July 28, 2018. In addition to the environmental policy changes in the budget, several bills amended environmental laws. Among the more significant changes:
Stormwater. Sec. 14 of House Bill 374 (2018 Regulatory Reform Act) directs the Environmental Management Commission to study delegated local stormwater programs to identify: 1. local governments that enforce requirements exceeding those in state law, including requirements for inspection and maintenance of stormwater systems; and 2. those that since August 1, 2015 have taken enforcement actions based on requirements under a Total Maximum Daily Load (TMDL) calculation or NPDES permit that exceed the requirements in state law.
When a water body chronically violates a water quality standard, the Clean Water Act requires a limit on discharge of the problem pollutant to eliminate the water quality violation – a “total maximum daily load”. The TMDL caps total releases of the pollutant to the impaired water body. Each wastewater treatment plant or industry that discharges wastewater directly or indirectly to impaired waters receives a permit limit for the pollutant; the sum of all the permitted discharges cannot exceed the cap. In areas like the Jordan Lake watershed, stormwater rules have been used as an additional tool for meeting a TMDL for nutrient pollution by also reducing the release of nutrients in runoff. The H374 provision refers to this use of stormwater regulation as part of a larger TMDL for nutrient pollution and enforcement of the TMDL through a federal stormwater discharge permit.
The provision is the most recent in a series of legislative efforts to limit the scope of local as well as state stormwater requirements. It’s interesting that the bill specifically targets local requirements for inspection and maintenance of stormwater systems that may be required to comply with state and federal law. It isn’t clear how local enforcement actions “based on requirements under a Total Maximum Daily Load (TMDL) calculation or NPDES permit” could exceed requirements in state law since the state develops the TMDLs and issues the NPDES permits.
Coastal Stormwater. Sec. 16 of House Bill 374 in effect creates a new coastal stormwater exemption for older subdivisions. State coastal stormwater rules require residential subdivision development near sensitive coastal waters to control stormwater to reduce pollutant runoff. The stormwater management plan often includes limits on the amount of paved or built-on area in the subdivision to provide adequate natural area to absorb runoff. The impervious surface limits appear in the developer’s stormwater permit for construction of the subdivision. Once the subdivision has been significantly built out, the developer typically transfers ownership and control over all common areas — including the stormwater system — to a homeowners’ association. To insure stormwater standards continue to be met, coastal stormwater rules require the developer to reflect those impervious surface limits in the development’s restrictive covenants. People who buy or build in the subdivision are bound by the restrictive covenants, which can be enforced by the HOA or the state. There have been a few sympathetic situations in the past where a developer turned a subdivision that was already in violation of its stormwater permit over to the HOA, leaving the HOA to contend with an immediate enforcement action. But there have also been situations where subdivision residents added impervious surface (expanded parking areas, storage buildings, home additions) in violation of the restrictive covenants after the developer left the picture.
The new provision applies to subdivisions platted 20 or more years ago without regard to when construction in the subdivision actually began. Under H374, a subdivision with excess impervious surface will be “deemed to be in compliance” with the impervious surface limits in state stormwater rules if the HOA didn’t receive a notice of non-compliance at the time responsibility for the system transferred from the developer to the HOA.
The provision may have unintended consequences. First, it’s not clear how the provision will affect enforcement actions against a developer who violated the stormwater permit during construction since the law “deems” the subdivision to be in compliance. The provision also allows a subdivision to retain impervious surface added long after transfer of ownership from the developer in violation of subdivision restrictive covenants. In these older platted subdivisions, H374 deems all excess impervious surface added before January 1, 2017 to be in compliance with the stormwater rules.
Swine waste management. The 2018 Farm Act, Senate Bill 711 greatly limits nuisance lawsuits against swine operations. See an earlier post for an in-depth discussion of S711. The new law only applies to nuisance claims filed after S711 became law, so it does not affect dozens of nuisance claims already filed on behalf of people living near swine farms. Although clearly a response to the swine farm nuisance lawsuits, the new restrictions on nuisance claims apply to any kind of agricultural or forestry operation.