NO. 154. AN ACT RELATING TO STORMWATER MANAGEMENT.
It is hereby enacted by the General Assembly of the State of Vermont:
Sec. 1. FINDINGS
The general assembly finds that:
(1) The state is committed to clean water as a key factor in preserving Vermont’s quality of life;
(2) Stormwater runoff has impaired certain waters of the state and remains a potential source of pollution to all state waters;
(3) Previous legislative efforts to address stormwater runoff in the state have focused largely on discharges of stormwater runoff to impaired waters;
(4) Municipalities and property owners in watersheds that are not impaired by stormwater runoff are faced with issues of pollution, liability, and title encumbrance similar to those faced by municipalities in stormwater‑impaired watersheds;
(5) An orphan stormwater system pilot program in the agency of natural resources will help address the issue of stormwater runoff to the unimpaired waters of the state by providing grants to municipalities to aid in the costs associated with the construction, renovation, or repair of certain stormwater systems;
(6) In implementing the orphan stormwater system pilot program, the agency of natural resources should work with municipalities to provide technical assistance in evaluating existing stormwater treatment systems and the need for maintenance, repair, and construction of those systems; and
(7) The creation of an orphan stormwater system pilot program in the agency of natural resources does not relieve property owners, municipalities, and developers from the relative responsibility for the permitting, operation, and maintenance of stormwater systems, and the general assembly expects the agency of natural resources to continue to investigate and enforce ongoing violations of the state and federal stormwater requirements.
Sec. 2. 10 V.S.A. § 1264(a)(18) is added to read:
(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.
Sec. 3. 10 V.S.A. § 1264(e) is amended to read:
(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.
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(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.
Sec. 4. 10 V.S.A. § 1264a(e)(1) is amended to read:
(e)(1) The secretary of natural resources may issue a permit for an offset project under this section. Application shall be made on a form prescribed by the secretary of natural resources. An applicant shall pay an application fee in accordance with section 2282 of Title 3. The secretary may issue such permits for the following activities or projects:
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(C)(i) Conversion of land use to reduce sediment load or hydrologic impact, especially in riparian areas, provided that conversion of primary agricultural soils as that term is defined in section 6001 of this title shall be limited to establishing by easement a forested riparian buffer zone that meets the requirements of the department of environmental conservation’s guidance for nonimpervious surface treatment offset projects within impaired watersheds;
(ii) Prior to approval of an offset project to be implemented on agricultural soils under this subdivision, the applicant for a stormwater discharge permit shall conduct an analysis of the viability of implementing a nonagricultural offset within the watershed of the proposed stormwater discharge. To facilitate such an analysis, the secretary of natural resources will identify any potential nonagricultural offsets in the watershed of the proposed discharge and shall provide this information to the applicant;
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Sec. 5. 10 V.S.A. § 1264c is amended to read:
§ 1264c. LOCAL COMMUNITY IMPLEMENTATION FUND
(a) There is created, pursuant to subchapter 5 of chapter 7 of Title 32, a local community implementation fund to finance municipal administrative, capital, and management needs related to: (1) the development and implementation of total maximum daily load plans and water quality remediation plans in stormwater-impaired waters of the state; and (2) the construction, renovation, or repair of orphan stormwater systems. The fund shall be administered by the secretary of natural resources through the facilities engineering division.
(b) Deposits shall be made to the fund from monies appropriated by the general assembly and from any other source, public or private. Unexpended balances and interest earned on the fund shall not revert to the general fund, but shall be retained in the fund for use in accordance with the purposes of the fund.
(c) The secretary shall make disbursements from the fund for the development and implementation of total maximum daily load plans and water quality remediation plans in stormwater-impaired waters of the state pursuant to annual agreements between the municipality and the secretary. The annual agreements shall identify the activities to be completed in the development and implementation of impaired watershed remediation activities. The secretary shall allocate monies in the fund for the development and implementation of total maximum daily load plans and water quality remediation plans equally among the municipalities of the state in which a portion of a
stormwater-impaired watershed is located.
(d) There is established an orphan stormwater system pilot program in the agency of natural resources under which the secretary may award a municipality a state grant from the fund for the capital costs associated with the construction, renovation, or repair of an orphan stormwater system, provided that:
(1) The municipality agrees to become an applicant or co-applicant on the stormwater permit for the orphan stormwater system, agrees to apply for and be responsible for future permits for the orphan stormwater system, and agrees to be responsible for operating and maintaining the permitted stormwater system; and
(2) The orphan stormwater system for which the municipality is an applicant or co-applicant for a grant meets the financial and technical criteria established by the secretary of natural resources by procedure. The financial and technical criteria adopted by the secretary shall include criteria addressing eligibility based on property value, residency, and environmental impact.
(e) As used in this section, “orphan stormwater system” means a stormwater system:
(1) that serves a residential subdivision;
(2) that operates under an expired stormwater discharge permit;
(3) that does not discharge to a stormwater-impaired watershed; and
(4) for which the original permittee, in the discretion of the secretary of natural resources, is no longer associated with the system.
Sec. 5a. 10 V.S.A. § 1278 is added to read:
§ 1278. OPERATION, MANAGEMENT, AND EMERGENCY RESPONSE
PLANS FOR POLLUTION ABATEMENT FACILITIES
(a) Findings. The general assembly finds that the state shall protect Vermont’s lakes, rivers, and streams from pollution by implementing programs to prevent sewage spills to Vermont waters and by requiring emergency planning to limit the damage from spills which do occur.
