HomeMy WebLinkAboutAgenda - 06-07-2005-9cORANGE COUNTY
BOARD OF COMMISSIONERS
ACTION AGENDA ITEM ABSTRACT
Meeting Date: June 7, 2005
Action Agenda
Item No. ~- C.
SUBJECT: Memorandum of Agreement between Town of Hillsborough and Orange County
for National Pollutant Discharge Elimination System Phase II Services
DEPARTMENT: Planning and Inspections PUBLIC HEARING: (Y/N) No
Erosion Control Division
ATTACHMENT(S):
1) 9/14/04 Memo
2) 10/7/04 Memo
3) Implementation Schedule
4) MOA.042505
5-7) Maps (3)
8) Phase II Information
9) NCLM Memo.072804
INFORMATION CONTACT:
Craig Benedict 245-2592
Ren Ivies 245-2586
Will Autry 245-2588
TELEPHONE NUMBERS:
Hillsborough 732-8181
Chapel Hill 968-4501
Durham 688-7331
Mebane 336-227-2031
PURPOSE: To receive information on the National Pollutant Discharge Elimination System
(NPDES) Phase II Stormwater Management Program, and consider approval of a
Memorandum of Agreement (MOA) for implementation of Program for Town of Hillsborough by
Planning & Inspections' Erosion Control Division.
BACKGROUND:
Orange County has been handling soil erosion and sedimentation control for the Town of
Hillsborough since 1975, and has been administering the Neuse Buffer Rules far the town since
2001. These programs are paid far by developers through permitting fees. Different than the
existing services, the required implementation of the NPDES Phase II Stormwater Management
Program is not exclusively related to new development, but a responsibility of the Town as the
owner of a Municipal Separate Storm Sewer System, or MS4. Accordingly, monies to implement
the program would come from the Town of Hillsborough's general fund. Below is a history of
NPDES, and what it entails.
HisfON: In 1972, the National Pollutant Discharge Elimination System (NPDES) program was
established under the authority of the Clean Water Act. Phase I of the NPDES stormwater
program was established in 1990. It required NPDES permit coverage for municipalities that
had populations of 100,000 or more.. In North Carolina, there are six Phase I communities.
Phase II of the NPDES Stormwater program was signed into law in December 1999. The Phase
II program extends permit coverage to smaller (< 100,000 pop.) communities and public entities
that own or operate a MS4, It requires them to apply and obtain an NPDES permit for
stormwater discharges. The Town of Hillsborough is covered by Phase II.
Permittees are required at a minimum to develop, implement, and enforce a stormwater
program designed to reduce the discharge of pollutants from the MS4 to the maximum extent
practicable. The stormwater management program must include these six minimum control
measures:
t, public education and outreach on stormwater impacts;
2, public involvement/participation;
3. illicit discharge detection and elimination;
4, construction site stormwater runoff control;
5. past-construction stormwater management for new development and redevelopment;
6. pollution prevention/good housekeeping for municipal operations,
Status.• In order to meet its Phase II obligations, the Town of Hillsborough has considered
creation of a full-time position.. However, discussions with the County have indicated that it
could be cost-effective for both parties to enter into a contract detailing the provision of Phase II
services by the Erosion Control Division of the County's Planning and Inspections Department,
since we presently have the staff and knowledge to implement this stormwater program,
The attached Memorandum of Agreement indicates the willingness of the Town and County to
work cooperatively and provides the basis for a possible and upcoming contract to provide
Phase II services.
FINANCIAL IMPACT: The Erosion Control Division is presently funded through user fees paid
by citizens and developers requiring land-disturbing permits, The additional duties required to
implement this program would be funded through a contract with the Town of Hillsborough. The
contract would, though a cost allocation program and isolated fund, reimburse the Planning and
Inspections Department far human resources, operating and capital that may be associated
with the program's implementation.
This funding will be ample to offset the additional personnel and equipment costs needed by the
County to implement the program if so determined in future years, If the need for an additional
staff member arises in future years as a result of implementing this program, monies
accumulated in a special revenue fund during the early years of the contract should be able to
offset the impacts of the new personnel and associated equipment,
RECOMMENDATION(S): The Manager recommends that the Board receive this information
and approve this MOA.
