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DISTRICT DEPARTMENT OF THE ENVIRONMENT
NOTICE OF PROPOSED RULEMAKING
Stormwater Fee Discount Program
The Director of the District Department of the Environment (DDOE), pursuant to the authority set forth in the District Department of the Environment Establishment Act of 2005, §§ 101 et seq., effective February 15, 2006 (D.C. Law 16-51), as amended, including: D.C. Official Code §§ 8-151.03 and 8-151.07 (2011 Supp.); the Comprehensive Stormwater Management Enhancement Amendment Act of 2008, effective March 25, 2009 (D.C. Law 17-371); D.C. Official Code §§ 8-152.01 and 8-152.03 (2011 Supp.); the Water Pollution Control Act of 1984, effective March 16, 1985 (D.C. Law 5-188); D.C. Official Code § 8-103.13 (2011 Supp.); and Mayor’s Order 2006-61, dated June 14, 2006, hereby gives notice of the intent to amend title 21 (Water and Sanitation), chapter 5 (Water Quality and Pollution), of the District of Columbia Municipal Regulations (DCMR) to establish a stormwater fee discount program. Final rulemaking action shall be taken in not less than thirty (30) days after the date of publication of this notice in the D.C. Register.
Also, as section 4 of D.C. Law 17-371 requires, prior to the issuance of a Notice of Final Rulemaking, this rulemaking will be submitted to the Council of the District of Columbia for a review period of up to forty-five (45) days from the date of publication of this notice in the DC Register, excluding weekends, holidays, and days of Council recess.
The Discount Program: Purpose and Description
The proposed rulemaking establishes a stormwater fee discount program for retail water and sewer customers. This program would provide discounts to the District stormwater fee that appears on the customer’s monthly bill from the District of Columbia Water and Sewer Authority (DC Water).
The United States Environmental Protection Agency (EPA) requires the District to minimize and treat its stormwater in order to protect the Anacostia and Potomac rivers, their tributaries, and the Chesapeake Bay through Municipal Separate Storm Sewer System (MS4) Permit (August 19, 2004). In order to fund the program that responds to this requirement, the District charges each customer a monthly stormwater fee based on the area of impervious surface found on the customer’s property. An impervious surface is a hardened surface, such as asphalt, concrete, or roof area that prevents or substantially impedes the penetration of water into the ground.
Retention practices (such as green roofs, bioretention, and harvest/reuse systems) reduce the amount of stormwater runoff generated from impervious surfaces. Such practices provide benefits. They reduce the negative environmental impacts from stormwater volume and pollutants and reduce the District’s cost of complying with the EPA’s permit requirements. District law requires DDOE to provide a stormwater discount to account for these benefits.
These proposed rules would establish a program to provide the discount, and thereby an incentive to a water and sewer customer, to install stormwater retention practices.
A customer would earn a monthly discount by installing one or more approved stormwater retention practices. The volume of stormwater retained would determine the amount of the discount. The proposed rules would allow for the maximum discount for properties that retain the equivalent volume of stormwater created by a one and two tenths inch (1.2 in.) storm event.
This one and two tenths inch (1.2 in.) metric is consistent with the EPA’s new draft MS4 Permit, dated April 19, 2010. The draft MS4 Permit requires the District to promulgate regulations that require regulated development to retain the volume of stormwater produced by a one and two tenths inch (1.2 in.) storm. Historical rainfall data show that ninety percent (90%) of the District’s storms produce one and two tenths inch (1.2 in.) of rainfall or less.
The maximum discount a property would be eligible for is fifty-five percent (55%) of the stormwater fee imposed on the property. The fifty-five percent (55%) cap is based on DDOE’s analysis and the fact that properties with stormwater retention practices eligible for stormwater fee discounts will still likely fail to retain some of the runoff resulting from infrequent but very large storm events, from the remaining ten percent (10%) of the District’s storms. The remaining fee imposed on the property, after application of the discount, will support the property’s share of the District’s: (1) capital costs for stormwater management, mitigation, and retrofits, as required by the District’s MS4 Permit; and (2) fixed costs for administration and oversight of the MS4 permit.
The discount program would apply to existing, retrofitted, and newly-constructed stormwater retention practices that reduce stormwater runoff from residential and non-residential properties. Discounts would be granted for periods of three (3) years, as long as the customer maintains eligibility.
