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The Legal Basis in New Hampshire: Adopting Stormwater Zoning Ordinances and Land Development Regulations

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The Legal Basis in New Hampshire: Adopting Stormwater Zoning Ordinances and Land Development Regulations The Legal Basis in New Hampshire: Adopting Stormwater Zoning Ordinances and Land Development Regulations FEDERAL LAW NPDES AND EPA The lack of a precise definition of MEP allows small Through the Phase 1 and Phase 2 NPDES MS4s flexibility in tailoring their programs to their CLEAN WATER ACT programs EPA sets water quality standards for actual needs. The Clean Water Act (CWA) originated as the point source and wastewater discharge permits. The MEP standard requires small MS4s to satisfy Federal Water Pollution Control Act of 1972 in EPA administers NH’s NPDES permit program the following six “minimum control measures”: response to unchecked dumping of pollution into and permits for stormwater and sewer overflow 1) Public Education and Outreach the nation’s surface waters. At that time, about discharges. Individual homes that are connected to 2) Public Participation 2 /3 of U.S. waters had been declared unsafe for a municipal system, use a septic system, or do not fishing and swimming. The CWA provides the basic produce surface discharge do not need an NPDES 3) Illicit Discharge Detection and Elimination structure for: permit. Industrial, municipal, and other facilities (IDDE) Program must obtain permits if their discharges go directly 4) Construction Site Runoff Controls 1) regulating discharges of pollution into the to surface waters. waters of the United States, and 5) Post-Construction Runoff Controls 6) Good House Keeping and Pollution Prevention 2) regulating quality standards for the nation’s NPDES STORMWATER PERMIT TYPES for Municipal Operations surface waters. Its objective is “to restore and The NPDES permit regulations cover 3 main maintain the chemical, physical, and biological classes of stormwater and wastewater discharges. Construction Activities Permits integrity of the nation’s waters.” Municipal Separate Storm Sewer Systems All construction activities 1 acre or larger must The U.S. Environmental Protection Agency (EPA) (MS4s) Permits obtain a permit, and those less than 1 acre must administers the CWA and enforces its provisions. EPA administers its Stormwater Program in two obtain a permit if they are part of a larger common The EPA is authorized to implement water phases. Generally, under Phase I of the program, development plan or sale that totals at least 1 pollution control programs, like setting water EPA issues NPDES permits for: acre. Small construction activities (less than 5 acres) may qualify for a waiver. In NH, where EPA is the quality standards for all surface waters (streams, A) “medium MS4s” and “large MS4s” lakes and coastal waters). permitting authority, operators must meet EPA’s B) certain construction activities; and Construction General Permit requirements. C) multiple categories of industrial activity. NATIONAL POLLUTANT DISCHARGE Industrial Activities Permits ELIMINATION SYSTEM (NPDES) Phase II extends coverage of the program Industrial facilities (as defined by the facility’s The CWA made it illegal to discharge any pollutant nationwide to: Standard Industrial Classification code) that from a point source into navigable waters without 1) automatically include “small MS4s” in discharge to an MS4 or to waters of the U.S. an NPDES permit. The NPDES Storm Water urbanized areas; and must obtain a permit. Operators (excepting Program addresses non-agricultural sources of construction) may qualify for a waiver by certifying 2) include on a case-by-case basis small MS4s stormwater discharges. The program’s permitting to a condition of “no exposure” if their industrial outside of EPA-designated urbanized areas. mechanism requires dischargers to implement materials and operations are not exposed control measures that prevent pollution from being MS4 permits are generally required for small, to stormwater. NH operators must meet the washed into surface waters by stormwater runoff. medium and large MS4s in urbanized areas. requirements of EPA’s Multi-Sector General Permit. Control measures, like stormwater management Any MS4 permit may include additional EPA programs, must use best management practices. requirements for pollution control. MS4 permits OTHER FEDERAL LAWS THAT MAY The NPDES gives permitting authorities guidance may be issued for a specific storm sewer system AFFECT NPDES PERMITS on meeting stormwater pollution control goals as or an entire jurisdiction. MS4 permits prohibit Four federal acts apply to the EPA’s issuance of an cost-effectively as possible. The CWA also requires non-stormwater discharges into storm sewers and NPDES permit to an MS4: the Endangered Species Act, NPDES permits to be consistent with applicable require implementation