Landscapers Cry Foul Over New Permits

Last of two parts

NEW BERN — One of the main objections voiced at a public hearing in New Bern on a package of proposed stormwater rules focused on provisions that exclude landscape architects from submitting applications for the new fast-track permitting process.

Current rules allow licensed professionals, including landscape architects, to submit permit applications. As proposed, only professional engineers will be able sign off on projects submitted for permitting under the new expedited process.

“Prohibiting landscape architects from using the fast-track method of stormwater permitting will cost clients additional fees and time,” said Marsha Wyly of Wyly Landscape Architects of Greenville.

Wyly, speaking at the hearing, said the state is “acting as an agent for the engineering profession and suppressing competition,” by giving preference to engineers over landscape architects. “This is a business practice that harms consumers and places a barrier before small and women-owned businesses run by landscape architects. This action is something that is totally against the direction the governor is taking the state of North Carolina in his effort to support small business.”

Annette Lucas of the N.C. Department of Environmental Quality’s stormwater permitting program told Coastal Review Online that landscape architects and engineers will continue to be allowed to apply under the regular permitting process, which many engineers are expected to continue using as well.

The legislature mandated the fast-track process. The decision to limit fast-track permitting to engineers was based on enforcement controls already in place, Lucas said.

“We have to have a fast-track stormwater-permitting program where the department issues permits with no technical review, but at the same time we have to establish liability and we also have a way to enforce when the minimum design criteria are not met,” Lucas said. “It was a challenge to come up with a way to do that.”

A team that included engineers, a landscape architect, environmental consultants, representatives from the construction industry and local and state government officials worked for more than a year to create the minimum design criteria. The work involved replacing outdated standards no longer believed to protect water quality. It also involved determining which professionals were best suited for the expedited permitting process.

Marsha Wyly

Marsha Wyly

The team decided on a method that requires little review up front in the permitting process, but requires more intense scrutiny of as-built, or post-construction, drawings to ensure compliance.

“The team decided what people were qualified and the team decided as a group that professional engineers would be only type of professional to submit applications under the fast-track program,” Lucas said.

“We wanted to hear about their disciplinary process,” Lucas said of the landscape architect profession. “Professional engineers are a much larger group, with full-time professionals on their licensing board. Landscape architects don’t have as much statutory backing for their ability to design stormwater systems.”

Minutes from the team’s July and August 2015 meetings indicate that there was considerable debate about the qualifications of landscape architects to design stormwater systems. Tim Clinkscales of Paramounte Engineering Inc. of Wilmington and a member of the team pressed for the restriction, which met resistance, especially from Jeff Gray, a lawyer for the N.C. Board of Landscape Architects, but also from others representing the profession.

Clinkscales rejected arguments that landscape architects were generally qualified, as a group, to handle stormwater projects, according to the minutes, saying it was up to the team to determine who was qualified. Clinkscales in an interview said his position was based on his concerns for public safety.

“I don’t think they (landscape architects) have the same education background as engineers. I don’t think the exam is the same background as the engineering exam,” Clinkscales said. “Experience-wise, they may know more than myself but that’s irrelevant. It’s about the safety of the public. When stormwater systems are being designed there’s an element of public safety and I don’t think the landscape architect board is equipped to deal with, or the rigors that public safety requires. This also deals with flood control and, based on what I’ve researched, that doesn’t seem to be in their curriculum.”

Clinkscales noted that the team’s decision was unanimous.

Landscape architects at the hearing said they may be equally qualified to handle stormwater projects, based on their individual education and experience.

Myriah Shewchuk

Myriah Shewchuk

Myriah Shewchuk, coastal section chairman of the state chapter of the American Society of Landscape Architects, said during the hearing that her profession had been a leader in stormwater design for decades. She said the education and licensing requirements for landscape architects are rigorous and thorough.

“Our understanding of stormwater systems is not trivial,” Shewchuk said.

She said neither all professional engineers nor all landscape architects are experts in stormwater management and each individual must know their limitations and practice accordingly. The proposed exclusion would conflict with other state laws that allow landscape architects to design stormwater plans, she said.

Michael Mullis, a landscape architect with Mullis Design Group of Raleigh and past president of the state chapter of the American Society of Landscape Architects, said many of the new rules are welcomed but licensed landscape architects should continue to be considered licensed professionals under stormwater rules.

Todd Miller, the executive director of the N.C. Coastal Federation who also served on the design criteria panel, said it remains unclear whether professional engineers will be willing to risk their license on certifying that a stormwater system was built according to the criteria.

“If there’s an issue, it’s the engineer’s license on the line,” Miller said. “Enforcement would be ultimately filing complaints with the licensing board and the question is, how many engineers are willing to take that risk?”

Lucas agreed. “I think a lot people will continue to use the regular review process. That’s what we do now,” she said. “The fast-track process is risky for the design professionals, who are putting their credentials on the line. They might be subject to enforcement action. I’ve heard a lot of professional engineers say they would prefer to use the regular process anyway.”

Others took issue with the rule changes at the hearing in New Bern.

Knapp Brabble, manager of the Washington County Airport in Plymouth and secretary for the N.C. Airport Association, said stormwater retention ponds that are required for areas with large impervious surface coverage, such as malls, industrial complexes and other large buildings, aren’t appropriate at airports because they attract birds. Airports should be exempted, he said.

“At airports we have a runway cleaner than any highway you can drive on,” Brabble said, adding that birds take flight and scatter when they hear the noise from aircraft, creating a hazard to aviation.

Also, Steven Webb, lobbyist for the N.C. Home Builders Association, said his organization’s members have problems with the rules as proposed, especially changes to definitions relating to storm events and rainfall rates, requirements related to vegetated setback buffers and protections for shellfish waters.

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About the Author

Mark Hibbs

Mark Hibbs is editor of Coastal Review Online. A native of coastal North Carolina, Mark joined Coastal Review Online in 2015, after more than 20 years with the Carteret County News-Times, where he served as a staff writer and photographer, business editor and assistant to the editor. Mark has won numerous awards for his reporting, including numerous N.C. Press Association awards, the American Shore and Beach Preservation Association's Friend of the Coast Media Award and the U.S. Small Business Administration’s 2009 Small Business Journalist of the Year Award for the Southeast Region. Mark is a graduate of the University of North Carolina at Wilmington.