(b) Planning requirement. Effective July 1, 2007, the secretary of natural resources shall, upon renewal of a permit issued under section 1263 of this title, require a pollution abatement facility, as that term is defined in section 1571 of this title, to prepare and implement an operation, management, and emergency response plan for each permitted facility. An operation, management, and emergency response plan shall include the following:
(1) Identification of those elements of the facility, including collection systems that are determined to be prone to failure based on installation, age, design, or other relevant factors.
(2) Identification of those elements of the facility identified under subdivision (1) of this subsection which, if one or more failed, would result in a significant release of untreated or partially treated sewage to surface waters of the state.
(3) A requirement that the elements identified in subdivision (2) of this subsection shall be inspected in accordance with a schedule approved by the secretary of natural resources.
(4) An emergency contingency plan to reduce the volume of a detected spill and to mitigate the effect of such a spill on public health and the environment.
(c) The secretary of natural resources shall post publicly notice of an illegal discharge that may pose a threat to human health or the environment on its website within 24 hours of the agency’s receipt of notification of the discharge.
(d) Rulemaking. The secretary may adopt rules implementing this section.
Sec. 5b. 10 V.S.A. § 1263(d) is amended to read:
(d) A discharge permit shall:
(1) specify the manner, nature, volume, and frequency of the discharge permitted and contain terms and conditions consistent with subsection (c) of this section;
(2) require proper operation and maintenance of any pollution abatement facility necessary in the treatment or processing of the waste by qualified personnel in accordance with standards established by the secretary. The secretary may require operators to be certified under a program established by the secretary. The secretary may require a laboratory quality assurance sample program to insure qualifications of laboratory analysts;
(3) contain an operation, management, and emergency response plan when required under section 1278 of this title and additional conditions, requirements, and restrictions as the secretary deems necessary to preserve and protect the quality of the receiving waters, including but not limited to requirements concerning recording, reporting, monitoring, and inspection of the operation and maintenance of waste treatment facilities and waste collection systems; and
(4) be valid for the period of time specified therein, not to exceed five years.
Sec. 6. APPROPRIATIONS
(a) In FY 2006, the amount of $600,000.00 is appropriated or transferred from the general fund to the local community implementation fund created under 10 V.S.A. § 1264c for the purpose of implementing a two-year orphan stormwater system pilot program within the agency of natural resources for the purpose of awarding municipalities grants for the costs associated with the construction, renovation, or repair of an orphan stormwater system.
(b) In FY 2006, $50,000.00 is appropriated or transferred from the general fund to the agency of natural resources for implementation and administration of the orphan stormwater system program under 10 V.S.A. § 1264c.
Sec. 7. AGENCY OF NATURAL RESOURCES ORPHAN STORMWATER
SYSTEM ANNUAL REPORT
Annually, by no later than January 15, the agency of natural resources shall submit a report to the house committee on fish, wildlife and water resources, the senate committee on natural resources and energy, the house and senate committees on institutions, and the house and senate committees on appropriations regarding implementation by the agency of the orphan stormwater system construction, renovation, or repair program under 10 V.S.A. § 1264c. The report shall include:
(1) A summary of the grants awarded under the program, including any mechanisms proposed by municipal applicants for assuming responsibility for the permitting, operation, and repair of a relevant orphan stormwater system;
(2) The number of expired stormwater discharge permits eliminated under the program and the number of remaining orphan stormwater systems operating under expired stormwater discharge permits;
(3) The number and list of the municipalities with orphan stormwater systems that have applied for grants under the program;
(4) A recommendation by the agency of natural resources of legislation, regulations, programs, or other incentives to encourage municipal participation in the construction, renovation, repair, or maintenance of orphan stormwater systems;
(5) An analysis of the cost of repairing, upgrading, or replacing orphan stormwater systems discharging stormwater runoff to unimpaired waters of the state and a recommendation by the agency of the amount of funding necessary to accomplish such repairs, upgrades, or replacements;
(6) A summary of the degree of failure of orphan stormwater systems and an assessment of the amount of pollution and runoff that such orphan stormwater systems contribute to state waters;
(7) A summary of any and all enforcement actions pursued by the agency of natural resources for violations of state and federal stormwater requirements and state stormwater discharge permits; and
(8) A proposal by the agency of natural resources of legislation, regulations, programs, or other initiatives necessary for the agency of natural resources to enforce effectively state and federal stormwater requirements in the state, including compliance with state stormwater discharge permits, and to allocate equitably liability for violations of such requirements or permits.
Sec. 8. EXTENSION OF LOCAL COMMUNITY IMPLEMENTATION
Subsection (b) of Sec. 10 of No. 140 of the Acts of the 2003 Adj. Sess. (2004) is amended to read:
Sec. 4 of this act (local communities implementation fund) shall be repealed on
Sec. 9. SUNSET
Sec. 7 of this act (agency of natural resources orphan stormwater systems report) is repealed January 16, 2008.
Sec. 10. EFFECTIVE DATE
(a) This section and Secs. 1 (findings), 2 (stormwater system definition), 3 (stormwater permitting compliance history), 4 (agricultural stormwater offset), 5 (orphan stormwater system pilot program), 6 (appropriations), 7 (agency of natural resources orphan stormwater system annual report), 8 (extension of local community implementation fund), and 9 (sunset of orphan stormwater system program) of this act shall take effect upon passage.
(b) Sec. 5a (operation, management, and emergency response plans for pollution abatement facilities) shall take effect July 1, 2006.
(c) Sec. 5b (wastewater discharge permits) shall take effect July 1, 2007.
Approved: May 17, 2006
The Vermont General Assembly
115 State Street