06/07/05 BOCC Agenda Item, NPDES Phase II MOA
ORANGE COUNTY PLANNING & INSPECTIONS
Craig N. Benedict, AICP, Director
Administration ~~ * ~ P
. ~ r: ,
(919) 245-2575 ~r ~~~' ~ i
(919) 644-3002 (F,vc) ~,
www.co.orange.nc.us '°«b e.~o~~°°
MEMORANDUM
Attaclunent 1
DEPARTMENT
306E Revere Road
P O Box 8181
Hillsborough,
North Carolina, 27278
TO: .Iohn Link
FROM: Will Autry
THROUGH: Craig Benedict
DATE: 09/14/04
SUBJECT: Phase II Stormwater Implementation within Orange County
COPIES: Ren Ivins, Tom Altieri, Robert Davis
ATTACHED: Phase II Map, NCLM Summary, DWQ Summary, and News &
Observer article
The NPDES Phase II Program
Tn 1972, the National Pollutant Discharge Elimination System (NPDES) program was
established under the authority of the Clean Water Act. Phase I of the NPDES stormwater
progratn was established in 1990. It required NPDES permit coverage for large or medium
municipalities that had populations of 100,000 or more. In North Carolina, there are six Phase I
communities, including Durham.
Phase II of the NPDES Stormwater program was signed into law in December 1999. This
regulation builds upon the existing Phase I prograni by requiring smaller communities, also
known as small municipal separate storm sewer systems (MS4s), to be permitted,. Recently
passed Senate Bill 1210 clarifies that in addition to the municipalities, one, two, or tluee mile
radii around them will also be subject to Phase II.
In Orange County, Carrboro, Chapel Hill, Hillsborough and Mebane are subject to Phase II
requirements, and each has applied for permit coverage, Those communities that will be
permitted under Phase II'are required to develop and implement a comprehensive Stormwater
management program that includes six minimum measures:
1. public education and outreach on Stormwater impacts;
2. public involvement/participation;
3. illicit discharge detection and elimination;
4. construction site storniwater rnnoff control;
5, post-construction stonnwater management for new development and redevelopment;
06/07/05 BOCC Agenda Item, NPDES Phase II MOA Attachment 1 4
Phase II Memo
09/14/04
6. pollution preventior>/good housekeeping for municipal operations.
The State is required to administer the prograni in the radii around municipalities, but only
measures four and five will be required in these areas..
There are still a number of uncertainties about the implementation requirements.. Senate Bill
1210 directs DENR to send a draft NPDES stormwater permit to public notice by November 1,
2004 for all applications from municipal separate storni sewer systems located in cities and
counties designated under the 1990 census (Garrboro, Chapel Hill, Mebane). It also requires that
DENR send a draft permit to public notice by May 1, 2005 for' applications from those located in
cities and counties designated under the 2000 census (Hillsborough). The municipalities must
implement measure five (post-construction stormwater management for new development and
redevelopment) within 24 months after receiving the NPDES permit. The other minimum
measures will not be required until five years after permit receipt. It is uncleaz whether or not the
State will eventually conduct measure tlmee in the areas surrounding the municipalities, and
pending and future lawsuits could still change these requirements or timetables..
With all these questions in the air, the attached map and tables attempt to describe the effects in
Orange County. Please note drat through initiatives entirely sepm°ate fi onr Phase II, measure
four (constr°uctiar site storn:watw~ runoff eonh•ol) is currently being conducted County-wide by
the Erosion C,orrtrol division, and rrreasure five (post-construction stormwater management for
new development and redevelopment) is being, at least partially, adds°essed by the Stor°nrwater
Ordinance for Lands Within the Neuse River Basin.
Table 1 describes the minimum implementation measures for Phase II, color-coded by map area,
including the responsible agent. This is based on interpretations from Senate Bill 1210. Please
note that Orange County is not required to do anything by the Phase II regulations, On the other
hand, Table 2 corresponds to map areas in which Orange County could request delegated
authority from the State to implement the Phase II requirements. This is obviously dependent on
cooperative agreeurents aud, fru:ding arrangements witlriu the Torvns',jarisdictions /ETD's,
and would reRuire an immediate aad thorough dialogue with staff members, upper
uranageu:eut, mrd elected officials. This could be proposed to the Towns as acost-saving
arrangement, since implementation costs for these requirements are not funded through
developer permit fees. For example, if Hillsborough and Carrboro could contract with Orange
County for these services, the combining of efforts toward the implementation costs could save
each party, and have a comprehensive regional benefit
Major questions, which should be addressed at this time, include:
1, What interest might each of the Towns have in executing such a cooperative endeavor?
