How did stormwater control get so complicated? The coastal stormwater chapter, part 2

Published for Environmental Law in Context on February 16, 2015.

Few people understand how complicated the regulation of stormwater has become. It just sounds wrong that something as natural as rain and its runoff would lead to a byzantine system of regulations that range across all levels of government and that differ from place to place. In North Carolina, coastal stormwater rules are just one chapter in the development of this system, and they came about only after two hundred years of environmental legal efforts to manage stormwater. But they were critical to the development of the State’s regulatory system. In part 1 of this chapter, I outlined the early responses of State government to the problem of shellfish closures caused by coastal pollution, leading up to the inescapable realization in the mid-1980s, in North Carolina as elsewhere in the United States, that runoff from developed, impervious surfaces was the primary cause of high bacterial counts in coastal water, and thus of the loss of shellfish that were safe for human consumption. The byzantine bureaucracy behind stormwater regulation is a response to and an indicator of the huge public administration challenge presented by diffuse (nonpoint) sources of pollution.


Control of nonpoint-source water pollution: an old can of worms that’s still being kicked down the road

The Division of Environmental Management (DEM, a predecessor of the present-day Division of Water Resources) was aware and on record as early as 1984 that “further substantial reduction of degraded streams will not be accomplished without effective control of nonpoint sources, particularly urban runoff. At the time, of 2,032,875 acres of shellfish waters in North Carolina, 314,002 were closed (around 15%). The number of closed acres had dropped significantly in the early 1980s as a result of the opening of areas in Albemarle Sound for rangia clams. Many of the closures at the time had more to do with low salinity than coliforms.

In March 1985, having been given the coastal stormwater issue by DENR in lieu of the work by the Division of Coastal Resources (DCR) and the Coastal Resources Commission (CRC),  DEM and the Environmental Management Commission (EMC)’s Coastal Water Quality Committee developed an outline of “best professional judgments” to be used as a guide in requiring stormwater controls through Section 401 comments on CAMA major development permits. The basis for this was the regulatory requirement to certify that water quality standards were being maintained, in the face of recently obtained evidence that stormwater had levels of fecal coliforms well in excess of water quality standards for Class SA waters. The standard DEM used for “best professional judgment” was apparently the retention of the 100 year storm.

In June 1985 there was a declaratory ruling request to the EMC to require permits for stormwater in connection with three shopping centers along Bogue Banks. The EMC passed on this request, noting it was working on stormwater rules. According to DEM staff in the 1986 report on coastal stormwater, the first attempts to put controls on urban runoff in North Carolina came in 1983 as a result of efforts to protect Falls and Jordan Lakes as water supplies. This led to the WS-I, WS-II and WS-III classification scheme for water supply watersheds in December 1985, a scheme which requires local governments to develop programs to control runoff from urban development if they want to use the more protective (WS-I, WS-II) classifications.

The coastal stormwater control options considered in the mid-1980s

In 1986, the EMC put rules in place that required new development in a limited zone (575 feet) around Class SA waters to control stormwater, either by limiting density or completely controlling a 4.5”, 24-hour storm. These first, temporary rules were suggested by the ad hoc Committee, to sunset on December 31, 1987. Interestingly, the original proposed rules used a 75-foot area in which controls would be required (based on the CRC’s 75 foot area of environmental concern), but some EMC members preferred 1000 feet. After a tie vote in 1986, a compromise was reached for 575 feet, following much discussion and debate.

Under consideration in the 1986 permanent rulemaking proceedings was whether to:

  • adopt EPA stormwater regulations by reference;
  • establish a one-half mile zone for considering stormwater controls with appropriate exemptions for existing development, redevelopment, etc.;
  • use 10-year and 2-year storms for engineered solutions, with NPDES permits, or 10% and 30% effective impervious areas as alternative density limits (depending on whether drainage was directly to SA waters);
  • control all sites within the CAMA estuarine area of environmental concern;
  • outside this AEC, require controls for sites larger than one acre; or
  • protect all SA waters with the same requirements.

Four hearings were held, in Manteo, Morehead City, Wilmington and Raleigh; about 450 people attended with about 250 comments, oral and written. Coy Batten, Jerry Wall and Virgil McBride were the EMC hearing officers. Comments were mixed. Comments opposed included the now familiar claim that “The regulations are so stringent that they will stop future development of the coast.” Staff felt the 2-year design storm was sufficient to protect water quality standards, and noted it represented control (retention) of the entire volume of runoff from a 4.5 inch storm in 24 hours, including a 2.0 inch per hour peak intensity. This represents eliminating the runoff from over 99 percent of all rainfall events. EPA concurred this was adequate.

