905R90116
United States
Environmental Protection
Agency
Watershed Management Unit
Water Division, Region V
Chicago, IL
December 1990
£EPA
Stormwater Management
Ordinances for Local
Governments
Introduction
s development of land occurs, the
importance of managing stormwater
is becoming increasingly apparent.
Stormwater discharges can be
responsible for water quality
degradation, flooding, and stream
channel erosion. Approaches to the
management of these problems
have been piecemeal at the State and local level,
ranging from trying to prevent development to
extrapolating stormwater management authority
based on existing subdivision, zoning, flood
control, and/or erosion control ordinances. These
approaches have been largely inadequate for two
reasons. First, ordinances for other purposes are
not easily adapted, and second, enforcement has
been difficult because the courts have been
reluctant to rule in favor of ambiguous regulatory
authority and against well-established private
property rights. This strongly suggests the need for
local stormwater management ordinances.
The components of stormwater management
ordinances fall into four major categories:
1. legal authority and context,
2. technical basis,
3. administrative apparatus, and
4. enforcement provisions.
These ordinances also generally address both
stormwater quantity and quality. However, there
are differences in the way a stormwater
management ordinance should be written to
emphasize water quality. These differences are
noted in the following descriptions of the major
categories.
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Legal Authority and Context
(though each of the four elements
are essential, the local government
must possess the legal authority
(delegated by the State) and provide
the proper context for the ordinance.
In some States, such authority
already exists without additional
State action. In others, such as
Virginia, the State must grant local governments
the authority.
Stormwater management authority may be
embedded in prior enabling legislation and/or
ordinances. These include ordinances for
subdivisions, zoning, land development, flood
control, erosion and sediment control, and water
quality improvement. Stormwater management
ordinances must be clear about where they derive
their authority and should be compatible, or at
least not in conflict with, other ordinances
addressing Stormwater issues.
Once the legal authority has been established,
the Stormwater management ordinance should
provide an overall context. This includes a finding
of facts leading to the conclusion that a Stormwater
management ordinance is necessary; a statement
of goals and objectives; a summary of previous
legislation relevant to the Stormwater ordinance;
and definitions of terms. For a Stormwater
ordinance emphasizing water quality, the finding of
facts and objectives must be tailored toward the
quality issue.
The ordinance must clearly define to whom and
for what type of activities the ordinance is
applicable, and when it becomes effective. A
grandfather clause and a severability clause are
important elements. The latter states that if any
portion of the ordinance becomes invalid, the
whole ordinance is not invalidated. The ordinance
must also allow cooperation and coordination with
neighboring local jurisdictions, State agencies, and
Federal agencies. At the Federal level, the U.S.
Environmental Protection Agency (EPA) is
developing guidance for new permits for municipal
separate storm sewers. These permits will be
targeted to reduce pollutants in Stormwater
discharges to meet water quality standards.
Although the EPA permits are intended to cover
only discharges from storm sewers carried in
improved drainage facilities, natural drainage
channels frequently discharge into improved
facilities. An effective Stormwater management
ordinance should consider the EPA permitting
requirements for pollution control.
Technical Basis
he Stormwater management
ordinance must not require activities
that extend beyond the state of
technical, management, and
engineering capabilities available to
the local government itself, or to
those who live and work in the area.
At a minimum, the following should be accessible:
• analytical methods for estimating the
frequency and magnitude of appropriate
events including the use of water quality,
hydrologic, and hydraulic models;
structural and management approaches
for reducing stormwater-related problems
including such structures as
detention/retention ponds, infiltration
trenches, and street sweeping;
sampling and measurement devices for
evaluating the effectiveness of the analytical
methods and structural and management
approaches in achieving the ordinance
goals. This may include water quality
sampling, rainfall measurement, and/or flow
measurement.
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The technical basis for a stormwater ordinance
is often summarized in performance standards and
design criteria. Performance standards specify
evaluative benchmarks, while design criteria
provide analysis and construction guidelines. For
water quality, the performance standards should
be oriented towards reduction of nonpoint sources.
In addition, the ordinance may allow substitution of
off-site controls for on-site controls.
Administrative Apparatus
dministrative provisions must be
made for the approval and review of
stormwater management plans,
construction and maintenance of
stormwater control facilities, and
inspection and monitoring of the
stormwater management program.