For properties that have installed stormwater retention practices prior to the establishment of the stormwater fee discount program, discounts could be applied retroactively. The discount may apply as far back as May 1, 2009, if the customer provides adequate documentation verifying the date of installation.
The proposed rules would establish the discount program, define the general categories of stormwater retention practices eligible to receive discounts, specify program eligibility requirements, specify the maximum discount available to customers, describe how discounts would be calculated and how they could be lost, in whole or in part, and generally describe application, review, and appeal processes for the discount program.
The proposed rules would amend existing definitions and rules to reflect the related regulatory responsibilities of some District agencies. It also would make clarifying and conforming changes to existing rules.
Sample Calculation
The stormwater fee is based on the “Equivalent Residential Unit” (ERU), a unit of measurement established in § 556. Each ERU is equal to one thousand square feet (1,000 sq. ft.) of impervious surface. For a 1.2 in. rainfall event, each ERU produces seven hundred ten and seventy-five hundredths (710.75) gallons of stormwater runoff. Currently, a property pays $2.67 per month per ERU.
The following sample calculation shows how a customer’s use of a stormwater retention practice can reduce the fee. Assume that a property has twenty thousand square feet (20,000 sq. ft.) of impervious surface, or twenty (20) ERUs. Assume also that the impervious area consists of seventeen thousand five hundred square feet (17,500 sq. ft.) of roof area and two thousand five hundred square feet (2,500 sq. ft.) of a concrete driveway. At present rates, $2.67/ERU, the property must pay a monthly stormwater fee of $53.40 for this impervious area. ($2.67 X 20 ERUs)
Now assume that the owner installs a green roof that has a DDOE-approved design, and that engineering calculations have demonstrated will retain a maximum of ten thousand three hundred sixty-two gallons (10,362 gal.) of stormwater runoff per storm event. As an approved retention practice, the green roof entitles the customer to a stormwater fee discount.
The Department will calculate the monthly stormwater fee discount as follows:
Step 1: Input the maximum volume of stormwater runoff retained by the DDOE-approved stormwater retention practice per storm event, in gallons:
10,362 gallons
Step 2: Convert the retention volume from Step 1 to ERUs by dividing it by seven hundred ten and seventy-five hundredths gallons per ERU (710.75 gallons/ERU) (rounding the quotient up to the nearest tenth):
10,362 gallons ÷ 710.75 gallons/ERU ═ 14.6 ERUs
Step 3: Multiply the number of ERUs from Step 2 by the maximum allowable discount percentage of fifty-five percent (55%) (rounding the result up to the nearest tenth):
14.6 ERUs × 55% ═ 8.1 ERUs
Step 4: Determine the dollar amount of the monthly stormwater fee discount by multiplying the number of ERUs from Step 3 by the current monthly fee, two dollars and sixty-seven cents ($2.67) per ERU:
$2.67/ERU × 8.1 ERU ═ $21.63 monthly discount
As an alternative, and to streamline the discount application and administrative process for small stormwater retention practices, the Department may develop predetermined discount rates and standardized calculations, based on the formula in the rules. These would apply to stormwater retention practices that serve areas of no more than one thousand square feet (1,000 sq. ft.) of impervious surface.
“Housekeeping” changes, mostly for meaning of “Department” and “Director”
In order to clarify and harmonize the rules, as amended, the Department would amend the definitions of “Department” and “Director” to have those terms refer, respectively, to the District’s Department of the Environment (DDOE) and its Director. In some places in the rules, the identification of other departments, notably Consumer and Regulatory Affairs, would change to the DDOE, as the implementing agency. This is because the relevant functions of the associated sections of the rules have been reorganized by statute and Mayor’s Order from these other departments to DDOE.
There would be a few other “housekeeping” changes. All are indicated in this Notice, reproduced as they would appear in the revised rules. First, due to the change in the meaning of “Department”, references to the Departments of Consumer and Regulatory Affairs and Public Works have been rewritten for clarification, with no change in the underlying reference. This change appears in subsections 500.3, 501.4-.6, 501.9, 503.6, 506.1-.2, 506.4, 507.1, 515.3, 528.1, 542.6, 544.5, 545.1, and section 599.
One public entity reference would be updated for clarification’s sake. The “Board of Appeals and Review” would be changed to “Office of Administrative Hearings”. This change appears in § 507.1.