of pollution reduction the National Historic Preservation Act, the Magnuson- state water quality standards. controls to the “maximum extent practicable” Stevens Fishery Conservation and Management (MEP) using best management practices (BMPs). Act, and the Coastal Zone Management Act. GREEN INFRASTRUCTURE FOR NEW HAMPSHIRE COASTAL COMMUNITIES MUNICIPAL LIABILITY or projected changes in environmental parameters STATE LAW such as precipitation or sea level rise. Although many larger sites are subject to NH’s What is the potential liability of a governmental entity that fails to take steps to reduce the Alteration of Terrain permit requirements and TAKINGS the EPA’s stormwater management requirements vulnerability of its landowners and other What is the potential regulatory takings exposure under the CWA, local zoning ordinances and land citizens to flooding risks and storm damage as of New Hampshire communities if they impose development regulations provide municipalities revealed by UNH’s research efforts and mapping regulatory controls that are designed at least in the authority to act independently to address information? part to address anticipated future environmental local problems and issues relating to water quality Municipalities are very unlikely to be Answer: conditions? impacts and water resource management on held liable for actions related to adopting new a case-by-case basis. Often federal and state floodplain maps. Answer: Though most takings are determined on a case-by-case basis, it is unlikely that a municipality regulations apply to only the largest development At a minimum, always abide Recommendations: could be successfully sued on the basis of a taking projects and lack the oversight and enforcement by the “reasonable person” standard – i.e., suit for imposing regulatory controls intended for which municipalities are ultimately responsible. what a reasonable person would do under same to reduce the risk of harm from future flooding NH statutes provide the authority and legal circumstances. There is no need to take action events. Courts are much more likely to hold that a mechanisms for municipalities to enforce standards related to municipal liability for failing to adopt “harm preventing” (versus “benefit-conferring”) for land use, the environment, and protection of floodplain maps. Acknowledge the unpredictability regulation does not constitute a compensable life and property. of future flood hazards in plans while emphasizing taking. importance of taking action to protect the public GENERAL AUTHORITY AND despite uncertainty. Give the public meaningful Recommendations: Enact regulations in a way Administration opportunities to participate in the planning process. that preserves some economically viable use of RSA 149-I:1-25 Sewers, RSA 432:3 State Plan, RSA the land, such as for agricultural and recreational 483-B:8 Municipal Authority, RSA 485-A:13 Water LEGAL AUTHORITY activities. Indicate that the purpose of the regulation is to promote hazard mitigation to Discharge Permits, RSA 674:20 Districts, RSA Do New Hampshire communities have the protect the public health, safety and welfare, 674:21-a Development Restriction Enforceable legal authority under state planning and zoning and make this clear in the master plan. Include enabling legislation, or other state legislation, a variance option to deal with requests on a Regulatory/PLANNING to design and implement regulatory controls case-by-case basis. Be sure that the potential RSA 483:10 Rivers Corridor Management Plans, based on current and predicted environmental harm of flooding to the community outweighs the RSA 485-A:17 Terrain Alteration, RSA 674:2 conditions, specifically projected flooding levels? regulatory restrictions. Use the principle of No Master Plan Purpose and Description, RSA 674:3 Answer: Whether towns have the requisite Adverse Impact (NAI) as a standard when creating Master Plan Preparation, RSA 674:17 Purposes of enabling authority depends on the type of floodplain regulations (or to prevent harm to a Zoning Ordinances, RSA 674:44 Site Plan Review regulation being imposed; municipalities must body of water held in public trust). NAI is the Regulations, RSA 674:36 Subdivision Regulations, clearly identify the enabling statute that allows the principle that the action of one property owner RSA 674:16 Grant of Power enactment of the ordinance or regulation. may not adversely impact the flooding risk for Clearly identify the enabling other property owners. Stay consistent with the ENVironmental Recommendations: statute(s) authorizing the ordinance/regulation. existing regulatory scheme to the extent possible; RSA 483-B:9 Minimum Shoreland Protection Check the language of the statute to make sure when the regulation aims to correct an unforeseen Standards, RSA 674:21 Innovative Land Use specific authorizations are not being exceeded. problem, existing
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