Five Things Every NC County Attorney Should Know About ...



Five Things Every NC County Attorney Should Know About Phase II Stormwater

1. What’s the big deal with Phase II stormwater?

Stormwater (what you get when rain hits the ground) causes both water quantity problems (flooding, drainage) and water quality problems (polluted runoff, erosion). Development greatly increases both kinds of stormwater problems. North Carolina has regulated stormwater quality in some areas (the coast, water supply watersheds) since the late 1980s. But the federal Phase II regulations that appeared in 2000 greatly expand the regulation of stormwater in the nation’s urbanized areas. Jurisdictions that are covered by Phase II are required to have public education programs, public involvement in stormwater planning, good housekeeping practices at their own facilities, a plan for finding and eliminating illicit discharges of stormwater, and (most difficult to administer) a permit program that ensures the creation and post-construction, long-term maintenance of best management practices (BMPS) for stormwater on private developments larger than one acre.

2. Are we (____ County) required to do anything for Phase II?

The Phase II rules cover units of government that own or operate “municipal separate storm sewer systems” (MS4s) in certain urbanized or urbanizing areas. Essentially, MS4s are manmade conveyances for stormwater that discharge to waters of the state. The most common MS4 is a ditch along a street. Since counties in North Carolina, unlike cities, do not generally own or maintain the roads, counties are not required to implement Phase II throughout their urbanized or urbanizing areas. However, county-owned facilities in urbanized areas of the state may have their own MS4—for example, the storm sewer system in a county park or at a bus parking lot. These county-owned facilities may be subject to the public education and good housekeeping requirements of Phase II. Then there are the schools….

3. Other than what we’re required to do, why should we care about Phase II?

Counties may be pushed to take delegation of the Phase II program by developers who grow frustrated with having to get developments outside city limits, but within Phase II covered areas , permitted by DENR out of Raleigh. Counties may be pulled by the attraction of the revenue source that stormwater regulation can bring, since stormwater fees can be used both for water quality problems and water quantity problems (drainage, flooding). Some counties also are taking voluntary responsibility for Phase II implementation throughout their county because they are more capable than some of the small municipalities being asked to implement Phase II and because more uniform development standards across the county may be advantageous from an economic development perspective.

4. How do I find out who is regulating private development in different parts of ____ County?

is the interactive mapping tool that DENR has created. Your county staff should also develop contacts with any cities in your county that have or are starting stormwater programs.

5. If _____ County decides to look at Phase II post-construction stormwater or illicit discharge regulation, where do I go for model ordinances and background info?

Latest model ordinances:

Comprehensive NC Stormwater info:

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