As anyone
who develops land in or around North Carolina’s cities knows, structural
stormwater management is required in much of the State, predominantly
under Phase II of the National Pollutant Discharge Elimination System,
the Water Supply Watershed Protection Program, the Neuse and Tar-Pamlico
River Basin nutrient management programs and the State Stormwater
Program (see map below for geographical coverage of existing stormwater
programs). However, there are many rural areas in North Carolina that
currently are not subject to any stormwater management regimes. Not for
much longer.
Session Law 2008-198
On
August 8, 2008 Governor Easley signed into law Session Law 2008-198.
Section 8 of S.L. 2008-198 establishes a new stormwater management
regime that will “fill in the gaps” left by the existing patchwork of
regulations, and will be codified as Article 4A in Chapter 113A of the
General Statutes.
This
legislation applies to new “vehicle surface areas,” which are defined as
areas primarily used for parking private passenger vehicles. This means
the legislation does not apply to areas primarily used for parking
commercial transport vehicles, buses and motor homes, among other
things. “Vehicular surface area” includes access drives, medians,
traffic islands and other traffic control devices contained wholly
within the parking area in question, but does not include covered
parking areas or multi-level parking decks. The legislation applies
only to vehicle surface areas of at least one acre in size, and only in
areas of the State not covered by the existing stormwater regulations.
The
operative provision of the legislation requires that either: (1) 20% of
any vehicular surface area be pervious; or (2) the stormwater runoff
generated by the first two inches of rain that falls on at least 20% of
a vehicular surface area must drain to an engineered bioretention area.
I am informed that local government regulators may have fits applying
the second option to projects under review. Note that the second option
can be satisfied only with bioretention areas, and not detention ponds,
constructed wetlands or other BMPs.
Section
8 of S.L. 2008-198 will apply to any project for which a building permit
is applied for on or after April 1, 2009.
Session Law 2008-211
The
General Assembly also recently made changes to the Coastal Counties
stormwater regulations. The “Coastal Counties” are Brunswick, Carteret,
New Hanover, Onslow, Pender, Beaufort, Bertie, Camden, Chowan, Craven,
Currituck, Dare, Gates, Hertford, Hyde, Pamlico, Pasquotank, Perquimans,
Tyrrell and Washington.
The
Environmental Management Commission recently adopted changes to the
Coastal Counties regulations, which are codified in 15A NCAC 02H.1005.
A hue and cry was raised by parties aggrieved by the new regulations,
and the General Assembly sprung into action. In record time the General
Assembly received input from stakeholder groups, and passed Senate Bill
1967, which became Session Law 2008-211 when it was signed into law by
Governor Easley on August 9, 2008. S.L. 2008-211 replaces both the
former Coastal Counties stormwater regulations and the new ones adopted
by the EMC, and will become effective October 1, 2008.
Conclusion
Developers of land in areas of North Carolina not covered by the
existing stormwater management programs would be well-advised to assess
the effect of S.L. 2008-198 on any existing or planned projects.
Developers with projects that will be affected by S.L. 2008-198 should
apply for building permits before April 1, 2009 if at all possible.
Developers in the Coastal Counties should assess the effect of S.L.
2008-211, which will become effective October 1, 2008, with the old
Coastal County regulations remaining in effect until then.
For
more information on this topic or other real estate development related
issues, please contact
Paul Arena at
parena@poynerspruill.com
or at 704.342.5297.
