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Challenges in protected areas By Karen Braynard
It's hard to imagine tranquility and spacious wetlands with an abundance of wildlife just a few miles from a state's largest city. With just under 1,500 homes spread out over a 25-square-mile area, a beautiful lake for fishing and boating, and miles of wetlands, it's easy to see why the people of Auburn, NH, refer to their town as southern New Hampshire's best-kept secret. Auburn's residents and local government officials are determined to maintain the rural atmosphere of their small New England town, carefully guarding their natural resources. Lake Massabesic is one resource that commands much of the town's attention. Auburn is unusual in that the water it protects provides for more than 100,000 residents, but only a few are in Auburn; to the west of Auburn is Manchester, New Hampshire's largest city, and the primary user of Lake Massabesic's water.
Auburn is also unusual because New Hampshire is one of only two New England states—and one of only a small handful of states—that do not have legal authority to issue construction stormwater permits under the National Pollutant Discharge Elimination System (NPDES) Phase II, which went into effect in March 2003. While most states and their communities enjoy the control of managing their own stormwater programs, New Hampshire does not. According to Ridgely Mauck, professional engineer for the New Hampshire Department of Environmental Services, "Delegation of the NPDES stormwater program is only a possibility as part of delegation of the entire NPDES program, which primarily deals with permitting and enforcement for major municipal and industrial wastewater treatment discharges with NPDES discharge permits. Stormwater management is a relatively small portion of the whole program and, according to the United States Environmental Protection Agency, cannot be carved out separately for delegation." As a result, the permitting authority in New Hampshire is the EPA. Because of the requirement to protect Lake Massabesic and the fact that most of Auburn's residents rely on wells for their water, Auburn for years has had strict guidelines on construction and development. Bruce Knox, one of Auburn's three selectmen, says that the town has an active conservation commission that monitors all wetlands to prevent damage to them. "Our town's regulations prevent the temptation to ignore wetland damage." However, as the clock ticked toward implementation of NPDES Phase II, Auburn's local government hoped for a waiver to prevent the town from falling under the municipal separate storm sewer system, or MS4, requirements. After all, its population of just over 5,000 residents spread over 25 square miles and no public water system should have left Auburn unaffected. But according to Elizabeth Robidoux, one of the developers of Auburn's stormwater protection program, because of one densely populated area in Auburn bordering the city of Manchester and the resulting traffic flow, there was no getting around the Phase II coverage. Robidoux, a part-time secretary for the Auburn Zoning Board of Adjustment, and her co-worker Tanya Violette, a full-time secretary for the Board of Selectmen, found themselves with the stormwater protection program literally dumped in their collective laps. Neither had any experience with a program of this magnitude, let alone any expertise in surface water. Robidoux's zoning background helped a little, but she describes the learning curve as overwhelming.