2. If Mebane were interested, would the services extend beyond Orange County?
3. How many staff members would be required to carry out these new responsibilities?
4. What would the cost of the services be for each Town?
5. How would the cost be funded for areas outside of the Towns?
There is a great sense of urgency in addressing these questions. Because each of the Towns is
preparing to meet these requirements, the offer of these services before they create or fill
positions is prudent in order for them to experience acost-saving benef t. Chapel Hil] has already
06/07/05 BOCC Agenda Item, NPDES Phase II MOA Attachment 1
Phase lI Memo
09/14/04
taken steps toward implementation, including postings for two related positions and the
implementation of a stormwater utility to fund their program,
06/07/05 BOCC Agenda Item, NPDES Phase II MOA Attachment 2 6
ORANGE COUNTY PLANNING & INSPECTIONS DEPARTMENT
Craig N. Benedict, AICP, Director
ee~n~P o, o
Administration ~;` , ~~;;, 'A 306E Revere Road
(919) 245-2575 '~ ,., _Q >> P O Box 8181
(919) 644-3002 (FAx) ~ Hillsborough,
www.co.orange.nc.us '""°«e e.~~~`°° North Carolina, 27278
MEMORANDUM
TO: Demetric Potts, Assistant Town Manager, Hillsborough
TROM: Will Autry
THROUGH: Craig Benedict
DATE: 10/07/04
SUBJECT: NPDES Phase II stormwater Implementation for Hillsborough
COPIES: Margaret Hauth, Hillsborough; Iolm Link, Ren Ivins
ATTACHED: Hillsborough Phase II Implementation Schedule
In 1972, the National Pollutant Discharge Elimination System (NPDES) program was
established under the authority of the Clean Water Act. Phase I of the NPDES stormwater
program was established in 1990, It required NPDES permit coverage for lazge or medium
municipalities that had populations of 100,000 or more, Phase II of the NPDES stormwater
program was signed into law in December 1999. This regulation builds upon the existing Phase I
program by requiring smaller communities, also known as municipal separate storm sewer
systems (MS4s), to be permitted. The Town of Hillsborough was designated in the 2000 census
as a Phase II MS4, and made Phase II permit application in May 2004. Recently passed Senate
Bill 1210 clarified some timetables for implementation of Phase II regulations.
The Division of Water Quality (DWQ) is required to issue a draft permit for Hillsborough by
May 1, 2005.. After a brief period for public conmrents and participation, DWQ will issue the
final permit. Hillsborough will be required to implement post-construction stormwater
management controls within 24 months from the effective date of the permit, and the remaining
permit requirements must be put in place within five years fiom the effective date of the permit.
Orange County would like to implement the Phase II program for the Town according to an
annual contract, which could provide the Town a substantial cost savings, and through
cooperation provide for more efficient achievement of our mutual water quality goals. The cost
savings provided could also allow Hillsborough to achieve an expedited schedule for' the
implementation of each of the minimum measures required by DWQ.
Attached is the Hillsborough Phase II hmplementation Schedule, a table that describes the
proposed BMP's to be accomplished during each year after the permit is issued. Please be aware
that these years are neither calendar years nor fiscal years, but rather years from the effective
06/07/05 BOCC Agenda Item, NPDES Phase II MOA Attaclunent 2
Hillsborough NPDL^S Phase II Proposal
loio~ioa
date of the permit. The estimated contract amounts designated for each year could be changed to
reflect an expedited schedule, if the Town wished certain items to be implemented sooner than
presently proposed. This schedule can be carried out with existing staff at this time, but will
eventually require additional staff
Due to the timetable described by SB 1210, it appears that the Town's permit will not become
effective until late spring 2005. Understanding that the Town has already budgeted $68,000 for
implementation from January 1, 2005 through .June 30, 2005, contracting with the County to
implement the program beginning in late spring could save the Town more than $50,000 this
fiscal year alone. This could be accomplished by executing a contract for this fiscal year based
on services provided before, during and after the public comment period, and then allowing
payment for "contract year one" to very nearly correspond to FY05-06,
The following table lists estimated contract amounts for each year after the permit issue date,
with the exception of lab analysis costs for water quality monitoring efforts needed to address the
illicit discharge detention and elimination measure. This amount is not presently included
because further discussion with Town staff will be required to outline a monitoring program,
before a cost estimate can be made. It should also be noted that this estimate does not include the
initial storm drainage system inventory, but does include the ongoing maintenance of this data in
a GIS overlay.
