15A NCAC 02B .0277. FALLS RESERVOIR WATER SUPPLY NUTRIENT STRATEGY: STORMWATER MANAGEMENT FOR NEW DEVELOPMENT

The following is the stormwater strategy, as prefaced in 15A NCAC 02B .0275, for new development activities within the Falls watershed:

(1)           PURPOSE.  The purposes of this Rule are as follows:

(a)           To achieve and maintain the nitrogen and phosphorus loading objectives established for Falls Reservoir in 15A NCAC 02B .0275 from lands in the Falls watershed on which new development occurs;

(b)           To provide control for stormwater runoff from new development in Falls watershed to ensure that the integrity and nutrient processing functions of receiving waters and associated riparian buffers are not compromised by erosive flows; and

(c)           To protect the water supply, aquatic life and recreational uses of Falls Reservoir from the potential impacts of new development.

(2)           APPLICABILITY.  This Rule shall apply to those areas of new development that lie within the Falls watershed and the planning jurisdiction of a municipality or county that is identified in 15A NCAC 02B .0275.  This Rule shall not apply to development activities on state and federal lands that are set out in Rule .0281 of this Section.

(3)           REQUIREMENTS.  All local governments subject to this Rule shall develop stormwater management programs for submission to and approval by the Commission, to be implemented in areas described in Item (2) of this Rule.  Nothing in this Rule preempts local governments from establishing requirements that are more restrictive than those set forth in this Rule.  Local government stormwater management programs shall include the following elements and the standards contained in Item (4):

(a)           The requirement that a stormwater management plan shall be submitted for local government approval based on the standards in Item (4) for all proposed new development disturbing one-half acre or more for single family and duplex residential property and recreational facilities, and 12,000 square feet or more for commercial, industrial, institutional, multifamily residential, or local government property;

(b)           A plan to ensure maintenance of best management practices (BMPs) implemented to comply with this rule for the life of the development; and

(c)           A plan to ensure enforcement and compliance with the provisions in Item (4) of this Rule for the life of the new development.

(4)           PLAN APPROVAL REQUIREMENTS.  A developer's stormwater plan shall not be approved by a subject local government unless the following criteria are met:

(a)           Nitrogen and phosphorus loads contributed by the proposed new development activity shall not exceed the following unit-area mass loading rates for nitrogen and phosphorus, respectively, expressed in units of pounds/acre/year: 2.2 and 0.33.  Proposed development that would replace or expand structures or improvements that existed as of December 2006, the end of the baseline period, and that would not result in a net increase in built-upon area shall not be required to meet the nutrient loading targets or high-density requirements except to the extent that the developer shall provide stormwater control at least equal to the previous development.  Proposed development that would replace or expand existing structures or improvements and would result in a net increase in built-upon area shall have the option either to achieve at least the percentage loading reduction objectives stated in 15A NCAC 02B .0275 as applied to nitrogen and phosphorus loading from the previous development for the entire project site, or to meet the loading rate targets described in this Item.  These requirements shall supersede those identified in 15A NCAC 02B .0104(q).  The developer shall determine the load reductions needed to meet these loading rate targets by using the loading calculation method called for in Sub-Item (5)(a) or other equivalent method acceptable to the Division;

(b)           The developer shall have the option of offsetting part of the nitrogen and phosphorus load by implementing or funding offsite offset measures.  Before using an offsite offset option, a development shall implement onsite structural stormwater controls that achieve one of the following levels of reductions:

(i)            Proposed new development activity disturbing at least one-half acre but less than one acre of land for single family and duplex residential property and recreational facilities, except as stated in Sub-Item (4)(b)(iv), shall achieve 30 percent or more of the needed load reduction in both nitrogen and phosphorus loading onsite and shall meet any requirements for engineered stormwater controls described in Sub-Item (4)(e) of this Rule;

(ii)           Proposed new development activity disturbing at least 12,000 but less than one acre of land for commercial, industrial, institutional, multifamily residential, or local government property, except as stated in Sub-Item (4)(b)(iv), shall achieve 30 percent or more of the needed load reduction in both nitrogen and phosphorus loading onsite and shall meet any requirements for engineered stormwater controls described in Sub-Item (4)(e) of this Rule;

(iii)          Except as stated in Sub-Item (4)(b)(iv), proposed new development activity that disturbs one acre of land or more shall achieve 50 percent or more of the needed load reduction in both nitrogen and phosphorus loading onsite and shall meet any requirements for engineered stormwater controls described in Sub-Item (4)(e) of this Rule; or

(iv)          Proposed development that would replace or expand structures or improvements that existed as of December 2006 and that increases impervious surface within a local government's designated downtown area, regardless of area disturbed, shall achieve 30 percent of the needed load reduction in both nitrogen and phosphorus onsite, and shall meet any requirements for engineered stormwater controls described in Sub-Item (4)(e) of this Rule;

(c)           Offsite offsetting measures shall achieve at least equivalent reductions in nitrogen and phosphorus loading to the remaining reduction needed onsite to comply with the loading rate targets set out in Sub-Item (4)(a) of this Item.  A developer may use any measure that complies with the requirements of Rules .0240 and .0282. of this Section;

(d)           Proposed new development subject to NPDES, water supply, and other state-mandated stormwater regulations shall comply with those regulations in addition to the other requirements of this Sub-item.  Proposed new development in any water supply watershed in the Falls watershed designated WS-II, WS-III, or WS-IV shall comply with the density-based restrictions, obligations, and requirements for engineered stormwater controls, clustering options, operation and maintenance responsibilities, vegetated setbacks, land application, and landfill provisions described in Sub-Items (3)(b)(i) and (3)(b)(ii) of the applicable rule among 15A NCAC 02B .0214 through .0216.  Provided, the allowance in water supply watershed rules for 10 percent of a jurisdiction to be developed at up to 70 percent built-upon area without stormwater treatment shall not be available in the Falls watershed;

