Better Defined, More Strictly Enforced

Sept. 1, 2009

Stormwater management, a relatively new discipline for many public works managers, is nonetheless starting to mature. Several professionals from around the country who primarily focus on stormwater management say that, increasingly, system maintenance requirements–and in some cases, even maintenance training–are getting incorporated into their local jurisdictions’ regulations. Maintenance of systems on private property is being enforced more strictly, according to the stormwater managers. They also report that maintenance requirements for specific best management practices (BMPs) generally are being defined more clearly in local water district or municipal regulations. The results of the stricter enforcement of private systems will include a reduced burden on municipalities and their taxpayers, and cleaner lakes, streams, and rivers.

To determine whether the trend is for maintenance requirements to be enforced more strictly than just a few years ago, the stormwater management experts were asked several questions. Their responses indicate that, although much work remains to preserve effective stormwater management infrastructure, the general regulatory “flow” is in the direction of stricter enforcement in adherence to the National Pollutant Discharge Elimination System (NPDES).

On a private lot or development, does the property owner, homeowners association (HOA), etc. have a contractual obligation to handle stormwater infrastructure maintenance after construction is completed?

Theodore Scott, P.E., founder and managing member of Stormwater Maintenance LLC in Hunt Valley, MD, says that the term contractual is not really applicable in the municipalities with which his stormwater infrastructure inspection, maintenance, and repair company does business. Where stormwater management facilities serve single- or multifamily developments, “there are generally two ways that the maintenance responsibilities can go,” he says. “Better-funded municipalities understand that maintenance of [stormwater] infrastructure is not preferred to be handled by an association of homeowners–it’s considered similar infrastructure to water lines, storm drains, and roads, and that infrastructure is usually a public maintenance responsibility. Because stormwater management in some areas is still a new requirement, a lot of municipalities want to accept responsibility for it and felt that it should not be maintained by the homeowners associations.” Scott points out, though, that this arrangement is rare.

“In most municipalities, you’ll find that it’s sad but true that the homeowners associations are responsible for the maintenance,” continues Scott. “When that happens, the homeowners accept that maintenance as part of either their deed or other agreements associated with the homeowners association, and it’s recorded in the local courthouse.” The operations and maintenance plan is more of a covenant than contractual. Landowners associations may exist when commercial or industrial developments use common infrastructure, such as private roads or utilities. The landowners association may be responsible for inspection and maintenance of stormwater infrastructure if multiple properties drain to a single stormwater management facility. In residential developments, the original developer often establishes a homeowners association, of which individual homeowners became members when they purchase their property. If the development has stormwater management facilities, in some cases the HOA becomes the owner and accepts maintenance responsibility. However, responsibility for maintenance can vary depending upon the county. In some counties, stormwater facilities in residential developments are publicly owned and the county bears some or all of the maintenance responsibility.

Gordon England, P.E., D.WRE, who previously managed the stormwater facilities for Brevard County, FL, for 10 years, says that HOAs in the county effectively have a legal obligation to maintain their systems. In Florida, he notes, two scenarios exist for maintenance responsibilities. For a subdivision, an HOA is formed prior to the local water district’s issuance of a permit for multiple reasons, including assignment of responsibility for stormwater system maintenance. “As homeowners association presidents and boards change over the years, they don’t remember what the original developer told the other guys way back when,” says England, who is currently president of Stormwater Solutions Inc. in Cocoa Beach, FL. “So that hands-down knowledge usually is lost through many generations of homeowners associations.” For a commercial property, the developer is liable by contract with the jurisdictional water management district for stormwater system maintenance.

Elizabeth Wong, P.E., stormwater manager for the city of North Port, FL, says that there is a different dichotomy of responsibility for stormwater system maintenance in North Port. Typically, she says, when a commercial or industrial development or a residential subdivision has a surface water management system as required by the Southwest Florida Water Management District (SWFWMD) and the city, the property owner or homeowners association is responsible for system O&M. For single-family platted lots in the city of North Port, however, the Public Works Road and Drainage District provides maintenance.

Francis Mitchell, assistant director of public works for the city of Miami, points out that permits issued by the jurisdictional authority, the SWFWMD, dictate that maintenance is the property owner’s responsibility.

The state of Georgia mandates by law that a maintenance bond be posted on the final plat, notes Brant Keller, Ph.D., director of public works and utilities for the city of Griffin, GA.

