Tidal Wave: Stormwater Ordinances as a BMP for Phase II

Sept. 1, 2002
In early December 1999, a tremor was felt deep within the stormwater world: the entering into the Federal Register of the United States Environmental Protection Agency’s National Pollutant Discharge Elimination System (NPDES) Phase II stormwater rule, mandated by the 1987 amendments to the Clean Water Act. At first, this tremor was noticed by relatively few people. Like a tidal wave approaching from beyond the horizon, the March 10, 2003, compliance deadline seemed far away, and most municipal managers had more pressing issues.As we approach the end of 2002, however, the wave is rapidly getting closer, and many more are talking about this rule that will require more than 6,000 urban municipalities with separate storm sewer systems (MS4s)—as well as numerous other public institutions, such as universities, school districts, public hospitals, and federal and state agencies—to reduce stormwater impacts on water quality. (Under Phase II, an MS4 is defined as any publicly owned separate storm sewer system.)Phase II will require applications for permits not only to be filed by the compliance deadline but also to include stormwater management plans outlining what actions the permitted municipalities will take to meet the six minimum measures mandated by the rule. These measures are:public education and outreach,public participation and involvement,identification and elimination of illicit discharges or connections,tighter controls for construction-site runoff (all sites 1 ac. or larger),postconstruction controls for new development and redevelopment,“good housekeeping” and pollution prevention.In addition, many municipalities will have to obtain separate permit coverage for certain industrial activities, such as transportation centers, because the moratorium on public entities’ compliance with Phase I stormwater requirements for industrial permits also ends on March 10, 2003. Most municipalities preparing budgets for the next fiscal year must prepare now for the tidal wave of Phase II. Many municipal managers are now looking at what they will need to do to meet the six minimum measures outlined by the rule. (See “Storm Warning: Phase II NPDES Stormwater Rule Issued” in the November/December 2000 issue of Stormwater for an outline of Phase II elements.) This article examines the use of ordinance revisions and site plan approval processes as the best management practices (BMPs) to help meet the requirements of the rule and covers some of the fundamental elements of a well-drafted stormwater ordinance.Ordinances as a BMPLocal ordinances can be effective tools in reducing the negative impacts of human activities on water resources. The Phase II rule requires the reduction of impacts to the “maximum extent practicable” by permitted municipalities. The rule also requires that the implementation of BMPs be sufficient for compliance. There are generally no numeric requirements. Many planners are looking at the use of ordinances to require the use of structural BMPs for new development and redevelopment. Classifying an ordinance as a BMP provides several benefits to municipalities because that action costs a municipality less than other structural and nonstructural BMPs and because, as a management practice, enforcement of ordinance requirements will greatly assist surface-water managers in reducing stormwater impacts on receiving waters.An ordinance also provides the legal basis for dealing with the private sector, including:incorporating new development and redevelopment requirements in the site plan approval process,setting forth enforcement mechanisms for requiring the elimination of illicit connections from private sources,providing local authority for potential credits that can be converted to preserving wetlands and obtaining easements for constructed wetlands and instituting buffer zones that can be utilized for water-quality and
-quantity protection,
providing mechanisms for wellhead protection of drinking-water sources as well as general groundwater protection,allowing the development of stormwater design manuals that can be flexible yet consistent, so that private development is encouraged.Planning for the OrdinanceAlthough the benefits of stormwater ordinances are obvious to most planners, the mechanisms are not always so clear. Planners need to go through several steps before they begin the drafting of an ordinance, and counsel for the municipalities should be involved in the drafting of ordinances to avoid expensive mistakes that can be discovered after the fact.First, and most important, state-enabling laws need to be examined to determine what type of ordinance is allowed and what specific subjects may or may not be addressed. Most states limit the powers of local municipalities to create laws to some extent. Generally, municipalities can pass ordinances that protect the health, safety, and welfare of their citizens and that do not conflict with state and federal laws. Once planners identify what they can do under their state laws, they should evaluate existing ordinances to determine which ones can be utilized in a comprehensive stormwater management plan. For example, many municipalities have zoning ordinances that provide a structure site plan approval process. Although these zoning ordinances might need some modifications, they provide a structure for postconstruction stormwater requirements. There might also be existing regulatory ordinances for dealing with such issues as controlling high loadings from hot spots and eliminating illicit connections. Maintenance enforcement may be implemented through ordinances for civil enforcement of such procedures as snow removal and trash. Some ordinances might need only refer to other regulatory requirements. For example, a permitted city could require compliance with countywide drainage or state soil and erosion permit requirements.