A section which would have appeals referred to the “Corporation Counsel, Criminal Division” would be deleted as unnecessary, in light of the elimination of that title, the intervening reorganization and establishment of the “Attorney General”, and the Attorney General’s powers and standard procedures for bringing prosecutions. This is § 545.2.
Sections referring to the public’s obtaining access to copies of the Department’s “Standards and Specifications for Soil Erosion and Sediment Control” would be shortened for accuracy and clarity to refer to availability from the Department. This change occurs in §§ 501.4 and 542.6.
Title 21, WATER AND SANITATION, Chapter 5, WATER QUALITY AND POLLUTION, of the DCMR is amended as follows:
New sections 557 through 562 are added to read as follows:
557 STORMWATER FEE DISCOUNT PROGRAM: ELIGIBILITY
557.1 The stormwater fee discount program shall apply to each retail water and sewer customer that pays the stormwater fee described in § 556 of this chapter.
557.2 The Director shall grant a stormwater fee discount to a customer that has installed a qualifying stormwater retention practice on its property.
557.3 A customer shall have the right to apply for the stormwater fee discount beginning:
(a) On the effective date of this section for a non-residential property; and
(b) One (1) year after the effective date of this section for a residential property.
557.4 The discount shall be applied on the customer’s water and sewer bill as a credit to the stormwater fee established pursuant to § 556.
557.5 If the customer installed a stormwater retention practice on its property before the date of application, and can provide documentation verifying the date of installation, the stormwater fee discount shall be made retroactive to the date of installation, but no earlier than May 1, 2009.
557.6 A customer seeking a stormwater fee discount shall, in order to be eligible for the discount:
(a) Be current in all stormwater fee payments in the water and sewer bill;
(b) Submit an application to the Department, in a manner prescribed by the Department;
(c) In the application, accurately describe the stormwater retention practice(s), including but not limited to:
(1) Engineering design;
(2) Technical specifications;
(3) Calculations of stormwater retention volumes; and
(4) Other documents prescribed by the Department.
557.7 An installed stormwater retention practice shall, in order to be eligible for the discount:
(a) Comply with all applicable building and plumbing codes;
(b) Be properly sized and located on the property;
(c) Be designed and functioning in accordance with applicable industry and professional standards and specifications in effect at the time of installation, including guidelines developed by the Department;
(d) Be subject to inspection by the Department.
557.8 As a requirement of continued eligibility, the customer shall:
(a) Properly maintain the stormwater retention practice so that it continues to function as designed and approved to effectively reduce the volume of stormwater runoff from the property.
(b) Continue to grant the Department access to the property to allow inspection of the stormwater retention practice(s) for the entire period of any discount issued.
557.9 An approved discount shall expire on the first of:
(a) the end of the stormwater fee discount period; or
(b) the property or retention practice is no longer eligible for the discount.
558 Stormwater Fee Discount Program: DISCOUNT CALCULATION
558.1 The monthly stormwater fee discount shall be calculated as follows:
(a) Step 1: Determine, in gallons, the maximum volume of stormwater runoff retained by the Department-approved stormwater retention practice during a one and two tenths inch (1.2 in.) rainfall event;
(b) Step 2: Divide the Step 1 result by seven hundred ten and seventy-five hundredths gallons (710.75 gal.) per ERU (the number of gallons of stormwater runoff per ERU that would be generated by a one and two tenths inch (1.2 in.) rainfall event);
(c) Step 3: Multiply the Step 2 result by the maximum allowable discount percentage, fifty-five percent (55%); and
(d) Step 4: Multiply the Step 3 result by the stormwater fee charge per ERU specified in subsection 556.5.
558.2 The stormwater fee discount shall be applied to the customer’s monthly retail water and sewer bill’s stormwater fee charge.
558.3 The Department shall apply a pre-calculated discount to a practice which it certifies as a Small Retention Practice because:
(a) The retention practice serves an impervious area of one thousand square feet (1,000 sq. ft.) or less;
(b) The type of retention practice is common in the green building industry; and
(c) The customer requests the treatment on the ground that it lacks the technical capability to assess the practice.
558.4 The discount for a Small Retention Practice shall be calculated so that it is reasonably consistent with the discount that would be determined pursuant to subsection 558.1.
559 Stormwater Fee Discount Program: Inspections
559.1 The Department may inspect a property for which a customer has applied or is receiving a stormwater fee discount in order to determine whether the stormwater retention practice as built and as operated retains the stormwater runoff volume described on the discount application or as previously approved for a discount.
