The Agency of Natural Resources (ANR) issued the final version of General Permit 3-9050 this September.  The General Permit covers all operational stormwater permitting in the State, but this iteration of the permit notably includes the State’s awaited requirements for so-called “three-acre sites,” which requires stormwater management upgrades to address stormwater discharges from existing sites containing three or more acres of impervious surface.

Regulations for these “three-acre” sites were a core component of Act 64—passed to address pollution in Lake Champlain and other impaired waterbodies—as well as Vermont’s Total Maximum Daily Load (TMDL) Plan for phosphorus, required by the US EPA to address phosphorus runoff pollution.

Three-acre sites under the general permit include both publicly and privately-owned properties, even if those sites had historically been exempt from stormwater regulation.  The permit also covers multiple smaller properties that form a “related operation” exceeding three acres of impervious surface.  SRH Law has been following the development of the general permit, for more information on the background and specifics of the general permit please review our previous blog posts:

• More Vermont Properties to be Subject to Stormwater Regulation: State to Issue First Letters for Three-Acre Sites
• State Issues Draft Stormwater General Permit for Public Notice and Comment

After ANR opened the draft permit up for comments, many commenters weighed in on the need for more time for property owners to assess and prepare for this new set of obligations.  In response, the final permit provides roughly an additional year to apply for coverage, depending on location.

Permit applications will be due on a staggered schedule—the rule prioritizes properties within impaired watersheds—depending on location and whether any part of the property was previously subject to a stormwater permit.  For three-acre properties with some existing unexpired permitting in place, an initial application must be submitted prior to expiration of the current permit.  For projects with expired permits, initial application must be made within 12 months of issuance of General Permit 3-9050.

For three-acre properties without previous permitting, the following schedule applies:

• Projects within the watersheds of the following lake segments as identified in the Lake Champlain TMDLs: Missisquoi Bay, Main Lake, Burlington Bay, and Shelburne Bay: no later than January 1, 2022.
• All other Lake Champlain segments: no later than June 1, 2022.
• Projects within the watersheds of stormwater-impaired waters: no later than January 1, 2022.
• Projects within the watershed of Lake Memphremagog: no later than January 1, 2023.
• All other projects, not within the watersheds of a stormwater-impaired water, Lake Champlain, or Lake Memphremagog, may be subject to later-issued deadlines, but must occur prior to October 1, 2033 as required by Act 64.

This first application deadline is for an Initial Notice of Intent (“Initial NOI”), which provides basic project information.  Property owners will then have 18 months to perform an “engineering feasibility analysis (“EFA”) and submit detailed project information along with a more comprehensive NOI.  A DEC-approved EFA and NOI allows the property to discharge stormwater for five years while coming into compliance with the updated standards by constructing the stormwater treatment system(s) deemed feasible by the analysis.  Projects will thus submit their Initial NOI based on their location/permitting status, while the 18-month/5-year schedule will then apply to all projects from that date.

Based on the EFA property owners may be required pay stormwater impact fees if the site cannot feasibly meet the treatment requirements dictated by the General Permit.  Likewise, sites that are able to achieve higher stormwater performance based on the EFA may be entitled to receive a portion of these fees if available on a first-come first-served basis.

In lieu of impact fees, stormwater offsets are also possible—a property owner may account for stormwater impacts by completing projects in the same watershed that exceed water quality standards.  Standards for offset eligibility vary based on watershed impairment.

ANR maintains information on three-acre sites on its website, including a list of three-acre sites.  ANR will be reaching out to landowners directly and is currently developing a funding plan to help defray the cost of engineering and compliance. 

If you have questions about the new stormwater permit or you have property that will be subject to the permit that you’d like to discuss, please contact any of the attorneys in our Environmental Practice, including Vic Westgate, Zoe Sajor, Brian Dunkiel, Andy Raubvogel, Geoff Hand, and Malachi Brennan.