These numbers are based on the assumption that the permit will not become effective until
sometime around May /June 2005 and each contract year /permit year will approximately match
upcoming fiscal years. Final contracts, to be approved by Town and County Boards for each
fiscal year, will ultimately be decided by the permit issue date, and the implementation schedule
agreed upon by the Town and County.
Estimated Contract Amounts for Hillsborough's NPDES Phase II Implementation per
PROPOSED Schedule
FY04-OS Year 1 Year 2 Year 3 Year 4 Year 5
$10,000 $37,000 $57,800 $74,600 $81,700 $80,700
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06/07/05 BOCC Agenda Item, NPDES Phase II MOA
STATE OF NORTH CAROLINA
COUNTY OF ORANGE
Attaclmient 4 12
NPDES PHASE II
STORMWATER PERMIT
AGREEMENT
TOWN OF HILLSBOROUGH
MEMORANDUM OF AGREEMENT
This Memorandum of Agreement is entered into this day of , 200_, by
and between the Town of Hillsborough and Orange County.
WHEREAS, the promotion of a sustainable community that provides for the protection of
water quality and the elevation of the quality of life of the citizens of that community is in the
best interest of the Town of Hillsborough and Orange County; and
WHEREAS, the recent growth of the community, and that which is anticipated, will
make efforts to protect water quality not only more difficult, but also more essential; and
WHEREAS, the Orange County Erosion Control Division Staff of the Planning and
Inspections Department presently implements soil erosion and sedimentation control regulations,
State mandated Neuse River Basin Riparian Buffer Program, and assists with other stonnwater
concerns in the Town of Hillsborough and Orange County; and
WHEREAS, Section 402(p) of the Clean Water Act and implementing regulations 40
CFR Part 122, 12.3 and 124, North Carolina General Statutes 14.3-215.1 and Session Law 2004-
163 require that the Town of Hillsborough implement a National Pollutant Discharge
Elimination System (NPDES) Phase II Stormwater Program; and
WHEREAS, Orange County and the Town of Hillsborough recognize the opportunity to
provide a more effective and efficient implementation of this NPDES Phase II Stornwater
Program working collaboratively; and
WHEREAS, the parties have been working cooperatively toward the development of a
system which will provide for the implementation of this Program, and ensure that the Town
maintains compliance with the forthcoming NPDES Phase II Stormwater Permit;
NOW, THEREFORE, the parties to this Memorandum hereby agree as follows:
Section 1. Upon issuance of the NPDES Phase II Stormwater Permit for the Town by the
State of North Carolina, Department of Environment and Natural Resources,
Division of Water Quality, the parties will work cooperatively to develop and
enter into a contract which will provide for the implementation of the majority of
the permit requirements of the Town's NPDES Phase II Stormwater Program by
the Erosion Control Division Staff of the Orange County Planning and
C:\Documents and SettingsWdministrator\local Settings\TempWtt 4 Dreft MOA 042505.doc 12
06/07/05 BOCC Agenda Item, NPDES Phase II MOA Attac}nnent 4 13
Inspections Department, and the compensation of Orange County by the Town of
Hillsborough for said implementation,
Section 2. The parties acknowledge that this Memorandum of Agreement is not intended to
and does not create legally binding obligations on any of the parties to act in
accordance with its provisions, Rather, it constitutes a good faith statement of the
intent of the parties to cooperate in a manner designed to meet the mutual
objective of all the parties that the Town of Hillsborough be in compliance with
its pending NPDES Phase II Stormwater Permit and Orange County and the Town
provide for the protection of water quality and elevation of the quality of life of
their citizens through the sustainable growth of the community..
