The Vermont Agency of Natural Resources, Department of Environmental Conservation is gearing up for the issuance of a new stormwater general permit (General Permit 3-9050) that will affect owners of “three-acre sites,” meaning properties containing three or more acres of total impervious surface, including adjacent properties that were previously authorized to discharge stormwater under a common permit, and adjacent properties that are part of a related operation such as resorts, campuses, or hospitals. Impervious “three-acre sites” that will be subject to the permit include those historically not subject to stormwater regulation because development occurred prior to modern stormwater regulation. The new rules will apply to publicly and privately-owned properties, and are likely to affect many municipalities, school districts, and business owners.
The Agency’s stormwater regulations define impervious surface to include any manmade surface from which rain or snow or other precipitation will run off, such as driveways, walkways, parking areas, paved and unpaved roads, and roofs. Common three-acre sites include schools, large stores and shopping malls, hospitals, and even some large residential developments. The Legislature approved requiring a permit for three-acre sites in 2015 as part of Act 64, which aims to address pollution in Lake Champlain, Lake Memphremagog and other stormwater impaired waterways in the State, and to meet Vermont’s Total Maximum Daily Load (TMDL) Plan for Phosphorus in these impaired waters, as required by the U.S. Environmental Protection Agency.
While the three-acre General Permit will apply statewide, the Agency is focusing first on sites located within the Lake Champlain and Lake Memphremagog watersheds. The Agency has posted a list of properties in these two watersheds that will receive the first round of notice letters to inform property owners of the upcoming permitting obligations. Under the new regulations, all owners of property that contain three or more acres of impervious surface will be required to obtain “coverage” under General Permit 3-9050, regardless of whether the land was developed prior to current stormwater regulations and was therefore not previously required to get a stormwater permit. In addition, previously-permitted sites will need to apply under the three-acre General Permit if the existing permit did not incorporate the requirements of the Agency’s 2002 Stormwater Management Manual (or any subsequent update of the Manual). For property owners with multiple three-acre sites, a permit will need to be obtained for each individual site.
The Agency’s stormwater rules were revised earlier this year to address the new three-acre permitting requirements. Under the revised rules, the process for obtaining coverage under General Permit 3-9050 will require three-acre sites to identify and install new stormwater “improvements” (infrastructure) to offset the runoff from the existing impervious surface. As the first step in this process, an applicant will need to conduct an Engineering Feasibility Analysis (EFA) in order to determine what stormwater improvements are necessary or possible for a particular site. The EFA will assess the various treatment practices from ANR’s 2017 Stormwater Management Manual and determine what is feasible to implement on the subject property. The specific stormwater standards that the site will need to meet will vary depending on which lake or other body of water the stormwater runoff from the site discharges into, and whether that water body has a TMDL. As a result, property owners subject to the new permit will likely need to wait for the results of their EFA in order to know what the scope and cost of required improvements will be for their particular property. Properties in some locations may be required to pay impact fees instead of implementing new stormwater measures if an EFA determines that sufficient stormwater improvements cannot be implemented on-site; conversely, if greater stormwater measures are implemented at a site than are required, some property owners could receive impact fees back from the Agency. The Agency has stated that it anticipates some level of grant funding and subsidized loans will be available for applicants to cover costs associated with the permit, and that it will release a funding plan later this year before any permit applications are due.
Although ANR has begun the process of identifying affected properties in the Champlain and Memphremagog regions, a draft of the actual General Permit 3-9050 has not yet been issued. Until the draft is released, it is not entirely clear when the new permitting requirements will go into effect. According to the §22-901(c)(1) of the stormwater regulations, which anticipated the draft permit being released at the end of June, sites in the Lake Champlain and Lake Memphremagog watersheds would need to be permitted under General Permit 3-9050 by October of 2023, whereas sites within all other watersheds in the state will need to be covered by October 2033. However, the Agency’s website notes that the schedule for submitting a permit application will be included in the draft permit and that affected properties will receive notification from the Agency as to when their application is due.
SRH Law will continue to follow the progress of the new General Permit 3-9050. In the meantime, if you have questions about the new stormwater permit or you have property that will be subject to the permit that you’d like to discuss, please contact any of the attorneys in our Environmental Practice, including Vic Westgate, Zoe Sajor, Brian Dunkiel, Andy Raubvogel, and Geoff Hand.
