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Tucson Implements New Rainwater And Graywater Ordinances

Environmental Law Update Raphael F. Ramos

Beginning in June 2010, real estate developers will have two new water conservation-related ordinances to keep in mind when planning development projects in the City of Tucson (the "City").

The Commercial Rainwater Harvesting Ordinance

Developers of commercial properties who build pursuant to permits issued after June 1, 20101 will be subject to City Ordinance No. 10597 (the "Commercial Rainwater Harvesting Ordinance").2 Although commercial developers in Tucson have had to comply with water harvesting requirements for several years already, those requirements merely directed developers to "maximize" the on-site use of storm water runoff without quantifying the requirement. The Commercial Rainwater Harvesting Ordinance differs by mandating the use of captured rainwater to meet at least 50% of a new commercial development's landscape water needs. Moreover, the site must reach compliance with this requirement within three years after the City issues a final certificate of occupancy for the development or else face civil penalties or other consequences. Given Tucson's average annual rainfall is only 12 inches and landscaping water typically accounts for about half of a commercial facility's water use, commercial developers must plan carefully to ensure their properties can meet the requirement.

The Commercial Rainwater Harvesting Ordinance applies to any new non-residential development that is intended to be used primarily for commercial activities. Under the ordinance, developers of such properties have discretion to use passive water harvesting techniques such as berms, French drains and earthen impoundments and/or active techniques such as water tanks, pipes and pumps to meet the 50% requirement. If, however, site conditions make compliance with the 50% requirement infeasible, a developer may request alternative compliance that advances the spirit of the ordinance. In addition, compliance with the 50% water harvesting minimum will not be required during drought conditions, which are expected to be defined as less than nine inches of rain per year at the site.3 Lastly, several types of commercial developments - including outdoor recreation facilities, the playing areas of golf courses, parks and cemeteries - are excluded from the application of the ordinance.

To demonstrate how a proposed site will implement the water harvesting requirement, the developer must submit a landscaping water budget and rainwater harvesting plan to the City for review and approval, along with the project's development, site and landscaping plans. The landscaping water budget will estimate the annual volume of water required to maintain the plants in the landscape plan. The implementation plan will then depict the rainwater harvesting and conveyance features that will provide 50% of the water budget. Consequently, the civil engineer and landscape architect for the project must collaborate from the earliest planning stages to ensure the grading plan will capture sufficient rainwater for the landscape areas specified in the landscape plan.

Development standards are currently being drafted to direct implementation of the ordinance requirements. According to Ann Audrey, Environmental Coordinator with the City's Office of Conservation and Sustainable Development, the development standards are anticipated to provide guidance on a range of technical elements, including soil pretreatment to ensure adequate infiltration into water harvesting areas. Ms. Audrey also expects that developers will be required to install "smart controllers," which control the irrigation system based on on-site soil moisture rather than the passage of time. In addition, the ordinance requires all supplemental (i.e., non-rainwater) landscaping water used at the site be metered separately from the indoor water use. This means the developer will need to install at least two water meters for the property. Ms. Audrey estimates that draft development standards will be released to the public in May 2009. However, the City expects to revise the draft standards before June 1, 2010 in response to pilot studies the City will be conducting, in cooperation with a variety of commercial sites in Tucson.

Compliance with the Commercial Rainwater Harvesting Ordinance will first be determined based on site inspections. It is anticipated that the first inspection will occur after all site grading is complete but before the landscaping (including hardscape) is installed. The second inspection will occur immediately before issuance of a final certificate of occupancy. Once the site is operating, compliance will be determined based on annual reports the site owner will be required to file. Under the ordinance, an owner's failure to meet the water harvesting requirement is "water wastage" and is punishable by (1) civil penalties of $250 for the first infraction and a minimum of $500 for each subsequent infraction within any three-year period, (2) having water deliveries withheld and/or (3) having water service disconnected, with a fee of at least $250 to have water service restored. The development standards are also expected to allow the City to require temporary monthly reporting for sites that fail to achieve compliance.

The Commercial Rainwater Harvesting Ordinance contains one other important provision. It prohibits the use of private covenants, conditions and restrictions that have the effect of prohibiting rainwater harvesting within the City. Specifically, the ordinance states that such a condition contained in any deed, contract, security agreement or other document transferring an interest in land located within the City, executed on or after June 1, 2010, is void and unenforceable.

The Residential Gray Water Ordinance

In addition to the requirements applicable to commercial developers, residential developers also have new water-related requirements. City Ordinance No. 10579 (the "Residential Gray Water Ordinance")4 requires developers to include a portion of the plumbing needed to facilitate the use of gray water in all residential construction built, pursuant to permits issued after June 1, 2010. Gray water is water that has been used for certain, relatively clean indoor uses (e.g., laundry, lavatories and showers) that can be used on-site without prior treatment for secondary uses such as landscape irrigation. Gray water must be distinguished from "black water," which originates in toilets, dishwashers and kitchen faucets and is not suitable for secondary use without treatment.

The Residential Gray Water Ordinance does not require the installation of a gray water system; rather, it requires developers of new single-family homes and residential duplexes to plumb the homes with gray water "stub-outs." That means the developer will be required to include two drains for each laundry hook-up. In addition, lavatory, shower and bathtub drains must be separate from all other drains serving the residence. Laundry drains must exit the home and be accessible for direct irrigation of landscaping. Lavatory, shower and bathtub drains must extend at least three feet from the foundation of the home and may be below grade. These drains will require connection to a tank and distribution system before they can be used. Essentially, the purpose of the Residential Gray Water Ordinance is to allow a homeowner to later install the plumbing necessary to use gray water without having to disturb the existing plumbing system.

The Residential Gray Water Ordinance authorizes the director of the City's Development Services Department to adopt development standards for the ordinance. The City, however, has no plans at this time to adopt such development standards. Rather, the ordinance specifies that the plumbing must be designed and operated in conformance with the Arizona Department of Environmental Quality's Type 1 Reclaimed Water General Permit for Gray Water (Ariz. Admin. Code R18-9-711). That general permit provides a number of best management practices that address the design and operation of the gray water system but only one that directly affects the plumbing required by the Residential Gray Water Ordinance: The gray water system must be constructed to allow the gray water to be directed into the sewage collection, or septic, system to prevent a backup of gray water. Ariz. Admin. Code R18-9-711(A)(6).

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For more information, please contact your local Quarles & Brady attorney.

Note that the City is still negotiating whether and how the Commercial Rainwater Harvesting Ordinance will apply to commercial subdivisions and planned area developments that may be built over the course of many years and where a commercial developer may have little or no control over site grading.
2Tucson City Code, Chapter 6, Article 8, §§ 6-181 - 88.
3Interview with Ann Audrey, Environmental Coordinator, City of Tucson Office of Conservation and Sustainable Development, in Tucson, Ariz. (Feb. 5, 2009). This definition of "Drought Conditions" is expected to be included in applicable Development Standards.
4Tucson City Code, Chapter 6, Article 3, Division 1, § 6-38.