Yakima County (Washington) Public Services is developing model stormwater management ordinances based on a Center for Watershed Protection model ordinance. The new ordinances are due to take effect in February 2011 for Yakima County, the city of Yakima, the city of Union Gap, and the city of Sunnyside, pending proposed changes to the Yakima County Public Services permit. Brian Cochrane, natural management specialist for Yakima County Public Services, reports that, similarly to Griffin’s, the ordinances will require a maintenance agreement and plan to be filed with the plat for public maintenance. Purely private parcels that generate no discharge do not and will not have to have a maintenance agreement, he says. Maintenance agreements are to adhere to the Stormwater Management Manual for Eastern Washington, he adds.

Does the developer have an obligation to educate the property owner about how to maintain any stormwater systems that the developer installed?

“There is very little in the way of requirements and very little implementation,” says Scott. “It is something that heretofore has been quite an afterthought, both by the homeowner and homeowners associations.” Municipalities must determine if maintenance training is worth the cost, he adds. In municipalities that have ongoing inspection programs where the county inspector comes out and inspects privately owned stormwater facilities, the inspectors do a lot of training. Here in Maryland, the local municipalities are required by state law to inspect all of their stormwater management facilities every three years. So once every three years, in theory, the inspector is looking at the homeowner association’s stormwater facility, and if it’s not properly maintained, the inspector sends the homeowners association a letter and the education process starts.

“From a benefit analysis standpoint, there’s a definite benefit when training occurs earlier; one of the biggest benefit is that the individual homeowner will know what they’re getting themselves into,” continues Scott. “They sign the papers, they’re excited, and they have no idea that in “˜X’ years down the road, they might be responsible for a sizeable chunk of money to repair a stormwater management facility. So the lack of education results in an unfair situation for homeowners.”

“That’s the weak leak in the chain,” says England, of training. “On commercial properties, what often happens is that he developer will come and develop the mall with the intention of selling that to another investor who then owns and maintains the ponds. There’s a loss [of knowledge] there as the properties are flipped and sold back and forth between the developer and eventual owners. It’s the same thing with the homeowners associations.”

Wong notes that in North Port, developed subdivisions’ O&M entities are responsible for maintenance, and the city spot-checks the systems. She says she has proactively taken responsibility for public education by publishing articles and educational brochures, appearing on local TV shows, and speaking to community groups on stormwater issues.

Some municipalities do have prescriptive maintenance requirements. Mitchell reports that, within the city of Miami’s geographic jurisdiction, training is performed at permit issuance according to South Florida Water Management District guidelines. Noting that the Miami-Dade Department of Environmental Resource Management also monitors his municipality for compliance, Mitchell says that permitting conditions include a certified letter from the engineer of record that pond weirs are set at the proper elevations. Additionally, the permit application has a checklist of items that must be provided, such as land affidavit of ownership; location map; soil data; water table level; percolation rate; soil type; predevelopment areas; predevelopment flood level; firm map; post-development areas; post-development flood level or impact to flood level; predevelopment discharge; post-development discharge and required flood routing analysis; floodplain mitigation volume; wetland impact areas; and replacement areas, either onsite or through a wetland bank. The agencies also provide a rainfall depth map and a sample spreadsheet.

Keller reports that Georgia passed a 2008 rule requiring maintenance instructions to be posted on the final plat. In addition, Griffin’s Stormwater Department has offered maintenance training, and officials from more than 39 different state and local governments in Georgia have attended the sessions. The rule includes inspections of retention ponds two to four times a year; Keller says the extent of rule enforcement remains to be seen.

If the maintenance doesn’t get done, does the city or county eventually take over and do it, or is there something in place to remove the burden of stormwater infrastructure maintenance from the local municipality? And how does the local municipality know if these individual systems are not being maintained?

England says that when he worked for Brevard County, private property owners were assessed fees and given credits against the fees if they had an established BMP within a development. “In that case, they had done their part toward reducing the burden of flood control and water-quality control from the city,” he says. “We would inspect the ponds every year or every other year. If the ponds weren’t being maintained correctly, we would talk to the homeowners association and say, If you correct this particular item of erosion on the bank or a broken pipe or whatever, you’re going to continue to get credits. If you don’t, then we’re going to take your credits away from you. That affected their pocketbooks. About 80% of the time, they would go out and fix it.”

