2012 Vermont Statutes
Title 10 Conservation and Development
Chapter 47 WATER POLLUTION CONTROL
§ 1264 Stormwater management

§ 1264. Stormwater management

(a) The general assembly finds that the management of stormwater runoff is necessary to reduce stream channel instability, pollution, siltation, sedimentation, and local flooding, all of which have adverse impacts on the water and land resources of the state. The general assembly intends, by enactment of this section, to reduce the adverse effects of stormwater runoff. The general assembly determines that this intent may best be attained by a process that: assures broad participation; focuses upon the prevention of pollution; relies on structural treatment only when necessary; establishes and maintains accountability; tailors strategies to the region and the locale; assures an adequate funding source; builds broadbased programs; provides for the evaluation and appropriate evolution of programs; is consistent with the federal Clean Water Act and the state water quality standards; and accords appropriate recognition to the importance of community benefits that accompany an effective s

tormwater runoff management program. In furtherance of these purposes, the secretary shall implement two stormwater permitting programs. The first program is based on the requirements of the federal National Pollutant Discharge Elimination System (NPDES) permit program in accordance with section 1258 of this title. The second program is a state permit program based on the requirements of this section for the discharge of "regulated stormwater runoff" as that term is defined in subdivision (11) of this subsection. As used in this section:

(1) "2002 stormwater management manual" means the agency of natural resources' stormwater management manual dated April 2002, as amended from time to time by rule.

(2) "Best management practice" (BMP) means a schedule of activities, prohibitions of practices, maintenance procedures, and other management practices to prevent or reduce water pollution.

(3) "Development" means the construction of impervious surface on a tract or tracts of land where no impervious surface previously existed.

(4) "Existing stormwater discharge" means a discharge of regulated stormwater runoff which first occurred prior to June 1, 2002 and that is subject to the permitting requirements of this chapter.

(5) "Expansion" and "the expanded portion of an existing discharge" mean an increase or addition of impervious surface, such that the total resulting impervious area is greater than the minimum regulatory threshold. Expansion does not mean an increase or addition of impervious surface of less than 5,000 square feet.

(6) "Impervious surface" means those manmade surfaces, including paved and unpaved roads, parking areas, roofs, driveways, and walkways, from which precipitation runs off rather than infiltrates.

(7) "New stormwater discharge" means a new or expanded discharge of regulated stormwater runoff, subject to the permitting requirements of this chapter, which first occurs after June 1, 2002 and has not been previously authorized pursuant to this chapter.

(8) "Offset" means a state-permitted or approved action or project within a stormwater-impaired water that a discharger or a third person may complete to mitigate the impacts that a discharge of regulated stormwater runoff has on the stormwater-impaired water.

(9) "Offset charge" means the amount of sediment load or hydrologic impact that an offset must reduce or control in the stormwater-impaired water in which the offset is located.

(10) "Redevelopment" means the construction or reconstruction of an impervious surface where an impervious surface already exists when such new construction involves substantial site grading, substantial subsurface excavation, or substantial modification of existing stormwater conveyance, such that the total of impervious surface to be constructed or reconstructed is greater than the minimum regulatory threshold. Redevelopment does not mean the construction or reconstruction of impervious surface where impervious surface already exists when the construction or reconstruction involves less than 5,000 square feet. Redevelopment does not mean public road management activities, including any crack sealing, patching, coldplaning, resurfacing, reclaiming, or grading treatments used to maintain pavement, bridges, and unpaved roads.

(11) "Regulated stormwater runoff" means precipitation, snowmelt, and the material dissolved or suspended in precipitation and snowmelt that runs off impervious surfaces and discharges into surface waters or into groundwater via infiltration.

(12) "Stormwater impact fee" means the monetary charge assessed to a permit applicant for the discharge of regulated stormwater runoff to a stormwater-impaired water that mitigates a sediment load level or hydrologic impact that the discharger is unable to control through on-site treatment or completion of an offset on a site owned or controlled by the permit applicant.

(13) "Stormwater-impaired water" means a state water that the secretary determines is significantly impaired by discharges of regulated stormwater runoff.

(14) "Stormwater runoff" means precipitation and snowmelt that does not infiltrate into the soil, including material dissolved or suspended in it, but does not include discharges from undisturbed natural terrain or wastes from combined sewer overflows.

