Proponents of new and redevelopment projects are facing stringent new environmental requirements under a series of municipal stormwater permits recently adopted or proposed by California Regional Water Quality Control Boards ("Regional Boards") in Los Angeles, San Diego, and the San Francisco Bay Area. In addition to existing requirements concerning the construction phase of development, these new requirements will soon require local governments to condition project approvals on submission of plans demonstrating that "postconstruction" stormwater detention and treatment features are sufficient to address specified numeric sizing criteria following completion of a development. These new requirements are far reaching and could potentially have a dramatic impact on the approval process for most new and redevelopment projects in California.
Understanding The New Requirements
In early 2000, the Los Angeles Regional Board, one of nine Regional Boards that oversee water quality and issue permits in California, developed a concept known as Standard Urban Stormwater Mitigation Plans ("SUSMPs") for controlling "post-construction" stormwater runoff in that part of the State. SUSMPs are intended to limit the volume and flow of stormwater runoff from new residential and commercial developments by requiring that developers incorporate design features that will contain, infiltrate, and/or treat a specified percentage of anticipated runoff from a built-out site following each rain event.
To facilitate compliance with their requirements, SUSMPs include a list of Best Management Practices ("BMPs") (methods or measures to prevent, control, or reduce pollution) that developers are required to incorporate into their project designs. Any BMPs used in a project must treat or infiltrate, depending on the region, up to the first 0.80 inch of every rain event for the life of the project. The types of BMPs that may be used to address these numeric sizing requirements may include, among other things, design and construction of catch basins, grassy swales, wetlands, and wet ponds to capture and filter rain water. More capital-intensive long-term stormwater control, detention, and/or treatment measures may also be required. Developers will also be required to provide a mechanism and financial assurances for ensuring the ongoing maintenance and proper operation of any BMPs needed to address the SUSMP requirements over time.
Challenges To These New Requirements
After the Los Angeles Regional Board adopted SUSMPs, the Building Industry Association and dozens of cities challenged its authority to require these performance standards. On October 5, 2000, the State Water Resources Control Board ("State Board") issued an order supporting the Los Angeles SUSMPs with only minor modifications, paving the way for other Regional Boards to begin developing their own versions of these requirements.
Two Other Regional Boards Adopt Stormwater Runoff Requirements
Even before the State Board approved SUSMPs, the San Diego Regional Board and the San Francisco Bay Area Regional Board began following the Los Angeles Regional Board's lead by proposing requirements that are similar, if not identical, to the SUSMPs. Like the Los Angeles SUSMPs, the performance standards being proposed ultimately will impose significant numeric design and "post-construction" requirements on developers for controlling the flow and volume of stormwater runoff from projects following build-out. However, also like the situation in Los Angeles, the methodology and authority to issue these new performance standards is being questioned by the stakeholders involved, including local governments and building associations.
What Projects Must Implement The New Performance Standards
In Los Angeles and San Diego, the performance standards apply, but are not limited, to single-family hillside residences, 100,000-square-foot commercial developments, and home subdivisions greater than 10 housing units. In the San Francisco Bay Area, however, the Regional Board has preliminarily proposed to expand these "post-construction" stormwater requirements to apply to all new development and redevelopment projects that create at least 5,000 square feet of new impervious surface, including roof area.
Impact Of These Requirements
These new performance standards will likely require developers to set aside land for stormwater detention and infiltration, incorporate other "smart" stormwater design features into project plans, and/or invest in expensive technologies for capturing and treating stormwater runoff. They will also require developers to address these "post-construction" stormwater design requirements early on -- i.e., in the course of obtaining local government approvals for their projects -- and to provide for their ongoing maintenance and operation even after development of the site is complete and ownership has been turned over. Thus, these new requirements may well make it increasingly difficult, expensive, and time-consuming to develop or redevelop properties in California in the future. Developers and cities who have mastered addressing these requirements will also likely have a significant advantage over their competitors.
Morrison & Foerster has been a leader in the field of stormwater regulation since the inception of these requirements over a decade ago. If you would like additional information or assistance, please contact Robert Falk or Alexis Pelosi in our San Francisco office at 415-268-6294 and 415-268-6914 respectively, Clark Morrison in Walnut Creek at 925-295-3317, or Peter Hsiao in Los Angeles at 213-892-5731.