This the day of , 2Q
TOWN OF HILLSBOROUGH
SEAL
By:
Mayor
Attest:
Town Clerk
ORANGE COUNTY
SEAL
By:
Chair, Board of Commissioners
Attest:
Clerk to the Board of Commissioners
Q10ocuments and SelOngsW,dminislrator\Local Settings\Temp\Att 4 Dreft MOA 042505 doc ] 3
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SITE MAP
Hane
What is Phase II
Who is Affected ®This site was developed to assist local
What is a small MS4 governments in North Carolina with issues
Fact Sheet 2.1 relating to Phase II Stormwater Regulations.
Fact Sheet 2.2
What Are the Phase II a Polluted storm water runoff is often transported to
Small MS4 Program municipal separate storm sewer systems (MS4s)
Requirements? and ultimately discharged into local rivers and
Siz mini mum measures streams without treatment. EPA's Stormwater
Public Education and Phase II Rule establishes an MS4 stormwater
Outreach management program that is intended to improve
Public oarticioation the Nation's waterways by reducing the quantity
Illicit Discharge detection of pollutants that stormwater picks up and carries
and Elimination into storm sewer systems during storm events.
Cons(mclion site Runoff Common pollutants include oil and grease from
cq~trgl roadways, pesticides from lawns, sediment from
Post-Constmction Runoff construction sites, and carelessly discarded trash,
Control such as cigarette butts, paper wrappers, and
Pollution Prevention/Gootl plastic bottles.
Housekeeoing
State Implementing Rules When deposited into nearby waterways through
North Carolina NPDES MS4 discharges, these pollutants can impair the
waterways, thereby discouraging recreational use
phase II Temgorarv Rule
T
t d of the resource, contaminating drinking water
ez
North Carolina's NPDES supplies, and interfering with the habitat for fish,
Phase Il Stormwater other aquatic organisms, and wildlife.
permanent mle-making
~~ o What is Phase II
Educational Tools
. Who is Affected
Downloadable
Presentations
L teters
In 1990, EPA promulgated rules establishing
Phase 1 of the National Pollutant Discharge
MAPS Elimination System (NPDES) stormwater program.
NC River Basin Map The Phase I program for MS4s requires operators
NC Basinwide Planning of medium and large MS4s, that is, those that
generally serve populations of 100,000 or greater,
Maos Rhumbnail Links)
NC Urban Areas
to implement a stormwater management program
Other NC DENR Maos as a means to control polluted discharges from
these MS4s. The Storm Water Phase II Rule
Federal Rules and Faclsheels extends coverage of the NPDES stormwater
Federal Rule language program to certain small MS4s but takes a slightly
different approach to how the storm water
~~
4 Permitting and Reoodino management program is developed and
a Small Construction implemented.
a Construction Rainfall
Erosivity Waiver .What is a small MS4
No Exposure Exclusion
Funding sources A small MS4 is any MS4 not already covered
by the Phase I program as a medium or large
General Funding sources MS4. The Phase II Rule automatically covers
on a nationwide basis all small MS4s located
Questions Not answered here in urbanized areas (UAs) as defined by the
Bureau of the Census (unless waived by the
NPDES permitting authority), and on a case-
O Contact by-case basis those small MS4s located
outside of UAs that the NPDES permitting
The Stgrmwaler authority designates. For more information
and General
Permits Unit on Phase II small MS4 coverage, see Fact
at NCDENR sue, Sheets 2_1 and 2_2.
733-5g83
. What Are the Phase II Small MS4 Program
Requirements?
Sale documents require Acrobat
Reader 50 or later Operators of regulated small MS4s are required to
design their programs to:
~4~cera~Obe,
Reader • Reduce the dischar a of ollutants to the
g p
haatie maximum extent practicable (MEP);
Site made available through the
cooperation of the following • Protect water quality; and
organizations:
NC Division of Water ~uali(v • Satisfy the appropriate water quality requirements
of the Clean Water Act.
Nafhwest Piedmont Council of
Governments Implementation of the MEP standard will typically
Gard-of-Sky Regional Council require the development and implementation of BMPs
U~oer Coastal Plains Council of and the achievement of measurable goals to satisfy
Governments each of the six minimum control measures.
