State water quality officials are continuing to press forward with more and more strict regulations for stormwater runoff. In response, planners and developers are worried about the cost of implementation and potentially unintended consequences.
The regulations — adopted in some regions and under consideration in others — generally require measures to ensure that runoff from new development is not much greater in volume or worse in quality than runoff from the site prior to development. The idea is to prevent new development from further worsening state water quality problems.
But developers complain that their projects are being overburdened, and planners question what the rules' impact could be on infill and redevelopment sites where there is little or no impermeable soil to help capture and infiltrate runoff.
Water quality officials are clearly sensitive to the criticism. The process for adopting stormwater regulations for South Orange County and Ventura County has slowed dramatically while officials re-evaluate proposed rules and conduct additional stakeholder meetings.
"Stormwater is one of the issues that is going to be driving land use decisions," said Clark Anderson, water and land use specialist for the Local Government Commission. "Site design is going to be driven by how you handle stormwater."
The technical details can be overwhelming, though. "There is a tremendous amount of water quality regulation that is going on, and it's very technical and complex," summed up Mary Lynn Coffee, an attorney with Nossaman, Guthner, Knox & Elliott who frequently represents the building industry.
With great advances in treating municipal sewage and industrial discharges, stormwater runoff (which is basically water that flows over urban surfaces) has emerged as the biggest threat to water quality. This is especially true for coastal waters along metropolitan areas such as Los Angeles.
"Pollutants span the spectrum from litter and debris to pet waste to pesticides and fertilizers washing off landscaped areas to road dust and leaking vehicle fluids," said Judie Panneton, a research analyst and spokeswoman for the State Water Resources Control Board. "New development and redevelopment plays a role in the big picture because stormwater quality controls can be considered at an early stage of the planning process and integrated into the overall design of the project."
While the regulations and development techniques vary from region to region and even city to city, the policy generally gets condensed into a two-part equation, explained Lisa Nisenson, a Florida-based consultant who has reviewed and commented on numerous stormwater regulatory schemes in California and elsewhere. In a piece for the Planetizen website, she wrote that the equation is thus: "(1) The postdevelopment hydrology profile equals the predevelopment hydrology profile of a development site, and (2) predevelopment hydrology equals the hydrology of a meadow. That is, any new development or redevelopment project must be designed with the infiltration and runoff characteristics of an open field."
That sounds great to many people, Nisenson said, but it's not necessarily the right approach because it does not consider the big picture of land use patterns across a watershed.
"A lot of the model projects for capturing runoff have been in the wrong places. You've got to consider where the project is located in addition to how a project deals with its stormwater," Nisenson said.
It is often much easier to design "model" stormwater systems in greenfield development sites. But the design often relies on large lots or cluster development with expansive areas dedicated to soaking up runoff. The end result, though, is a big urban footprint — including roads — in a previously undeveloped area. How, she asks rhetorically, is that better for the environment than making more efficient use of already developed areas?
This was one of the major concerns with the stormwater regulations proposed for Ventura County by the Los Angeles Regional Water Quality Control Board. The proposed regulations (contained in the MS4 permit for county and its 11 cities) emphasizes "low impact development" or LID. The LID approach is what Nisenson describes as the development-site-as-meadow approach, and it makes infill and redevelopment very difficult (see LID sidebar). In turn, it drives development to greenfield areas. But in Ventura County there is the further complication of voter-approved urban limit lines that make most potential greenfield development sites off-limits. It started to sound like a no-growth scenario.
The regional board responded by proposing that cities could develop "redevelopment project area master plans." The plans would contain a strategy for dealing with stormwater in existing urban areas, rather than requiring site-by-site stormwater measures that are difficult in infill or redevelopment situations. Developers might end up paying in-lieu fees for larger stormwater management systems. The regional board would have authority to approve or reject the plans. How practical these plans might be for cities and developers to implement remains unknown, although infill proponents such as Nisenson have expressed support for at least the concepts. In late February, the Los Angeles regional board staff conducted an extensive meeting with stakeholders and consultants on the proposed regulatory package.
Stephen Cain, a spokesman for the Los Angeles regional board, hesitated to comment on what he termed "truly a draft document." The regulations are not scheduled to come before the board until July, and there is no guarantee the board will adopt them, said Cain, who declined to provide answers to specific questions.
Coffee called the proposed Ventura County MS4 permit "a microcosm of all the most stringent runoff regulations that are out there." The proposed regulations for both Ventura County and South Orange County emphasize low impact development. Low impact development also is an emphasis in San Diego County, where the regional board adopted the first of the major stormwater revisions in January 2007, according to attorney Susan Hori, of Manatt, Phelps & Phillips in Costa Mesa. The San Diego permit requires that LID "best management practices" be implemented for "priority development projects," which include subdivisions of at least 10 units, hillside development of more than 5,000 square feet, industrial development of at least one acre, and anything involving at least 5,000 square feet of paved surfaces.
Gary Brown, executive director of Orange County Coastkeeper, contended that the emphasis on LID is appropriate. "It's a repackaging of a lot of concepts to capture and infiltrate water on-site," he said. Brown calls the argument that LID mandates will prevent redevelopment "disingenuous." There are many emerging technologies that could be implemented, such as porous concrete, common driveways and various filters that require little maintenance, he said.
"To me, what's important is not to tell a developer what to do, but to set up some goals and objectives for what runs off of a property," Brown said.
And therein lies a rub. Most regulations are fairly prescriptive, while both developers and planners would rather been given runoff rate and pollution targets and the freedom to figure out ways to hit the targets.
"I think the development industry has gone from a position of ‘No we can't do it, no we can't do it,' to recognize the goal and to say, ‘Here's the technical information we can provide'," said Coffee.