However, “some cities will take on that maintenance responsibility so that they know it’s being done correctly and to ensure–probably for flood-control purposes–that the pipes, ponds, weirs, and so on are functioning properly,” says England. “That is an additional cost consideration for communities.” England says that in Brevard County, a subdivision often has a dedicated easement over a pond, and the county is responsible for monitoring dedicated piping systems used for flood-control purposes. “If there was a crisis in the middle of a storm, the easement allowed us to enter onto the property and clear the pipe. We would not take responsibility for mowing the ponds or for putting in plants or whatever the rest of the maintenance would be that was associated with flood control–we tried to leave that as much as possible in the hands of the homeowners associations.”

England adds that, aside from actual flooding, periodic inspections can indicate that stormwater maintenance is not being done. “We actually had an employee who went around and annually inspected all of the ponds in the county and informed all of the homeowners associations what needed to be done. If the maintenance was not done, they would lose their credits on their stormwater assessments, and that would affect all of the people in the subdivision to the tune of maybe $18 a year times the number of homeowners.”

Failure on the part of some municipalities to determine that private stormwater infrastructure maintenance is not being maintained is another weak link in the chain, England argues. “They throw it back on the water management district to issue a master stormwater permit,” he says. “The smaller cities don’t have enough personnel and don’t want to fuss with the homeowner associations, and so they choose to do nothing.”

The city of Miami usually initiates a code enforcement action when maintenance is not done, according to Mitchell. If the private system is overflowing into the right of way, it is an unlawful discharge of rainwater, he notes. The city documents the violation with dated pictures and sends the property owner a notice of violation that requests violation remediation within a month. If compliance still does not occur, the city calls the property owner in front of the code enforcement board, which usually gives the owner another month to remediate. If the owner still has not complied, a running fine violation is initiated. Ultimately, a lien could be filed against the property if it is not brought into compliance.

In North Port, Wong and inspectors in the city’s Planning, Zoning, and Engineering Department do spot checks on private stormwater systems to determine that they are in proper working order. In addition, Wong and Marce Ranalli, project manager in the Public Works Department, do complete inspections and required SWFWMD recertifications of all city-owned surface water management systems. The SWFWMD requires that a professional engineer regularly submit a certification that the surface water management system is properly operated and maintained. For effluent filtration systems, the requirement is every one and a half years, and for online dry retention or wet detention systems, the requirement is every two years.

The city of Griffin detects system noncompliance via quarterly or semi-annual inspections according to the permit requirements and has a couple of options for enforcing compliance, says Keller. The city can either perform the maintenance or take the owner to court.

Scott reports that municipalities in his market enforce maintenance requirements through their taxing power. “The municipalities that have been doing this for a while, the ones that are serious about it, structure the covenant so that if the homeowners do not maintain or repair the stormwater management facilities, they reserve the right to come in and do it for them, and then charge them on their property taxes. It’s a hard-line approach and very effective–homeowners realize that they’re going to get a tax bill that’s probably going to be a lot higher, because it always costs a municipality more to do this work, and they’ve got to pay those taxes or get foreclosed.”

According to Scott, municipalities should be able to detect noncompliance by instituting their own inspection programs in which inspectors go out and make cursory visual inspections of stormwater management infrastructure and, if necessary, inform the property owners of any problems. But, he says, “too often, a municipality doesn’t have an inspection program in place or it just doesn’t have the budget or staff to make it happen, and there is no knowledge of maintenance requirements or knowledge of maintenance that isn’t happening or major repairs until either there’s a failure or someone–either the municipality or one of the local homeowners–does end up seeing a problem and decides to take action.”

Acknowledging Maryland’s requirement that systems be inspected every three years, Stormwater Maintenance LLC offers clients an annual inspection. “It allows them to understand what the condition of their stormwater infrastructure is and, if there are minor problems, they can be caught before they become major repair items. Ultimately, by paying an annual fee, they’re saving themselves quite a bit of money by testing the repairs when they’re simple and small.”

Is there an ordinance in place defining when the responsibility for maintenance changes, for example, from the developer to the owner once a home or complex is sold?

