Birmingham City Council

Birmingham Council Passed a Stormwater Runoff Ordinance That Complies With Federal Rules

After a protracted and often confused discussion, the Birmingham City Council passed a “post-construction stormwater ordinance” Tuesday, codifying a series of design specifications for new construction projects in the city and bringing Birmingham into compliance with Alabama Department of Environmental Management rules.

The ordinance largely centered on changes to construction practices that would bring new development projects — and the way those developments manage stormwater runoff after construction is completed —  into compliance with regulations. A full text of the ordinance is available here.

Mayor Randall Woodfin told councilors that work on the ordinance had begun in earnest in June 2016 — before, he acknowledged, he and the majority of city councilors had taken office. The ordinance was passed after ADEM’s March 1 deadline, which Woodfin attributed to his office taking time to receive comments from “various stakeholders,” including developers, engineers, environmentalists and city officials. That delay made it urgent that the item be passed Tuesday, said assistant city attorney Julie Barnard.

“ADEM is aware that we are behind in getting this adopted,” Barnard said. “They have indicated that as long as we are moving forward with this that we’re OK. If we stall out or are not moving forward, the city may be subject to a notice of violation … There are fines we could be subject to.”

George Putman, the chief civil engineer for watersheds in the city’s Department of Planning, Engineering and Permits, said that the proposed ordinance was driven by changes to EPA’s national pollutant discharge elimination system (NPDES) guidelines “that (require) us to address the pollution from our stormwater runoff.” Other parts of the ordinance, he said, were motivated by “the drainage and flooding issues that we’ve had in this city.”

“We’ve done our best to come up with a balanced ordinance … that everybody can live with,” Putman said.

Mary Halley, an environmental engineer who served as a consultant for the project, said that the city held nine stakeholder meetings between March and October 2017, which “influenced greatly what is in this ordinance… . We have a very good balance of requirement versus flexibility.”

The most vocal opponent of the ordinance on the dais was District 1 Councilor Clinton Woods, who expressed concern that the ordinance would place undue burden on property owners, who under the ordinance would be responsible for maintenance of their property’s stormwater controls.

“There are some holes in the ordinance itself,” Woods said. “I’m late to this party, and I don’t think I’m too late, thank God. But it feels a little bit like governmental overreach … I don’t want to just rush this.”

Halley replied that the portion of the ordinance concerning homeowners’ responsibilities was in line with “the standard practice used throughout the United States … in the vast majority of local governments subject to this permit.” Most subdivisions, she added, would place stormwater controls “in a common lot, not on a single homeowner’s lot.” That common lot, she said, would usually be the responsibility of homeowner associations.

“Someone has to be responsible for maintenance, y’all,” Woodfin added.

Woods pushed to delay the item for a week, but Woodfin argued that would accomplish nothing. “I am comfortable standing here as long as possible to answer every question, because I want everybody to know, since 2016 we have gone through a very public process,” he said. “We will have no additional questions to answer next week. Whatever you ask this week, it will be the same answer next week … We at a minimum would ask for an up or down vote today.”

At that point, more than an hour into the discussion of the ordinance,  District 6 Councilor Crystal Smitherman — who as chair of the council’s public improvements committee led discussion of the proposed ordinance — proposed that the council take a brief recess to discuss the matter privately due to “unreadiness … so we can go back and talk with (the mayor).”

Smitherman appeared unaware that a private discussion of the item by the council would constitute a violation of Alabama’s Open Meetings Act. Council President Pro Tem William Parker stepped in and suggested instead a “five-minute recess … so we can all get up and stretch our legs.”

The council returned and, after Parker suggested that minor changes could be made to the ordinance after it was passed, the council took a vote. Smitherman abstained, Woods voted no, and District 8 Councilor Steven Hoyt was absent. The remainder of the council voted yes, and the item passed.

The ordinance will go into effect May 1.