11.01.2008 Legislature Establishes New Stormwater Program for Development in Coastal Counties NC Bar Association Energy & Natural Resources Law Section Newsletter; Vol. 20, No. 1
11.01.2008Reproduced with the express and limited permission of the North Carolina Bar Association. All rights reserved.
On August 9th, Governor Easley signed Senate Bill 1967 establishing a new stormwater regulatory program applicable to development activities in North Carolina’s twenty coastal counties (the “Program”). The new statute represents a modification of the rules that the Environmental Management Commission promulgated in January 2008, and it is the first modification to North Carolina’s coastal stormwater rules since 1995.
The Program’s applicability depends primarily upon the type of development at issue and the amount of “Built Upon Area” that the proposed project will create. A project’s Built Upon Area is the portion of the project that is covered by impervious or partially impervious surfaces, such as buildings, parking lots (unless they are built with permeable pavement), and recreational facilities. For non-residential development, the Program will apply to any development that (1) adds more than 10,000 square feet of Built Upon Area; (2) requires a major development permit under the Coastal Area Management Act (“CAMA”); or (3) requires an erosion and sediment control plan (“E&SC Plan”), i.e., disturbs more than one acre of land. For residential development, the Program applies to projects that require either a major development permit under CAMA or the development of an E&SC Plan. In addition, the new statute establishes requirements for certain smaller residential projects that do not fall with the Program’s requirements.
The Program imposes a number of technical requirements for stormwater management, but the nature and extent of those requirements depends upon the proximity of a project to a receiving water, the receiving water’s classification, and whether the project will have a low-density of Built Upon Area or a high-density of Built Upon Area (the percentage of the total area of the development that will be Built Upon Area).
Development Near Outstanding Resource Waters
If a project will be within 575 feet of the mean high-water line of an Outstanding Resource Water (“ORW Projects”), the project is subject to the Program’s most stringent requirements. An ORW Project is “low-density” if the Built Upon Area density is no more than twelve percent, and “high-density” if the Built Upon Area density is greater than twelve percent. For low-density ORW Projects, stormwater runoff must be transported “primarily by vegetated conveyances,” and the projects must typically have a 50-foot vegetative buffer for new development and a 30-foot vegetative buffer for redevelopment. For high-density ORW Projects, the requirements are more numerous, including:
• The development may not directly discharge stormwater to tidal salt waters that are used for commercial shell-fishing (so-called “Class SA Waters”) without an NPDES Permit;
• The development must use stormwater control systems such as infiltration, bio-retention, or wetlands, and these systems must have sufficient capacity to control the additional stormwater that would be generated by a one-year, 24-hour storm;
• Sheet flow from excess stormwater must be directed to flow overland and through at least fifty feet of vegetative filter at a “non-erosive velocity”; and
• The development must satisfy the vegetative buffer requirements for low-density ORW Projects.
Finally, for all ORW Projects, developers may not install new stormwater outfalls that discharge to any Class SA Water, they may not increase the volume of flow through any existing outfall into a Class SA Water, and the total density of Built Upon Area may not exceed twenty-five percent.
Development Near Class SA Waters
The Program also regulates any development with one-half of a mile of a Class SA Water or within one-half of a mile an unnamed, freshwater tributary to a Class SA Water (“SA Projects”). SA Projects are subject to the same requirements as ORW Projects, with one exception. SA Projects are not subject to the twenty-five percent Built Upon Area density limit that applies to ORW Projects.
The statute also creates several requirements for residential SA Projects that do not require either a major development permit under CAMA or the preparation of an E&SC Plan, but that will create more than 10,000 square feet of Built Upon Area and will have a Built Upon Area density greater than twelve percent. While this subset of SA Projects does not fall within the applicability of the Program, the statute requires developers of these projects to manage stormwater through rain barrels or cisterns, by directing rooftop runoff to a rain garden, or through another best management practice that satisfies 15A N.C.A.C. § 2H.1008.
Other Development in Coastal Counties
For all other development in coastal counties that is within the Program’s general applicability but does not qualify as an ORW Project or a SA Project (“Other Projects”), the Program’s requirements are similar to the requirements for SA Projects. The technical requirements for stormwater management are comparable to those for SA Projects, and the twenty-five percent Built Upon Area density restriction does not apply to Other Projects. However, the threshold for low-density projects versus high-density projects is less restrictive for Other Projects than it is for SA Projects. For Other Projects, a development is considered low-density so long as the Built Upon Area density is less than 25%.
Other Program Requirements
In addition to technical standards for development projects, the Program also limits the extent to which wetlands may be considered when calculating Built Upon Area densities, and it contains several exemptions and exclusions of note. Regarding wetlands, the Program prohibits a developer from including the area of Coastal Wetlands (as defined in 15A N.C.A.C. § 7H.0205) within the overall project area when calculating the Built Upon Area density. However, developers may include a portion of the area of non-coastal wetlands in their calculation of Built Upon Area densities if they choose. Though there are a number of exclusions and exemption from the statute, there are several worth mentioning:
• Many previously permitted or authorized activities are not subject to the new requirements;
• Redevelopment projects that do not cause a net increase in Built Upon Area and that provide equivalent stormwater control are exempt;
• Projects for which the Division of Water Quality has accepted a complete State Stormwater Permit Application, or an application for a minor modification of a State Stormwater Permit, are excluded from the statute; and
• Certain urban waterfront development projects, as well as upland marinas that require a CAMA permit, are exempt from the vegetative buffer requirements.
An Act to Provide for Improvements in the Management of Stormwater in the Coastal Counties in order to Protect Water Quality, Senate Bill 1967 (2008).