Legal Issues in Erosion Control and Stormwater Management

By Charles Holtman

Presented at the 12th Annual Conference of the Minnesota Erosion Control Association, March 10, 2000

It's a privilege to be involved professionally in the issues of erosion control and surface water management. Protection of our lakes, streams and wetlands rests in an immediate sense on our care and vigilance in these areas. Further, we are at a very exciting time with respect to our approach to these issues.

Just a few years ago, streambank stabilization was approached as the need to oppose the force of the stream with a greater brute force and the goal of stormwater management was to get the runoff into sewers and downstream as quickly as possible. Now, as this conference illustrates, we are in a period of great creativity in natural, graceful and lower-cost means of stabilizing disturbed banks and slopes. Having moved from the worship of storm sewers to engineered detention ponds, and to the use of those ponds for water quality purposes, we are seeking to understand the full water regime, surface and ground waters together. We are exploring site design, restored wetlands and non-structural methods of stormwater control as more cost-effective, more appealing in scale and hopefully, more effective in returning flow volumes, peak flows and pollutant generation on developed sites to pre-development levels.

My challenge as a lawyer is to use the law to help advance the process by which these approaches germinate, develop and over time make their way into the realm of what we call common sense. Common sense is that realm of the taken-for-granted that we want developers, farmers, public works departments and homeowners to start from when they undertake to design a subdivision, drain a low pasture, locate a snow storage site or draw up a landscaping plan for their quarter-acre. I get as excited as anyone by a good stop-work order. But to me, the most important use of the law is as a tool in this process.

Let me elaborate on this last point. Laws will always have their place as instruments of coercion.There will always be those who, in the absence of regulation, would impose the costs of their actions on society and the environment rather than take responsibility for them.And there will be those who will determine whether they should comply by multiplying the risk of getting caught by the consequences if they do, in order to calculate the amount of attention they should devote to complying with the terms of a permit. Enforcement always will be imperfect, because the public resources to monitor permit compliance always will be extremely limited, because court dockets are crowded, and because punishment always will be subject to the discretion of judges who do not react with the same moral outrage and sense of righteousness as you do to an unmaintained silt fence.

Thus I would suggest that erosion control and stormwater ordinances can and ought to be viewed as educational at least as much as they are viewed as coercive. It is when proper water protection methods make their way into the realm of common sense that we can feel we are really doing well for water resource protection. Where we would like to be in several years is not simply that every city and town has site design and BMP requirements in their stormwater ordinances. We would like to be at the point where everyone who implements and is subject to these requirements accepts their obvious good sense and incorporates that thinking automatically into their ordinances, plats and projects.

The law has its pragmatic components, creating by the crude calculation of potential punishment the incentive to take proper steps to avoid harm. And, even today, the law has a moral component. We still do presume, in the broad sense, that what is required by law must rest on some social value that we share and that the law ought to be complied with. Most broadly, I see my role as a lawyer as that of harnessing the pragmatic and moral forces of the law to move the principles of water resource protection, in the public mind, into the realm of common sense.

This requires that rules and ordinances press the envelope, that they ever urge the regulated community toward new and better ways of doing things. Pressing the envelope is not necessarily a recipe for opposition from the regulated community and political disaster.Whether a regulation will be accepted by the regulated community does not depend simply on how ambitious the demands it places. Rather, it rests on whether there is a sound technical basis for the regulation, whether there is a demonstrable link between the regulation and protection of the resource, whether the regulation keeps a level playing field, and whether it is clear in its application and consistently applied.

In my experience, those subject to regulation will always prefer a rule that is strict but clear to one that may be more lenient but is unpredictably applied. And that is why the pressing legal issues in erosion and stormwater regulation really are technical issues: the need to establish a sound technical basis that allows us to translate promising erosion control and stormwater management concepts into technical specifications and clear, enforceable regulations.

Let me turn to the basic regulatory framework for erosion control and stormwater management in Minnesota.