559.2 The Department shall seek permission from the appropriate person for entry onto the property in order to conduct an inspection.
559.3 A customer’s refusal or knowing failure to provide the Department with access to inspect the stormwater retention practice shall constitute grounds to deny or revoke the discount, effective the date of the unsuccessful inspection as scheduled or as otherwise attempted at the site.
560 Stormwater Fee Discount Program: CERTIFICATION PERIOD; Recertification
560.1 A stormwater fee discount approved pursuant to § 557 shall be approved for a period of three (3) years from the date of approval by the Department.
560.2 In order to extend a stormwater fee discount period, a customer must submit a recertification application to the Department.
560.3 In order to avoid a lapse in a discount while the Department reviews a recertification application, a customer must submit the recertification application between one hundred eighty (180) and sixty (60) days before the expiration of the stormwater fee discount period.
560.4 The recertification application shall be submitted through such means as may be designated by the Director.
560.5 Upon receipt of a recertification application, the Department may perform an inspection to verify that the stormwater retention practice(s) remains eligible for the discount.
560.6 The Department may deny or approve a recertification application, in whole or in part.
560.7 If the Department approves the recertification application, the stormwater fee discount shall be approved for an additional period not to exceed the original period pursuant to § 560.1.
560.8 A qualified stormwater retention practice may be recertified more than once.
561 Stormwater Fee Discount Program: DENIAL, REVOCATION OR ADJUSTMENT OF STORMWATER FEE DISCOUNT
561.1 The Department may:
(a) Deny an application for a discount; and
(b) Reduce or revoke a discount for a stormwater retention practice which fails to retain the stormwater runoff volume on which the approved discount was based.
561.2 The Department shall provide to the customer a written notice of its denial, briefly stating the basis for the denial and the customer’s right to dispute the Department’s decision.
561.3 Prior to reducing or revoking a discount, the Department shall provide to the customer a written notice of the determination describing:
(a) Each deficiency or other factor identified;
(b) The proposed reduction or revocation of the discount; and
(c) The customer’s right to dispute the Department’s decision.
561.4 If the customer fails to correct each deficiency and other factor within thirty (30) days after the date the notice is postmarked or electronically transmitted, the Department may revoke or reduce the discount.
562 STORMWATER FEE DISCOUNT PROGRAM: ADJUSTMENTS AND DISPUTES
562.1 The Department’s denial or determination shall become final unless the customer seeks the Director’s review within thirty (30) days of the date the Department’s notice is postmarked or electronically transmitted.
562.2 The scope of the Director’s review shall be limited to the Department’s denial or determination regarding the stormwater fee discount.
562.3 The customer shall bear the burden of proving by a preponderance of evidence that:
(a) The Department’s stormwater fee discount calculation was incorrect; or
(b) The stormwater retention practice:
(1) Fully meets the requirements for a discount; and
(2) Continues to fully retain the volume of stormwater runoff on which the discount had been or would be based.
562.4 The Director shall issue a written decision on the customer’s request for review.
562.5 The Director’s decision shall become final unless the customer contests it within ten (10) days of the date the notice of the decision is postmarked or electronically transmitted.
562.6 The customer shall contest the Director’s decision by following the procedures set forth in title 21, chapter 4 (Contested Water and Sewer Bills), of the District of Columbia Municipal Regulations, governing appeal of disputed water and sewer bills.
562.7 With respect to a determination or decision for which review may be sought, nothing in this section shall, or shall be construed to, stay or delay the effect of the determination or decision; except that, for good cause shown the Director may stay the effect of a determination or decision.
Section 599, DEFINITIONS, is amended to change, delete and add the following definitions, and these additional definitions shall be inserted in the correct alphabetical order:
Consumer and Regulatory Affairs - the District Department of Consumer and Regulatory Affairs.
DC Water – the District of Columbia Water and Sewer Authority.
Department – the District Department of the Environment; except that the term “department” shall simply mean the word “department” when the context clearly shows that the term is so used in the title of a statute or a publication.
Director – the Director of the Department or the Director's representative, agent, or designee.
Public Works – the District Department of Public Works.
Stormwater retention practice – a structural device, a non-structural practice, or a combination of the two, that is designed to retain or infiltrate stormwater runoff on a property. A stormwater retention practice shall include, but not be limited to, a green roof, bioretention cell, permeable pavement or similar porous surface, a stormwater harvesting and reuse system, and downspout disconnection with storage or dispersal for infiltration.