The theory for the 1986 2-year design storm was that the class SA fecal coliform standard was a median of 14 fecal coliforms per 100 ml, but with allowance for 10% of samples to exceed 14 per 100 ml. Stormwater runoff typically contains fecal coliform concentrations 2 or 3 orders of magnitude (100 to 1000 times) greater than the standard. And no mixing zone is allowed in SA waters. So it is reasonable to conclude that the fecal coliform standard would be exceeded whenever significant quantities of stormwater runoff entered SA waters. But, DEM reasoned, an infiltration system that failed (overflowed and discharged) less than 10% of the time should protect and meet the standard, given the sample variance allowance. The 2-year design storm would more than meet this requirement; it would be expected to discharge on the average one time every two years, or one time out of 60 storms with ½” ore more of rain. The Division of Marine Fisheries and Division of Health Services did not like this approach to the 10% (sample) variance standard, and instead pushed for a 10-year design storm. U.S. EPA supported the 2-year storm.

During 1987 the Division of Environmental Management developed and presented the 1-1/2” proposal, which broadened coverage to areas outside the narrow 575 foot strip, to include any CAMA major permitted or erosion and sediment control plan approval projects in the CAMA counties. But it lowered the design storm requirement to 1.5” even in the first 575 feet. The Coastal Federation pushed for retaining the existing standard and extending controls at the 1.5” design storm level outside the 575 foot strip.

Process problems: mixing politics and stormwater control makes for messes

During the development of the final EMC rules, which still stand as the North Carolina ‘coastal stormwater rules’ as of this writing, Charles L. Baker chaired the EMC; R. Paul Wilms (later a lobbyist with the N.C. Homebuilders’ Association) directed the Division of Environmental Management, with staffers including George Everett (later a lobbyist with Duke Energy) and Alan Klimek (later Director of the Division of Air Quality in DENR). Hearings officers for the permanent coastal rules were Dr. Gladys Van Pelt , a retired chemistry professor from Guilford College, and Virgil L. McBride, of Garner. Another chemistry professor, James Martin, still served as Governor. The EMC met on Nov. 12, 1987 to consider the final rules, having been informed by counsel Dan Oakley that a prior unnoticed meeting before the October 8, 1987 official EMC meeting was probably unlawful . Allegedly, DENR Deputy Secretary Dr. Ernie Carl met with the Martin appointees prior to the meeting, without public notice, to explain the administration’s view on the rules. Word of the meeting leaked to the public and the press. The Governor himself asked the EMC to try it again. Hearings had been held in Elizabeth City, New Bern, Kure Beach and Raleigh on successive nights in August . The hearings presented three options: (1) no stormwater regulations, (2) continue the existing rules for another year; and (3) new proposals.

The overwhelming majority of the 252 comments were against any relaxation of the existing regulations. Most commenters wanted the existing requirements extended outside the 575’ zone. They styled the rule changes as part of other “cave-ins” to developers, citing reclassifications of waters around Carolina Beach and Wrightsville Beach to lower classifications as examples. Business interests generally supported the new proposal. No one supported having no stormwater regulations. Many suggested following an approach similar to Maryland’s, to control the first 0.5 inch of runoff and have a 1000’ critical area with restrictions on development around sensitive areas. There were also professional licensing fights over whether professional engineers would get a monopoly in designing systems. The land surveyors and landscape architects managed to get a piece of the action.

DENR’s staff response noted that debates over the design storm had ranged from retaining the 2 year to the 100 year storm. Staff dismissed calls for complete detention of stormwater as not a recognized approach to a nonpoint source pollution problem, and as having led to the reclassification requests noted earlier. According to DEM staff, overly stringent controls tied to one water class—SA waters—would not assist the goal of trying to restore water uses, and would put pressure on the EMC to downgrade water classes in some areas with a resulting patchwork of water classes.

The early days of NC’s stormwater control exemptions for  “low density” development

In staff materials analyzing the options at hearing, a noted point of weakness in the existing regulations was “no controls for low density.” The standards proposed for the infiltration ponds were:

  • 1.5” of stormwater volume around SA waters, 1% elsewhere;
  • 85% TSS removal for detention ponds outside SA waters;
  • 5 day pond drawdown, 2’ separation to groundwater;
  • 25% built-upon area (BUA) without a stormwater system around SA waters, and 30% otherwise (the existing rules were 20% impervious cover in the first 75’, 30% out to 575 feet); and
  • 30’ building set-backs.