Regulation of land use historically and fundamentally is a local matter. It always has been in the nature of federal and state governments to expand, over time taking more and more matters out of local hands. But local land use regulation, because of its reliance on local facts and its intimate impact on the shape and tenor of a community, remains a deeply local concern. Thus, I would wager that every local government that regulates, regulates land-disturbing activity, and the water resource impacts of that activity, in one form or another.

Water resource protection provisions will be found in many places in local ordinances: in grading and excavation ordinances; subdivision and zoning ordinances; sanitary codes; shoreland and floodplain ordinances; steep slope ordinances; soil loss ordinances. Under the arrangement of local powers within the state, an incorporated area, i.e., a city, will adopt and apply its own ordinances, while county ordinances will apply within the unincorporated territory. A township, however, may adopt and enforce its own land use ordinances if it wishes.

Within the metropolitan area, much of the land is incorporated. Many of the townships that remain have adopted and apply their own ordinances. The county's role in land use permitting and regulating does remain important in some parts of the metro area. Outside of the metropolitan area, the county is much more involved.

Next, we have the watershed districts. A watershed district is a special unit of government, first authorized by legislation in 1955. The boundaries of a watershed district conform to the defined hydrological drainage area of a watershed or subwatershed. A watershed district has a broad mandate to conserve, protect and provide for the beneficial use of surface and groundwaters. Section 201 of chapter 103D lists these:

  1. To control or alleviate damage from flood waters;
  2. To improve stream channels for drainage, navigation, and any other public purpose;
  3. To reclaim or fill wet and overflowed land;
  4. To provide a water supply for irrigation;
  5. To regulate the flow of streams and conserve the streams' water;
  6. To divert or change all or part of watercourses;
  7. To provide or conserve water supply for domestic, industrial, recreational, agricultural, or other public use;
  8. To provide for sanitation and public health, and regulate the use of streams, ditches, or watercourses to dispose of waste;
  9. To repair, improve, relocate, modify, consolidate, and abandon all or part of drainage systems within a watershed district;
  10. To control or alleviate soil erosion and siltation of watercourses or water basins;
  11. To regulate improvements by riparian property owners of the beds, banks and shores of lakes, streams, and wetlands for preservation and beneficial public use;
  12. To provide for hydroelectric power generation;
  13. To protect or enhance the water quality in watercourses in water basins; and
  14. To provide for the protection of groundwater and regulate its use to preserve it for beneficial purposes.

There are about 45 watershed districts throughout the state. A district is formed by petition to the Board of Water and Soil Resources. It is governed by a citizen Board of Managers appointed to three-year terms by the County Board. When a district lies within two or more counties, each county appoints that proportion of the board of managers that corresponds to its relative tax base.

A watershed district has broad powers.It may levy property taxes or fund projects by special assessments on benefited lands. It may acquire and hold lands, and may exercise the power of eminent domain. It may plan, fund and execute capital projects such as regional stormwater treatment, wetland restoration, streambank stabilization, installation of lake outlet controls. Annual District budgets vary throughout the state from $50,000 or less up to several million dollars.In most cases the watershed district also acts as the drainage authority for the area within its boundaries, by virtue of the transfer of that responsibility from the County Commissioners. And a district is authorized, and indeed required by law, to adopt rules. Districts may have rules and permit requirements, for example, for erosion control, stormwater management, floodplain preservation, wetland protection, lake and stream buffers, dredging, shoreline structures, crossings of waterbodies, drainage systems and groundwater protection.

To complicate matters further, within the seven-county metropolitan area one will find in some places a watershed district and in others a joint powers watershed management organization (WMO). The joint powers WMO is a creation of the 1982 metropolitan surface water management act. There are about 20 such entities, existing only within the metropolitan area. The joint powers WMO similarly is formed on a hydrological basis. But whereas watershed district is a distinct governmental entity with a County-appointed board, a joint powers WMO is the product of a joint powers agreement among the cities and towns within the watershed.It is governed by a body composed of representatives from each city and town.