Like so many small towns across the United States, Auburn was not financially prepared to embark upon implementing the six minimum control measures required by NPDES Phase II. Other than the secretaries, there are no paid members of the planning board, zoning board, or conservation commission. In February 2003, when they began putting together the town's program, there were no additional funds or personnel allocated to get the program moving. The 2004 budget for stormwater protection was $5,000, which does not allow for much more than administrative oversight of getting the program off the ground. Because funds and personnel were not available for extensive training or the use of qualified personnel, Robidoux and Violette tapped into neighboring communities to help them learn all they could about stormwater. They relied on the State of New Hampshire and the Manchester Water Works, which assisted the town in finding its outfalls and testing the water quality. Auburn is primarily a residential community, growing at a rate of approximately 45 new construction permits a year. The growth rate is about 2.6%, which might not sound like much, but a rural community can quickly lose its appeal and pollute its water sources unless strict zoning requirements are in place. By law, Auburn is required to allow up to 4% growth. After witnessing overdevelopment in such neighboring towns as Londonderry and Bedford, Auburn's planners consistently work on their strategy to preserve the town's natural beauty and protect the wetlands. Russell Sullivan, chairman and 18-year member of the town's planning board, describes Auburn as "way ahead" of other New Hampshire communities when it comes to protecting the wetlands and enforcing strict stormwater protection requirements. "Auburn is more protective of the water than the state is. That's because 40% of our town is the watershed to neighboring communities that rely on clean water from Lake Massabesic. While the state has no setback requirement for construction near wetlands (other than location of leachfields), Auburn's zoning requires a minimum of 125 feet as a buffer between any construction to a wetland." Auburn has established an evolving master plan that is updated every five years. This allows town planners to ensure that growth does not overshadow water protection. In 1985 the town adopted its 2- and 3-acre zoning requirement for residential housing units, and in 1988 the town added cluster developments as an alternative for developers who wanted to build in Auburn. "A cluster development protects the wetlands because it allows builders to build the homes closer together but requires 50% of the development to be deemed as open space around the housing community," explains Sullivan. "There is no building permitted in the open space, which often puts the homes even farther than the required 125 feet from any wetlands. When residents whose property falls in this buffer zone want to build structures such as a deck or garage, they must receive approval from the Zoning Board of Adjustment and prove that there will be no adverse impact on the wetlands as a result of their construction. Each application in Auburn is considered on an individual basis; there is no blanket approval. The cluster concept also leaves more area protected from the normal residential pollutants such as lawn fertilizers, car washing, parking, and pets." By clustering the homes in cul-de-sacs, the rain and snowmelt fall on a smaller impervious surface area and can melt back into the ground without dragging in as many pollutants. According to the town's Notice of Intent (NOI), of the six minimum control measures required by Phase II, construction-site stormwater runoff control and postconstruction stormwater management were practically already in place through the state's site-specific requirements that affected any disturbance of more than 2.5 acres. Under the new Phase II requirements, anything over an acre must follow the same procedures. Because all construction in Auburn takes place on a minimum of 2 acres, this now affects all development in the town. Developers describe these new requirements as significant in both cost and planning time. The actual paperwork is straightforward, but before a developer's NOI can be filed, the developer must complete and be prepared to implement a stormwater pollution prevention plan (SWPPP). According to the National Association of Home Builders (NAHB), the guidelines from the EPA on how to prepare such a plan are 30 pages long, and it takes a minimum of 40 hours for an engineer or someone with similar qualifications or experience to prepare the SWPPP. Estimates from the association's members range from $2,300 to over $10,000 for the completion of the NOI and the SWPPP. Because so much of Auburn is protected area, costs for the preparation of these documents can easily reach beyond this high end. Also, because New Hampshire is a state in which the construction general permit is issued directly by the EPA, it has certification requirements related to impaired waters and the presence of endangered species. Most developers understand the environmental issues and will do what it takes to comply. But as Chuck Ellison, a long-time developer and member of the NAHB, states, "Many developers agree that the requirements are getting harder and costlier to comply with. It would be great if planners and community officials could also understand that there needs to be some balance. The [strict] requirements of a planning board can affect the cost of building; use up more land to allow for buffers; and actually