Significant Changes to the State’s Stormwater Management Program for Those Affected by Post-Construction Stormwater Management Permits – Real Estate and Construction

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Significant changes to North Carolina’s stormwater runoff law came into effect today as part of Sessional law 2021-158.

The changes to the stormwater program are incorporated into an environmental omnibus bill titled “An Act to Make Various Amendments to the Laws on Natural, Environmental and Cultural Resources of the State, as Recommended by the Quality Departments of the State. environment and natural and cultural resources ”(the“ “Act”). Introduced in March as Senate Bill 389, the law was ratified by the General Assembly on September 8, 2021 and signed by Governor Roy Cooper eight days later.

The main method used by the Environmental Quality Department (DEQ) to control stormwater discharges is to implement best management practices adapted to on-site activities aimed at reducing the sources of pollutants. DEQ’s Energy, Mineral and Land Resources Division (DEMLR) implements and enforces various North Carolina stormwater permitting programs for industrial, municipal and development activities. DEMLR’s Global Stormwater Licensing Program is a compendium of statewide stormwater control policies, strategies and regulations designed to protect surface water quality from the adverse effects of runoff.

Under the Post-construction stormwater program, DEMLR issues stormwater permits and enforces stormwater management for development in a 20-county coastal area in eastern North Carolina and other pockets of the state. Low density stormwater permits are perpetual and do not require technical stormwater control measures; instead, they limit the built-up area (BUA, also known as the impermeable surface) to a certain percentage of the entire development, often with boundaries per lot. High density permits are valid for eight years and must be renewed as they prescribe technical stormwater control measures with specific operation and maintenance requirements.

Section 4 of the act modifies the stormwater management program under § 143-214.7 of the North Carolina Bylaws in several ways:

1. Annual certifications

New stormwater permits and those reissued by transfer, amendment or renewal will require the permit holder to submit an annual certification of the project’s compliance with the permit conditions. DEMLR cannot require the license holder or their representative to submit annual certification and will need to update their online system to allow electronic submission of certification. Annual compliance certification is not considered “new or increased stormwater control,” which the law explicitly prohibits from applying to pre-existing development.

2. Transfer permit

Several provisions of the Act modify the process for transferring stormwater permits. Under normal circumstances, a licensee requests a license transfer shortly after the underlying property has been transferred to a successor owner. However, this does not always happen.

The Act expands the power of the DEMLR to transfer a stormwater license without the consent of the license holder or successor owner by allowing it to initiate a transfer of a license in a broader set of circumstances. The Act authorizes DEMLR to require that a license transfer request be submitted when:

  • the holder is (1) a deceased natural person; (2) a trade association which has dissolved, has completed the liquidation of the business and has no successor in title; (3) a person or entity having legally and definitively dispossessed of title to property by foreclosure, bankruptcy or other legal proceedings; or (4) a person or entity who sold the good,

and

  • the successor owner of the asset is (1) the person or entity holding the title; (2) the applicant for the right to carry out the authorized activity; (3) an association as defined by law; or (4) any other natural person, group of persons or entity deemed appropriate by DEMLR to operate and maintain the license.

Under the Act, the licensee and the successor owner will be required to jointly submit an application for the transfer of a stormwater treatment license, unless the license holder has died or a trade association is dissolved or if the successor owner asks DEMLR to accept the request without the licensee’s signature.

Under the Act, the licensee and the successor owner will be required to jointly apply for the transfer of a stormwater treatment license, unless the license holder has died or a trade association is dissolved or if the successor owner asks DEMLR to accept the request without the licensee’s signature.

If the license transfer conditions are met from July 1, 2021, DEMLR may require that the joint application be submitted within 90 days. If the license transfer conditions have been met before July 1, 2021, DEMLR may request a transfer request after confirming the transfer conditions and may require it to be submitted within 180 days of the request. If the conditions on the property are not in accordance with the approved plans and license conditions, the license transfer request will need to include an action plan with a timeline for achieving compliance within one calendar year. It may also require a permit modification request. Low density permit transfer requests may include a request to update the BUA limit under the new conditions discussed below.

If the licensee has sold the property or is the registrant of a condominium or planned community and the successor owner is an association, only the licensee is responsible for the action plan and schedule. of compliance and substantial compliance of the property with approved plans and permit conditions before DEMLR can transfer the permit. DEMLR cannot impose new or different design standards on a project without the prior express consent of the successor-owner of the property.

3. Built on zone limit overruns

A new permit modification request mechanism is available for low density stormwater permits that have exceeded the authorized BUA limits in order to bring these projects into compliance with the existing or amended BUA limit. A permit holder whose low density permit was issued before January 1, 2017 can request a permit amendment to limit the BUA to the existing amount that exceeds the authorized BUA limit. The law specifies the updated BUA limits for change requests based on whether the current BUA is less than or equal to 110% of the maximum BUA allowed under the permit. Compliance with an updated BUA limit will need to be reported as part of the new annual certification requirement. Projects, where the BUA exceeds 110% of the maximum BUA allowed under the permit, must mitigate the impacts of the exceedance by adding one or more stormwater control measures on the property before DEMLR can issue an updated permit.

4. Grandfather of Low Density Stormwater Certifications

For older developments approved under the New Stormwater Program, stormwater certifications and approvals issued before September 1, 1995 will be revoked effective January 1, 2022. The current BUA will be considered an existing development in under other provisions of the law. This processing will require that any future development on such projects or sites comply with the law and any restrictions relating to recorded acts.

5. Civil sanctions

Finally, the law extends § 143-215.6A to allow DEQ to impose a civil penalty of up to $ 25,000 for violations of any part of § 143-214.7. Civil penalties were previously limited to part of the law that was repealed in 2013.

What can happen?

The most significant impacts of the Act will likely be felt by developers of residential communities still designated as license holders and by community associations and their property management companies who oversee existing developments but are not current license holders. The provisions that address BUA exceedances of low density permit limits offer the best opportunity to solve a conundrum that frequently plagues communities – situations where homeowners add improvements, such as swimming pools, patios and landscaping, which exceed the BUA limits of the permit, and DEMLR refuses to transfer the permit for non-compliance even though neither the holder nor the association participated in the development activities that led to the exceedance. The advantage is that transfers of permits stranded along the coast can benefit everyone if done in a cooperative manner. But drainage areas that are overdeveloped and already subject to high water tables prone to flooding in the event of rain may not be able to cope with leaving excess BUA in place or supporting further development. Time and weather will tell.

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.


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