March 26, 2009

GMA, stormwater rules work against each other

  • Unless growth boundaries are expanded or other land-use regulations changed, any economic recovery may be followed by another wave of skyrocketing land costs in the Puget Sound area.
    Schwabe, Williamson & Wyatt


    Recent changes to Western Washington’s stormwater regulations may have profound, unintended consequences. This is due to the interplay between site-specific development scenarios and urban growth boundaries established under the Growth Management Act. The GMA limits the land area that may be developed to urban levels of density, and the new stormwater regulations reduce the amount of land that may be developed within established growth boundaries.

    With an ever-growing population, the new stormwater regulations exacerbate the challenge of meeting the GMA’s often conflicting goals of reducing sprawl, creating more affordable housing, protecting private property rights, and protecting the environment.

    Untreated stormwater runoff is a serious environmental threat. The Washington Department of Ecology has named it the single greatest risk to the health of Puget Sound and has made better runoff management a priority.

    In 2007, Ecology issued its new municipal stormwater permit, establishing new guidelines for local governments to implement it through their land-use regulations. Local governments began implementing the changes in August of 2008 and have until this August to fully comply.

    For developers, the crux of Ecology’s new regulations is the requirement that stormwater discharged from a property cannot exceed the volume or rate of discharge from that property under pre-Lewis and Clark conditions — that is, the property must behave like an old-growth forest from a runoff standpoint.

    Generally, the new requirements increase the amount of stormwater that must be detained and infiltrated (allowed to soak into the ground) by about 30 percent. This means that as much as an additional third of any property may not be developed. It also means that most projects now require larger stormwater facilities. The dual economic impact can be severe.

    While dozens of local governments and other entities appealed the new regulations, they have been largely upheld, including a requirement to use low-impact development techniques where feasible. LID techniques may include using pervious concrete, constructing rain gardens, or building green roofs, all of which are designed to slow down and reduce the amount of rainwater leaving a site.

    The consequences of the new regulations are simple: If building sites will only yield two-thirds of the development previously allowed, then either urban growth boundaries must be expanded — resulting in sprawl — or zoning and other land-use regulations must be changed to allow more intense development on a site. Of course, this raises an immediate Catch-22: How does one build a more intense low-impact development? And keep it affordable.

    One recent South Sound project illustrates the difficulties of trying to comply with both zoning regulations and the new stormwater requirements. The project, a mixed-use development sited in an area with high groundwater, had to be redesigned nearly a dozen times to provide adequate parking for the commercial elements while meeting minimum residential density requirements and the zone’s two-story height restriction.

    The project was being squeezed in all directions to the point of infeasibility. Because of the high groundwater, the proposed stormwater facility was nearly the size of a football field but only knee deep. At one point, the local jurisdiction determined that the required stormwater facility was too large to be feasible from an engineering and maintenance standpoint and recommended against approving the project. Ultimately, the project was approved through the use of multiple variances to allow the site to be developed below minimum density in order to accommodate multiple, smaller stormwater ponds.

    Another ongoing situation highlights the opportunity and need for local governments to change design guidelines as a means of reducing runoff and meeting the GMA’s goals. Streets and sidewalks constitute a significant portion of the impervious surfaces in any development. Many jurisdictions have adopted engineering standards to allow for narrower street widths and sidewalks on only one side of a street. Such standards significantly reduce impervious surfaces and help to alleviate stormwater issues. However, in the case of one local jurisdiction, the unit count of a large single- and multifamily development was reduced by nearly 20 percent in order to address stormwater associated primarily with wider streets and dual sidewalks. This is a triple hit on the pro forma’s bottom line: fewer units, larger streets and sidewalks, and larger stormwater facilities.

    Unless variances are granted, the added cost of larger stormwater facilities and lost units will be passed on to new homebuyers. Or projects will be scrapped.

    In the end, the new regulations may make it impossible to meet minimum density, parking, setback and open-space requirements in most Western Washington jurisdictions. In areas with high groundwater or poor-draining soil, no development may be possible. The regulations also devalue properties by lowering potential development yields, which in turn exacerbates the volatile real estate financing market.

    Unless growth boundaries are expanded or other land-use regulations are changed, any economic recovery may be followed by another wave of skyrocketing land costs in the Puget Sound area.

    The short-term solution is for developers to work with local governments during the economic slowdown to rethink and rewrite local land-use regulations. There is room to rewrite these regulations in a way that takes into account the health of Puget Sound, allows for inclusion of LID techniques, and encourages smart growth.

    This only addresses the problem insofar as it relates to new development, which is a small fraction of the overall problem. The long-term solution is for local and state governments and agencies to work together to create regional stormwater facilities that capture and treat all stormwater — not just from new development — before releasing runoff into Puget Sound.

    Until then, what should be avoided is the development of a system that relies on the ad hoc issuance of variances, as they are largely discretionary and create uncertainty in the development process. Now is hardly a time when we need more uncertainty.

    Aaron Laing is a land use attorney with Northwest law firm Schwabe, Williamson & Wyatt. He is based in Seattle.

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