White Paper

Stormwater Management Plan

By Sue Forde, Researcher/Analyst
North Western Research Institute

August 26, 2002

Preface

Clallam County, WA is considering implementing a new stormwater management plan, as is the City of Port Angeles.  Both proposed plans incorporate the “Model” Stormwater Management Manual prepared by the Washington State Department of Ecology (DOE) (2001).

Clallam County already has a stormwater management plan ordinance dated January 18, 1994.  It authorizes the Public Works Department to develop guidelines for stormwater systems.  It uses the 25-year frequency, 30-minute duration storm as its baseline for design, which would indicate the main purpose is for the protection of life and property.

Clallam County also has stormwater management written in the Critical Areas Code, which incorporates more extensive requirements and regulations[1].

Now, Clallam County is reviewing the DOE’s Model Stormwater Management Manual (2001) with the strong possibility of incorporating it into a new ordinance or amending an existing one.  The model plan would affect every property in the county that had plans for building new or additional structures, including housing, roads, patios, and barns, to name a few.

The model plan calls for highly restrictive building permits, with inspections, monitoring and enforcement each playing a part.  Not only would the property owner’s right to use his property to his own highest and best use be restrained, but the cost to the property owner, taxpayer and the county itself would be enormous, as this paper will show.

The plan is a voluntary one – one that is not required by law, and even if it were, would probably not be enforceable due to budget restraints at the state level, according to DOE’s Ed O’Brien, one of the writers of the model plan.  The plan far exceeds the national minimum requirements.[2]

The plan is experimental.  The results have not been tested with sound science to determine if they will accomplish the goals.[3]  In fact, according to one report, the observations spanning a wide variety of streams showed an “absence of observed instability”. [4]  “Models” are used as the means of determining the effects of impervious area and clearing.[5]  Models can be skewed to obtain whatever results one wishes, like polling.

In this paper, we will touch on a number of areas that were brought forth by the DOE upon making their presentation.

Background:

The Washington State Department of Ecology (DOE) originally developed a stormwater manual in 1992 by directive of the Puget Sound Water Quality Management Plan (PSWQM Plan). It covered the Puget Sound area.

According to DOE, new federal regulations under the Clean Water Act and the Safe Drinking Water Act, as well as state regulations under the Growth Management Act (GMA), made it necessary to expand the area and scope of the stormwater manual. 

Changes in the federal stormwater regulations and proposed and actual listings under the Endangered Species Act (ESA) call for “significant changes in the way we manage urban runoff.”

The manual has been updated to expand the applicability of the regulations beyond Puget Sound to all of Western Washington.[6]

A new “model” stormwater management manual was issued by DOE in 2001 for Western Washington; another is currently being written for Eastern Washington.

Of note is that significant changes in the manual, according to DOE, is “changing the thresholds for selection of Best Management Practices (BMPs) to require nearly all projects to use appropriate[7] on-site stormwater management techniques…”

It is important to define the term “stormwater” here.  According to the DOE, “stormwater” is the “water that runs off surfaces such as rooftops, paved streets, highways, and parking lots.  It can also come from hard, grassy surfaces including lawns, play fields, as well as graveled roads and parking lots.”

Federal Unfunded Mandate: The NPDES Permit

Under the Clean Water Act as amended in 1987[8], the discharge of “stormwater” from “certain industries and municipalities” to be a “point source” of pollution requiring National Pollutant Discharage Elimination System (NPDES) permits or water quality discharge permits.  According to DOE, Washington State is delegated authority by the U.S. Environmental Protection Agency (EPA) to implement the water quality permit program.[9]

There are two phases of stormwater regulations under the EPA: 

Phase I covers certain industries and construction sites involving five or more acres, and municipalities with a population of more than 100,000.  Cities like Seattle and Tacoma are covered under this requirement.

Phase II, signed by EPA in December 1999, expands the requirement for stormwater permits to all municipalities located in urbanized areas, and to construction sites between one and five acres.  It also requires an evaluation of cities outside of urbanized areas that are more than 10,000 in population to determine if a permit is necessary for some or all of these cities[10].

Issues with the Federal Mandate:

In a statement before the Senate on March 1, 2000, Montana Governor Marc Racicot stated the problem with the EPA rules.  He said, “…the rules create a presumption that a state's entire TMDL [Total Maximum Daily Load] program, including its process and methodology of identifying impaired waters, prioritizing those waters, developing TMDLs for those waters, and addressing nonpoint sources in its TMDL process, are all subject to EPA's approval.

“In effect, the rules provide EPA with a ‘veto’ power over a state's entire TMDL program. This is not a power envisioned by Congress when it granted EPA a limited oversight role to review a state's submission of lists and TMDLs under section 303(d). The State of Montana objects to the imposition of regulations establishing regulatory requirements over every component of a state's TMDL program when Congress has not sanctioned that approach.” [11]

Further, the Tenth Amendment to the U.S. Constitution prohibits Congress from requiring State and Local Governments to utilize their regulatory authority to implement the Clean Water Act.[12]

In essence, the 303(d) rules are an “unfunded” mandate by a federal agency that may have exceeded its authority as granted by Congress.  The same often holds true with the Washington State Department of Ecology, as several newspaper articles have noted.[13]

DOE states in its manual that either Ecology’s manual or an equivalent manual is required for all municipalities currently covered under NPDES Municipal Stormwater Permit.

