Thursday, July 10, 2008

Coastal Stormwater Rules are tweaked with new version passed through Senate Committee

Here's is a recent update from Willo Kelly, the extremely hard working Government Affairs Director for the Outer Banks Realtors and Home Builders, on the latest developments on the Coastal Stormwater Rules:

Special Legislative Alert

July 9, 2008

Stormwater Rules Update:

NC Senate Bill 1967, a bill that would disapprove the March 2008 EMC approved Coastal Stormwater Rules and that would super cede the current Coastal Stormwater Rules that have been in effect since 1995, was approved yesterday by the Senate Committee on Agriculture/Environment/Natural Resources. The bill now goes to the House committee for approval.

To clarify info included in the last Legislative Briefing:

The Coastal Stormwater permitting threshold for residential development is one acre of land disturbance (development which would require a Sedimentation and Erosion Control Plan or that requires a CAMA Major Permit).
If a permit is required, the low-density development thresholds are 12% built-upon area within 1/2 mile of SA Waters and 24% built-upon area outside 1/2 mile of SA Waters. If built-upon area exceeds that percentage, then a project would need to meet the requirements of a high density permit.
The non-residential(commercial, industrial, any development other than residential) permitting threshold for all twenty coastal counties is 10,000 square feet of built-upon area or development that requires a Sedimentation and Erosion Control Plan. There has not been language added to provide relief to those properties less than an acre and not contiguous to other commercial property outside of 1/2 mile of SA waters.
A 50 ft. vegetated buffer (defined in the rules) is required for new development and a maximum 30 ft. buffer is required for redevelopment. These buffer requirements only apply if you need to get a stormwater permit. It was anticipated that this would be changed back to the current 30 ft. requirement since a 50 ft. buffer is more restrictive than Phase II rules and a minimum requirement of a 30 ft. buffer is acceptable under the voluntary Universal Stormwater Management Program.
CAMA wetlands are now the only wetlands being excluded from built-upon area (impervious surface) calculations. The EMC rules excluded all wetlands - 404 and non-404 jurisdictional wetland from built-upon area calculations.
There is a provision [Section 2.(c)] that if you are not required to get a residential stormwater permit (over an acre of land disturbance as described above) but are within 1/2 mile of SA waters and will have residential development over 12% built-upon area and that built-upon area is over 10,000 sq. ft. impervious surface, then you will be required to obtain a special non-renewable, one time only permit which will be recorded with the deed or included with restrictive covenants. In calculating when this provision may apply - you would need a lot that is approx. 85,000 sq. ft for the minimum of 10,000 sq. ft built-upon area AND over the minimum 12 % threshold to kick in. With most towns/Counties allowing only 30% lot coverage - your lot would have to be approx. 33,000 sq. ft. to even be allowed to have 10,000 sq. ft of built-upon area.
Lots that are "platted" are not vested under the current rules. If you have a lot that is part of subdivision that has already been issued a stormwater permit, then you do not have to comply with these rules. Other exclusions to the rules are listed under Section 2.(d).
The effective date of the disapproval of the EMC rules is when the General Assembly adjourns. This is necessary so that the EMC rules do not become effective. The effective date of the implementation of these new rules will be October 1, 2008.
There are exclusions to the vegetative buffer requirement - they are listed under Section 2.(e).
There have been many questions about 15,000 sq. ft. lots in Colington and how would the rules apply to them - They would be exempt because you could not have 2/3 of the lot covered with impervious surfaces (10,000 sq. ft) and you would not have one acre of land disturbance.
A map of SA waters can be found at here. There are no SA waters in Currituck County and only in parts of Dare County.
Senate Bill 1967 is attached and a handy, easy to follow flow-chart outlining the permitting thresholds and requirements of the rules.

Updates will follow as soon as new information becomes available.

Willo Kelly
Government Affairs Director
Outer Banks Home Builders Association
Outer Banks Association of Realtors