February 20, 2010 (from the Ventura County Star)
By Nancy Kierstyn Schreiner
There have been rumblings in the development and real estate industry because of the new Ventura County Municipal Separate Storm Sewer System Permit.
The permit, commonly referred to as MS4, is the cooperative result of public entities, environmental groups and regional board staff.
It applies to public and private projects and became effective Aug. 5. However, the technical manual for the permit is still being drafted by the county’s Watershed Protection District.
The intent of the permit is to fundamentally change development through use of “low-impact development.” All projects must capture, treat, retain and infiltrate runoff from storm events. Virtually no stormwater runoff will be permitted during storm events.
Some of the more significant development requirements in the permit apply to sites creating or altering large areas of impervious surface and all development adjacent or discharging directly to environmentally sensitive areas.
For new developments, stormwater runoff is limited to 5 percent of a site’s effective impervious area unless technically infeasible. The EIA is defined as the portion of surface area that is hydrologically connected via sheet flow over a hardened conveyance or impervious surface without intervening medium to mitigate flow volume. For all new development and all redevelopment sites that cannot meet the 5 percent limit, the EIA is limited to 30 percent of the total project area and the remainder treated as runoff. Runoff must either percolate, evapotranspirate or be captured, stored and reused to the extent of 100 percent of the full design treatment volume.
What should you do if your project is determined to be “technically infeasible” in retaining runoff on-site? The use of alternative compliance programs is acceptable. First, a developer must prove that low-impact development is technically infeasible. A developer still must create an EIA that is at least 30 percent, but financial contributions or construction to public or private off-site low-impact development projects may be used as an offset. The alternative program projects must be in the same watershed; complete construction by May 7, 2013; be approved by the Regional Board; and demonstrate a reduction of volume and load for the subwatershed.
Action by the development and real estate industry in cooperation with the local public entities is mandatory. While the technical manual is being drafted, public entities must commence developing alternative compliance program projects. These efforts can represent a “win-win” for both the public entities and the development community. They represent a large challenge, but can be accomplished with cooperation.
The MS4 permit may eventually prove to be a boon to public coffers in these difficult economic times and of legitimate assistance to the development community if contribution costs are within reason. Now is the time for thinking outside the box and to develop some creative and innovative mitigation projects.
Nancy Kierstyn Schreiner is a partner in the Real Estate & Land Use Group and the Public Agency Law Group at Nordman Cormany Hair & Compton LLP. Founded in 1939, NCHC is Ventura County’s largest law firm.