“That is another weak link in the chain,” says England. “I have not known of any ordinances in place for this. Here in Florida, it’s the water management districts and not the cities or counties that have the original permit requirement and contract with homeowners associations.” Janice Unger, director of environmental resource compliance for the St. John’s River Water Management District, Palatka, FL–one of five in the state–points out that the district’s master water permits covering the operations and maintenance phase of a development’s stormwater management life are perpetual. Once the construction phase of stormwater management is complete, the district makes a final inspection to ensure that all stormwater system construction requirements have been met. If the property is sold, the former owner must notify the district that the permit, and thus the O&M responsibilities, should be transferred to the new owner; if this is not done, the former owner remains responsible for maintenance. This arrangement is similar to those of the other districts in Florida, notes Unger.

Scott points out that maintenance responsibilities “run with the land” in the event of a property transfer. “Quite often, what can happen is that, when properties change hands and if due diligence is not done–if inspection of the stormwater management facility is not done–a new owner will have no idea that he is accepting a substantial liability,” Scott says. “There are situations where repairs, especially on underground stormwater management facilities, can easily be in the six-figure range, and someone is purchasing the property and has no idea that the liability is there.”

Similarly, the model ordinances being developed by Yakima County Public Services will require maintenance plans to be filed with the title, so they will run with the property and become the responsibility of new property owners as parcels change hands, says Cochrane.

Have the responsibilities for maintenance become better defined over the past few years?

NPDES Phase I and Phase II municipal separate storm sewer system (MS4) permits normally require stormwater infrastructure operators to develop a stormwater management program, and such a program often requires periodic inspections of the infrastructure, notes England. “One of the purposes the states and EPA have in requiring those permits is to force the cities or counties to do more periodic inspections to keep things working correctly,” he says.

Besides her public outreach activities, Wong says that she has rewritten North Port’s land development code, which was in draft form in spring 2009. She notes that the SWFWMD requires a very detailed homeowners association document, which spells out stormwater management responsibilities, as part of the district’s permitting process. The SWFWMD also requires O&M plans to be acknowledged by the O&M entity.

Keller says that the responsibilities have definitely become better defined in recent years in Griffin. He owes this development to the fact that a homeowners association must be formed, identified on a plat, and listed on an addendum.

Aging infrastructure has raised the awareness of the need for maintenance, Scott argues. “In the past several years, yes, there has been a progressive increase in defining those responsibilities and dialing into exactly what is needed, whether it’s simple or complex,” he says. “It’s an improvement of the communication of [the responsibilities] to the homeowners associations, and therefore to the individual property owners and also the property management companies that will assist the homeowners in managing their associations. That communication and that education component are really what are in the most need of improvement, I believe.”

What specific maintenance activities are required for various BMPs/infrastructure within your jurisdiction or market?

Catch basin cleaning: Mitchell says that, in Miami, public catch basins are to be cleaned at least once a year, but there is no requirement for private systems. Keller reports that the city of Griffin considers catch basins part of the stormwater management system. Following construction of a subdivision, the city is responsible for maintaining its catch basins.

Porous pavement: England notes that these pavements do not function properly unless they are regularly cleaned and vacuumed; the likelihood that they will not be maintained leads him to discourage their use. Additionally, the return on installing these pavements in terms of reducing pond sizes is limited, according to England. In Griffin, if cleaning credits are applied, these pavements must be swept twice a year, Keller reports.

Inspection of pipes via video or closed-circuit TV camera, dye testing, smoke testing, etc.: England notes that Brevard County does not require these procedures for pipes serving private property. Such inspections typically are done on public stormwater infrastructure when testing for illicit discharges as part of MS4 permitting. Stormwater Maintenance LLC’s Web site provides a list of several maintenance tasks for which private property owners will probably be responsible, but, says Scott, pipe inspections are assumed to use visual means from the surface. He points out that most drainage infrastructure is designed to be self-cleaning via sloping or other means. The use of sophisticated testing is intended for pipes that are underground and not easily accessible, he adds. According to Keller, pipes are inspected by camera only on an as-needed basis.

Removal of excess vegetation from retention/detention ponds: In Griffin, Keller says, ponds are inspected quarterly or semiannually for excess vegetation. Says England: “We’ve generally found that homeowners associations want ponds to look pretty and take them to their own level of service. This is more of an issue on commercial sites, where they fence off an ugly swamp or pond and never do anything with it. That’s where you would tend to see more of a vegetation problem, and that’s where our inspector would go out annually and ask them to clean out the cattails.”