The switch from “impervious cover” to “BUA” was cited by staff as giving more flexibility; it allowed credits for partially pervious materials.

Several individuals noted that the proposed 50’ vegetative filters for overflow of design volumes might be effective for particulates, but not for soluble and very fine particulates, notably bacteria and nitrogen. A 1985 DEM study showed that fecal coliform levels increased below parking lot swales for three of five storms studied. Staff were very explicit that these rules were set up to encourage low-density development.

Maintenance and effectiveness of stormwater controls: long recognized as critical, to this day barely regulated

Mr. Jim Kennedy presented comments on behalf of the Coastal Federation. He noted that the fundamental issue to be dealt with was maintenance and effectiveness of the engineered stormwater control structures. He noted that there was “compelling evidence in the hearing record to expect 75% to 100% of the stormwater structures to fail due to lack of maintenance.” “The Federation was of the opinion that the 4-1/2 inch design storm that has been used successfully for the last year in North Carolina was a compromise… maintaining strong controls next to sensitive shellfish waters was the first priority.”

The problem of existing development: also long recognized as critical, also rarely regulated

Doug Boykin presented for the Alliance for Balanced Coastal Management. He noted that, in addition to the stormwater regulations, there was a need to map and reclassify waters appropriately and to seriously consider the impacts of existing development and other contributing factors to water quality.

The usual State response to known stormwater problems: an incremental kick of the can

Chairman Baker asked staff (Wilms, Everett) whether the proposed regulations would provide further protection of shellfish waters. Wilms responded: the proposals were technically sound and defensible and provided the flexibility that the Division and the regulated community need; they were an improvement over what was then in place. Nine voted in favor of the new proposal (lowered to 1-1/2”), six opposed. The new rules were codified at 15 NCAC 2H section .1000 (Rules .1001 through .1004), made effective Jan. 1, 1988.

Results of the mid-1980s efforts to solve coastal stormwater problems

The coastal stormwater rules put into place in 1987 did not cause the end of development in coastal North Carolina. To the contrary, population and development have increased at the coastal fringe significantly faster than planners in the 1970s had expected. For example, a comprehensive assessment of water quality issues by the Neuse Council of Governments in 1973 projected a population increase for the COG region P counties (Onslow, Wayne, Craven, Lenoir, Duplin, Carteret, Greene, Jones, and Pamlico) of 498,900 between 1970 and 2000, a 21% increase. The actual increase was 38%. The increase on the coastal fringe itself was much faster. Five of North Carolina’s ten highest growth counties from 1990 to 2000 were on the coast. The value of coastal real estate and the amount of real estate development in the high-growth areas of the coastal plain is staggering to a native North Carolinian over age 40.

Assessing the evolution of coastal water quality is more difficult. A review of coastal water quality conducted by Division of Water Quality staff for the EMC, as reported in November 2005, concluded that coastal water quality had deteriorated, primarily as a result of development permitted as low density development under the 1987 coastal stormwater rules. DWQ pointed to 56,446 acres of shellfishing suitable waters closed in NC, up from approx. 52,000 acres in 1988. These numbers themselves prove little, though, as over 300,000 acres were closed in 1984. Well over 300,000 acres are still closed in February 2015, with a  huge influx of closures due to inadequate resources for monitoring.

Closures occur for reasons other than coliform contamination. DWQ also pointed to a study of six coastal creeks conducted by Prof. Mike Mallin of UNC-Wilmington. All of these creeks had experienced more closures from 1988 to 2005. The monitoring data collected by the shellfish sanitation branch and the environmental health division concerned with beach sanitation is not directly usable to assess long term trends across coastal waters. In fact, it surprises many people to find that there is no real reliable indicator of overall water quality for North Carolina coastal waters generally. It is very hard to take the different measurements of pollutants that can be and are done and aggregate them over space and time to produce an accurate, reliable indicator.

What IS clear from this review of the history of one of the many patches of stormwater regulation in North Carolina is that nothing is easy when it comes to regulating widespread productive activity (like coastal development) that produces huge chronic effects, but not very dramatic acute effects. Therein lies the rub, or part of it, for stormwater regulation: as a species we seem hardwired to guard against the immediate, visible, localized threat, but we also seem wired to discount or even dismiss the longer term, less visible, generalized threat, even if it’s ultimately a more substantial threat to our lives and happiness. Since much of environmental regulation is concerned with these longer term, less visible, generalized threats, the law of environmental protection is never going to be simple or easy.