 documents submitted as part of the special exception application 32 for a non-exempt excavation. 33

iv. provides for a performance bond for the costs of reparations 34 that may be needed if the excavation results in permanent 35 damage to the wetlands or wetland buffers or water quality due 36 to lowering of the groundwater level from mining and dewatering 37 activities. 38

v. regardless of the calculated radius of influence, there shall be 39 a minimum setback of 25 feet as measured from the required 40 wetland buffer for wetlands, natural water bodies, or top of bank 41 for manmade waterbodies or water course. 42

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EXHIBIT A

v. Perimeter landscape buffers shall be established prior to initiation of 1 the excavating activity and shall meet the requirements of subsection 2 72-284(2)a., "Landscape Buffer Table". 3

vi. The area and amount of material to be excavated in cubic yards. A 4 discussion of the proposed method of excavation shall be provided. 5

vii. The proposed method of dewatering. 6

viii. The time, duration, phasing and proposed work schedule of the 7 total project. 8

ix. A detailed reclamation plan, drawn to an acceptable scale, and 9 program to be performed upon completion of the project. The 10 reclamation plan must be approved by the development review 11 committee. As a minimum, the plan of reclamation shall include: 12

A. Time, duration, phasing and proposed work schedule of the 13 reclamation. 14

B. Depiction of finished, stabilized, side slopes, including methods 15 and plant materials proposed for use. For a wet excavation, a 16 littoral zone is required to be established around the resultant 17 water body. The specifications of said zone shall be determined 18 in conjunction with the county's environmental management 19 division. department. The establishment, to the fullest extent 20 practical, of sinuous shorelines is required. 21

C. Landscape plan for the portion of the property disturbed by 22 excavation and associated activities, including an inventory of 23 plant/tree species to be used. 24 The reclamation plan must be approved by the development 25 review committee. 26

D. The resultant artificial water body shall comply with the 27 standards established by the St. Johns River Water 28 Management District and other appropriate agencies. Said 29 water bodies may be required to be stocked with fish. Ambient 30 water quality testing may also be required. 31

x. A hydrogeologic report, prepared by a licensed professional 32 engineer or hydrogeologist qualified engineer of hydrologist, of the 33 proposed excavation site. Such a report shall, at a minimum, 34 provide: 35

A. A detailed description of subsurface conditions. 36

B. A groundwater contour map. 37

C. A map depicting the thickness and depths of material to be 38 excavated. 39

D. A discussion of the environmental impacts of the proposed 40 excavation, including but not limited to the impact of the 41

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proposed excavation upon existing area wells, wetlands, water 1 bodies, and groundwater. 2

E. A recommendation of the necessity to install map depicting the 3 location of proposed monitoring wells. 4

xi. The proposed location of access points to the site and proposed 5 haul routes for disposal of excavated material. Vehicular access to 6 and from excavations shall be designated by the council at the time 7 of approval of the special exception. 8

xii. Proposed plans for fencing and signs. 9

xiii. A statement from the applicant identifying all other federal, state 10 and local permits required, if any. 11

2. The bottom of any reclaimed excavation should be graded to allow all 12 water to drain to a sump area not less than 15 feet by 15 feet (225 square 13 feet). The bottom of the excavation shall be graded in a fashion which 14 will not cause water to accumulate in stagnant pools. The bottom of 15 excavations shall be uniformly graded to prevent anoxic sinks. 16

3. Whenever the Volusia County Public Works Department determines that 17 the use of any county right-of-way designated by the applicant for ingress 18 and egress to and from the excavation site will be subject to excessive 19 deterioration resulting in the breakdown of the subsurface and base of 20 such right-of-way, the applicant may shall be required to agree to provide 21 the county with funds in the amount necessary to mitigate the adverse 22 impact upon the right-of-way that which is caused by the excavation 23 operation and to ensure that said roadway is maintained in a satisfactory 24 condition. In furtherance of this agreement, the excavator may be 25 required by the county council to post an acceptable performance bond, 26 irrevocable letter of credit, or funds in escrow in the amount up to 100 27 percent of the estimated reconditioning costs, as estimated by the Public 28 Works Department. 29

4. All excavations, as applicable, shall be reclaimed in accordance with the 30 rules of the Florida Department of Environmental Protection, Division of 31 Water Resource Management, found in the Florida Administrative Code. 32 The requirements of this article shall not relieve a person from complying 33 with the above said state rules, as applicable. Should the requirements 34 of this article conflict with said state rules, the stricter reclamation and 35 restoration requirements shall govern. 36

