The Agency of Natural Resources (ANR) issued a draft of General Permit 3-9050 last month for public notice and comment. General Permit 3-9050 will cover “operational” stormwater runoff, including runoff from existing impervious surfaces of three or more acres, which may not have previously been subject to stormwater permitting regulation. See Dunkiel Saunders’ previous blogpost More Vermont Properties to be Subject to Stormwater Regulation: State to Issue First Letters for Three-Acre Sites for more information on the new regulation of three-acre sites. The comment period ends on December 2nd, as discussed further at the end of this blog post.
In addition to affecting owners of existing three-acre sites and new property developers, the new permit will supersede several existing stormwater permits, including General Permits 3-9010, 3-9015, and 3-9030.
Some notable aspects of the draft general permit include the following:
- Starting mid-2022, any new or re-development of more than ½ acre of proposed impervious surface will require coverage under the permit (a change from the current threshold of 1 acre).
- “Impervious surface of three or more acres” is defined as:
[A] single tract of land with three or more acres of impervious surface; a project on a tract or tracts of land that was previously authorized under a stormwater permit that authorized the discharge of stormwater from three or more acres of impervious surface; and impervious surfaces adjacent to or adjoining the foregoing types of impervious surfaces where the surfaces in question are part of a related operation, such as a hospital, resort, or campus.
- For currently unpermitted three-acre sites, the deadline to obtain coverage under this general permit will vary between 1 and 10 years, depending on where the property is located within the state:
- If within the watershed of storm-impaired waters — by July 1, 2020 unless within the Lake Champlain or Lake Memphremagog watersheds (although possibly later depending on final adoption date of the General Permit).
- If within the Lake Champlain watershed:
- for properties in the Missisquoi Bay, Main Lake, Burlington Bay, and Shelburne Bay lake segment basins — by January 1, 2021.
- For all other properties within the Lake Champlain watershed — by January 1, 2022.
- If within the Lake Memphremagog watershed — by October 1, 2022.
- Within all other watersheds — by October 1, 2033.
This timeline is faster than the deadlines previously identified by the Agency in its recently adopted Stormwater Permitting Rule, which stated that the permitting deadline for properties in the Lake Champlain and Lake Memphremagog watershed was October 1, 2023.
- Stormwater impact fees may be required to be paid by the property owner if an engineering feasibility study shows that the site cannot accommodate sufficient offsetting of stormwater discharges. The fees are based on amount of treatment that is feasible.
- Property owners may reserve any excess offset capacity for themselves or another discharger in the same watershed, thus potentially opening the door to cooperative agreements between nearby properties that are subject to the general permit.
- Some projects may be eligible to receive money back from ANR if they exceed treatment standards and there is enough money in the state’s Stormwater Fund from collected stormwater impact fees, or to reserve eligible receipt money as a credit towards future projects in the same watershed.
- The permit provides for ANR to make determinations on the impact fees. It appears that an applicant would need to wait until ANR issues its decision authorizing coverage under the general permit to formally challenge the impact fee and any other ANR determinations related to the permit.
The public notice period for the draft permit runs through December 2, 2019, with all public comments due by December 2, 2019. Comments must be submitted through the Department of Environmental Conservation’s Environmental Notice Bulletin system, and instructions for using this system can be found on ANR’s website. Once all comments are received, ANR will issue the final permit and continue notifying affected property owners.
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.