Because the governing board of a joint powers WMO is more strongly divided by municipal loyalties and interests, the sense of mission and level of activity in a joint powers WMO tend to be more limited than for watershed districts. Further, because of a technical error in the taxing statutes, the state Department of Revenue, at least for the time being, has taken the position that a joint powers WMO has no authority to fund programs or projects through a tax levy. Though there are many examples of good things that joint powers WMO's have accomplished, these and related factors have led many to perceive the creature known as the joint powers WMO to be a generally ineffective form of organization. Thus, while joint powers WMO's have essentially the same regulatory authority as watershed districts, a number do not regulate and those that do tend to be fairly modest in the undertaking.

What is the relationship between the permitting and enforcement authority of a watershed body and that of a city, county or town? The short answer is that the watershed rules are an additional layer of regulation. Within the metropolitan area, however, the water resource planning process tends to cause these independent regulatory layers to converge, at least in the standards that are applied.

Under the metropolitan surface water management law, each watershed is required to adopt a watershed management plan and revise the plan at least every ten years.The planning process involves collecting and assessing data about the physical and hydrological features of the watershed, articulating goals and priorities, and setting forth an implementation plan to achieve the goals. The implementation plan includes capital projects, data gathering and educational programs. Importantly, it also specifies the level of regulation that the local government units within the watershed must exercise.

The district plan goes through a process of review by state agencies, the affected counties, the Met Council and the cities and towns. Once it is adopted, each local unit of government has two years to prepare a local water management plan consistent with the watershed plan.The plan must be approved by the watershed organization. Specifically, it must commit to adopt ordinances that meet the standards for local ordinances set forth in the watershed plan. What this typically means is that the locality must adopt ordinances that are the same as, or not less strict than, the district's rules. These ordinances must be adopted within six months of watershed approval of the local plan.

This process does take time to play out. Indeed, while most watershed districts have had plans in place for more than a few years, the cities and townships within those watershed districts have yet to submit local plans. But in the long run, the result is a trend toward uniformity in water resource regulation at the watershed level. Further, once the watershed district approves a local plan and the required ordinances are in place, the city or town may choose to assume all permitting and enforcement responsibility. In this case, the watershed rules and permit requirements no longer will apply within that local jurisdiction. The concept, seen broadly, is that the watershed district provides a standard regulatory baseline for all cities and towns within the watershed. Local governments should participate significantly in the development of these rules. They then will conform their own ordinances to the watershed standard, and the watershed organization largely will step out of the permitting and enforcement role.

And not least is the Minnesota Pollution Control Agency. The MPCA regulates disturbed sites and stormwater runoff through the National Pollutant Discharge Elimination System, or NPDES, program.

The NPDES program is a federal program implemented by the PCA through a delegation of authority from the EPA. There is NPDES I, and NPDES II. NPDES I has been in place since 1987; the EPA published the NPDES II program requirements just three months ago and the process of implementing it at the state level is just beginning.

NPDES imposes a permit requirement that covers both erosion and sediment control on disturbed sites and post-construction stormwater management. The permit is what is known as a general permit. This means that the PCA does not review an application and make an individualized decision to approve or deny the permit. Rather, a permit applicant need only submit to the PCA a certification that erosion control and stormwater management plans have been prepared and will be followed. The applicant then may proceed subject to a set of standard conditions.

NPDES I also required cities over 100,000 population, in Minnesota meaning the Cities of Minneapolis and St. Paul, to develop and enforce erosion control and stormwater management programs. Neither city has a permit at this time and in that regard is several years overdue. This is a matter of consternation to some, and has led to the recent filing of a citizens' suit seeking to bring the two cities into compliance.