(15) "Total maximum daily load" (TMDL) means the calculations and plan for meeting water quality standards approved by the U.S. Environmental Protection Agency (EPA) and prepared pursuant to 33 U.S.C. § 1313(d) and federal regulations adopted under that law.

(16) "Water quality remediation plan" means a plan, other than a TMDL or sediment load allocation, designed to bring an impaired water body into compliance with applicable water quality standards in accordance with 40 C.F.R. § 130.7(b)(1)(ii) and (iii).

(17) "Watershed improvement permit" means a general permit specific to a stormwater-impaired water that is designed to apply management strategies to existing and new discharges and that includes a schedule of compliance no longer than five years reasonably designed to assure attainment of the Vermont water quality standards in the receiving waters.

(18) "Stormwater system" means the storm sewers; outfall sewers; surface drains; manmade wetlands; channels; ditches; wet and dry bottom basins; rain gardens; and other control equipment necessary and appurtenant to the collection, transportation, conveyance, pumping, treatment, disposal, and discharge of regulated stormwater runoff.

(19) "Net zero standard" means:

(A) A new discharge or the expanded portion of an existing discharge meets the requirements of the 2002 stormwater management manual and does not increase the sediment load in the receiving stormwater-impaired water; or

(B) A discharge from redevelopment; from an existing discharge operating under an expired stormwater discharge permit where the property owner applies for a new permit; or from any combination of development, redevelopment, and expansion meets on-site the water quality, recharge, and channel protection criteria set forth in Table 1.1 of the 2002 stormwater management manual that are determined to be technically feasible by an engineering feasibility analysis conducted by the agency and if the sediment load from the discharge approximates the natural runoff from an undeveloped field or open meadow that is not used for agricultural activity.

(b) The secretary shall prepare a plan for the management of collected stormwater runoff found by the secretary to be deleterious to receiving waters. The plan shall recognize that the runoff of stormwater is different from the discharge of sanitary and industrial wastes because of the influence of natural events of stormwater runoff, the variations in characteristics of those runoffs, and the increased stream flows and natural degradation of the receiving water quality at the time of discharge. The plan shall be cost effective and designed to minimize any adverse impact of stormwater runoff to waters of the state. By no later than February 1, 2001, the secretary shall prepare an enhanced stormwater management program and report on the content of that program to the house committees on fish, wildlife and water resources and on natural resources and energy and to the senate committee on natural resources and energy. In developing the program, the secretary shall consult with the boar

d, affected municipalities, regional entities, other state and federal agencies, and members of the public. The secretary shall be responsible for implementation of the program. The secretary's stormwater management program shall include, at a minimum, provisions that:

(1) Indicate that the primary goals of the state program will be to assure compliance with the Vermont water quality standards and to maintain after development, as nearly as possible, the predevelopment runoff characteristics.

(2) Allow for differences in hydrologic characteristics in different parts of the state.

(3) Incorporate stormwater management into the basin planning process conducted under section 1253 of this title.

(4) Assure consistency with applicable requirements of the federal Clean Water Act.

(5) Address stormwater management in new development and redevelopment.

(6) Control stormwater runoff from construction sites and other land disturbing activities.

(7) Indicate that water quality mitigation practices may be required for any redevelopment of previously developed sites, even when preredevelopment runoff characteristics are proposed to be maintained.

(8) Specify minimum requirements for inspection and maintenance of stormwater management practices.

(9) Promote detection and elimination of improper or illegal connections and discharges.

(10) Promote implementation of pollution prevention during the conduct of municipal operations.

(11) Provide for a design manual that includes technical guidance for the management of stormwater runoff.

(12) Encourage municipal governments to utilize existing regulatory and planning authority to implement improved stormwater management by providing technical assistance, training, research and coordination with respect to stormwater management technology, and by preparing and distributing a model local stormwater management ordinance.

(13) Promote public education and participation among citizens and municipalities about cost-effective and innovative measures to reduce stormwater discharges to the waters of the state.

(c) The secretary shall submit the program report to the house committees on agriculture, on transportation, and on natural resources and energy and to the senate committees on agriculture and natural resources and energy.