The process for adopting heavily prescriptive stormwater regulations has slowed, suggesting that a more cooperative approach might emerge as the regional board consider new stormwater regulations this year.
"Blanket regulations tend to come back and bite you," Nisenson warned. "The different performance standards will create an uneven playing field between places that adopt them and places that don't."
Last year, state lawmakers approved a measure that requires formation of a stormwater advisory task force to assist the State Water Resources Control Board with "program priorities, funding criteria, project selection, and interagency coordination of state programs that address stormwater management." The legislation (AB 739, Laird) also requires the state board to prepare a "comprehensive guidance document" for measuring municipal stormwater management programs. While much of what AB 739 addresses concerns the performance of storm drainage systems, development standards are at issue. The task force includes environmentalists, government officials and representatives of the Building Industry Association of Southern California and the Western States Petroleum Association. The first meeting is scheduled for this month.
Mary Lynn Coffee, Nossaman, Guthner, Knox & Elliott, (949) 833-7800.
Lisa Nisenson, Nisenson Consulting, (941) 822-0338.
Clark Anderson, Local Government Commission, (916) 448-1198.
Gary Brown, Orange County Coastkeeper, (714) 850-1965.
San Diego Regional Water Quality Control Board stormwater website: www.waterboards.ca.gov/sandiego/programs/sd_stormwater.html
Los Angeles Regional Water Quality Control Board stormwater website: www.waterboards.ca.gov/losangeles/water_issues/programs/stormwater/index.shtml
Natural Resources Defense Council stormwater strategies: www.nrdc.org/water/pollution/storm/stoinx.asp
Do You Know LID When You See It?
What is "low impact development"? In some ways, the term has become similar to "smart growth" in that LID can mean whatever someone wants it to mean. In some Eastern states, for example, large-lot greenfield subdivisions on the edge of town qualify as LID, while dense redevelopment projects do not qualify, even though the latter adds virtually no impermeable surfaces to a watershed.
The State Water Resources Control Board defines LID this way: "Low Impact Development (LID) is a sustainable practice that benefits water supply and contributes to water quality protection. Unlike traditional stormwater management, which collects and conveys stormwater runoff through storm drains, pipes, or other conveyances to a centralized storm water facility, LID takes a different approach by using site design and storm water management to maintain the site's pre-development runoff rates and volumes. The goal of LID is to mimic a site's predevelopment hydrology by using design techniques that infiltrate, filter, store, evaporate, and detain runoff close to the source of rainfall."
Like many definitions of LID, state water board's definition presupposes that the development site was previously undeveloped.
The Natural Resources Defense Council (NRDC) has been a leading proponent of LID nationwide and has done extensive research on the most-effective LID practices. The NRDC has this to say about LID: "LID is simple and effective. Instead of large investments in complex and costly engineering strategies for stormwater management, LID strategies integrate green space, native landscaping, natural hydrologic functions, and various other techniques to generate less runoff from developed land. LID is different from conventional engineering. While most engineering plans pipe water to low spots as quickly as possible, LID uses micro-scale techniques to manage precipitation as close to where it hits the ground as possible. This involves strategic placement of linked lot-level controls that are "customized" to address specific pollutant load and stormwater timing, flow rate, and volume issues.
"One of the primary goals of LID design is to reduce runoff volume by infiltrating rainfall water to groundwater, evaporating rain water back to the atmosphere after a storm, and finding beneficial uses for water rather than exporting it as a waste product down storm sewers. The result is a landscape functionally equivalent to predevelopment hydrologic conditions, which means less surface runoff and less pollution damage to lakes, streams, and coastal waters," according to the NRDC.
The San Diego Regional Water Quality Control Board requires LID for most development projects. The regional board defines LID this way: "A stormwater management and land development strategy that emphasizes conservation and the use of on-site natural features integrated with engineered, small-scale hydrologic controls to more closely reflect pre-development hydrologic functions."
The San Diego region considers LID best management practices to include maximizing infiltration, stormwater retention, slowing runoff, minimizing impervious footprints, directing runoff into landscaping, clustering development, and incorporating features such as rooftop gardens and permeable paving.
Caltrans Agrees to Clean Up Freeway Runoff
When it comes to polluted runoff, roads are king. Roads are covered with petroleum products, metal shavings and trash. In addition, roads are designed, for safety reasons, to disburse water quickly, which ensures the pollutants move quickly to rivers, lakes and the ocean, and which encourages soil erosion.
All this explains why the Natural Resources Defense Council and Santa Monica Baykeeper targeted Southern California freeways in litigation originally filed during 1993 in U.S District Court in Los Angeles. The environmental groups and Caltrans finally settled the litigation earlier this year.
The settlement requires Caltrans to reduce runoff pollution from its 1,000 miles of freeways in Los Angeles and Ventura counties to 20% less than 1994 levels by 2011. How exactly Caltrans will achieve this reduction is not spelled out in the settlement in Natural Resources Defense Council v. California Dept. of Transportation, Case No. 93-6073.
Environmentalists said that the specific numeric targets to which Caltrans agreed are the most important part of the settlement, and could serve as a model for Caltrans elsewhere in the state and for other agencies. Among the measures Caltrans could employ are roadside sand traps, catch basins and porous concrete, all of which would slow runoff and absorb contaminants.
Caltrans has resisted implementing such measures previously, but a federal judge in the NRDC litigation ruled that the environmentalists could sue to force Caltrans to implement best management practices for controlling stormwater. The Ninth U.S. Circuit Court of Appeal upheld that ruling. Caltrans has been closed-mouth about how it intends to achieve the specified reduction in pollutants.
The NRDC said full implementation of the settlement will prevent 6 million pounds of pollutants, including 24,000 pounds of toxic metals, from flowing into waters that drain into Santa Monica Bay.