Stormwater regs clog development

Columbia is knee-deep in stormwater problems.
A commercial building on Business Loop 70 was about to be renovated but will sit empty. The prospective tenant determined that the additional $250,000 to comply with stormwater rules made the project too expensive.
Trinity Lutheran Church asked for a stormwater variance because repairs to one of the congregation’s driveways would trigger stormwater regulations and add 60 percent to the cost of the maintenance project.
Quaker Oats, one of the city’s largest manufacturers, wanted to separate the visitor parking lot from the staff parking lot and install a security fence, but that also triggered the stormwater ordinance, which called for the company to install a rain garden, which slowly absorbs rainwater before it runs off into the watershed.
Documents obtained from the Public Works Department show the city gave Quaker Oats a variance to the ordinance in February after a two-week delay. The company’s engineering firm had to convince the Public Works staff that there was simply no room for the rain garden.
Columbia’s stormwater regulations, passed in 2007, are meant to control rainwater that causes flooding and washes pollutants such as oil into streams and creeks. New developments have to build special structures, such as rain gardens and detention ponds, to catch water that runs off parking lots and roofs. Building owners who want to renovate or expand also have to install stormwater collectors. The goal is to have developed areas absorb rainwater as they would have before construction.
State and federal regulators have been cracking down in the Midwest, and Columbia is one of the few communities with an ordinance to address a problem that arose during the building boom that began in the 1990s. The new regulations are expensive, and developers argue that Columbia’s rules are more stringent than what the Environmental Protection Agency requires.

Three feet high and rising

But Columbia also has to protect its streams and reduce flooding. Markers showing the crests of the County House Branch Creek in stormwater task force member Ben Londeree’s backyard show a worsening trend: Last year’s crest was more than three feet higher than the creek rose during the much heavier rainfalls of 1993.
And the tide of problems is about to get neck-deep. The Missouri Department of Natural Resources is preparing a mandate for the city, county and university to reduce total stormwater runoff into the Hinkson Creek by nearly 50 percent. The EPA is under pressure to begin implementing more stringent water protection regulations, and Columbia’s move into the 100,000-plus population category could trigger further regulatory requirements.
Complying with environmental regulations without imposing impractical burdens on businesses is a complicated dance, and the city is still finding its rhythm.

To make matters worse, city officials acknowledge the stormwater utility, which is separate from the sewer system, does not have the money to meet state and federal mandates. The stormwater piping that moves rainwater away from flood-prone areas is old and damaged, and the Public Works Department lacks the staff and funding to fix and manage the infrastructure. This means the stormwater issue is about to hit close to home; the city is preparing to ask residents to pay higher stormwater utility rates, which might require a vote.
Although developers and environmentalists tend to clash on most issues, there does seem to be one broad agreement about the stormwater ordinance: Some of the provisions just aren’t practical, and the city needs to look at more creative ways to protect the environment without making development costs prohibitive.

A confluence of water woes

Columbia sits at the confluence of three watersheds. The Perche, Hinkson and Little Bonne Femme watersheds all flow through the city before meandering into the Missouri River southwest of town.
The streams, similar to many urban watersheds, are vulnerable to stormwater runoff. As development increases, the amount of soil and pervious surfaces decreases, so when it rains, that water flows down the watershed until it is absorbed into the soil or washes into a stream. In the process, it picks up oil and other toxins from the roads, which all flow into the watershed.
Anticipating more stringent state and federal stormwater regulations, Columbia and Boone County put together a task force in 2002 to develop a stormwater ordinance. The idea was to make new developments minimize the impact of additional impervious surfaces and eventually get older structures to take measures to filter and control their stormwater runoff.
The members ranged from “microbiologists who were concerned about the snail darter in the Hinkson Creek to people who just wanted to pave everything and be done with it,” said Dave Griggs, chair of Regional Economic Development Inc. and a former co-chair of the task force.

It took a year for members with opposing viewpoints — development interests and environmental interests — to build a working rapport and nearly four more years to produce a stormwater ordinance and a stream buffer ordinance. But by the time the laws passed in 2007, the real estate bust had halted development, so judging the effects of the ordinance has been difficult.
The stormwater management requirements are only triggered by new development and redevelopment projects, so the rarity of construction makes it difficult to tell whether the rules reduce stormwater runoff. However, as the economy begins to emerge from recession, the costs and contradictions of the ordinance are becoming clear.

