Issues & Actions: Stormwater Rules

State Overhauls Failed Program to Control Polluted Coastal Runoff

New rules to finally control polluted runoff that is poisoning our coastal rivers, creeks and sounds will take effect in August unless powerful special interests allied with some local governments derail them in the N.C. General Assembly this summer.

Our annual State of the Coast Report, which was released June 4, fully describes what stormwater is doing to our waters and detail the 20-year fractured history of the state's failed attempts to control this source of pollution. It also makes sense of the new rules and debunk many of the myths and misconceptions opponents of the rules have concocted to scare us.

What Is It?

Stormwater is rain that runs off the land. On a natural, forested coastal landscape very little of that runoff reaches nearby creeks and sounds. It's only a problem when too many trees and wetlands are replaced by roads, rooftops, driveways, parking lots and other types of hard, constructed areas. The rain then flows quickly off these "impervious" surfaces, picking up a variety of pollutants along the way. It runs into roadside ditches or pipes that often lead directly to the nearest waterway.

Why Is It a Problem?

Stormwater is now the biggest source of water pollution along the coast, responsible for contaminating more than 100,000 acres of shellfish waters with bacteria. Rivers and sounds that support oysters and clams are among the most sensitive waters in the state. Their  decline is a mark of continued water-quality degradation.

Millions of gallons of water running quickly off roads and parking lots can also create safety hazards by flooding roads and blocking evacuation routes during hurricanes.

You're Making All This Up, Right?

Opponents of the new rules would want you to believe that. They want you to think that there is no scientific evidence linking stormwater and impervious surfaces to water pollution or that the research is the product of biased scientists working in cahoots with extreme environmentalists and out-of-control regulators.

In fact, the science on the subject dates back 30 years and spans the globe. The research has been conducted by such extreme groups as the U.S. Geological Survey, the U.S. Department of Transportation and the EPA and reported in wild-eyed journals like Scientific American. 

The scientific links between impervious surfaces and bacterial contamination and other pollutants are, by now, solid and irrefutable.

Don't We Have Rules to Stop This?

Stormwater rules for coastal counties have been around since 1985. A product of political horse-trading and an illegal secret meeting, they were doomed from the start and have unfortunately taken thousands of acres of our shellfish waters down with them. See our 1986 newsletter for a full description of the weak rules that the state eventually approved.

Scientists knew, even back in the 1980s, that the quality of shellfish waters generally declines when impervious cover in the watershed exceeds 10 percent without effective stormwater controls. Above 12 percent impervious cover, sensitive fish species were lost. At 20 percent, the water is usually too polluted with bacteria for shellfishing.

Good science, though, doesn’t normally trump politics in environmental-policy debates. When considering the original stormwater rules in 1985, the state Environmental Management Commission (EMC) considered 12 percent impervious surface for “low-density” development. Developers and homebuilders protested. The number more than doubled, to 25 percent, during the ensuing debate as EMC members attempted to find a “compromise” that would placate the powerful development lobbies.The rules they passed require little in the way of stormwater control as long as developers keep impervious surfaces below that 25 percent.

We've lived with the results ever since.

Have the Rules Not Worked?

The N.C. Division of Water Quality (DWQ) acknowledged in 2005 that the coastal stormwater program, as feared, has failed to protect shellfish waters. To reach that conclusion, DWQ examined relevant scientific studies and trends in shellfish closures and assessed the program’s effectiveness, particularly in tidal creeks. Here are some of DWQ's conclusions:

• The low-density limit in the current stormwater rules is too high. 
• A greater amount of stormwater runoff needs to be controlled and treated than is required by the current rules.
• North Carolina has experienced a continual trend of impairment of its coastal waters under the existing rules, and it's not likely to improve.
• The existing rules failed to prevent further degradation of coastal waters and the permanent closure of commercial shellfishing waters when a significant level of development occurred within the subject watershed.
• The current rules in some cases actually increase bacterial pollution. 