The ordinance should also allow
establishment of a fee schedule. Adequate
funding and staffing resources are required to
bring an effective program to life. Staff functions,
at a minimum, would include the approval and
review of stormwater management plans and the
inspection of facilities. Depending on the
ordinance, staff functions may also include
construction, maintenance, and monitoring. These
functions may be delegated to land owners and/or
developers.
A variety of funding sources may be considered
for implementation of the program ranging from
complete local government funds to a
self-sustaining program separate from local
government budgets. Examples of the former
include drawing from general funds, issuance of
general obligation bonds, and/or issuance of
revenue bonds. Examples of the latter include use
of plan review fees, establishment of stormwater
utilities, or the development of pro-rata share
schedules.
Enforcement
he final critical element of a
stormwater management ordinance
is the provision of effective
enforcement alternatives and legal
remedies. Based on experience with
flood control, water quality, and
erosion and sediment control
ordinances, several guidelines are
appropriate.
First, civil versus criminal penalties must be
specified. Although criminal penalties may appear
to be the more intimidating sanction, the courts
have traditionally been reluctant to convict an
accused offender for a criminal stormwater
violation. Experience has shown that significant
civil penalties are more effectively applied.
Second, a violation of the ordinance must be
clearly defined in order to effectively prosecute an
offender or to bring an offender in compliance. For
example, a stormwater ordinance may state that
phosphorus concentrations in excess of
pre-development conditions represent a violation
each day excess concentrations occur.
Finally, the ordinance should provide for the
suspension of development activities until a
violation is corrected. Oftentimes, civil financial
penalties are viewed by developers as a cost of
doing business. Halting construction activities
places a more severe incentive on the developer
to comply and is, at times, the only way to achieve
compliance.
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Virginia Stormwater Management Legislation
ecently, the State of Virginia adopted
a stormwater management
ordinance that is summarized here
as a sample of state-enabling
legislation (Code of the
Commonwealth of Virginia; Title 10,
Chapter 6, Article 6). Municipal
ordinances can be established by
reference to the State law or can be
tailored to local needs. Specifically, the
components of the State legislation are:
• statement of purpose;
• definition of various terms;
• authorization for local programs;
• guidelines for developing technical criteria
and administrative procedures;
• statement of the status of State projects and
lands;
• specification of the oversight responsibilities
of the state;
• authorization for establishment of more
stringent local requirements;
• procedures for plan submission and
approval and exempted land uses;
• authorization for collecting performance
sureties, recovering administrative costs,
and assessment of service charges;
• description of the appeals process;
• specification of the civil penalties and
enforcement options;
• authorization for cooperation with Federal
and State agencies; and
• statement that this legislation does not limit
the authority of other agencies.
The Virginia legislation includes all of the
minimum critical elements and provides the legal
authority for local governments to adopt their own
stormwater management ordinances. The Virginia
law primarily places the burden on new
development by defining existing runoff levels, and
the corresponding level of water quality effects,
erosion, and flooding, as a point of reference. It
allows local government to require performance
bonds or escrow accounts for development so that
if proper stormwater controls are not installed, the
resources will be available to complete required
activities without burdening taxpayers. Perhaps
cognizant of the municipal stormwater
requirements of EPA, the Virginia law also
authorizes local government to cooperate with
Federal agencies.
References
Hawley, Mark E. and Richard H. McCuen, "Elements of a
Comprehensive Stormwater Management Program,"
Journal of Water Resources Planning and
Management, November 1987.
Maloney, Frank E., Richard G. Hamann, and Bram D. E.
Canter, "Stormwater Runoff Control: A Model
Ordinance for Meeting Local Water Quality
Management Needs," Natural Resources Journal,
October 1980.
This project was funded by the U.S. Environmental Protection Agency Office of Water Enforcement and
Permits-Water Permits Division and managed by Region V Watershed Management Unit-Water
Division. Prepared by Dynamac Corporation, GKY & Associates, Inc., and JT&A, Inc. For copies of
this publication, contact The Terrene Institute, 1000 Connecticut Avenue, NW, Suite 300, Washington,
DC 20036, (202) 833-3380.
Printed on Recycled Paper
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