5. All reclamation activities shall be initiated at the earliest possible date. 37 Reclamation of the site concurrent with excavation activities is 38 encouraged provided that the reclamation activities will not interfere with 39 the excavating activity or if the excavating activity will damage the 40 reclaimed areas. 41

6. All temporary structures shall be removed from the premises upon 42 completion of the excavation activity unless said structures are of sound 43

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EXHIBIT A

construction [and] are compatible with the reclamation goals. Said 1 structures shall be accurately depicted upon the approved reclamation 2 plan. 3

7. Whenever it is determined that reclamation of the excavation pit is 4 required at the termination of the project in order to prevent soil erosion, 5 adverse effects on county-maintained rights-of-way or natural drainage 6 pattern, to protect the natural environment surrounding the excavation pit 7 or to protect the character and value of surrounding property, the county 8 council may require an acceptable performance bond, funds in escrow, 9 or irrevocable letter of credit in the amount of 100 percent of the 10 estimated cost of reclamation. Said cost shall be derived using the 11 proposed plan of reclamation. Said bond or letter of credit shall be 12 conditioned that the excavation and reclamation shall be in accordance 13 with the approved plan. 14

8. No person may engage in the business of being an excavator until such 15 person has secured an occupational license in accordance with the 16 county occupational license requirements. 17

9. No excavator may excavate a parcel of land until he obtains an 18 excavation permit issued by the growth management department in 19 accordance with the terms of this article prior to any excavation being 20 made on the property to be excavated. 21

10. The excavation shall not be used for the disposal of material generated 22 off-site without prior approval from the county’s environmental 23 management division department and the Florida Department of 24 Environmental Protection and without obtaining all appropriate federal, 25 state and local permits. 26

11. The excavation shall comply with the tree protection requirements 27 specified by division 10 of the Land Development Code [article III], and 28 with the requirements of the county noise ordinance [Code section 50-29 491 et seq.]. 30

12. If upon the conclusion of public hearings the special exception is 31 approved, final site plan approval, as specified by division 3 of the Land 32 Development Code [article III], is required. 33

13. A water quality sample demonstrating predevelopment conditions must 34 be submitted to the Land Development Office prior to the issuance of the 35 Final Development Order. Monitoring must be maintained throughout the 36 life of the project according to the approved monitoring plan. A final 37 groundwater sample must be submitted to the Land Development Office 38 upon completion of mining and reclamation activities to demonstrate post 39 development conditions prior to the release of the performance bond. 40

134. Off-site discharge is prohibited. 41

c. Any excavator shall be responsible for notifying Volusia County and the 42 Florida Department of State, Bureau of Historical Resources when human 43

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remains and/or artifactual materials are discovered. The county reserves the 1 right to monitor the excavation activity and to prohibit such activity if 2 artifactual materials and/or human remains are encountered. 3

d. All excavations shall use the most current best management practices 4 (BMP) so as to control erosion and limit the amount of sediment reaching 5 surface waters prevent violations of state surface water quality standards. 6 The county reserves the right to monitor the excavation activity and prohibit 7 said activity if it is determined that said activity is responsible for off-premises 8 erosion. 9

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Excerpt from the minutes of the PLDRC hearing of June 17, 2021. These minutes have not been approved by the PLDRC and are therefore UNOFFICIAL AND SUBJECT TO CHANGE OR CORRECTION.