Another predrafting step that planners should take is to identify and involve the various stakeholders who will be affected by a stormwater ordinance. By getting their input ahead of time, planners are far more likely to obtain stakeholders’ cooperation, even if they are not completely happy with the outcome. (For example, many private-sector developers might object to any new requirements, but once they are on board, they will like the results. This is especially true if they are shown that enhanced water resources through better site design practices and the use of BMPs for water-quality protection add far more value to property than it actually costs.)In involving stakeholders, it is important that planners identify the local watershed and get involved with others in it. This includes jurisdictional neighbors. Although many municipalities are reluctant to involve themselves with other jurisdictions, when it comes to stormwater management, a watershed approach is the best way to go for several reasons:Consistent ordinances within a watershed reduce the potential for developers’ use of regulatory differences among jurisdictions as leverage.Many ordinance requirements (and costs for implementing them) can be shared among permittees, resulting in more effective public education and participation.By sharing certain costs (for education materials, ordinance consultant fees, contractors for storm sewer mapping and illicit connection identification, and geographic information systems), municipalities will be better able to afford the costs of this essentially unfunded mandate.Finally, and of utmost importance, our surface waters know no jurisdictional borders, and it is clear that to really clean them, we must evaluate and focus on the entire watershed in question. A piecemeal approach not only is largely ineffective but also will lead to far more stringent requirements down the road. (EPA clearly stated in its October 1999 NPDES Phase II report to Congress that although it was taking a narrative BMP approach rather than a numeric monitoring one, it would review the process in 2013 and take stronger measures if the narrative approach failed. This would probably result in a far more expensive rule.)Drafting the OrdinanceOnce planners have identified the legal authority for an ordinance, reviewed existing ordinances and site plan approval processes, and received stakeholder input and jurisdiction cooperation on a watershed basis, they will be ready to draft ordinance language appropriate to local needs.It is important for municipalities to remember that on their own, stormwater ordinances might not be very effective. They must be a part of a comprehensive stormwater management strategy that includes identifying who within local government will be responsible for the program and ensuring that other departments within the locality will be involved. For example, if a municipality establishes a surface-water division within its Department of Public Works, cooperation will have to come from such other departments as health, streets, parks, planning, and engineering. Another issue is whether the ordinance should be comprehensive or general, providing identifiable requirements of compliance with a stormwater site design manual. The disadvantage of an overly detailed ordinance is that, because of the all-encompassing nature of stormwater in general and the rapidly evolving nature of the stormwater industry, it probably will quickly become outdated without regular amendments. The politics involved in ordinance drafting mean that frequent amendments can lead to friction and debate. With a solid ordinance in place that is clear and consistent yet flexible, municipalities can implement practices that will protect surface waters, leading to good results.The General Mechanics of an OrdinanceAs with all ordinances, a stormwater ordinance should include language that is relevant to local conditions both physically and politically. An example of a physical issue might be the presence of phosphorous or other nutrients that possibly requires additional ordinance requirements. A political factor might be state-enabling statutes as discussed above. In any case, there are basic elements that should be included in a “model” stormwater ordinance. (When speaking to a “model” ordinance, one must keep in mind that there is no model that works perfectly for all jurisdictions. However, there are many models available. The Center for Watershed Protection has put together a model ordinance with links to many additional sources at www.stormwatercenter.net. Another excellent source is the Rouge River National Wet Weather Demonstration Project in Michigan [www.wcdoe.org/rougeriver/ordinance], which provides a host of sample ordinances from municipalities already under federal court—mandated “voluntary” stormwater permits.)The first section of the ordinance should include a discussion of intent or finding of fact, which can fall under a variety of headings, including council findings, legislative findings, or even general provisions. The section, however, should include a discussion of why the ordinance is needed, noting, for example, that development can have a negative effect on receiving waters through both increased water quantity and contaminant loadings, resulting in diminished or impaired water quality. The general provisions should also state the purpose of the ordinance. For example, the purpose might be to set up a regulatory framework to establish minimum requirements for the management of stormwater discharge within the jurisdictions covered by the ordinance to protect the health, safety, and welfare of the community. The general provisions should also identify at a minimum the objectives