Canada: Storm Water Management - Taking Sustainable Development By Storm

Developers are increasingly faced with requirements from local governments to incorporate sustainable features into their developments. Provided that sustainable features do not cost substantially more than a comparable, non-green technology, they are generally embraced by condominium purchasers in the Lower Mainland.

One of the most effective sustainability strategies is to improve storm water management. Proper storm water management reduces both the quantity of storm water runoff released into municipal drainage systems and water consumption by reusing storm water for other purposes on site.

What Is Storm Water Management?

A typical storm water management plan calls for the developer to install a filtration facility that collects and stores storm water. The filtration process removes sediments and other impurities from the storm water so that it may then be reused for non-potable purposes. In some developments, the water is released as irrigation water on site, while in others it is incorporated into design features, such as fountains or pools. Treated storm water may also be used for flushing toilets.

Storm water management is a relatively cost-effective way for developers to score points and achieve desired levels under the Leadership in Energy and Environmental Design (LEED) Green Building Rating System®. Whether or not the developer is following LEED or other rating systems, storm water management is a frequently used tool in sustainable construction.

Once installed, the storm water management facility is relatively easy to maintain and generally requires only occasional servicing and upkeep.

Legal Mechanisms and Other Considerations

Local governments may require developers to enter into the following legal instruments to ensure that storm water management obligations in respect of a development are satisfied:

  • Section 219 Covenant (Covenant): The Covenant will set out the developer's obligation to install the storm water management facility in accordance with a plan approved by the local government's engineering department. To ensure that the facility functions properly over the initial operating period, the developer may have certain monitoring and reporting obligations (often fulfilled by an engineer or another qualified professional).
  • Statutory right of way: The local government may also require a statutory right of way allowing it to access the land, as well as operate and maintain the storm water management facility if the developer fails to do so.

To ensure that the strata corporation complies with the Covenant and that the obligations under the Covenant are performed properly and to the local government's satisfaction, the developer, on behalf of the strata corporation, should contract with the professional who will carry out the maintenance, monitoring and reporting obligations before turning over the strata corporation's affairs to the purchasers. In addition, the developer could determine the maintenance costs to be inserted in the strata corporation's budget forming part of the disclosure statement.

Disclosure Obligations for Strata Developments

In the case of a strata development, monitoring and reporting obligations relating to the storm water management facility will generally be assumed by the strata corporation, as the obligations typically continue after the filing of the strata plan.

Under the Real Estate Development Marketing Act (British Columbia), the developer must plainly and fully disclose all material facts in the disclosure statement. Accordingly, the developer should disclose at a minimum:

  • any expense associated with the maintenance, monitoring and reporting obligations with respect to the storm water management facility;
  • any encumbrance to be registered on title to the lands, such as the Covenant and statutory right of way required by the local government; and
  • any contract with the professional carrying out the maintenance, monitoring and reporting obligations with respect to the storm water management facility.

The developer may also consider adding a section in the strata corporation's bylaws reflecting its obligations with respect to the storm water management facility.

In terms of sustainable features, installing a storm water management system is low-hanging fruit. With relatively low incremental construction and operation costs, a developer can afford to include such a system and still make sense of the pro forma budget. A storm water management system may also pay dividends, given the ever-increasing scrutiny of the environmental footprints of new developments.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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