Stormwater permits could be costly for some

MONTPELIER — Properties with more than three acres of impervious surface — such as a paved parking lot — may soon need to obtain stormwater permits or pay significant “impact fees” under new stormwater rules being considered by the state.

The Department of Environmental Conservation is required to adopt an updated stormwater management rule under Act 64, which was signed into law by former Gov. Peter Shumlin in 2015.

The updated rule is part of the state’s effort to meet the federal Total Maximum Daily Load mandate for phosphorous flowing into Lake Champlain.

Padraic Monks, DEC’s stormwater program manager, said the updated rule being drafted by the department includes the additional general stormwater permit.

“We were directed to revise the stormwater rule, re-issue it by the end of this year and also adopt new regulations for existing stormwater discharges,” Monks said.

To address existing stormwater discharges, the department is looking at retroactively requiring stormwater permits for properties that have three or more acres of impervious surface, like pavement.

That would mean that many businesses with parking lots that previously were not required to obtain a permit could soon be forced to seek one.

Monks said the department was directed by the law to pursue the additional permits.

“The Legislature said if you’ve got three or more acres of impervious surface and you never got a permit … then you need to obtain permit coverage,” he said. “They directed us to develop a general permit for dischargers.”

The majority of properties with impervious surfaces were not required to seek a permit when they were constructed. Monks said requiring the property owners to obtain permits is necessary if the state is to meet the federal Environmental Protection Agency’s mandates and its own water quality goals.

“Less than 10 percent of what’s been built over time is under a stormwater permit,” Monks said. “To achieve the goals of the Lake Champlain TMDL and clean water goals statewide, we need to get a handle on existing stormwater discharges.”

That is likely to come at significant cost for some businesses. Under the rules DEC is considering, a permit would cost $860 per acre of impervious surface. The permit will spell out what property owners need to do to meet the requirements of the permit, which Monks said will likely cost a significant amount.

The retroactive permits will require significant work to reduce stormwater runoff, but will be less stringent than what new construction would require.

“We’re not going to make anyone tear down their building and buy new land,” Monksaid.

If the property owners are unable to meet the requirements, they will be assessed “impact fees” that are essentially fines. The impact fees would be as much as $50,000 per acre of impervious surface if the property owner is unable to meet any of the state’s requirements.

Property owners have been able to pay impact fees for about 15 years, but they have been capped at $30,000. The higher figure reflects inflation, Monks said.

The state will not reap a windfall from the impact fees. Monks said the money collected will be distributed to property owners who “go above and beyond” the requirements at their site to help cover those costs.

“Hopefully at the end of the day it’s a zero-sum game,” he said. “We don’t skim any percentage of that.”

Rebecca Kelley, spokeswoman for Gov. Phil Scott, said the new rules are required by Act 64, which she noted was passed under the Shumlin administration. The law “is prescriptive about what the rule needs to cover,” she said.

“The governor’s approach to funding clean water has been to use existing resources or financial tools without introducing new taxes and fees on Vermonters or businesses,” Kelley said. “This rule change is governed by a law introduced before we took office,” she added, “and while it may not be the exact approach our administration would have taken, DEC will comply with the law while working with stakeholders so we can meet clean water goals and support our businesses as we work to grow the economy.”

Monks said the draft rule will begin the approval process later this year. The Legislative Committee on Administrative Rules must sign off before it is implemented.

“We’re trying to come as close as we can to that Jan. 1 deadline … while understanding the significance of the rule and need to get stakeholder feedback,” he said.

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