Western Piedmont Council of The Phase II Rule defines a small MS4 stormwater
Governments management program as a program comprising six
elements that, when implemented in concert, are
expected to result in significant reductions of
pollutants discharged into receiving waterbodies.
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I Home Six Minimum Measures ~ What is Phase II? ~ Disclaimer ~ NC Division of Water Quality ~
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SITE MAP
H ~ What is Phase II '~ ' ~'
Who is Affected
What Is a small M54
Fact Sheet 2.1
Fact Sheet 2,2 The following are the Six Minimum Measures as
What Are the Phase II outlined by EPA. When evaluating your current
Small MS4 Program program, please consider that the minimum measures
Requirements?
may be met in whole or in part by existing programs.
Six minimum measures
Puhiic Education and
Outreach
Puhlic oarticioation .Public Education and Outreach
Illicit Discharge detection
and Eilmination Distributing educational materials and
Construction site Runoff performing outreach to inform citizens
Control about the impacts polluted storm water
PosFConstruction Runoff runoff discharges can have on water quality.
Contra
Pollution Prevention/Goad
Housekeeoing .Public ap rticipation/Involvement
Providing opportunities for citizens to
State Im plementing Rules participate in program development and
North Carolina NPDES implementation, including effectively
Phase II Temocrarv Rule publicizing public hearings and/or
Text d encouraging citizen representatives on a
North Carolina's NPDES storm water management panel.
Phase II Stormwater
permanent rule-making
roo cess
. Illicit Discharge Detection and Elimination
Educational Tools
Developing and implementing a plan to
Downloadable detect and eliminate illicit discharges to the
Presentations storm sewer system (includes developing a
Letters system map and informing the community
about hazards associated with illegal
discharges and improper disposal of waste).
MAPS
NC River Basin Mao
NC Basinwide Planning
. Construction Site Runoff Control
Maos (Thumbnail Linksl
~,` NC Urban Areas Developing, implementing, and enforcing an
Other NC DENR Maos erosion and sediment control program for
construction activities that disturb one or
more acres of land (controls could include
Federal Rules and Factsheets silt fences and temporary storm water
detention ponds).
Federal Rule Lanouaoe
Permitting and Reoortlno
Smaii Construction
Construction Rainfall oPost-Construction Runoff Control
Erosivity Waiver
No Exposure Exclusion Developing, implementing, and enforcing a
program to address discharges of post-
construction storm water runoff from new
Funding sources development and redevelopment areas.
Applicable controls could include
General Fundino sources preventative actions such as protecting
sensitive areas (e.g., wetlands) or the use of
Questio ns Not answered here structural BMPs such as grassed swales or
porous pavement.
O Contact
. Pollution Prevention/Good Housekeeping
The Stormwater
and General Developing and implementing a program
Permits Unlt with the goal of preventing or reducing
at NGDENR s( 19) pollutant runoff from municipal operations.
733-5083 The program must include municipal staff
training on pollution prevention measures
Some documents require Acrobat and techniques (e:g., regular street
sweeping, reduction in the use of pesticides
Rader 50 or later or street salt, or frequent catch-basin
cleaning).
'$~Ger Adobe
R
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ea
er
Rdo6e
For Additional Information
Ste made available through the
cooperation of the following
o~ganizatlons: t'+Ontact:
U.S. EPA Office of Wastewater Management
NC Division of Waler Quality Internet: http:///cfoub.epa~c. ovlnpdes/home.cfm?