sometimes add to sprawl, density issues, and rising housing prices." Elmer Pease, senior associate and real estate consultant for P.D. Associates in Auburn, agrees. "Many communities, while trying to address all of their local fiscal and environmental issues, put cost to the public as secondary." Although Auburn promotes commercial growth along with residential, many of the environmental requirements cause development costs to skyrocket. According to Pease, if a small established business or startup business wants to locate in Auburn, it must be prepared to pay up to $150 to $200 per square foot. He says this far exceeds the typically desired cost of $10 to $15 per square foot. The larger the lot, the more expensive it is for all of the permits, surveys, plans, and changes. "It's nothing in Auburn for a developer to spend $40,000 before he even puts a shovel in the ground." Pease established his business in Auburn more than 15 years ago. His commercial development, Wellington Business Park, is on 144 acres and has a small brook running through a portion of it. He says he is very cognizant of the quality of water that leaves his property. In an effort to work with the town and protect the watershed, he placed 50 acres of conservation land around the brook. This protects the property and the brook from any future development and also allows for a flourishing wildlife corridor. Setting aside land for conservation is another practice that is growing in Auburn. Although a small community, Auburn has a few developers who have been established in town for many years. Compared to those who might just happen to build in Auburn because it's a great investment, these developers have a vested interest in the community. One such builder is Richard Eaton. Owner of Espaņa Builders Inc., Eaton has been in the construction industry for more than 27 years. He says he has watched the evolution of stormwater protection in southern New Hampshire. "Ten to 15 years ago," he says, "there was very little regulation regarding runoff. Although it requires more time and money from the developers, the requirements for NPDES Phase II are not hard to meet and are, in the long run, worth it environmentally." Eaton explains that in Auburn, where single-family homes must be built on a minimum of 2 and often on 3 acres, the new Phase II requirements affect all developers working in town. "The key," he points out, "is diligence. Erosion control is a weekly process. It's too easy to get so caught up in looking forward that you forget to look behind, and that's where you run into erosion problems." Eaton is one of Auburn's prolific builders and has built several neighborhoods in town. He is currently in phase two of a three-phase, 400-acre cluster development in Auburn. Eaton is described by Sullivan as a developer who takes the time and spends the money to ensure there are no problems with local, state, or federal government agencies. Success in Espaņa's stormwater protection plans boils down to three factors. The first is that Eaton stabilizes all disturbed areas once his roads are in place. All sites are immediately loamed and seeded to ensure no erosion occurs. He says he has watched too many developers rush through this vital step in the process to get their houses up. His policy is that the faster he can get the ground stabilized, the less chance there is for erosion. "It's common sense," he says, "but this is often pushed aside in the rush to get homes built and sold." Additionally, Eaton has created a full-time stormwater control position on his staff. This person is responsible for maintaining the vigilance Eaton believes is required to ensure there are no runoff problems, or to correct problems as they arise. Weekly inspections are conducted of all silt fences, storm drains, culverts, and hay bales. If repairs are required, they are attended to immediately. During the summer, when construction output is high, there are often sudden thunderstorms, which drop a significant amount of rain in a short period of time. Espaņa's stormwater control person is also responsible for going out to the site following such storms to re-inspect, evaluate, and repair all erosion control elements.
Finally, Eaton employs an environmental agency to inspect his projects every five weeks. Although the cost is high—about $300 to $400 per inspection—Eaton says it is well worth the investment. He describes the process as "another set of eyes to protect the environment. It keeps us from being lulled into a false sense of security." Reports of these inspections are sent to the town's planning board and conservation commission. Because he grew up in Auburn, Eaton has first-hand knowledge of the impact development has had on the town's environment and takes seriously the importance of adhering to best management practices (BMPs). He sums up his commitment to stormwater protection when he says, "A good developer is responsible environmentally, no matter what." Although Eaton and Pease have positive attitudes and preventative approaches to stormwater protection, not all developers share in the same diligence. Enforcing the requirements in planning and postconstruction can be a challenge. Sullivan says that he thinks the NPDES Phase II requirements are good, but in New Hampshire they're hard to enforce. In Auburn, similar to other New Hampshire towns, government officials rely on the site-specific requirements, which under state statutes apply to the disturbance of more than 2.5 acres. Because these newest requirements apply to the disturbance of 1 acre, literally any new construction in Auburn