Monday, April 9, 2012

Your Tax Bill, Property Rights and the Virginia’s Phase II Watershed Implementation Plan

On March 30th Virginia submitted the final version of the Phase II Watershed Implementation Plan, WIP, to the US Environmental Protection Agency, EPA. The Commonwealth had initially hoped to meet the EPA mandated TMDL goals on an overall state basis, but that approach was rejected by EPA who required that each segment of the Virginia Chesapeake Bay Watershed that had been assigned a TMDL meet that target and that Virginia submit 2017 and 2025 input “decks” so that EPA may assess the strategies within the WIP using the Chesapeake Bay computer model to do this. Meeting the TMDL on a statewide basis might have allowed the Commonwealth of Virginia to implement the most cost effective best management practices regardless of location, and it might have moved the compliance with the EPA mandate up to the state level from the local budgets. The Phase II WIP commits our local communities and property owners to implementing nitrogen, phosphorus and sediment reducing Best Management Practices (BMPs), that will increase our taxes, determine the future allowed use of land within the Chesapeake Bay Watershed, the costs of our septic systems, and the level of regulation within the Commonwealth. This document was submitted to the EPA without disclosure of the details of the “deck” to the public so that we will understand what the costs will be in terms of taxes and requirements to install BMPs on private land.

About half of the land area of Virginia is drained by the creeks, streams and rivers that comprise the Chesapeake Bay watershed, and two-thirds of the state's population lives within the watershed. Chesapeake Bay pollution diet, the Total Maximum Daily Load (TMDL) of nitrogen, phosphorus and sediment was mandated by the EPA to the six Chesapeake Bay Watershed states (Virginia, Maryland, Delaware, New York, Pennsylvania and West Virginia) and the District of the Columbia. The Chesapeake Bay TMDL and the Watershed Implementation Plans (WIP) Phase I and II are designed to ensure that all pollution control measures needed to fully restore the Bay and its tidal rivers are in place by 2025, with at least 60 % of the BMPs completed by 2017. While it will take years after 2025 for the Bay and its tributaries to fully heal, EPA expects and their computer model predicts that once the required BMPs are in place there will be gradual and continued improvement in water quality as BMPs reduce the nutrient and sediment run off and better control storm water so that the Chesapeake Bay ecosystem can heal itself.

The TMDL sets a total Chesapeake Bay watershed limit for the six states and Washington DC of 185.9 million pounds of nitrogen, 12.5 million pounds of phosphorus and 6.45 billion pounds of sediment per year which is a 25% reduction in nitrogen, 24% reduction in phosphorus and 20 % reduction in sediment from the current levels. The pollution limits are then partitioned to the various jurisdictions and river basins based on the Chesapeake Bay computer modeling tools and monitoring data. Fundamentally, complying with the EPA mandate and the Virginia WIP is about spending enough money, putting in enough BMPs to have the Chesapeake Bay Model say that we meet our TMDL. The WIPs identify nitrogen, phosphorus and sediment reduction actions from all major sources, including sewage treatment plants, industrial facilities, suburban and urban areas, agriculture, forestry and septic systems.

BPMs are not always easy to see to the untrained eye. They are a list of techniques to manage storm water to reduce runoff of nutrients and soil from urban, suburban and rural areas. Examples are BMPs like nitrogen reducing alternative septic systems, increasing annual septic pump outs, pervious pavement, developing and maintaining urban nutrient management, bio-retention ponds and swales. The Phase II WIP Appendix A summary lists converting 200,000 acres of agricultural land to forest and grass buffers, doubling the agricultural conservation land acres and nutrient management acres, and many more BMPs for the agricultural sector. For urban and suburban locations the WIP lists over half a million acres of nutrient management, reductions in impervious surfaces, stream bank restoration, and others. EPA has a long list of acceptable BMPs at various costs and assigned effectiveness under the computer model that can be used by communities to meet the requirements of the TMDL under the WIP and Virginia developed computer tool to allow local staff to test various strategies to meet the TMDL within EPA’s computer model. Government by computer model. The farmers, homeowners, property owners and residents of Virginia will have to pay for this plan. The challenge for developing the Phase II WIP was determining what needs to be done to get the computer models to say that we have met the EPA mandated TMDL. The challenge for the Commonwealth is to engage the public and bring them into the process.

As part of the Phase II WIP Virginia had the Department of Conservation and Recreation (DCR) staff subdivide the TMDL allocation from the 39 segments to the local government (county and town level) and the staff created a computer input data “deck” with BMP implementation levels and nutrient loadings to meet the TMDL. This “deck” was not disclosed as part of the Phase II WIP posted by DCR. The public has no indications what the cost of these BMP will be, but with all of the computer data inputs and models there might be estimates of costs on a local basis. Counties and residents will be required to install the BMPs (often on private land) that were submitted to the EPA and raise the property taxes, storm water fees, waste water charges, septic fees to pay for and maintain the BMPs. Reducing the nitrogen, phosphorus and sediment runoff by about a quarter is not going to happen by increasing regulation on future construction and developers, and the WIP II does not suggest it. Without public engagement in the process but based on surveys that indicate we want a clean and a restored Chesapeake Bay, we are about to be required to install BMPs at our homes, businesses, farms and private land and pay for the public improvement. A clean and restored Chesapeake Bay is good, but the price in terms of dollars, taxes and regulations must be known and disclosed.

On April 1st 2012, Virginia opened a 60 day comment period for the Phase II WIP and said that they will have public hearings. Though no public hearings are yet scheduled, it is important that you understand what meeting the EPA mandated TMDL through the Virginia Phase II WIP will mean to your property rights and pocketbook. The local governments had not had the opportunity to approve the potentially expensive BMP strategies and commitments made to the EPA within the WIP (which may be enforceable at least as it relates to the stormwater BMPs). A small example and just one little portion of the Phase II WIP, Fairfax County staff has estimated that the stormwater fee on all property owners (within their county) will have to increase to a “nickel” which is $250 on a $500,000 home to meet the Phase II WIP stormwater requirements. The current rate is 1.5 cents or $75 on a $500,000 home. Waste water fees which have increased significantly in the past few years will continue to have to rise to pay for the improvements to the wastewater treatment plants. The written plan that is available for viewing on the DEQ website does not specify what BMPs were used for each county to meet the goal, but sight unseen you will pay for it. We should find out what the costs will be and how we will be paying for them and what new restrictions and requirements will be placed on us.

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