(d)(1) The secretary shall initiate rulemaking by October 15, 2004, and shall adopt a rule for a stormwater management program by June 15, 2005. The rule shall be adopted in accordance with 3 V.S.A. chapter 25 and shall include:

(A) the regulatory elements of the program identified in subsection (b) of this section, including the development and use of offsets and the establishment and imposition of stormwater impact fees to apply when issuing permits that allow regulated stormwater runoff to stormwater-impaired waters;

(B) requirements concerning the contents of permit applications that include, at a minimum, for regulated stormwater runoff, the permit application requirements contained in the agency's 1997 stormwater management procedures;

(C) a system of notifying interested persons in a timely way of the agency's receipt of stormwater discharge applications, provided any alleged failures with respect to such notice shall not be relevant in any agency permit decision or any appeals brought pursuant to section 1269 of this chapter;

(D) requirements concerning a permit for discharges of regulated stormwater runoff from the development, redevelopment, or expansion of impervious surfaces equal to or greater than one acre or any combination of development, redevelopment, and expansion of impervious surfaces equal to or greater than one acre; and

(E) requirements concerning a permit for discharges of regulated stormwater runoff from an impervious surface of any size to stormwater-impaired waters if the secretary determines that treatment is necessary to reduce the adverse impact of such stormwater discharges due to the size of the impervious surface, drainage patterns, hydraulic connectivity, existing stormwater treatment, or other factors identified by the secretary.

(2) Notwithstanding 3 V.S.A. § 840(a), the secretary shall hold at least three public hearings in different areas of the state regarding the proposed rule.

(e)(1) Except as otherwise may be provided in subsection (f) of this section, the secretary shall, for new stormwater discharges, require a permit for discharge of, regulated stormwater runoff consistent with, at a minimum, the 2002 stormwater management manual. The secretary may issue, condition, modify, revoke, or deny discharge permits for regulated stormwater runoff, as necessary to assure achievement of the goals of the program and compliance with state law and the federal Clean Water Act. The permit shall specify the use of best management practices to control regulated stormwater runoff. The permit shall require as a condition of approval, proper operation, and maintenance of any stormwater management facility and submittal by the permittee of an annual inspection report on the operation, maintenance and condition of the stormwater management system. The permit shall contain additional conditions, requirements, and restrictions as the secretary deems necessary to achieve and

maintain compliance with the water quality standards, including but not limited to requirements concerning recording, reporting, and monitoring the effects on receiving waters due to operation and maintenance of stormwater management facilities.

(2) As one of the principal means of administering an enhanced stormwater program, the secretary may issue and enforce general permits. To the extent appropriate, such permits shall include the use of certifications of compliance by licensed professional engineers practicing within the scope of their engineering specialty. The secretary may issue general permits for classes of regulated stormwater runoff permittees and may specify the period of time for which the permit is valid other than that specified in subdivision 1263(d)(4) of this title when such is consistent with the provisions of this section. General permits shall be adopted and administered in accordance with the provisions of subsection 1263(b) of this title. No permit is required under this section for:

(A) Stormwater runoff from farms subject to accepted agricultural practices adopted by the secretary of agriculture, food and markets;

(B) Stormwater runoff from concentrated animal feeding operations that require a permit under subsection 1263(g) of this chapter; or

(C) Stormwater runoff from silvicultural activities subject to accepted management practices adopted by the commissioner of forests, parks and recreation.

(3) Prior to issuing a permit under this subsection, the secretary shall review the permit applicant's history of compliance with the requirements of this chapter. The secretary may, at his or her discretion and as necessary to assure achievement of the goals of the program and compliance with state law and the federal Clean Water Act, deny an application for the discharge of regulated stormwater under this subsection if review of the applicant's compliance history indicates that the applicant is discharging regulated stormwater in violation of this chapter or is the holder of an expired permit for an existing discharge of regulated stormwater.

(f)(1) In a stormwater-impaired water, the secretary may issue:

(A) An individual permit in a stormwater-impaired water for which no TMDL, water quality remediation plan, or watershed improvement permit has been established or issued, provided that the permitted discharge meets the following discharge standard: prior to the issuance of a general permit to implement a TMDL or a water quality remediation plan, the discharge meets the net-zero standard;

(B) An individual permit or a general permit to implement a TMDL or water quality remediation plan in a stormwater-impaired water, provided that the permitted discharge meets the following discharge standard:

(i) a new stormwater discharge or the expansion of an existing discharge shall meet the treatment standards for new development and expansion in the 2002 stormwater management manual and any additional requirements deemed necessary by the secretary to implement the TMDL or water quality remediation plan;

