More on the stormwater tempest in a bioretention teapot

Last week's passionate debate over the proposed stormwater regulation changes brought out a tropical depression's worth of controversy, particularly from the development community, which predicted suburban sprawl and reduced sizes of transit-oriented developments as a result of the requirement that Durham's "donut hole" -- a segment running from downtown to the Chatham Co. line -- that has lacked stormwater control regulations through what appears to be accidental oversight.

Even the Herald-Sun got in the act with this Sunday's editorial:

Controlling run-off isn't just a good idea -- it's state law, and the city could face a hefty $25,000-a-day fine if it doesn't have rules in place to satisfy the state by April.

But the conventional practice for controlling runoff is to install retention ponds or other land-hungry devices. That strategy works well in suburban developments where land is plentiful and undeveloped.

Infilling or redeveloping urban environments to build high-density apartments or condos, though, presents a different challenge. And developer representatives urged the council to hold off on adopting rules that would have hampered the very development it has been encouraging downtown.... An option is to let developers help local governments acquire environmentally threatened areas elsewhere to offset the impact of new building where conventional run-off retention is impossible.

We've learned a few more things about the issue, particularly from stakeholders at Downtown Durham, Inc., which has advocated for a compromise solution to help the City avoid facing hefty fines for non-compliance while not discouraging investment in density, particularly downtown.

First off, though, there's what may be a misconception (in the H-S' coverage, and BCR's too) on the amount of the fines, and just when they take effect. City leaders have been pushing for an answer to this by early March to avoid a feared $25k-per-day fine as noted above. Yet it looks like there is, in fact, time for compromise. From a letter by DDI staff to the mayor and Council:

First, both Bill [Kalkhof] and I [Melissa Norton] left the council meeting with the impression that the City would be penalized to the tune of $25,000/day for non-compliance after April 1st. This is also what was reported in the Herald Sun on February 18 and on many community blogs. However, we verified with Mr. Wiebke that he was actually referring to the penalty in case of non-compliance for the city’s NPDES permit, which will not occur until July 1. 

Furthermore, DDI contacted Boyd DeVane with the NC Division of Water Quality who is the point-person for Senate Bill #845. He informed us that 1) there is no language in that legislation about penalty fees, and 2) there is no requirement therein to adopt a local ordinance. As he explained, the city is in compliance so long as no permits are issued (in the so-called ‘donut hole’) for development that increases vehicular surface area of an acre or more- unless appropriate measures are taken.  

All of which seems to point to the fact that, yes, there's time to do this one right.

And doing it right seems likely to involve an idea that was fully in play in last week's City Council meeting: via the creation of a land-banking designation or escrow account system of some sort to allow the City to target where conservation easements happen.

After all, the on-site stormwater mitigation strategies mentioned as one way for developers to comply with stormwater requirements were just that: one way.

And certainly not an impossible one. The Neuse River basin in the northern part of Durham already falls into that. Heck, Habitat for Humanity was able to build such a BMP facility on their Hope Crossing project in eastern Durham Co. off Junction Rd., and that was for affordable housing (though admittedly with the help of governmental housing dollars supporting infrastructure.)

Yet on-site mitigation isn't required. Existing state rules already allow developers to perform off-site mitigation by placing a conservation easement on land elsewhere in the river basin.

Of course, this represents a new wrinkle for developers, who then have to go off and negotiate a deal with some landowner elsewhere in the watershed; this can, as DDI points out, create a patchwork of covered areas, and the areas chosen can be anywhere in the basin, not necessarily in Durham.

As a result, land-banking is already done in the Neuse basin, allowing developers to buy-back land already designated for this use. Yet the Cape Fear basin where South Durham falls lacks such structures and provisions today.

Others in the development industry note that South Durham has already developed to the point that there may not be enough land left to protect -- especially since land that's already in certain watershed protection areas can't be "double counted" through the purchase of conservation easement.

There's some fear that Durham officials may balk at land-banking in areas that fall within the Cape Fear basin yet are outside Durham County itself. Still, this is one approach to solving the problem.

Another involves the creation of a designated fund approach, which would create a pool of dollars collected by Durham that the city itself could use on mitigation.

DDI's Norton lays out the two proposals in their letter to City Council members:

We believe this scenario would be SIGNIFICANTLY improved if some mechanism were put in place that would link the ‘non-contiguous donor parcel’ provision with city/county conservation goals to acquire environmentally sensitive lands. This mechanism could take two forms.

Land Bank Model- the city would purchase a piece of land with strategic conservation value and could sell “conservation credits” to downtown developers (or others at their discretion) to recoup the costs. This land would then be prohibited from development and could be used as a community green-space resource. Note: while there are currently a number of private land banks in the Neuse River Basin, there are none in the Cape Fear.

Designated Fund Model- to comply with stormwater ordinance, new development could pay a fee into a designated fund managed by the city/county. This fund could ONLY be used to purchase conservation land and/or engage in targeted remediation programs. Note: this is similar to the State EEP’s ‘off-set’ payment available in the Neuse River Basin, but has the added assurance that the money collected would be used exclusively in Durham.

In both of these scenarios, instead of searching all over the city for a willing seller of an appropriate piece of land, a developer could pay a pre-determined fee to the city or county that helps acquire and protect land in environmentally sensitive areas.

Neither of these addresses one of DDI's other concerns -- the fact that an impervious parking lot downtown would require mitigation to be redeveloped, even though the existing surface parking generates the same runoff as a new building, yet without the green benefits of in-fill development. Which does seem to be a very legitimate concern, and one that seems in need of being addressed.

Here's hoping it's the case that this proposal isn't so "under the gun" as it's appeared -- and that elected officials and city staff have the ability to make this one work for all sides, including the time it may take to get land banks or escrow accounts up and running.

Comments

[Eli Van Zoeren]

Thanks for turning on full-text rss feeds! No more opening a browser window to read that last sentence that was cut off.

[Toby]

Due to budget concerns, Durham County zeroed out this year's open space acquisition money (that's right -- a 100% cut).

http://www.newsobserver.com/news/durham/story/1365139.html

And each dollar of the $550,000 saved would actually have brought in an additional $3-$4 in grant money, based on the experience of past years.

Maybe the "designated fund" model would allow Durham to get back on track with its rural open space preservation plans, while allowing downtown to "re-densify" (is that a word?) at the same time.

This would be the best of both worlds, in my opinion.

[Todd]

Who needs open space when we're gonna have a brand spankin' new $8 million high school football stadium to go to...

We've got all the density we need on the BOCC.

[gary]

Just a thought for these downtown parking lots

# Pervious (permeable) concrete. Made by using less fine material in the concrete mix, perious concrete is durable and porous. Contact local contractors to see if they are familiar enough with this material to do an installation.

or

# Porous asphalt. This type of asphalt works on the same principle as the pervious concrete described above. It, too, is durable, but should be installed by an experienced contractor.