The NPDES permit requirement for individual projects applies only to sites where more than five acres of land is disturbed. By comparison, many local erosion control permits apply to disturbance of as little as one-tenth of an acre, or the excavation or storage of 50 yards of dirt. Local stormwater management permits may apply to developments on sites of an acre or smaller. And even when a site is subject to an NPDES permit, the PCA is farther away and inspection tends to be less frequent than at the local or watershed level. Consequently, most enforcement activity is at the local level. However, if a violating site is subject to an NPDES permit, you generally would be advised to invite the MPCA to the party, because it has enforcement tools that local governments and watershed districts do not have. Specifically, it may impose a fine of up to $10,000 per day either through an agency proceeding or through a civil action in the court.

Local governments and watershed districts have, generally speaking, three enforcement tools: the stop-work order, a civil court action for injunction or restoration, and a criminal misdemeanor prosecution by the county or city attorney.

Criminal prosecution can be useful, but can also be a difficult machinery to set in motion. Your county or city attorney may believe he or she has more important cases to bring and may be hesitant to venture into a subject matter and set of laws that are unfamiliar. Further, where the reason for noncompliance is usually economic, criminal punishment may be less effective than creating actual economic consequences for a violation. A misdemeanor prosecution provides for a small fine, but jail time is unlikely and quite likely will not make up for the damage to the resource that may have occurred.

For a governmental body, the stop-work order is essential. So is having a surety or performance bond in hand, to be used to stop occurring or imminent harm and stabilize a situation. The surety should be written to provide funds on demand, to ensure an immediate response. In serious cases, a stop-work order can be followed by a court action for an injunction and a restoration order. But as to its deterrence quality, the injunction doesn't do much ÷at most, the violator is forced to do what he was required to do in the first place. Multiplied by the probability of being caught, there's not that much of an incentive to come in for the permit, or to be diligent about inspecting and maintaining site controls. A stip-work order also can provide for restoration. However, again, in many cases there will be no effective repair of the resource. What you are seeking most of all is to create incentives so that the problem does not arise in the first place.

What is not there at the local or watershed level is the ability to impose a fine outside of the criminal process. If it is your belief that enforcement needs to be enhanced, I would recommend legislation authorizing a county or city hearing officer, or a watershed district, to impose a penalty of up to $1000 per day for a violation. The penalty would be imposed by the local governmental unit after a hearing, and could be appealed to the district court. For cost-effectiveness, I would put this well ahead of seeking additional resources for your inspection program, although it wouldn't hurt to have fines dedicated to funding that program. The last time this authority was proposed, however, the legislature was not well-disposed.

There is a modest financial incentive for compliance in place at the watershed level. The watershed law allows noncompliers to be charged for the actual costs incurred for inspections and other costs incurred in compliance activity. Noncompliance necessitates more inspections and more staff and consultants' time, and so can run up the costs. Stating in the permit that a noncomplier will be responsible for attorneys' fees for enforcement litigation, as more than one watershed district does, surely can strike terror into the heart of a potential noncomplier. I do not know if a court would uphold that broad application of the statute.

As I noted, NPDES II was adopted by the EPA in December. Over the next eight years, it will promote a further convergence of the erosion control and stormwater programs of cities, towns, counties and watershed organizations. Jay Michels and his colleagues at the MPCA are carrying the message widely about NPDES II, so I will not go into detail. In essence, it ratchets down the threshold for construction site regulation from five acres to one acre. It also will require a stormwater permit for most municipalities with a population over 10,000, and smaller municipalities that are near urban areas or sensitive waters. The municipal permit will require the following elements: regulation of site disturbance for erosion control and of developed sites for stormwater management; programs to identify illicit discharges to stormwater systems; public education; and application of best practices to municipal operations.

The PCA will be developing its implementing regulations over the next three years, and municipalities will have five years thereafter to fully implement their programs. The terms that the PCA comes up with will set the baseline for erosion control and stormwater management requirements in the areas in which many of you ply your trade. Further, each municipality will be able to demonstrate compliance with an element of its permit by "outsourcing" it. For example, a city may use the fact that an erosion control standard meeting PCA requirements is enforced by the watershed district or county within which the city is located, or it may agree with a larger adjacent city for the extra-territorial exercise of the larger city's regulatory program.