falls under NPDES Phase II. "When a developer comes into Auburn, we take a hard look at the plans he presents. The planning board makes a lot of recommendations during the site plan and subdivision process through informal meetings and public hearings. It is not uncommon for a developer to go back to the drawing board several times before he presents something we can accept." Of course, acceptance is no guarantee that a developer will maintain proper erosion control or best management practices once construction begins, and this is where enforcement gets complicated for towns in New Hampshire. Auburn's code enforcement officer, who is also the town's building inspector (another part-time position), is required to monitor all construction in town. In addition, the town employs Dufresne-Henry, a private engineering firm, to monitor and inspect construction and subdivision development. This firm sends field engineers to visit each construction site throughout the various phases of construction to monitor everything from erosion to road specifications. According to Rene LaBranche of Dufresne-Henry, "Every time we go out to a site for construction monitoring, we always also inspect the stormwater protection measures. We provide adjunct monitoring, because the town needs to be concerned and informed on how things are being handled in the field." Acting as the eyes and ears for the town's planning board, the firm advises developers and apprises planners on how well things are going. These inspections are usually at the developer's expense. Although each construction site is now required to maintain its NOI and weekly updates onsite, the town's engineering firm does not routinely ask to see them. "It's not our place, as a monitoring agency, to enforce the paperwork side of things," LaBranche says. "However, we do ensure that the contractor's NOI has been submitted and is verifiable on the EPA's Web site. We're more concerned with what they're actually doing in the field toward stormwater protection." LaBranche says that no matter how good the paperwork looks, if contractors don't respond immediately to a storm or other incident, then failure usually occurs. "The biggest problem we see is that of response. Some developers are quick to respond and don't wait for us to find the problems, but others not only wait for us to notice a problem, they then drag their feet while coming back into compliance." According to LaBranche, one developer in a neighboring community was recently fined $137,000 by the EPA for failure to comply. Another problem is that while some contractors try to comply and to employ proper BMPs, they are inexperienced with some of the new technologies available. "One contractor," says LaBranche, "used a new method of placing bark mulch in mesh tubing. This works great for runoff in areas where the water can be absorbed into the ground. However, he placed these sausage-like tubes of bark around the catch basins on paved surfaces, which only caused more runoff problems." One tool that the town has found useful in conjunction with the engineering firm oversight is the requirement of bonding for all major construction projects. Auburn requires all erosion control to be proven before bonds are reduced or completely released. It also relies on a final inspection and recommendation from the engineering firm before approving any action with a bond. Auburn's Planning Board and Board of Selectmen don't hesitate to hold over a bond for several seasons if there are concerns. Even with these mechanisms in place, local officials in planning feel that the Phase II requirements, specifically those relating to construction, would be easier to enforce if the state or town passed legislation that would allow Auburn to enforce the program locally. "If we could threaten with fines, we'd collect them. If we could take violators to court, we'd do well because we win in court," says Sullivan. As it stands, Auburn must rely on the EPA to inspect, correct, and possibly collect when violations are reported. The town receives no additional funding to take on the extra monitoring costs, which the EPA currently handles. This is a primary reason, according to Mauck, that New Hampshire has not chosen to take over the program at the state level. New Hampshire has no income tax, and therefore property taxes are relatively high. When the town of Auburn went through a revaluation in 2003, the average property value had increased by $100,000 since the last valuation in the early 1990s. With the recent increase in property taxes, town officials are reluctant to raise residents' taxes to support the newest requirements under Phase II. Other efforts by Auburn to follow the NPDES Phase II six minimum requirements have been established, and the town is allowing the five years specified under Phase II to implement these steps. Sullivan hopes that ordinances will eventually be incorporated through the state statutes and the town's zoning regulation, making enforcement a local issue. Either way, Auburn's planning officials will continue to place a high value on the monitoring of all construction to ensure that as the town grows, the impact of development is kept to a minimum. After all, Auburn's tranquil Lake Massabesic, abundant wetlands, and open spaces are features that community residents and town planners hope to enjoy for many years to come. And for those who choose to build in Auburn, the cost and effort appear to be worth it. Karen Braynard has worked on the Auburn, NH, Planning Board. SW January/February 2005
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