Updated April 25, 2019

 HB 1266 has passed both the House and Senate, and will likely be signed into law by the Governor.

Background

Have you seen lakes and rivers that look murky or muddy? That’s sediment pollution, and it’s not just an aesthetic problem. Sediment pollution smothers aquatic habitat, causes declines in fish populations, and increases the risk of algal blooms. It can cost millions of dollars to dredge sediment or treat algal blooms.

EPA states that poorly controlled construction sites are a major source of sediment pollution:

“During a short period of time, construction sites can contribute more sediment to streams than can be deposited naturally during several decades.”

When construction disturbs soil, rain and snow melt can wash that soil into storm drains, city streets, lakes and rivers. That’s why construction sites have to have run-off control plans, which are called storm water pollution prevention plans or SWPPPs. Under the current state rules (which are required by the federal Clean Water Act), those plans are reviewed by local city or county storm water professionals who judge whether they are adequate.

Every construction site is different in size, lay-out, contour, soil type, construction activity, and relationship to local lakes and rivers. Indiana’s landscape varies immensely from one part of the state to another. That’s why the local storm water professionals are in the best position to judge what is needed at construction sites in their area.

History of HB 1266

In the 2018 Indiana General Assembly, HB 1096 attempted to strip away local storm water authority.  It was defeated, but re-emerged this year as HB 1266. HB 1266 was amended and passed by the House Environmental Affairs Committee on Jan 30. The amended version passed the full House on Feb 5 by a vote of 68 to 27 with bipartisan support and bipartisan opposition.  On April 1, the Senate Environmental Affairs Committee amended it further and passed the amended bill by a vote of 7 to 4, with members of both parties casting “no” votes.  April 8 it passed the full senate with a vote of 31 to 18.  Again, there were members of both parties voting “no”.  You can see how your representative and senator voted at the ‘vote’ links above.  The House concurred with the senate version on April 11, so the bill has passed the legislature and is on its way to the Governor.

The version of HB 1266 that passed the Senate has the following provisions:

  • Local storm water authorities called MS4s (Municipal Separate Storm Sewer System) will be prohibited from having erosion and sediment control requirements for construction sites more stringent than the state rule at 327 IAC 15 (aka ‘Rule 5’).
  • The state rule is due to be replaced by a general permit.  When it is, the bill prohibits MS4s from being more stringent than the general permit. The bill does not state who would judge whether an ordinance is more stringent.
  • There is a grandfather clause that will allow MS4 ordinances regarding construction sites under one acre, even though that’s more stringent than the state rule.  The state rule only applies to sites over one acre.  All other MS4 construction stormwater ordinances that are more stringent will have to be repealed.
  • The bill drastically reduces the time MS4s and Soil and Water Conservation Districts (SWCD)  have to review construction plans from the 28 days currently allowed to 10 days for sites less than 5 acres and to 14 days for sites 5 acres or larger.
  • It prohibits stop work orders unless the project site owner has been given prior written warning and 72 hours to correct deficiencies, unless the construction site is creating a public health or safety hazard.
  • It requires that the provisions of this bill, including the no-more-stringent language, be included in the general permit being drafted to replace 327 IAC 15-5 “to the extent allowed under federal law”

Reduced protection

HB 1266, as amended, reduces protection of lakes and waterways by reducing local options and imposing rushed plan review.  The local storm water professionals are in the best position to judge what is needed for their landscapes and soil types.

Confusion

The “no-more-stringent” language in HB 1266 may create confusion. Where the state regulation has numeric standards, it will be easy to tell whether a local rule is more stringent.

However, many of the provisions in the state regulation are narrative standards, which make it much harder to tell if something is more stringent. For example, the state regulation requires that the construction runoff be treated with controls “appropriate to minimize sedimentation” (327 IAC 15-5-7).  It would be difficult, if not impossible, to determine whether a local regulation was requiring runoff controls more stringent than “appropriate to minimize sedimentation”.

Since HB 1266 has passed both chambers and will likely become law, all of the existing MS4 ordinances will be subject to scrutiny for provisions more stringent than the current state rule (Rule 5), and any found to be more stringent (except regarding size of the construction site) will have to be repealed. However, there is no established procedure for this ordinance review and repeal, nor does the bill establish one. The bill also does not indicate who will arbitrate when there are differences of opinion on what constitutes “more stringent”.

Alternative solutions

The bill’s author, Representative Miller, explained in the House Environmental Affairs Committee on January 23rd that HB 1266 was introduced because construction companies would like more consistency in stormwater requirements. The Indiana Builders Association testified that they feel that some MS4s impose extra requirements that create unnecessary costs.

To help address these concerns, the Indiana Association for Floodplain and Stormwater Management has offered to work with the construction and development community, IDEM and with MS4s to develop model ordinances, more consistent local programs, more consistent paperwork, and to work on issues with implementing the state regulation. The Hoosier Environmental Council endorses this collaborative, problem-solving approach.

Call to action

If your representative or senator voted against HB 1266, please thank them for voting to preserve local authority and local options for managing construction stormwater. House votes.  Senate votes.  Find your legislator.