Socially-conscious and responsible companies such as those that inhabit the tech world are working hard to make certain that their manufacturing processes and buildings are “green.” But as important as matters such as low energy consumption processes and solar energy generation are, it is just as vital for a “green” company to consider where the rain that falls on its property flows. The problem of stormwater runoff has been around for generations. Formerly known as urban runoff, stormwater picks up pollutants, nutrients, and sediment as it flows across roofs, parking lots, sidewalks, streets, and curb and gutter systems, and carries the contents to local water bodies. The pollutant load and velocity of an increasing volume of stormwater affect the quality of receiving waters which, in turn, adversely affects ecosystems and, ultimately, public health. Stormwater management rules are in place to protect the water resources that receive pollutant-laden runoff.
It’s All About the Water
Large municipalities such as Raleigh-Durham, Charlotte, and Fayetteville were required to put stormwater regulations into place years ago as part of the federal Phase I management scheme. On July 1, 2007, the federal Phase II stormwater management scheme was implemented in North Carolina and had three major impacts. First, the new scheme obligated moderately populated municipalities to implement stormwater management schemes. Second, post-construction stormwater management obligations were imposed on all development activities that disturbed one acre or more of land. Third, a private right of action for downstream landowners was implemented to cast a wider net of liability for non-compliance with stormwater regulations beyond the standard enforcement actions initiated by North Carolina’s Department of Environment and Natural Resources, Division of Water Quality (“DWQ”).
Nearly six months later, just as mid-sized areas such as New Hanover County, Brunswick County, and Onslow County were getting ready to convert their stormwater management regimes to comply with the Phase II requirements, DWQ proposed even more restrictive changes for the 20 coastal counties in North Carolina which have become attractive as locations for tech companies and the residences and second homes of their owners and employees. The controversy that erupted is instructive as to the nature of the environmental issues surrounding stormwater, the current technologies employed to protect water quality, and the opportunities that are available to businesses and individuals who take pride in being “green.”
The Controversy
The 20 coastal counties of North Carolina have been subject to separate stormwater regulations known as the “Coastal Stormwater Rules” (“Rules”) since 1995. The Rules restrict development activities based on the amount of impervious surface contained in a development and the distance of the development from protected waters. Any development that disturbed one acre or more of land required some form of stormwater permit.
Based on studies conducted in late 2005 through 2006, DWQ determined that the Rules did not sufficiently protect water quality. As a result, in late 2007, DWQ proposed significant additional limitations on new coastal development which threatened to drastically decrease new development and increase its cost. DWQ’s proposals met wide-spread opposition. Galvanized over the development restrictions, cities, counties, state and local homebuilder associations, real estate agents, chambers of commerce, developers, individuals, and other groups aligned themselves against DWQ to oppose the proposed rules, citing conflicts with existing land use ordinances, potential property devaluations, and the questionable science used as the basis for revising the Rules. Legislation was introduced in the General Assembly in May 2008 to disapprove the proposed rules outright, and compromise negotiations took place over the next several months to avoid the changes from automatically going into effect on August 1, 2008.
The Compromise
The compromise rules that ultimately were approved by the General Assembly (the “Coastal Stormwater Act” or “Act”) became effective on October 1, 2008. The Act imposes tighter restrictions on development than the original Rules.
- Non-Residential Development: Under the Act, non-residential development that adds 10,000 square feet or more of built upon area (“BUA”), that portion of a project that is covered by impervious or partially impervious surfaces such as driveways, buildings, building pads, sidewalks, and parking areas, must obtain an on-going stormwater permit based on the distance of the development activity from protected water and the percentage of BUA for the project area.
- Residential Development: The one-acre land disturbance threshold was retained for residential development. However, there is a newly-created category for residential developments which add 10,000 square feet or more of impervious surface and exceed 12% BUA, but which do not disturb an acre of land. Such residential developments will require a one-time stormwater permit and must manage stormwater runoff by utilizing a combination of rain cisterns or barrels, pervious materials, and any other approved stormwater practice methods.
- Vegetative Buffers: Except for some limited exemptions, all new development is required to be separated from the receiving water body by a 50-foot vegetative buffer; redevelopment that does not expand the prior footprint will continue to require a 30-foot buffer.
- Wetlands Inclusion: One of the most controversial elements of DWQ’s proposed rules was a prohibition on the use of all wetlands in any BUA calculations. This limitation threatened to preclude the development of some properties entirely. The Act, however, does allow certain wetlands to continue to be included in BUA calculations, with the exception of coastal wetlands.
- Grandfathering: Unlike DWQ’s proposed rules, the Act provides for certain exclusions from the new requirements. As a general rule, development activities that are conducted pursuant to previously issued permits, certifications, or common law vested rights, will be regulated by the rules in effect at the time of the original issuance of such permits, certifications, or the vesting of rights.
The Opportunity
Stormwater regulations such as the Act create opportunities to use low impact development (“LID”) practices which can save business owners money while protecting the environment. LID practices emphasize allowing natural infiltration to occur as close as possible to the original site of the rainfall through engineering terrain, vegetation, and soil features, thus reducing the volume of runoff. Planning site layouts to optimize natural land contours and using rain gardens and sustainable landscaping, cisterns, vegetative roof systems, and permeable pavers, dovetail with other “green” building practices to encompass all phases of development. DWQ even has issued guidance outlining credits it will make available for the use of rainwater harvesting systems to reduce runoff from an individual site.
Conclusion
Complying with stormwater regulations such as the Act and the Phase I regulations applicable to large population centers may seem burdensome. However, they are in place to protect water quality and, as a result, our quality of life. They also present an opportunity for environmentally sensitive businesses ultimately to save money through the use of LID practices to integrate stormwater runoff into the green footprint of any development.
For further information regarding the issues described above, please contact Amy P. Wang.