To incorporate either would result in huge layers of bureaucracy, rules and regulations, permits, fees, and an overwhelming cost to rural communities such as those in Clallam County.

No Regulatory Authority unless Ordinances Passed

The DOE manual states, “The manual itself has no independent regulatory authority. The minimum requirements and technical guidance in the manual only become required through: Ordinances and rules established by local governments; and, Permits and other authorizations issued by local, state, and federal authorities.”

The stormwater management plan is optional, not mandatory.  Once a local government reviews the contents of the 1,033 pages, along with the economic effects, that becomes a crucial consideration.

The stormwater management plan is an experiment, and DOE doesn’t know whether it will produce the results they want.  In order to achieve their long-term goals will require “drastic changes in where and how land is developed and how people live and move across the land… to preserve, maintain and restore the beneficial uses of our nation’s waters.” [14]

The effects of “urbanization” according to DOE

In reviewing the first section of the manual, it quickly becomes apparent that the culprit causing “pollution” is man, and that the goal is to “restore” the environment to a “pre-Euro-American settlement”. Examples include the statement that “natural” soil structure is lost due to grading and compaction;  “trees are logged and land is cleared for the addition of impervious surfaces such as rooftops, roads, parking lots and sidewalks.” Results of these man-induced activities supposedly include increased flooding; streams losing their “hydraulic complexity”, habitat being degraded and receiving water species composition altered. [15]  There is no scientific evidence to support these statements.

Runoff from urban areas “has been shown” to contain many different types of pollutants, depending on the nature of the activities in those areas.  To support this statement, the manual points to a city in Oregon where urban runoff water was monitored.[16]

There are 1,739 square miles in Clallam County – an average of 37.1 persons per square mile – as compared to 817 per square mile in King County [17], or 417.4 per square mile in Pierce County[18].

The Role of Land Use and Lifestyles

DOE states that “land use” decisions are not the issue of the stormwater manual.  They continue, saying that the methods set out in the manual can only “reduce” the impacts of development to water quality and hydrology.  But they cannot “replicate the natural hydrologic functions of the natural watershed that existed before development, nor can they remove sufficient pollutants to replicate the water quality of pre-development conditions….This is because land development, as practiced today, is incompatible with the achievement of sustainable ecosystems.”[19]

Examples of “sustainable ecosystems” include a dramatic reduction in the amount of impervious surfaces and artificially landscaped areas, a dramatic reduction in surfaces to provide “car habitat”, more reliance on rail, bicycles and walking for transportation; and changing “public attitudes” toward preferred housing.[20]

According to one report offered by DOE, there would be “virtually no improvement in stream conditions from typical detention ponds.  Even if they could be designed to be hydrologically effective, ponds cannot avoid other key problems such as disruption of storm flow patterns, increase winter storm volumes, or declining base flows.”[21]

The Cost - The effect on business: 

In an economy still reeling from lost timber and fishing revenues, every method toward maintaining and building a viable economy in Clallam County is important.  The model Stormwater Management Plan would virtually shut down new small business construction, however.  According to DOE, the cost just to implement the stormwater requirements for a one-acre commercial lot without infiltration would cost between $230,000 - $570,000.[22]

Increase in Property Tax:  Using the above example, a property that was similar to the one required to pay an extra $570,000 would now have its value for taxation raised to equal that of the new neighbor.  The existing taxpayer would be paying taxes on the increase, as would the new owner of the property.

Decrease in Tax Revenues:  Taking that same scenario, the business owner would probably go somewhere other than Clallam County to build his business.  That would be a loss of potential tax revenue, not to mention the loss of potential sales tax revenues he would have paid for operating a business in Clallam County.

The Cost - The Effect on Building Homes

The cost of homes in Clallam County is high compared to the average income. The median income per household for Clallam County is $34,376 (which includes government employees).[23].

For a 4 home small subdivision, the DOE’s example showed that the cost would be between $230,000 – $240,000. for stormwater management plan compliance.[24]  (This would add $57,500 - $60,000 to the cost of each home sold.)  Using the DOE’s example, a $133,400 home[25] would now become a $193,400 home, pricing many people out of the housing market altogether.  The real estate taxes would also be increased, adding to the unlikelihood that especially younger potential buyers would be able to purchase a home.

To the homebuilder would be added the cost of a staff person to “take care of the requirements,” according to DOE.  There would be the additional expense of training and certification for the staff person.

