Durham County

Durham City Council considers stormwater ordinance update to reflect state rules

Maria Finnegan instructs a paddle boarding class at Jordan Lake. Durham Council members are evaluating updating its stormwater ordinance to be in compliance for nutrient standards required of developers related to the lake’s basin.
Maria Finnegan instructs a paddle boarding class at Jordan Lake. Durham Council members are evaluating updating its stormwater ordinance to be in compliance for nutrient standards required of developers related to the lake’s basin.

Lake Jordan water quality could face less strict rules, if Durham’s City Council decides to follow state guidelines.

The council has until May to decide if it wants to change its stormwater ordinance and apply for a National Pollutant Discharge Elimination System (NPDES) permit that is in accordance with state rules.

The current permit is effective until February of 2018, but the city is required to apply for a new one six months prior.

The proposed ordinance revisions, which goes along with the permit, are for stormwater performance standards and nutrient regulations for development near the Jordan Lake basin, said Shea Bolick, city water developer review supervisor for public works.

Councilwoman Jillian Johnson asked if removing nutrient loading limits from the Jordan lake basin is because the city anticipated rules that didn’t materialize.

“My concern is is this making our stormwater regulations weaker,” Johnson said.

City code provisions dealing with stormwater standards were revised in 2012 -- reflecting both Falls Lake rules and anticipation of Jordan Lake new development rules, said Donald O’Toole, with the city attorney’s office.

The provisions were incorporated into the NPDES permit, O’Toole said.

In 2015, the state legislature passed a bill stating local governments could not enforce rules held in advance.

“Our permit is inconsistent with that,” O’Toole said.

City Attorney Patrick Baker said the city is a position where it moved its ordinance in a direction it thought the state was going, but the state made a change, Baker said.

“None of us can tell you what’s going to happen in terms of if the developers are going to challenge us, or environmentalists may challenge us,” he said. “We’re not sure, but we’re kind of in the middle.”

The proposal allows the city to change the ordinance, have a new permit and be in compliance with state law, Baker said.

The changes would “roll back” to phase II NPDES requirements currently being renewed by 12 other communities, including Chapel Hill on Feb. 20, said Paul Wiebke, assistant public works director for stormwater.

Wiebke said the rules wouldn’t require nutrient treatment but rather allows for nutrient removal, and is a less stringent standard.

Current rules are in excess of state standards, Wiebke said.

“We do not have the authority under state statute to enforce these rules,” he said.

The change would allow developers to make a purchase to a nutrient bank, which is an off site mitigation facility, for sufficient “credits” in the same basin or watershed to meet the reduction for the project, Wiebke said.

Both O’Toole and Bo Ferguson, deputy city manager for operations, said developers approaching the city are aware of the changes in the state law.

“We believe that either path has some potential liability to it -- that we could be challenged now for being out of compliance with the legislation that was adopted last year,” Ferguson said.

The city adopted the rules in advance of what it anticipated would be rules for the entire Jordan Lake basin, Ferguson said, however other communities did not.

“Our development community has expressed to us a strong sense that that puts them in a very unfavorable position compared to all the other municipalities who are approving developments that they don’t include these same requirements,” he said.

Ferguson said it’s not necessarily large scale developers, but ones like a doctor’s office redevelopment that under current rules means an extra $200,000 to $300,000 cost.

“They’re making business decisions based on what happens … and we need to try to clarify the legal standard that’s being provided to them,” he said.

It does not mean the city’s efforts to ensure protection of the lake ends, Ferguson said.

Councilman Charlie Reece said current standards have been in place for almost five years.

“How has development gone in Durham during those five years,” Reece asked rhetorically. “ Has it been a vetted wasteland of no development because it’s too expensive, or have we done well as a community with the current standards and the current costs associated with them?’

Johnson said she sees two options.

“Are we to try to keep our stronger stormwater standards, which if they would result in a significant protection of the water quality in the lake we might want to do, and then we have the issue of whether we could win that challenge … or do we go to the state law and deal with more pollution in the lake,” she said.

Councilman Steve Schewel has heard from residents downstream who are concerned.

“We want to protect our water quality and we want Durham’s water quality regulations to be strong, and so we see the legislation weakening it and we’re trying to figure out what we ought to do about it,” Schewel said.

Councilman Don Moffitt’s concern is that changing the rules puts stormwater treatment costs on future generations.

“We’re just asking future generations to pay the bills so that we can do less stormwater treatment today,” Moffitt said.

Rachael Riley: 919-419-6646, @RachaelRiley85