Significant Legal and Practical Problems Exposed in City Staff’s Source Water Protection Overlay Proposal (11/10/2021)

During a workshop on December 6th, LBCA members highlighted multiple problems with the City’s most recent staff draft proposal on Source Water Protection Overlay. Over the course of the workshop, City officials repeatedly acknowledged that the language was not clear, practical consequences were not addressed, and the City had no idea how many homes would be impacted or the cost of compliance. Among other things, the City acknowledged or admitted the proposal as drafted:

• Had nothing to do with the protection of drinking water, the statutory basis for Source Water Overlay protection;

• As designed, would have little to no impact on flooding:

• Would require all driveways, walkways and decks, regardless of size or height, to be built with approved, pervious paving materials:

• Failed to include all pervious materials in its list of approved paving materials;

• Would apply to walkways made of flagstone or similar stepping stones;

• Would require all decks to be built with approved paving materials and not wood or wood composite;

• Failed to address the realities of requiring homeowners to build a stormwater reservoir for a walkway;

• Would require every driveway, walkway, and deck, no matter the size, to be built with an engineered system based upon local geotechnical conditions approved on a case-by-case basis by the City Engineer, a requirement that is not explained;

• Provides no explanation of the process a homeowner would have to exhaust to win city approval.

City officials also acknowledge that despite the wording of proposal, it was meant to apply only to new construction, in part to protect Cape Shores from having to comply with the proposed standards if it replaces the roads inside the community.

No one spoke in favor of the proposal.