Mrdhwest Piedmont Council of programl~d=6
Governments Phone: 202-564-9545
ao
tznd-of-Sky Regional Council Reference Documents:
U~oer Coastal Plains Council of Storm Water Phase II Final Rule Fact Sheet Series
C~rvernments Internet
http://cfpub1.epa.govln odes/stormwater/swfinal.cfm
Western Piedmont Council o~
C~vemments Storm Water Phase II Final Rule (64 FR 68722)
Internet:
http:/in www.epa.gov/npdes/regulations/phase2.pdf
WORTH CAROL
ALB ERT COATES LOCAL GOVERNMENT CENTER
115 NORTH OAWSON STREET
RAIEIGH. NORTH CAROLINA2760I
PO BOX 3069 (27601-3069)
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LEAGUE OF PR AJ W ICIPALITI~ES
PHONE(919j 715A000 PROMOTING EXCELLENCE IN LOCAL GOVEANMENT
FAX: (919)7]3A519
NhNN.NC1M.OhG
TO: Mayors, Managers, Clerks, and Attorneys
FROM: Anita Watkins, Manager of State and Regional Affairs
DATE: July 28, 2004
RE: Phase II Stormwater Legislation - SB 1210
In 1999, the U.S, Environmental Protection Agency adopted the Phase II Stormwater
Regulations to improve water quality through the treatment and control of'stormwater. The rules
are the second phase of rules designed to apply to urbanized and urbanizing areas, The Phase I
stormwater rules applied to the nation's largest metropolitan areas including 6 cities and 1 county
in North Carolina, The Phase II rules currently apply to 12.3 medium and small municipalities
located in federally defined urbanized areas.
The federal rules directed states to implement and enforce the federal requirements including the
implementation of six minimum measures in the urbanizing areas, These six measures are public
education and outreach, public participation, illicit discharge detection and elimination,
construction site stormwater runoff control, post-construction stormwater management in new
development and redevelopment, and pollution prevention/good housekeeping for rnunicipai
operations.
North Carolina began rulemaking proceedings in 2000 to adopt the standards and essential
program elements required by the federal law, In 2001, temporary rules were adopted by the
Environmental Management Commission (EMC, a citizen commission charged with adopting
environmental regulations). In 2003, the rulemaking proceedings Failed when subsequent
permanent rules adopted by the Enviromnental Management Commission were not approved by
the Rules Review Commission, The lack of state rules ]eft cities and counties subject to the
federal requirements in a bind. As requested by the League of Municipalities, the General
Assembly recently adopted legislation to address implementation of the federal Phase IT
stormwater requirements. SB 1210 -Phase II Stormwater Management-1 was ratified by the
House and Senate and has been presented to the Governor. Because the bill passed the General
Assembly near the end of the session, the Governor has until August 17 to act. The bill becomes
law if'he signs it or takes no action on it before midnight on that date.
The legislation protects local governments from potential federal enforcement or tlTird party
lawsuits, sets standards far implementation, exempts municipalities with a population less than
1,000, provides for a fair and equitable approach to implementation by ensuring that cities will
not be solely responsible for controlling and treating stormwater, provides for federally
mandated processes to bring new cities under the Phase II program, sets clear implementation
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dates, and provides necessary tools for implementation. Each of'these issues is discussed in
more detail below.
Protection from Enforcement Actions
This legislation provides relief to local governments who are in violation of a federal application
deadline due to no fault of'their own. The temporary rule adopted by the EMC gave cities
designated by the 2000 census until May 2004 (instead of March 2003 as directed by the federal
rule) to submit Phase II permit applications. The extended deadline expired when the rules were
not adopted by the Rules Review Commission, thereby creating a gap between the federally
mandated deadline and the deadline set by the state, This legislation addresses that gap by
validating all permit applications that were submitted incompliance with the federal deadline.
Standards for' Post-Construction Implementation and Flexibility
Local govemments will have their individual permit applications evaluated based on the
standards established in the temporary rule, The League advocated for using this standard for
two primary reasons. The temporary rule is the standard under which cities developed their
permit applications submitted to DENR, The temporary rule was also the basis for the Storm
2003 Phase II assistance package developed by the League, which many Phase II cities relied
upon to develop their permit applications,
Clarifications were made in the legislation to ensure that local govemments have maximum
flexibility to design their own post-construction practices, preventing the application of a one-
size-fits-all approach to all Phase II cities. A Phase II municipality may develop its own
comprehensive watershed plan, may use the model ordinance to be prepared by DENR, may
design its own post-construction practices based on DENR's guidance and engineering standards
for best management practices (BMPs), or it may incorporate the post-construction model
practices [the high density/low density approach] set out in the temporary rule to fulfill the
minimum requirements,
Exemption of Small Municipalities
The legislation exempts municipalities with a population of 1,000 or less unless DENR
demonstrates they are contributing to an impairment of state waters. Exempted municipalities
will be reconsidered based on the designation procedures, which will be tied to the river basin
planning process, DENR will pr°ovide more detail on the waiver procedure that will be supplied
to the relevant municipalities,
Reeulation in the Unincorporated Areas
Due to a loophole created by the federal rules, unincorporated areas were not automatically
subject to the stormwater requirements, This legislation addresses municipal concerns about
fairness inapplicability of the stormwater requirements and equity in economic development.