In addition, the property owner bears the “duty” to maintain, repair and renew, at their own expense, all private stormwater disposal systems located on their property.  Should private stormwater facilities not be maintained in accordance with local government standards, then the local government may choose to perform the necessary maintenance and charge the property owner or the local government may condemn the property and a ‘health and safety nuisance’ and assume ownership.[26]

People live in Clallam County for a reason.  They love the rural aspect, the ability to have a bit of ground to call their own and some privacy from their neighbors.  Some enjoy the extra space for gardening; others want a horse or two for their children to enjoy.  It’s the reason many give up higher income opportunities to move to the rural county.

DOE’s answer is “LIDs”.  Low Impact Development – read close-in condominium, zero lot line, or other “compact” housing, like the neighborhoods in Seattle or Tacoma already have.  It defeats the purpose of rural living, and the choice to live where a person wants to live.

While LIDs are touted at the answer to the problem, in reality it is a relatively new and untried concept, pioneered by Prince George’s County, Maryland in the early 1990s.  One report admits that “although traditional stormwater control measures have been documented to effectively remove pollutants, the natural hydrology is still negatively affected…which can have detrimental effects on ecosystems, even when water quality is not compromised.”[27]  Another suggestion offered in the report was to vegetate roofs, as is done in Germany.

The Cost - To the County (or City)

To implement the model plan will require more government employees in the Department of Community Development (DCD).  There will be a need for planners to plan, stormwater site reviewers, inspectors, monitors, maintenance, legal review, and enforcement officers.  There will also be the expenses of revenue collection, additional office space, telephones, computers, equipment and supplies.

In addition, there would be the cost to comply with the requirement for an “annual inspection” as a minimum requirement. The inspections would be required whenever there is “cause to believe there is a violation”.[28]  This would be burdensome not only for the county, but for the private property owner, who would have to defend his property from an angry neighbor who may have turned him in for “belief that there was a violation.”

At a time when the budget is so tight that a tax increase is being proposed to the people for law enforcement coverage, this is an area of great consideration. 

The plan to pay for the costs to the county is recommended by DOE as a “storm or surface water utility” fee.  Other possibilities include permit fees and drainage impact fees or revenue bonds – all added expense to the taxpayers of the local government.

Local government would also be subject to the requirements under the manual, adding to the cost of government in additional fees as exampled below.[29]

The Cost – To the Taxpayer

In addition to the other, higher taxes already mentioned, tax money would probably be used for grants toward covering some of the county staffing charges, at least initially.  Subsidized housing would also become more prevalent (which is taxpayers’ money used to pay someone else’s mortgage), as more people were unable to afford housing on their own.

Words Mean Things

We already defined “stormwater.”  There are a couple of other definitions that would be appropriate here: all definitions are from the DOE in the model stormwater management manual.  Take time to carefully consider the words contained in the glossary.

Objective

DOE states that the 2,000 square feet threshold for impervious surfaces and 7,000 square foot threshold for land disturbance are chosen to capture most single family home construction and their equivalent. All projects meeting the thresholds in Section 2.4 shall prepare a Stormwater Site Plan for local government review. There are two categories:

New Development - Creates or adds 2,000 square feet, or greater, of new, replaced, or new plus replaced impervious surface area, or has land disturbing activity of 7,000 square feet or greater.  These will fall under the minimum requirements.  There are additional requirements under certain circumstances.[30]

Redevelopment - The new, replaced, or total of new plus replaced impervious surfaces is 2,000 square feet or more, or 7,000 square feet or more of land disturbing activities. These will fall under the minimum requirements.  There are additional requirements under certain circumstances.[31]

See the attached flowchart for an easy-to-follow view of what property would be required to comply.

Even development or redevelopment less than 2,000 square feet of impervious surfaces or less than 7,000 square feet of land disturbing activity must still “consider all 12 elements of stormwater management” and “develop controls for all elements.”[32]

(See Elements 1 thru 12 in the model manual beginning on page 62).

DOE requires that the local government’s plan be at least as stringent as theirs.  It also allows local government to charge a “fee in lieu of” complying with stormwater requirements.  Sites that pay a fee are allowed to continue without stormwater controls.[33] It would appear that such a payment-in-lieu would defeat the purpose of the DOE’s goals.  Perhaps the real goal is money and power for unaccountable agencies, rather than protection of the environment.

Conclusion

It appears from the evidence contained in this report that the desire of certain government agencies is to implement regulations that (a) are not mandatory; (b) use unproven “modeling” to determine what may or may not result; (c) are extraordinarily costly in terms of dollars and time; (d) exceeds even the strict national guidelines set forth by the EPA; (e) would not be sufficient without additional regulations to follow later; and (f) the goal of which is to return property to “pre-Euro-American settlement” condition.

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North  Western Research Institute(www.nwri.org)  is a Washington nonprofit corporation whose goal it is to  educate the general public about the changing form of governance in the United States and how it presently or will affect their health and welfare. Sue Forde can be reached at 360-681-3023 after 6 p.m. or via email at sforde@olypen.com.  Sue Forde is the managing editor of Citizen Review Online, (www.citizenreviewonline.org). Copies of this White Paper and the attachments made be ordered from North Western Research Institute, P. O. Box 3157, Sequim, WA 98382 for $2.50 to help defer copy costs and mailing.