WBA recently submitted comments on proposed changes to DNR’s erosion control and stormwater performance standard rules.  For a copy of those comments click here.

This rulemaking effort originally was originally meant to focus on practices applicable to the agricultural community.  As the rule draft was further developed, however, changes to many of the provisions that impact construction and development were incorporated in to the draft rule.  WBA served on the DNR advisory committee that worked on this draft rule and raised concerns about a number of these proposed changes. 

In regard to erosion control standards that apply during construction, the rule contains two changes.  First, the number of sites to which the rule applies is being greatly expanded.  Currently, the standard applies to a construction site of one acre or more of land disturbing activities.  Under the proposed rule, the standard would apply to all sites where land is disturbed, regardless of size.   (This change was added by DNR after the advisory committee’s last meeting). 

Who will be impacted by this change?  In the last State Budget, jurisdiction for erosion control at commercial sites was transferred from the Department of Commerce to the DNR.  Consequently,  this standard will apply to small commercial sites.  For one and two family dwellings, Commerce currently regulates sites under one acre, but the standard is less stringent than what is contained in DNR’s proposed rules.   The current standards should continue to apply to those sites, unless Commerce decides to modify its rule, or is pushed by DNR to do so,  to match up with DNR’s standard. 

Second, the erosion control standard is proposed to be changed. The current standard is to reduce sediment load carried in runoff by 80% compared to no controls.  Under the proposal, the standard would to limit sediments to more than 5 tons/acre/year.  DNR contends that the 80% standard and the 5 ton standard are roughly the same. 

In addition to the changes to these construction site standards, there are changes to the post construction site (stormwater) standards.  These changes include modifications to the total suspended solids standard for redevelopment sites, and the standards relating to peak discharges, infiltration, and protective areas.  The rule also would provide municipalities more flexibility in meeting the standard (a 40% reduction in total suspended solids by March of 2013) that applies to them. 

What happens next?  DNR staff want to take the rule to Natural Resources Board for final approval in June, although that timeframe may be difficult to meet given the some of the controversy surrounding the rule.  The agricultural community turned out in force at the hearings on the rules in regard to the portions of the rule that impacts them.  Assuming the Board approves the rule, the Legislature will have an opportunity to review the rule.  To move the rule forward this year, state law requires that DNR submit the rule to the Legislature by September 1st. 

WBA will keep you updated when and if this rule moves forward.
For more information contact Patrick Stevens (608) 242-5151 x 22