A six month moratorium has been established on the issuance of borrow pit permits in all nine council districts so the PPC can modify or adopt new borrow pit legislation that clearly defines whether backfilling is required by excavators.

Councilchair Byron Marinovich stated that the intention of the ordinance is not to stifle levee work or the commerce it brings in, but to give the council time to clarify and modify the existing borrow pit ordinances on the books.

“Once we have a firm ordinance in place, I’ll be the first to lift it,” he added.

It has been stated in previous council meetings that there are two ordinances on the books– one adopted in 1993 and one adopted in 2010, both of which have been challenged in court for being too vague.

Parish President Billy Nungesser said he plans to veto the ordinance primarily because he feels it is counterproductive to closing the federal funding gap for the non-federal levee projects.

“Right now if we don’t get cheaper dirt for these non-federal levees, they’re not going to happen,” Nungesser said.

The key to securing cheaper dirt is using materials found in the parish. “I’m asking that land owners go out and test their land to make it Corps certified. The more competition we have, the further we drive down the price of dirt.”

The ordinance problem

Attempts have been made by councils of both past and present, to amend and clarify the original 1993 borrow pit ordinance. However the most recently passed ordinance, 10-361, offered and voted on by the immediate past council in December of 2010, makes no explicit mention of backfilling as a mandatory requirement.

It instead says “reclamation” is a requirement and is defined as “those activities taken to disturbed lands to an approved post-extraction land use. These activities may include backfilling, grading, compacting, soil stabilization, re-seeding, re-vegetation, and planting of nursery stock.”

This is the ordinance that brought up serious debate in March and April when the Livaudais Company and Levee Materials LLC were seeking a borrow pit permit for an excavation project in Braithwaite and were denied for not adhering to the parish’s hazy backfill requirements.

Those on the council who felt the Livaudais Company’s application was not in line with  the parish’s 1993 ordinance were in opposition because the company

had extensive reclamation plans for the area but no solid plans to backfill. Representatives from the company stated that everything in their permit application was in line with the parish’s 2010 ordinance.

The Livaudais Company and Levee Materials LLC initiated a lawsuit against the PPC in April, and during the most recent council meeting, the permits were approved in globo with several other construction permits, a move that ruffled the feathers of a few audience members who did not realize that the items had been approved. There was little discussion on the matter outside of the council’s Executive Session.

Council attorney Ken Rathburn stated that the moratorium would not effect the Livaudais Company and another permit applicant, St. Clair Lands. St. Clair Lands was seeking to excavate on the Eastbank and even though the applicant has agreed to backfill, the vote was deferred at the May 10 meeting until the Permits department could clarify whether or not a permit could be issued prior to the applicant securing a bond which would cover any damage caused to neighboring properties.

After hearing the public’s concerns about borrow pits and problems caused by excavations not being properly backfilled or maintained, members of the current council have attempted to make strides and set a definite backfill mandate or at the very least, some compromise between borrow pit operators and residents. The most recent attempt was an amendment discussed during the Feb 23 council meeting that according to its author, Councilman Stuart Guey of District 4, was a middle ground between borrow pit operators and land owners who are wary of pits near their property.

This amendment stated that “closed or abandoned excavation sites or borrow pits shall be reclaimed or filled with sand or other approved material to the pre-excavation elevation…” and also required borrow pit operators to take out a performance bond of “equal to 110 percent of the cost to fill the excavated site as determined by the Departments of Permits, Planning & Zoning, Engineering and Land that reflects the prevailing market cost of back filling.” After being deferred twice, the amendment was withdrawn by Guey at the Feb 23 PPC meeting.