Maintenance of low-impact development (LID) installations like rain gardens is not necessarily the responsibility of a homeowners association, Scott explains. “Because they’re distributed throughout the entire site, they’re not going be something that you can always identify,” he says. “With traditional end-of-pipe stormwater management, you might see a pond with an empty or dry basin and you can walk down to it and say “˜That’s the stormwater management facility.’ With LID, it can start with the downspout of an individual home or it can be the slope or length of slope leading away from that downspout. A rain garden can be a landscaped area that looks no different from a landscaped area that’s indented instead of raised.

“These types of practices are quite often on individual residential lots and therefore, technically speaking, the maintenance can be on the responsibility of the individual homeowners and not necessarily the homeowners association, because they’re not in a common area,” continues Scott. “Consistent with that is the fact that the maintenance itself is much less, from an effort standpoint, than typical stormwater management, because it’s mainly landscaping and vegetative management.”

The City of Griffin takes a much greater hands-on approach to maintaining these structures, says Keller. Currently, he says, all LID structures are owned and operated by the city and maintained annually. In North Port, no rain gardens are currently used; however, bioswales are common, and Wong says that she encourages developers to have them constructed.

Dredging ponds or basins that have accumulated sediment: Dredging is a major, costly undertaking, notes Scott. “The key to sediment removal is to do it on a routine basis at the inflows to the stormwater management facility, so it can be a shovel-and-bucket operation,” he says. “If it’s done in that manner, dredging never occurs. The goal of maintenance is to do it three or four times a year before it fills up, and then you never have to do a dredging operation, because that’s extremely expensive.” Keller says that, in Griffin, these measures are required as deemed by inspections of facilities.

Are these activities performed on a regular schedule, or are they performed on an as-needed basis?

It depends on the activity,” says England. “I live in a condominium that has a community pond. Our homeowners association mows the ponds once a week and keeps up heavy landscaping because that is how we like our place to look. But that high level of maintenance is not required. Other aspects of pipe and inlet cleaning are performed on an as-needed basis. You try to use pipes and headwalls and catch basins that don’t really need much maintenance, and debris that gets in them will generally get washed out during a storm. The state does not allow manufactured devices like baffle boxes here in Florida to be used for water-quality treatment because they won’t get cleaned. To expect a homeowners association to spend $3,000 or $4,000 a year to clean them out is not very realistic.”

Keller says he is a big believer in a proactive, rather than reactive, approach to maintenance. A reactive approach could result in a lawsuit or an issue between a property owner and the city. A big part of proactive maintenance in Griffin is a Jet-Vac truck in which the city invested for the purpose of cleaning out stormwater systems.

Scott agrees with the wisdom of the proactive approach to maintenance. “The smart way of doing maintenance is to inspect and understand what the condition of the infrastructure is and do routine maintenance,” he argues. “The key is doing routine maintenance and minimizing the amount of major repairs, and then, while that’s occurring, being able to predict that major maintenance is going to be required maybe next year, or maybe in three years, or maybe in five years.” A less-effective reactive approach means “to completely ignore maintenance until something has to be done and things become more expensive–then they become not a budget item but a budget buster.

“The business of property and facility management is a business that understands that two different approaches exist and understands the value of a proactive and predictive approach,” Scott continues. “At the end of the day, it all comes down to dollars and cents. Owners, by applying common property and facility management methodology–which includes inspecting and routine maintenance and being able to predict routine maintenance–are able to understand the value of doing maintenance right away.”

The evolving discipline of stormwater management is being characterized by an understanding of the need to integrate maintenance with system design, according to Scott. “The stormwater management industry has emerged from the design side of things over the past several decades,” he says. “The [basis] of stormwater management has been designers and municipalities that review designs. What we’re seeing is design coming into the reality of property and facility management, which is a completely different animal from design. Operations and maintenance properties are bridging the gap between those two industries—that, in my opinion, is one of the most interesting things about this emerging field. The firms that are crossing that bridge and understanding that connection are the ones that are leading this industry in terms of managing their infrastructure. To be a leader means doing things in the most cost-effective manner—that’s the end goal.”
About the Author

Don Talend

Don Talend specializes in covering sustainability, technology, and innovation.

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