Therefore, there will be a tendency for watershed and local government requirements to move in the direction of being at least as strict as the PCA rules. And coordination between these units of government will become even more desirable as affected municipalities look toward the most efficient way to meet their obligations under NPDES II. All local units of government have an interest in staying abreast of the PCA development of the state program and permit conditions.

Let me close by briefly noting what I believe to be, from a legal perspective, four areas of importance on the horizon.

In the area of erosion control, I am looking to much closer and more formalized coordination among LGU's and watershed organizations. With more regulation in many places extending down to single-lot residential development, there will need to be much more efficient means in place to combine efforts to educate contractors and landowners; share building and grading permit notifications; combine permitting processes; and work out efficient arrangements for project tracking, inspection and enforcement. This can be accomplished in ways that range from informal coordination up to formalized joint powers agreements among municipalities, counties and watershed districts. As the PCA's NPDES II rules take shape, they will place the burden on cities to demonstrate effective erosion control programs. This creates even more of a driving force for collaboration.

With respect to stormwater management, the big issue is how to convert the good sense of site design practices and non-structural controls into clear, sound and enforceable ordinances. This list of potentially effective measures is long, including structural and non-structural treatment facilities, housekeeping practices and site design concepts that minimize impervious surface, site buildings and hard surfaces on less permeable areas of a site and preserve natural site drainage patterns. But regulations as to what must be used when, and how much, must rest on reasonably sound technical grounds. This means:

  • Reliable numbers for treatment effectiveness
  • A means to predict how different BMP's will operate in combination
  • A handle on the site-specific features that affect operation
  • Design and maintenance standards
  • Conditions on use of infiltration
  • Treatment of other pollutants such as oils and bacteria

I do not know of a stormwater ordinance in the country that mandates BMP's for stormwater management with a good, enforceable performance standard. Many require on-site infiltration as the first priority. Some specify a percentage of site flows that must be infiltrated. But none go further to quantify the requirement or to prescribe how BMP's other than NURP ponds may be employed to meet the standard. Brainstorming on a national level is needed involving all of the related disciplines to develop good sets of regional standards.

If you are a county, city or township representative, I most cordially invite your efforts to put BMP requirements into law, and not to look first to your watershed organization or the MPCA. The biggest obstacle to the implementation of many of these desirable practices is that they conflict with local subdivision and zoning ordinances.

Third is NPDES II implementation. This is a tremendous opportunity to bring all of these ideas into play. But it will be a tremendous challenge to devise a municipal permit that prompts specific actions and real benefits but that does not consume vast resources of the PCA and local governments in administration.

Finally, just a word about agricultural drainage.When ruling on approval of a drainage improvement, the drainage authority, a county board or a watershed district, must find that the benefits of the project will exceed the costs. The statute specifies that environmental costs must be included in the calculation. Yet the decision, as it has been done forever, simply compares the cost to build the improvement against the net increase in agricultural land value. Lawsuits have been brought to require the full environmental costs of drainage projects to be weighed, and these suits have had some success to date. They will continue to be brought, and indeed will have more consequential armaments at their disposal as the natural resource economists develop ever better ways of putting dollar amounts on environmental damage.

The goal is not to stop drainage projects, but to ensure that they are self-mitigating with respect to downstream and groundwater impacts. This means using buried tile even at a higher capital cost, and providing for detention in low areas, restored wetlands or within the ditch itself before discharge into receiving waters. I believe existing systems currently damaging receiving waters may be susceptible to similar requirements under laws such as the MERA. At the same time, programs such as CREP are making available state and federal funds for new and retrofitted mitigation of this sort. I am very excited about the prospects for real improvement in this area.