A major hindrance to development

The issues are on the city’s radar. Earlier this year, the City Council asked for applicants for a new Storm Water Advisory Commission. Public Works is working on a memo to clarify some of the discrepancies in the ordinance, and Columbia hired a consultant to study what kind of rate increases the city needs to enact for the stormwater utility and whether voters need to approve them.
But right now, the law is a major hindrance to development, those in the industry said. City Manager Bill Watkins, along with many others, said he worries that the regulations could harm the fragile recovery.
“I think it will have a negative impact because … it changes the economic breakpoint of when you do a development,” Watkins said. “People are only going to do a development if they can make money and only if they can make as much money doing this development as they can doing something else with their money.”
Talk to engineers about the stormwater ordinance and its accompanying handbook, and they’ll give you an earful. It’s full of contradictions. It’s too dependent on city staff’s interpretation, which varies depending on who is reviewing the plans. And it makes maintenance and redevelopment of existing buildings impractical.
“The way the ordinance is written makes development in the city limits almost impossible,” said Matt Kist, an engineer with Trabue, Hansen and Hinshaw who applied for a seat on the proposed Storm Water Advisory Commission.
It’s one thing to build on an undeveloped site, he said. A new site has room to incorporate what are known as Best Management Practices, or BMPs, for controlling stormwater. But redeveloping an existing site, with limited space and features built before stormwater regulations were adopted, is often unfeasible.
“When you’re talking a small development, half your costs could be in stormwater features,” Kist said.
Other engineers agree that new development, though very expensive to comply with the regulations, is at least doable. The big problem is that redevelopment and simple maintenance projects, such as repaving a parking lot, often trigger stormwater management improvements that are difficult to incorporate onto a site.
Nathan Eckhoff, an engineer with Crockett Engineering Consultants, said he’s concerned that the stringent regulations will dampen the fragile economic recovery.

“When a new business decides to expand or relocate, the stormwater regulations can deter them from coming here,” he said.
Eckhoff said he recently prepared plans for an existing building that a company wanted to redevelop to begin operations in Columbia, but after seeing the cost of complying with the stormwater regulations, the company decided against the move.
Tim Crockett, another engineer with Crockett Engineering, said the stormwater management requirements triggered by maintenance projects are either too expensive or impractical in the space available. Projects that don’t increase impervious surfaces, as well as those that remove them, can trigger the ordinance.
“We’re not changing the impervious surface; we’re just trying to fix a problem,” Crockett said.
The increase in engineering work to convince staff that a variance is needed is one of the big issues Don Stamper, director of the Central Missouri Development Council, sees with the ordinance. Development in and around existing commercial areas are seeing significant cost increases from the ordinance, he said.
“The issue is not whether or not you get a variance; it’s what it costs you to get to that point,” he said. “Shouldn’t we have a situation where it’s predictable on the front end?”
Matt Vander Tuig, an engineer with Trabue, Hansen and Hinshaw and a member of the Planning and Zoning Commission, said redevelopment projects frequently run into problems with the ordinance.
“You go through so many scenarios, and you run into so many situations where you need a variance; then you ask yourself, maybe it’s impractical, you know?” he said.
Although staff does tend to ultimately work toward a compromise or variance to the ordinance, the issue is that the process is extended, and developer fees for engineers and lawyers increase. But because they get so many requests for variances, the staff is generally standing its ground, Vander Tuig said.
Vander Tuig disagrees with the staff’s interpretation of the ordinance as it relates to redevelopment. The way he reads it, an engineer can use any type of BMP, even though some are better at controlling stormwater than others, as long as the combined stormwater treatment of those BMPs meets the ordinance requirements. But in his experience, the staff has interpreted it so that each BMP utilized must meet a certain water-quality rating. That leaves only four BMP choices in the manual, he said.
“It’s limiting what you can do from a creative, ingenuity perspective,” he said.
Public Works Director John Glasscock said that with any regulation, there’s going to be some interpretation on the part of plan reviewers. The department tries to maintain consistency by keeping the same plan reviewers working on the same project, he said.
“While we strive to make it consistent, you can’t write an ordinance that covers everything,” Glasscock said.