(e)           Stormwater systems shall be designed to control and treat at a minimum the runoff generated from all surfaces in the project area by one inch of rainfall.  The treatment volume shall be drawn down pursuant to standards specific to each practice as provided in the July 2007 version of the Stormwater Best Management Practices Manual published by the Division, or other at least technically equivalent standards acceptable to the Division;

(f)            To ensure that the integrity and nutrient processing functions of receiving waters and associated riparian buffers are not compromised by erosive flows, at a minimum, the new development shall not result in a net increase in peak flow leaving the site from pre-development conditions for the one-year, 24-hour storm event;

(g)           New development may satisfy the requirements of this Rule by meeting the post-development hydrologic criteria set out in Chapter 2 of the North Carolina Low Impact Development Guidebook dated June 2009, or the hydrologic criteria in the most recent version of that guidebook;

(h)           Proposed new development shall demonstrate compliance with the riparian buffer protection requirements of 15A NCAC 02B .0233 and .0242 or subsequent amendments or replacements to those requirements.

(5)           RULE IMPLEMENTATION.  This Rule shall be implemented as follows:

(a)           No later than March 15, 2011, the Division shall submit a model local stormwater program, including a model local ordinance that embodies the criteria described in Items (3) and (4) of this Rule to the Commission for approval.  The model program shall include a tool that will allow developers to account for nutrient loading from development lands and loading changes due to BMP implementation to meet the requirements of Items (3) and (4) of this Rule.  The accounting tool shall utilize nutrient efficiencies and associated design criteria established for individual BMPs in the July 2007 version of the Stormwater Best Management Practices Manual published by the Division, or other more precise standards acceptable to the Division.  At such time as data quantifying nutrient loads from onsite wastewater systems is made available, the new development nutrient export accounting tool shall be revised to require accounting for nutrient loading from onsite wastewater from newly developed lands that use such systems.  Should research quantify significant loading from onsite wastewater systems, the Division may also make recommendations to the Commission for Public Health to initiate rulemaking to reduce nutrient loading to surface waters from these systems.  The Division shall work in cooperation with subject local governments and other watershed interests in developing this model program;

(b)           Within five months after the Commission's approval of the model local stormwater program and model ordinance, subject local governments shall submit stormwater management programs, in conjunction with similar requirements in 15A NCAC 02B .0278, to the Division for preliminary approval.  These local programs shall meet or exceed the requirements in Items (3) and (4) of this Rule;

(c)           Within 10 months after the Commission's approval of the model local stormwater program, the Division shall provide recommendations to the Commission on local stormwater programs.  The Commission shall either approve the programs or require changes based on the standards set out in Items (3) and (4) of this Rule. Should the Commission require changes, the applicable local government shall have two months to submit revisions, and the Division shall provide follow-up recommendations to the Commission within two months after receiving revisions;

(d)           Within six months after the Commission's approval of a local program, or upon the Division's first renewal of a local government's NPDES stormwater permit, whichever occurs later, the affected local government shall complete adoption of and implement its local stormwater management program; and

(e)           Upon implementation, subject local governments shall submit annual reports to the Division summarizing their activities in implementing each of the requirements in Items (3) and (4) of this Rule, including changes to nutrient loading.

(6)           EQUIVALENT PROGRAM OPTION.  A local government may in its program submittal under Sub-Item (5)(b) of this Rule request that the Division accept the local government's implementation of another stormwater program or programs as satisfying one or more of the requirements set forth in Items (3) and (4) of this Rule.  The Division shall provide determination on the acceptability of any such alternative prior to requesting Commission approval of local programs as required in Sub-Item (5)(c) of this Rule.  Should a local government propose alternative requirements to achieve and maintain the rate targets described in Sub-Item (4)(a) of this Rule, it shall include in its program submittal technical information demonstrating the adequacy of those requirements.  Should an alternative program propose monitoring of watersheds to compare measured loading to expected loading, it shall at a minimum include the following:

(a)           Engineering calculations that quantify expected loading from new development projects based on stormwater controls currently enforced;

(b)           At least three years of continuous flow and nutrient monitoring data demonstrating that watershed loading rates are at or below rates that would result from meeting the requirements of this Rule and Rule .0278 of this Section based on the land cover composition of the watershed;

(c)           An ongoing water quality monitoring program based on continuous flow and concentration sampling to be performed indefinitely into the future with results reported annually to the Division for review and approval;

(d)           A corrective action plan to be implemented should data collected under the ongoing monitoring program demonstrate watershed loading is within 10 percent of the rate estimated in compliance with this Item; and

(e)           Should a local government submit an alternate program for consideration that includes areas within its jurisdiction outside of the monitored watershed it shall submit technical information demonstrating the areas outside of the monitored watershed can reasonably be expected to load at equal or lesser rates than those estimated in compliance with this Item based on comparative analysis of land uses and other factors affecting nutrient loading.

 

History Note:        Authority G.S. 143-214.1; 143-214.3; 143-214.5; 143-214.7; 143-215.1; 143-215.3; 143-215.3(a)(1); 143-215.6A; 143-215.6B; 143-215.6C; 143-215.8B; 143B-282(c); 143B-282(d); S.L. 2005-190; S.L. 2006-259; S.L. 2009-337; S.L. 2009-486;

Eff. January 15, 2011 (this permanent rule replaces the temporary rule approved by the RRC on December 16, 2010).