that the ordinance will accomplish. These objectives can be general or specific, depending on local conditions.The ordinance should also include the scope of applicability, identifying what is covered by the ordinance and under what conditions. This section also might set forth any exceptions or exemptions to the ordinance. For example, the ordinance might apply to all new development of more than 1 ac. or to development that is part of a common plan of more than 1 ac. Redevelopment requirements might be less restrictive because of existing site limitations but should include, at a minimum, hot-spot application retrofit requirements for treatment. Examples of exemptions might include additions or modifications to existing single-family structures and activities that are already regulated, such as mining operations. Next, the ordinance should include a section specifically defining certain terms and phrases to avoid future claims of ambiguity. Generally, a vague ordinance requirement is not as enforceable or could even be thrown out by a court upon challenge. Inclusion of specific definitions minimizes this possibility and provides clear direction and predictability to those affected by the ordinance. As previously mentioned, this predictability leads to increased compliance and cooperation from the private sector.The ordinance should also include a section detailing the procedures for obtaining local permit approval for site development. These procedures should include, at a minimum, the requirement of a stormwater management plan with any application for earth-disturbing activities on the site. This provision would ensure that the impact on the site can be evaluated and negative effects avoided early. The individual site plan should include a complete picture of the process and a plan for future maintenance of any structural BMPs.The next section should identify performance criteria to be used for approving a stormwater plan and issuing a permit. At a minimum, it should establish criteria for controlling quantity and quality of runoff and for groundwater protection, either identifying specific criteria, such as removing 80% of total suspended solids from runoff from new development, or referring to a stormwater control manual, as discussed above. This section should also identify and grant regulatory authority to a specific municipal department or division, including the authority to make rules and criteria for compliance within a stormwater design manual. This might be accomplished by the municipality’s adoption of the stormwater manual as its regulatory document. Even if this approach is used, the ordinance should address as completely as possible the performance-based core requirements that are not likely to change quickly. Another approach (which probably should be used in combination with the first) is to include language in the ordinance that allows certain requirements to be imposed “as determined necessary and appropriate” by the municipality (perhaps with specific reference to the manual for guidance). Standards for local determinations and decision-making should be included, and the standards should be as detailed and objective as possible (performance-based standards are best). The reason is that, in many cases, this type of decision will be considered quasi-judicial rather than legislative, even if made by a local legislative body as opposed to a planning commission or an ordinance enforcement officer. (Quasi-judicial decisions are subject to a higher level of judicial scrutiny and are not presumed valid as legislative decisions are.) The more subjective the standards, the more susceptible the municipality is to an attack of being arbitrary and capricious or of having otherwise abused discretion.Other issues this section of the ordinance should address include feasibility and conveyance issues, pretreatment mechanisms for hot spots and infiltration practices, identification of permissible BMPs, and landscaping requirements to ensure future effectiveness.The ordinance also should provide for inspection and access requirements, specific maintenance requirements including maintenance covenants and deed restrictions, maintenance-of-records requirements, and appropriate bonds and other forms of security or guarantees. Finally, a well-drafted ordinance should include provisions for enforcement and penalties to ensure future compliance beyond the approval stage. Even with a well-thought-out process, ineffective enforcement will lead to few long-term benefits, as we have seen over the last 20 years with the degradation of many retention and other types of settling ponds that quickly fill in without anyone being responsible for the long-term upkeep.Sections on compatibility with existing ordinances, county rules and state regulations, and severability clauses that allow an ordinance to survive a legal attack against one specific part of it should also be included. There are likely many other considerations that should be taken into account based on local and state requirements, and again counsel should always be consulted and review the ordinance before passage. ConclusionWith a well-balanced stormwater ordinance development process, a municipality will be able to claim the benefits of reductions in harmful impacts on receiving waters that are being mandated by Phase II on its MS4s over the period of the five-year permits. With the rapidly approaching tidal wave of Phase II requirements, planners need to prepare the toolbox now. Combined with a well-drafted stormwater design manual and strong enforcement mechanisms, a properly drafted stormwater ordinance can be an effective BMP within the stormwater plan.

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