PLANNING AND LAND DEVELOPMENT REGULATION COMMISSION 1 PUBLIC HEARING HELD 2

June 17, 2021 3 4 Vice-Chair Jeffrey Bender was not present. 5 6 O-21-100 – Proposed Ordinance 2021-17 amending Chapter 72, Code of Ordinances for 7 Non Exempt Excavations. 8 9 Patricia Smith, AICP, Planner III, presented the staff report. Ms. Smith explained to the 10 Commission that staff is here to discuss proposed revisions to the excavations ordinance. 11 At the April 20, 2021 County Council hearing staff was directed to reevaluate the issues 12 related to wetland setbacks. Ms. Smith stated that this ordinance was only related to 13 nonexempt excavations only. The Volusia County setbacks to wetlands is 150 feet; 14 however, the St. Johns Water Management District only requires a 50-foot setback. The 15 question from Council was why do we require 150 feet, and they expressed concerns of 16 wetland issues related to dewatering. Ms. Smith stated that the distance they can dig 17 boils down to quantity with developers. Growth and Resource Management staff talked 18 to surrounding counties, parties in the environmental community, and others 19 organizations for review and recommendations. Staff then analyzed these findings to 20 update the proposed ordinance. Pages 7-11 of the staff report includes a strikethrough 21 and underlined version of the proposed ordinance to identify the changes. The proposed 22 changes are identified on page 8 of the staff report. Staff proposes that the setbacks to 23 wetlands can be reduced if the applicant can demonstrate through a commonly accepted 24 hydrologic model that there will be no short-term or long-term drawdown of adjacent 25 wetlands or impacts to groundwater quality. The analysis must be signed and sealed by 26 a Professional Engineer (PE) or hydro-geologist, and allows for third-party review when 27 the application is received. The applicant will also be required to have a monitoring 28 program to ensure that neighboring wetlands and wells are not impacted. Regardless of 29 the analysis, per our Zoning Ordinance, minimum setbacks to wetlands is 25 feet if 30 outside of the Natural Resource Management Area (NRMA) or 50 feet if within the NRMA 31 overlay. The proposed ordinance also includes a five-year review to assess the 32 ordinance. No additional comments from the Volusia County Association for Responsible 33 Development (VCARD) were submitted. A letter of opposition from the Environmental 34 Council of Volusia and Flagler Counties (ECVF) was submitted. Additional public 35 comments are found on pages 12-17 of the packet. Ms. Smith stated that the 36 Environmental Management Director was available to answer any questions, and 37 concluded that staff recommended that the Commission find the Ordinance 2021-17 38 consistent with the Comprehensive Plan and forward it to the County Council for final 39 action with a recommendation of approval. 40 41 Chair Ronnie Mills asked for clarification that the proposed ordinance is a reduction to 42 wetland setbacks from the current 150 feet to 50 feet. 43 44 Ginger Adair, Environmental Management Director, responded that the proposed 45 changes were if an applicant wanted to reduce the 150 foot setback requirements they 46 would be required to submit the analysis that Ms. Smith previously explained while also 47 meeting the minimum standards of the Zoning Ordinance. There is also protective 48

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Excerpt from the minutes of the PLDRC hearing of June 17, 2021. These minutes have not been approved by the PLDRC and are therefore UNOFFICIAL AND SUBJECT TO CHANGE OR CORRECTION. language that clarifies under no circumstance would the setback be reduced more than 1 25 feet plus the appropriate wetland buffer. For example, if the area has a 50 foot wetland 2 buffer requirement, then the closest an applicant could excavate to a wetland, if 3 competent analysis was provided, would be 75 feet. 4 5 Chair Ronnie Mills asked if the sloping requirements would still be in place. 6 7 Ms. Adair responded that requirement would still be in place and this ordinance is focusing 8 on the issue of dewatering. She explained that as developers dig in an excavation pit it 9 can have what is termed a “cone of influence” that could draw down the water levels which 10 can cause impacts to surrounding wetlands. In a typical excavation developers attempt 11 to “dewater” the pit by removing the water out of the pit to make it easier to process the 12 sand. There are a number of different dewatering processes that remove the water from 13 the sand. In cases of adjacent wetlands the developers typically recycle that water back 14 into the adjacent wetland. Presumably under this ordinance change the applicant could 15 submit the signed and sealed analysis of their dewatering plan that demonstrates their 16 project would not impact the surrounding wetlands. Once the application and analysis is 17 received it will have a third-party review from a specialist to determine the quality of the 18 analysis and move forward with the special exception process to reduce the setbacks. 19 20 Chair Ronnie Mills asked if the analysis looked at temporary or permanent impacts to the 21 wetlands. 22 23 Ms. Adair responded that the analysis would have to show no short-term or long-term 24 impacts to the wetlands. 25 26 Being that there were no further questions of staff, the floor was open to public 27 participation or commission discussion. 28 29 Public Participation. 30 31 John Baker, 9 Cunningham Lane, DeBary. He stated that he was the current President 32 of ECFV and the group opposed these changes. Mr. Baker addressed Oviedo’s 33 Ordinance 888 (Evidence 1) and the Volusia County Comprehensive Plan chapters 10 34 and 12 (Evidence 2). He stated that the City of Oviedo and Seminole County have much 35 more stringent borrow pit ordinances, and they do not feel the proposed ordinance is 36 supportive of the Volusia County Comprehensive Plan’s Groundwater and Aquifer 37 Recharge and Conservation elements. He continued that the proposal does not address 38 potential ground water quality issues, but merely addresses groundwater levels. It does 39 not address the potential salinity changes that could occur to surrounding wells or 40 wetlands. He concluded that there does not seem to be any supporting third-party, 41 scientific evidence that supports this extensive change. 42 43 Chair Ronnie Mills asked Mr. Baker if he knew why the City of Oviedo and Seminole 44 County had increased their requirements. 45 46