The revised legislation ensures that areas of urbanizing development will be covered by post-
~3
construction stormwater standards, regardless of whether they are located inside or outside of
municipal boundaries. The original version of the bill would have required regulation
throughout the 3.3 federally designated counties. Based on opposition from ]cey senate members
and several stakeholder groups, compromise legislation was developed. The compromise
legislation struck a balance between regulating entire counties or only municipalities. Areas to
be covered include municipalities and unincorporated areas designated as urbanized according to
the 1990 or 2000 U.S. census, and areas surrounding the designated municipalities based on the
formula utilized to delineate potential extraterritorial,jurisdiction (ETJ). The legislation also
provides that the program must be implemented countywide once 85 percent of the area in a
county is covered by the Phase II regulations.
Although Phase II cities must implement all six minimum measures within their corporate limits,
in their established ETJ they will only be required to implement those measures that comport
with municipal authority in the extraterritorial jurisdiction. This means that the focus in the ETJ
should be primarily on measures related to land use, including the construction site storrnwater
control and post-construction measures, The state will be required to implement the program in
the delineated unincorporated areas, including areas where a city leas not exercised its ETJ
authority. Counties can voluntarily request delegation from the state in the areas where the state
will implement the program. Counties also have the option to implement the program
countywide or solely in those urbanized areas delineated in the legislation.
Federally Mandated Designation and Petition Processes
The federal rules required states to establish processes by which additional public entities would
be added to the Phase II program, The legislation enacts the designation and petition processes
with provisions that are substantially similar to those in the rules adopted by the EMC. These
procedures protect cities and towns by establishing standards for the state to use in considering
the regulation of additional public entities.
Dates for Implementation
- For municipalities designated according to the 1990 census, the state will issue draft
permits for public comment by November 1, 2004, Permits will be issued after a period
of public comment and participation.
- For rnunicipalitiesdestgnated according to the 2000 census, the state will issue draft
permits for public comment by May 1, 2005.. Permits will be issued after a period of
public comment and participation.
- Municipalities designated according to the 1990 or 2000 censuses will have 24 months
from the date they receive a permit to implement post-construction controls. The other
five federally mandated measures must be implemented within 5 years of permit
issuance. The other five measures are public education and outreach, public
participation, illicit discharge detection and elimination, construction site storm water
runoff control, and pollution prevention/good housekeeping for municipal operations.
~~
- Municipalities designated pursuant to the designation or petition process will have .36
months from the date of'permit issuance to implement post-construction controls. The
other five federally mandated measures must be implemented within 5 years of permit
issuance. The other five measures are public education and outreach, public
participation, illicit discharge detection and elimination, construction site storm water
runoff control, and pollution prevention/good housekeeping for municipal operations.
- Stormwater controls in the unincorporated areas must be implemented by July I, 2006.
Imnlementation Toots
The legislation provides local governments with several tools necessary for implementation.
Local governments will have the option to be covered under a general permit to be developed by
L)ENR consistent with the standards in the temporary rule or to receive an individual permit,
L)ENR will also develop a model ordinance and design manual by .July 1, 2005, The League and
representative local governments will work closely with the department on the development of
all of these tools.
Vested Rights
The legislation does not alter how vested rights to continue development are ordinarily
established. It provides that if the post-construction measures are implemented by a zoning
ordinance, vested rights are to be determined as provided in G.S. 160A-.385.1 and other existing
applicable provisions of statutory and common law. To the extent that post-construction
measures are implemented by means other than a zoning ordinance (such as an ordinance under
general police powers), vested rights are determined as provided by existing applicable statutory
and common law.
A copy of the legislation, a list of the Phase II municipalities, and a map of the areas now subject
to the Phase II requirements are on the League website; www.nclm.or~, Please direct any
questions to Anita Watkins or ICim Hibbard on the League's staff