Redeveloping the Stormwater Ordinance

When buildings install rainwater controls, they have to control the flow of stormwater so that it is absorbed as it would have been before the area developed. That’s a near impossibility in many cases. Most stormwater regulations don’t require redevelopments to meet the pre-development conditions, just the conditions before redevelopment, Vander Tuig said.
“It’s a real deal breaker,” Vander Tuig said. “It’s causing urban sprawl.”
He said he understands the intent — the city wants to get its existing buildings into compliance with the new code — but the expense of complying either makes redevelopment impossible or requires a variance.
Glasscock said the department is looking at clarifying how it interprets the ordinance as well as how it can better accommodate redevelopment.
“Basically we were trying to make sure any new development met (pre-development conditions),” Glasscock said. “Well, in the process, we didn’t foresee some things in redevelopment.”
For instance, Glasscock said there was one project that would have actually removed impervious area. Yet the ordinance required that they also install a rain garden, which generally costs thousands of dollars. The city might have been asking the developer to do too much, he said.
“Every little bit will help, but there’s an issue with the cost that’s associated with it,” Glasscock said.
The costs imposed on redevelopment have piqued the interest of 6th Ward Councilwoman Barbara Hoppe, an advocate for infill development that takes advantage of existing infrastructure. At the New Partners in Smart Growth conference in Seattle earlier this year, she heard how different communities were dealing with the tension between stormwater regulations and development.
One solution other communities have used: Instead of requiring redevelopments to try and fit in stormwater controls on a site without much room, have them pay into a fund the city can use to address more pressing stormwater issues.
“Take a reasonable amount of money, not anything that would deter them from redeveloping the area, and do some stormwater improvements in another area where you get a bigger bang for your buck,” she said.
Mitigation fees are cheaper than complying with the regulations as they’re written and can produce stormwater improvements beyond what the ordinance would provide for otherwise, she said.
Another idea she wants the city to look into is transferring development rights, which directs development away from sensitive areas while allowing it more densely in others. A developer gets a variance to density or stormwater detention requirements in one area and gives the rights to develop a sensitive area to a land trust or the city for preservation.
“It should be a win-win situation, and you have to be dumb not to go for a win-win,” Hoppe said.
Those are ideas Vander Tuig has looked into, and he said the city should pursue them so that redevelopment is not rendered impossible. He said different stormwater goals should be incorporated into the city’s comprehensive plan, which is being developed by a special task force. That way, sensitive areas can have more stringent requirements, and other areas can be allowed to develop with fewer restrictions.
These types of suggestions are in manuals put together by the EPA, he noted, which is the same entity that catalyzed the city’s stormwater management efforts in the first place.
Stamper said transferring development rights has worked well in the regions where they’re used, but he said he’s not sure if Missouri law would accommodate programs such as mitigation funds and the transfer of development rights.
But if those programs are enacted, the Special Business District, which is exempt from the ordinance, should be required to participate, he said. For instance, it would have been almost impossible to build the new City Hall building under the ordinance’s requirements without requiring mitigation fees or the transfer of development rights, Stamper said.
“Those programs can work, but we need more of it, not less,” he said.
Crockett said development transfers and mitigation fees are a good way to manage stormwater on a regional basis and protect the areas the public deems most valuable. In fact, he’s heard that a development south of town might get a variance to the ordinance in return for mitigation money it pays to the city. He said he thinks Columbia is moving toward emulating other communities’ programs.
“It’s not a new technique or a new technology,” Crockett said. “It’s happened in a lot of places.”

The heavy foot of the EPA

The city has been scrambling toward compliance of the anticipated EPA crackdown on stormwater management.
“They’re all new regs,” Glasscock said. “If you go to either coast, this has been going on for years, and everything comes to the middle last.”
Those in the development community say that the ordinance enacted by the city far exceeds what the EPA requires.
“The final thing adopted in the city was vastly more broad and more restrictive than what (the task force’s) recommendations were,” Griggs said.
Erin Daugherty, a Realtor and developer who applied for the stormwater commission, said if the ordinance keeps developments from being built at an affordable price, they can’t be sold at an affordable price. And if it’s too expensive to build at all, that will reduce the supply and raise the price.
“I think a lot of things have happened that we’re unaware of simply because they didn’t get that far,” she said. “They get as far as a site plan, and they don’t pan out.”
She said the new commission should serve as a liaison between state and federal regulators and the city. The commission can help strike the balance between environmental protection and affordable development, Daugherty said.
“Sometimes it feels like (the city) is putting some real tight restraints on us, but the intention is to protect us from a much heavier fist,” she said.
The big issue, Griggs said, is that no one is quite sure what the EPA requirements are. Vander Tuig agreed and said that might be why the ordinance hasn’t changed much to accommodate redevelopment.
“The way the EPA writes this stuff is so vague,” Vander Tuig said. “It’s up to so much interpretation, the fear is any change is going to be against regulations.”
Londeree, who chairs the Boone County Smart Growth Coalition and was a member of the stormwater task force, said it’s difficult to tell whether the stormwater ordinance has had an impact.
“You have to remember that 90 percent of the town is still built under the old rules, and it’s going to take a while before you get enough new development to see what the impact is,” he said.
But the flooding in his backyard has been getting worse each year, most likely due to the huge increase in impervious surfaces in newly developed areas. Even routine rains are causing flooding, he said.
The County House Branch Creek behind his house flows into the Hinkson Creek, an impaired waterway. If the city and county don’t start showing improvement in the watershed, they risk big fines and regulatory requirements.
“When the EPA comes in, they land on you with their foot pretty hard,” he said.
The DNR is preparing a TMDL, or total maximum daily load, for stormwater discharges into the Hinkson. The draft out right now would require the city, county and MU to reduce runoff into the creek by nearly 50 percent.
Although DNR officials said there is some flexibility in implementing the requirements, they are under a deadline to enact a policy before the end of the year. The city and county are questioning some of the data used as well as the TMDL’s call for a reduction in total stormwater runoff rather than a reduction in a specific pollutant.
John Hoke, the DNR official in charge of the Hinkson TMDL, said a general reduction in stormwater runoff hasn’t been implemented in the Midwest before. In the Hinkson, there is no single pollutant responsible; there are several, and stormwater is the conduit, he said.
“As long as (the city, county and MU) stay on track and follow the intent of the TMDL, the department will be OK with that,” he said.
Watkins said the city needs to have a plan and the funding to support it.
“Part of what’s scaring us is the feds have actually started enforcing some of these things in other communities,” he said. “We want to at least be in a situation where we’ve got a plan, we know what we’re going to do, we can point to what we’ve done and where we’re going and what the time frames are to do it.”
Jeff Barrow, chairman of the Planning and Zoning Commission and director of the Greenbelt Land Trust, said an overlay district for stormwater requirements on the Hinkson watershed is probably the best way to deal with the regulations. The city could also toughen its stream buffer ordinance, which regulates how close development can be to streams.
He thinks the problem area is around the U.S. Highway 63, Interstate 70 interchange. Urban kayakers who paddled the Hinkson near the Walmart on Broadway and U.S. 63 used to call that portion “rainbow falls” because of all the oil and pollutants that ran into the stream from the parking lot. The first flush of water after a rain is the most toxic, and the city needs to keep it from going into the Hinkson if they want it to improve, he said.