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Excerpt from the minutes of the PLDRC hearing of June 17, 2021. These minutes have not been approved by the PLDRC and are therefore UNOFFICIAL AND SUBJECT TO CHANGE OR CORRECTION. Mr. Baker gave background to Oviedo and stated he helped write the ordinance for the 1 City of Oviedo. He stated that some illegal borrow pits in Seminole were discovered and 2 he believed that is why there was an increase to their ordinance. 3 4 Chair Ronnie Mills asked if either of those issues came about because of water quality. 5 6 Mr. Baker responded in the negative. He stated the proposal in front of the board does 7 not mention water quality and that was his concern with these proposed changes. 8 9 Member Jay Young asked if Mr. Baker had talked to the City of New Smyrna Beach about 10 water quality because he used to work for them and knew they had some water quality 11 issues. 12 13 Mr. Baker responded in the negative and stated he had only talked to individuals as south 14 as Port Orange. 15 16 Mark Watts, Cobb Cole Law Firm, 231 North Woodland Boulevard, DeLand. Mr. Watts 17 submitted Evidence 3, which included Volusia County’s Conservation Land Maps. He 18 mentioned that he worked closely with excavation operators to discuss this proposal and 19 asked the Volusia County Council to review this ordinance. He clarified that the original 20 standard of the 150-foot setback was created in the 1980’s, but upon further research 21 they cannot find out why it was determined to be 150 feet. The proposed ordinance 22 changes do not disregard that original standard; however, gives the opportunity to 23 decrease the standard if the applicant can prove that no temporary or permanent impacts 24 to surrounding wetlands will occur. The current standard has 150-foot setback 25 requirements and does not require any rehydration or monitoring. This proposal gives 26 applicants an opportunity to decrease that setback, if enough data is provided to support 27 protection of the wetlands, while also being required to rehydrate the surrounding 28 wetlands and provide monitoring of the project. Mr. Watts referenced the maps in 29 Evidence 3 that compared how most of the mineral extraction areas identified in Volusia 30 County fell within the Environmental Core Overlay zones and near the major wetland 31 systems. He stated that it was extremely important to conserve and protect these areas. 32 These reductions in setbacks would require detailed impact analysis, implementation of 33 effective dewatering processes, provide monitoring, and rehydration requirements, all of 34 which would provide better protection to the overall area. Ultimately it would allow for 35 fewer sites with maximization of extraction while allowing no temporary or permanent 36 impacts to the surrounding wetlands. 37 38 He finished by stating that whatever the Commission decides on the ordinances, it is 39 ultimately superseded by the Comprehensive Plan elements, which is the ultimate trump 40 card. 41 42 He agreed with Mr. Baker’s comments that water quality is important issue. He 43 referenced page 8 of 17 in the staff report that addressed the dewatering area and 44 measurements, and clarified that the current ordinance does not have any dewatering 45 standards. He continued that Subsection I of the report referenced a closed loop cycle 46 on site to recycle the water into the wetlands. A Consumptive Use Permit (CUP) is 47 typically involved in excavations because up to 10 percent of the water can still come out 48

