Editor’s Note: Guest blogger Steve Blaine, a LeClairRyan attorney practicing out of the firm’s Charlottesville office, and focusing his practice on land use, zoning, and community association law, has contributed the following post.
BMPs: How to avoid an amenity from becoming a headache.
We frequently counsel clients, community associations, developers and builders, on various issues involving that ubiquitous ‘amenity’ known as the stormwater detention pond, or “BMP” (short for “Best Management Practices”). This article will briefly discuss how to avoid some of the more common pitfalls facing homeowners whose community’s common areas/elements include these useful, even if at times burdensome, features. At the end of the article is a “glossary of key terms” related to BMPs.
Why do we have BMPs anyway?
BMPs are used to improve the quality of water runoff from roads, parking lots, developed land, including residential neighborhoods, and to reduce peak stormwater runoff flow by providing temporary storage during larger storm events. If the BMP in your subdivision was constructed early in the development process, it was probably used to trap sediment from construction activities in the tributary drainage area, which also can be a very effective way to collect and remove pollutants. Hopefully, the BMP in your neighborhood happens to provide other benefits such as passive recreation and open space in addition to reducing peak runoff rates and improving water quality.
It is essential for those responsible for maintaining these BMPs to understand their important role and what to do to assure their continued proper function.
Who’s responsible for your BMP?
In Virginia, the designation of a responsible party for a residential subdivision BMP is typically found in the association’s declaration of covenants and restrictions (or declaration of condominium, if a condominium). At some point in the development process, the maintenance responsibility for the BMP will transfer to the association, as with other community, or shared common areas/elements. The association’s governing documents may not be express regarding the responsibility of maintaining such BMPs, but if the BMP is located on common area/element or land otherwise owned by the association, then the responsibility likely goes with that ownership.
The statutory scheme under the Flood Protection and Dam Safety chapter of Title 10.1 of the Virginia Code enables localities to adopt ordinances regulating BMPs’ construction, reporting, and maintenance standards. The State law, however, does not assign responsibility for maintenance or repairs. In rare instances where there are regional stormwater management benefits, the locality, (or a regional authority) will retain maintenance responsibilities. Ideally, long-term maintenance costs and association reserve allocations are factored into the association’s annual budget and reserve study (pursuant to Virginia Code Section 55-514.1) from when the association was first created. But even if this is not the case, certain steps, such as developing an operations and maintenance plan – discussed below – can be taken that may reduce costly repairs or even replacement in the future.
Why is maintenance important?
Studies show that poor operation and maintenance is the leading cause of BMP failure. Poor maintenance can also create unpleasant odors, nuisance insects, algae blooms and a generally unsightly, unkempt area. BMPs may fail due to:
– poor vegetation maintenance in terms of mowing and weed control,
– clogged inlets resulting from trash and debris, sediment accumulation,
– failed side slopes, and
– inadequate access for routine maintenance activities.
Knowing why your BMP was built in your community and the importance of all the components working together should reduce the chance of BMP failure.
Fortunately, help is available.
Most localities in Virginia that have adopted stormwater regulations under the State law have a local representative responsible for the program who can provide guidance. In addition, the Virginia Department of Conservation and Recreation (http://www.dcr.virginia.gov) has resources and links that can be useful in determining the functionality and maintenance features for your neighborhood.
Once the association knows what it owns, it should seek to develop an Operation & Maintenance (O&M) Program for its BMP facilities. An effective Operations and Maintenance Program should include:
– A plan that specifies what maintenance actions are needed, when they will be performed and how often they will be performed, inspection checklists and follow-up repair timetables.
– An understanding of the routine and non-routine activities to be employed.
– An understanding of the equipment and materials needed for maintenance.
– An identification of responsible parties for routine maintenance, non-routine maintenance, inspections and repairs.
– Adequate funding for the maintenance activities.
An O&M Manual may already have been prepared for your association’s BMP. The developer or declarant may possess an O&M Manual from the installer. If the declarant no longer possesses one, or is no longer in existence, your locality’s water resources representative may supply the particular O&M Manual for that BMP, or a reasonable facsimile.
What to look for in an effective O&M Manual.
An effective O&M Manual should describe routine maintenance including:
Inspections: Periodic scheduled inspections with specified checklist, and inspections after major rainfall events, to check for obstructions/damage and to remove debris/trash.
Vegetation Management: Mowing on a regular basis to prevent erosion or aesthetic problems. Limited use of fertilizers and pesticides in and around the BMP to minimize entry into the BMP and subsequent downstream waters.
Trash, debris and litter removal: Removal of any trash, etc. causing any obstructions at the inlet, outlet, orifice or trash rack during periodic inspections and especially after every runoff producing rainfall event. General pickup of trash, etc., in and around the BMP during all inspections.
Mechanical Equipment check: Inspecting any valves, pumps, fence gates, locks or mechanical components during periodic inspections and appropriate replacement/repair.
Structural Component check: Inspecting the outlet works, inlet, orifice, trash rack, and trickle channel on a regular basis for additions to the annual non-routine maintenance list.
It should also delineate non-routine maintenance, including:
Bank erosion/stabilization: Maintaining effective ground cover on all vegetated areas will ensure the benefits of proper infiltration of runoff, and effective filtering of pollutants.
Sediment removal: Removing accumulated sediment periodically from the bottom of the outlet structure and the pond depths checked at several points.
Structural Repair/Replacement: Eventually the outlet structure or other structural components like the trickle channel or trash rack may need repair or be replaced.
Hopefully, with some of the resources that we have identified here your association can avoid some of the pitfalls that many encounter with BMPs. If you have particular legal concerns regarding these or other aspects of your association’s roles, responsibilities or governance, please contact the author.
Glossary of Terms:
Dry detention pond: A BMP designed to not have a significant pool of water remaining after a storm event.
Easement: A set-aside area with various restrictions to provide open access for inspection or repair of drainage feature.
Emergency spillway: Conveyance feature of a BMP to discharge excess stormwater flows to maintain the integrity of the BMP structure during substantial runoff events.
Impervious area: A solid surface that does not allow rain to enter.
Inlet: The point where stormwater enters the BMP.
Outlet: A structure that controls the rate of release from the BMP and the water depth and storage volume in the BMP.
Regional Pond: A BMP designed to capture stormwater runoff from a larger, regional area.
Rip rap: Rock material typically used to stabilize conveyance channels.
Stormwater runoff: Runoff that occurs as a result of a rain or storm event hitting an impervious surface and running off.
Trash Rack: A structural feature of the outlet that filters stormwater by trapping debris before runoff is discharged (selected BMPs).
Tributary drainage area: The total land area that drains to the BMP.
Trickle channel: A channel that efficiently conveys stormwater from the inlet to the outlet structure (selected BMPs).
Wet detention pond: A BMP designed to have a remaining permanent pool of water after a storm event.