The map, left, shows tidal creeks in New Hanover County, The red indicates waters polluted by bacteria. Seven years later, bacterial pollution has spread, as indicated by the red and yellow. Stormwater rules were meant to prevent the spread.

Source: N.C. Division of Water Quality
 

DWQ found that stormwater runoff is now the primary cause of 90 percent of all contaminated shellfish beds. More than 56,000 acres of shellfishing waters were permanently closed as of 2005, up from 52,000 acres closed in 1988. Since 1990, 1,157 acres of Outstanding Resource Waters, the state's highest water classification, also have been closed to shellfishing. Because they can’t be easily tracked, the tens of thousands of acres of once open shellfish water that now temporarily closes after a rain aren’t included in DWQ’s grim arithmetic.

If the stormwater program wasn’t overhauled, DWQ concluded, we could expect our most sensitive coastal waters to continue to degrade.

What About These New Rules?

The EMC responded by passing new rules in April. More than 1,000 people had attended four public hearings on the rules. The majority of those who spoke at those hearings or submitted written comments supportied more effective stormwater controls.

The new rules will:

• Redefine "low density" to 12 percent impervious surface within a half-mile of shellfishing waters. Developers can exceed that amount but would have to control the resulting stormwater.
• Increase the amount of rainfall that has to be managed on site. Within a half mile of shellfishing waters, the amount would rise from 1.5 inches in 24 hours to 3-4 inches, depending on location. Farther away from the water, it will increase from 1 inch to 1.5 inches.
• Increase the vegetated setback from 30 feet to 50 feet.
• Exclude wetlands from impervious surface calculations.

Will They Work?

The flip answer is that there are no guarantees in life. Requiring agencies to first prove that the rules they pass will completely solve the problem is an impossible standard to meet. That may be why opponents want to require it of the stormwater rules. Most rules are evolutionary, the next step in the process as we learn more about a problem. Unlike the rules they replace, these new rules are at least in synch with the science. They at least offer a hope that they'll work. The old ones never did.

The rules won't address existing stormwater problems, just new development. Retrofitting solutions is much more expensive and time consuming than reducing the flow of stormwater up front. There are state and federal programs that attempt to deal with existing stormwater sources, but those programs will have to be expanded if we are truly to resolve the problem.

Why Are People Against Them? 

It's the usual suspects: Home builders, real-estate agents, developers and the like. Not all, mind you. We've heard from several Realtors and developers who understand the link between clean water and the coast's economic vitality. They support these rules.

Many of the opponents fought the old rules 20 years ago and are now in the unusual  position of supporting the continuation of rules that they said two decades ago would drive them bankrupt and halt all development on the coast. We doubt they see the irony in that.

Their arguments are the same this time around as well, maybe spiced with more hyperbole. If the rules take effect, one official with the N.C. Homebuilders Association recently said, the coastal economy will "go to hell in a handbasket."  Things like that.

The distortions, misrepresentations and misinterpretations of what the rules will do have been so numerous that's it's been hard to keep up. We offer two aids. DWQ produced the first. It's pretty straight forward. Our Myth Buster Chart is, we think, more fun to read.

• DWQ FAQ
• Myth Busters Chart

Is There Support for the Rules?

More than 1,000 people showed up at four public hearings along the coast in 2007. The majority of those who spoke or submitted written comments favored the new rules.

So have these newspapers, which include the largest in the state:

• Carteret County New-Times
• The Charlotte Observer
• The (Raleigh) News & Observer
• The (Wilmington) Star-News

This opinion column is also worth a read:

• Pollution is a property-rights issue

What Can I Do?

• Get Informed. The links on this page will take you places where you can find factual information about the rules and the effects of stormwater on water quality. Read our State of the Coast Report. It  includes more detailed information
• Write or call your legislators. Opponents are well financed and are among the most powerful lobbyists in Raleigh. They intend to throw their weight around the Legislative Building this summer to kill or delay the rules. Individually, we can't match them pound for pound, but collectively we can be a force that will be hard to ignore.