(ii) for a discharge of regulated stormwater runoff from redeveloped impervious surfaces:

(I) the existing impervious surface shall be reduced by 20 percent, or a stormwater treatment practice shall be designed to capture and treat 20 percent of the water quality volume treatment standard of the 2002 stormwater management manual from the existing impervious surface; and

(II) any additional requirements deemed necessary by the secretary to implement the TMDL or the water quality remediation plan;

(iii) an existing stormwater discharge shall meet the treatment standards deemed necessary by the secretary to implement a TMDL or a water quality remediation plan;

(iv) if a permit is required for an expansion of an existing impervious surface or for the redevelopment of an existing impervious surface, discharges from the expansion or from the redeveloped portion of the existing impervious surface shall meet the relevant treatment standard of the 2002 stormwater management manual, and the existing impervious surface shall meet the treatment standards deemed necessary by the secretary to implement a TMDL or the water quality remediation plan;

(C) A watershed improvement permit, provided that the watershed improvement permit provides reasonable assurance of compliance with the Vermont water quality standards in five years;

(D) A general or individual permit that is implementing a TMDL or water quality remediation plan; or

(E) A statewide general permit for new discharges that the secretary deems necessary to assure attainment of the Vermont water quality standards.

(2) An authorization to discharge regulated stormwater runoff pursuant to a permit issued under this subsection shall be valid for a time period not to exceed five years. A person seeking to discharge regulated stormwater runoff after the expiration of that period shall obtain an individual permit or coverage under a general permit, whichever is applicable, in accordance with subsection 1263(e) of this title.

(3) By January 15, 2010, the secretary shall issue a watershed improvement permit, issue a general or individual permit implementing a TMDL approved by the EPA, or issue a general or individual permit implementing a water quality remediation plan for each of the stormwater-impaired waters on the Vermont Year 2004 Section 303(d) List of Waters required by 33 U.S.C. 1313(d). In developing a TMDL or a water quality remediation plan for a stormwater-impaired water, the secretary shall consult "A Scientifically Based Assessment and Adaptive Management Approach to Stormwater Management" and "Areas of Agreement about the Scientific Underpinnings of the Water Resources Board's Original Seven Questions" set out in appendices A and B, respectively, of the final report of the water resources board's "Investigation Into Developing Cleanup Plans For Stormwater Impaired Waters, Docket No. Inv-03-01," issued March 9, 2004. Beginning January 30, 2005 and until a watershed improvement permit,

a general or individual permit implementing a TMDL, or a general or individual permit implementing a water quality remediation plan is set for each of the stormwater-impaired waters on the Vermont Year 2004 Section 303(d) List of Waters required by 33 U.S.C. § 1313(d), the secretary shall report annually to the general assembly on agency progress in establishing the watershed improvement permits, TMDLs, and water quality remediation plans for the stormwater-impaired waters of the state; on the accuracy of assessment and environmental efficacy of any stormwater impact fee paid to the state stormwater-impaired waters restoration fund; and on the efforts by the secretary to educate and inform owners of real estate in watersheds of stormwater-impaired waters regarding the requirements of the state stormwater law.

(4) Discharge permits issued under this subsection shall require BMP-based stormwater treatment practices. Permit compliance shall be judged on the basis of performance of the terms and conditions of the discharge permit, including construction and maintenance in accordance with BMP specifications. Any permit issued for a new stormwater discharge or for the expanded portion of an existing discharge pursuant to this subsection shall require compliance with BMPs for stormwater collection and treatment established by the 2002 stormwater management manual, and any additional requirements for stormwater treatment and control systems as the secretary determines to be necessary to ensure that the permitted discharge does not cause or contribute to a violation of the Vermont water quality standards.

(5) In addition to any permit condition otherwise authorized under subsection (e) of this section, in any permit issued pursuant to this subsection, the secretary may require an offset or stormwater impact fee as necessary to ensure the discharge does not cause or contribute to a violation of the Vermont water quality standards. Offsets and stormwater impact fees, where utilized, shall incorporate an appropriate margin of safety to account for the variability in quantifying the load of pollutants of concern. To facilitate utilization of offsets and stormwater impact fees, the secretary shall identify by January 1, 2005 a list of potential offsets in each of the waters listed as a stormwater-impaired water under this subsection.