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Excerpt from the minutes of the PLDRC hearing of June 17, 2021. These minutes have not been approved by the PLDRC and are therefore UNOFFICIAL AND SUBJECT TO CHANGE OR CORRECTION. of closed loop system. Small subsections i and ii eludes to Mr. Baker’s comments about 1 an acceptable water quality and monitoring requirement that ensures the recycled water 2 will not degrade the receiving water body or wetland. Mr. Watts stated that if unintended 3 consequences of one of these developments were to happen there would be a bond in 4 place that requires wetland restoration. Mr. Watts made himself available to answer 5 questions and stated excavation operators in the room were available to answer 6 questions as well. 7 8 Member Jay Young stated that he agreed with Mr. Baker that water quality was not 9 addressed much in this proposal and was concerned about the possibility of salt water 10 intrusion on wells and wetlands. He expressed that we needed to address this concern. 11 He agreed that drawdown was important, but we need to add a water quality monitoring 12 requirement. Having a hydrologist would be extremely beneficial. 13 14 Mr. Watts thanked him and stated they were there to get feedback and input. They would 15 be happy to work with staff and the community to come up with a monitoring standard. 16 17 Member Frank Costa asked who Mr. Watts was representing. 18 19 Mr. Watts stated he was representing the Kemcho operation. 20 21 Member Stony Sixma asked if Mr. Baker had anything else to add. 22 23 Mr. Baker commented that no off-site discharge should be allowed. The discharge could 24 go from one cell to another in order to maintain water quality. 25 26 Member Jay Young asked Mr. Baker if he knew of any ordinances in surrounding areas 27 that addressed water quality and salt water intrusion. 28 29 Mr. Baker stated he was unsure, but knows that the Oviedo ordinance mentions 30 drawdown requirements. 31 32 Member Jay Young stated you could still have drawdown but poor water quality. 33 34 Mr. Watts stated there was an excavation operator in the building that could talk about 35 water quality. 36 37 Tim Laus, 27 North Summerton Street, Orlando. He stated he was a consultant for 38 Kemcho Investments. He addressed Mr. Baker’s concern on water quality and 39 recommended taking a water sample at the beginning of the extraction to establish a 40 baseline and reanalyze during each testing to ensure they maintain that baseline. He 41 feels monthly or quarterly would be appropriate, but annually would be too long in 42 between tests. 43 44 Commission Discussion. 45 46 Member Frank Costa asked how the five year timeline was determined on page 5 of 17 47 of the staff report. He suggested the idea of reviewing the ordinance after 2 years versus 48

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Excerpt from the minutes of the PLDRC hearing of June 17, 2021. These minutes have not been approved by the PLDRC and are therefore UNOFFICIAL AND SUBJECT TO CHANGE OR CORRECTION. 5 years. He also referenced page 9 of 17 about items A-E which talked about water 1 quality, but stated there was no timeline or monitoring schedule. He asked if that was 2 listed somewhere. 3 4 Ms. Smith responded that the timeline for the ordinance review is still open for discussion. 5 She also clarified the current ordinance defines the monitoring schedule, and it would 6 also be required to be submitted with the special exception application. 7 8 Member Frank Costa clarified that could be changed with each application. 9 10 Ms. Smith stated that page 8 of the staff report goes into more detail about specific 11 requirements. 12 13 Member Jay Young commented that he would like section iii to mention a specific 14 requirement about water quality testing in addition to the drawdown. He recommended 15 monitoring saltwater intrusion and/or water degradation. 16 17 Ms. Smith clarified that staff will take comments into consideration and modify the 18 proposed ordinance. Then staff would make those changes and go to Council or bring it 19 back to PLDRC once changes were made. 20 21 Chair Ronnie Mills confirmed that the ordinance needed to have a water quality standard 22 established in this proposal. They should also establish parameters on diminishing water 23 quality standards. 24 25 Member Richard Feller commented that he would like staff to make modifications and 26 bring it back to PLDRC prior to going to Council. He agreed with Mr. Costa’s suggestion 27 to review the ordinance after two years versus five years. 28 29 Ms. Adair clarified that the Commission is asking to reassess this ordinance in two years 30 instead of five years, and not the issue of water quality testing. 31 32 Member Frank Costa responded in the affirmative. 33 34 Chair Ronnie Mills asked the Commission if they would they like to have staff make 35 revisions and bring it back to PLDRC with modifications before sending to Council, or 36 allow the staff to make changes and take it directly to Council. 37 38 Member Richard Feller MOVED to MODIFY Ordinance 2021-17 to include water 39 quality monitoring in the ordinance and RETURN to the Planning and Land 40 Development Regulation Commission before being forwarded to County Council. 41 42 Member Jay Young SECONDED the motion and recommended a hydrologist be 43 involved in these updates. 44 45 Motion Discussion. 46 47 Member Edith Shelley asked about monitoring sites and off-site discharge requirements. 48

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Excerpt from the minutes of the PLDRC hearing of June 17, 2021. These minutes have not been approved by the PLDRC and are therefore UNOFFICIAL AND SUBJECT TO CHANGE OR CORRECTION. 1 Ms. Adair stated that monitoring sites would be located at specific locations that would 2 measure drawdown, total suspended solids, and salinity, etc. Staff can identify how often 3 measurements should be taken on a case-by-case basis. The proposed ordinance can 4 be changed to include language to require these issues be identified during the 5 application process and on a case-by-case basis since each site varies. She also 6 recommended to use a hydrologist that has a continuing services contract with the 7 County. 8 9 Motion CARRIED unanimously (6:0). 10

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