Funding balance

Improving the watersheds and managing stormwater is almost impossible with the current funding structure of the stormwater utility.
“We don’t really have a funding source to do what is mandated,” Watkins said.
Earlier this year, the city hired Kentucky-based Environmental Rate Consultants to determine how much Columbia needed to raise its rates to fund its utility. Glasscock said it’s been evident for about five years that the utility was under-funded.
“We’re broke; we don’t have any money,” he said. “It’s really the last resort here.”
As the rates are structured now, commercial property owners pay 4 cents per square foot of impervious area, and residential owners pay a flat fee of up to $1.35 depending on their floor plan. Residential owners don’t pay for other impervious areas such as driveways, patios and garages, Glasscock said.
He said the city needs to raise its rates as well as ask voters to approve a bond to replace aging stormwater infrastructure, but one of the hurdles is how to structure such a rate increase to comply with Missouri law. The goal is to get something on the ballot by November that will allow the utility to raise rates in the future, Glasscock said.
A June 2008 study by Colorado-based engineering firm CH2M Hill found that 75 percent of the city’s stormwater pipe had exceeded its life expectancy. Further, the city’s annual $600,000 Capital Improvement Project budget was nowhere near the yearly funding the firm recommended to replace the aging infrastructure — $5.8 million.
At an August budget hearing, former 4th Ward Councilman Jerry Wade lamented the city’s Capital Improvement Plan for stormwater.
“I think the CIP clearly demonstrates the crisis in stormwater project funding,” he said then.
The CH2M Hill study also found that city engineers are 115 percent utilized and “lack the time to administer an increased CIP workload and the pipe replacement program.”
Vander Tuig said he thinks a lot of the interpretation issues with the variance probably stem from the fact that Public Works is understaffed.
“I think there’s some staff that wear so many different hats. … I would say that is part of the problem,” he said.
Griggs said the original task force recommended that a lot of the stormwater issues could be mitigated with more aggressive enforcement and monitoring on the part of the city, but that hasn’t happened.
“Had the city really investigated or looked into more seriously some of our recommendations, the final ordinance would not have to be as restrictive as it is,” he said.
The staff enforcement and inspection of stormwater requirements is in huge contrast to inspections of building codes, Vander Tuig said. Plus, if the staff doesn’t monitor the BMPs, it can’t know how effective they are.
“I’ve never heard anything about Public Works maintaining these things or inspecting them,” Vander Tuig said. “Currently, in my opinion, they wouldn’t have the staff or funding to do so.
“The intent is there. The process is in place to allow them to do that, but the staff isn’t. The funding isn’t.”
Glasscock said the department recognizes the issues but said the stormwater regulations are still new. Public Works recently hired an erosion control manager and is now looking into creating another position to inspect on-site BMPs. The division is still in its infancy, he said, and it will take time to streamline the process.
“It’s going to take at least 10 years to get on our feet,” Glasscock said. “We’re walking, crawling, right now.”