(g)(1) The secretary may issue a permit consistent with the requirements of subsection (f) of this section, even where a TMDL or wasteload allocation has not been prepared for the receiving water. In any appeal under this chapter an individual permit meeting the requirements of subsection (f) of this section shall have a rebuttable presumption in favor of the permittee that the discharge does not cause or contribute to a violation of the Vermont water quality standards for the receiving waters with respect to the discharge of regulated stormwater runoff. This rebuttable presumption shall only apply to permitted discharges into receiving waters that are principally impaired by sources other than regulated stormwater runoff.

(2) This subsection shall apply to stormwater permits issued under the federally-delegated NPDES program only to the extent allowed under federal law.

(h) The rebuttable presumption specified in subdivision (g)(1) of this section shall also apply to permitted discharges into receiving waters that meet the water quality standards of the state, provided the discharge meets the requirements of subsection (e) of this section.

(i) A residential subdivision may transfer a pretransition stormwater discharge permit or a stormwater discharge permit implementing a total maximum daily load plan to a municipality, provided that the municipality assumes responsibility for the permitting of the stormwater system that serves the residential subdivision. For the purposes of this section:

(1) "Pretransition stormwater discharge permit" means any permit issued by the secretary of natural resources pursuant to this section on or before June 30, 2004 for a discharge of stormwater.

(2) "Residential subdivision" means land identified and demarcated by recorded plat or other device that a municipality has authorized to be used primarily for residential construction.

(j) Notwithstanding any other provision of law, if an application to discharge stormwater runoff pertains to a telecommunications facility as defined in 30 V.S.A. § 248a and is filed before July 1, 2014 and the discharge will be to a water that is not principally impaired by stormwater runoff:

(1) The secretary shall issue a decision on the application within 40 days of the date the secretary determines the application to be complete, if the application seeks authorization under a general permit.

(2) The secretary shall issue a decision on the application within 60 days of the date the secretary determines the application to be complete, if the application seeks or requires authorization under an individual permit.

(k) The secretary may adopt rules regulating stormwater discharges and stormwater infrastructure repair or maintenance during a state of emergency declared under 20 V.S.A. chapter 1 or during flooding or other emergency conditions that pose an imminent risk to life or a risk of damage to public or private property. Any rule adopted under this subsection shall comply with National Flood Insurance Program requirements. A rule adopted under this subsection shall include a requirement that an activity receive an individual stormwater discharge emergency permit or receive coverage under a general stormwater discharge emergency permit.

(1) A rule adopted under this subsection shall establish:

(A) criteria for coverage under an individual or general emergency permit;

(B) criteria for different categories of activities covered under a general emergency permit;

(C) requirements for public notification of permitted activities, including notification after initiation or completion of a permitted activity;

(D) requirements for coordination with state and municipal authorities;

(E) requirements that the secretary document permitted activity, including, at a minimum, requirements for documenting permit terms, documenting permit duration, and documenting the nature of an activity when the rules authorize notification of the secretary after initiation or completion of the activity.

(2) A rule adopted under this section may:

(A) establish reporting requirements for categories of activities;

(B) authorize an activity that does not require reporting to the secretary; or

(C) authorize an activity that requires reporting to the secretary after initiation or completion of an activity. (Added 1981, No. 222 (Adj. Sess.), § 25; amended 1987, No. 282 (Adj. Sess.), § 14; 1999, No. 114 (Adj. Sess.), § 3, eff. May 19, 2000; 2001, No. 61, § 43, eff. June 16, 2001; 2001, No. 109 (Adj. Sess.), §§ 2-4, eff. May 16, 2002; 2003, No. 42, § 2, eff. May 27, 2003; 2003, No. 115 (Adj. Sess.), § 28, eff. Jan. 31, 2005; 2003, No. 140 (Adj. Sess.), § 1; 2005, No. 78, § 14, eff. June 24, 2005; 2005, No. 154 (Adj. Sess.), §§ 2, 3, eff. May 17, 2006; 2007, No. 43, § 1, eff. May 23, 2007; 2007, No. 130 (Adj. Sess.), § 5, eff. May 12, 2008; 2011, No. 53, § 3, eff. May 27, 2011; 2011, No. 91 (Adj. Sess.), § 1, eff. Jan. 15, 2012; No. 138 (Adj. Sess.), § 6, eff. May 14, 2012.)