Section 500, GENERAL PROVISIONS, is amended as follows:
Subsection 500.3 is amended to read as follows:
500.3 The Department shall establish minimum standards and specifications for the effective control of soil erosion, sediment deposition, and non-agricultural runoff in the District.
Section 501, STANDARDS AND SPECIFICATIONS, is amended to read as follows:
Subsections 501.4, 501.5, 501.6, and 501.9 are amended to read as follows:
501.4 The Consumer and Regulatory Affairs 1987 Standards and Specifications for Soil Erosion and Sediment Control are incorporated in this section by reference in accordance with the District of Columbia Documents Act (D.C. Official Code § 2-552 (c) (2006 Repl.)), and shall be available for public inspection.
501.5 All District of Columbia agencies engaged in land disturbing activities shall develop soil erosion and sedimentation control standards and specifications consistent with those approved by the Department.
501.6 Agency standards and specifications to prevent accelerated soil erosion and sedimentation from the agency's soil disturbing activities in the District shall be submitted to the Department, if adequate.
501.9 Each agency shall monitor all such work to insure compliance with its standards. In addition, the Department is authorized to inspect the sites where such land disturbing work is being conducted to insure compliance with the applicable standards.
Section 503, SEDIMENTATION CONTROL PLANS, is amended as follows:
Subsection 503.6 is amended to read as follows:
503.6 Changes to an approved plan may be granted by the Department in the following circumstances:
(a) If an inspection during construction has revealed the inadequacy of the plan to accomplish the erosion and sedimentation control, and changes to correct deficiencies in the plan are agreed to by the Department and the permittee; or
(b) If the permittee finds that because of changed circumstances or for other reasons the approved plan cannot be effectively carried out and the proposed amendments to the plan are consistent with the requirements of this regulation and are agreed to by the Department and the permittee.
Section 506, FINAL INSPECTION AND COMPLIANCE ENFORCEMENT, is amended as follows:
Subsections 506.1, 506.2 and 506.4 are amended to read as follows:
506.1 Not later than four (4) weeks after receiving the notice of completion under § 505.3, the Department shall make a final inspection.
506.2 If on final inspection or during any interim inspection, Public Works determines that the permittee has failed to comply with the plan, the Department shall immediately serve upon the permittee, by registered or certified mail to the address specified by the permittee in his or her permit application, a notice to comply with the plan.
506.4 If the permittee fails to comply within the time specified, he or she shall be subject to the revocation of his or her permit or shall be denied an occupancy permit.
Section 507, APPEALS, is amended as follows:
Subsection 507.1 is amended to read as follows:
507.1 Final decisions of the Department shall be subject to review by the Office of Administrative Hearings.
Section 515, PENALTIES AND REMEDIES, is amended as follows:
Subsection 515.3 is amended to read as follows:
515.3 The Department may apply to the Superior Court of the District of Columbia for injunctive relief to enjoin a violation or threatened violation under this chapter without the necessity of showing that there does not exist an adequate remedy at law.
Section 528, STORM WATER MANAGEMENT: WAIVERS AND VARIANCES, is amended as follows:
Subsection 528.1 is amended to read as follows:
528.1 The Director may waive the storm water management requirements for individual developments, provided that the applicant first submits to the Department a written request containing descriptions, drawings, and any other information that shall be necessary to evaluate the proposed development. Separate written requests for waivers shall be submitted for each addition, extension, or modification to a development.
Section 542, EROSION CONTROL PRINCIPLES: BUILDING, DEMOLITION, AND SITE DEVELOPMENT PROJECTS, is amended as follows:
Subsection 542.6 is amended to read as follows:
542.6 Design details of these and other control principles are embodied in “Standards and Specifications for Soil Erosion and Sediment Control in Developing Areas”. Copies shall be available from the Department.
Section 544, EROSION AND SEDIMENT CONTROL PLAN, is amended as follows:
Subsection 544.5 is amended to read as follows:
544.5 All erosion and sediment control plans shall be approved by the Department before a permit can be issued.
Section 545, INSPECTION AND ENFORCEMENT, is amended as follows:
Subsections 545.1 and 545.2 are amended to read as follows:
545.1 Periodic inspections of all projects shall be conducted by the Department to ascertain compliance with the provisions of this chapter.
545.2 Reserved.
