Monday, January 13, 2014

Stormwater Regulation and the Virginia General Assembly

On Wednesday the Virginia General Assembly opened its 2014 session. Paying attention to what happens in the Commonwealth of Virginia is a good way to understand the forces that are shaping our nation. Among the many items expected to come before the Assembly are several bills to delay the implementation of the Virginia Stormwater Management Program that was planned to finally go into effect on July 1, 2014. On that date local governments were scheduled to become the Virginia Stormwater Management Program (VSMP) authorities and the more stringent stormwater management regulations of the Virginia Stormwater Management Act were scheduled to be implemented. Previously, a less comprehensive set of regulations was managed by the Virginia Department of Conservation and Recreation. Recently, oversight for all water programs has been transferred to the Virginia Department of Environmental Quality (DEQ).

As it stands now, on July 1, 2014 every County, City and Town with a municipal separate stormwater system permit (from the U.S. Environmental Protection Agency) in Virginia needs to implement a Stormwater Management Ordinance that complies with the requirements of Virginia’s stormwater regulations and ensure that any land disturbing activities like construction are incompliance with that Stormwater Management Ordinance, the Virginia Stormwater Management Act and associated regulations. These regulations have been in the pipeline for a while and  until recently, I did not fully appreciate that the regulations would require additional staff and skills to develop and implement and that the regulations require user fees to make the program self-supporting. These regulations mean that the each county would have to have employees with the skills and knowledge to understand and manage stormwater, and the DEQ would have to have a data  and tracking system developed to issue permits and additional bureaucracy to perform its portions of the program such as training, maintaining computer systems, developing handbooks etc. The user fees are supposed to pay for the costs, so the cost of construction in the state will increase. Construction is to a large extent dependent on economic development and growth. In recessions there is and low growth economies there is less construction and without construction there are no fees, but the state needs to pay the employees and maintain the computer systems in good times and bad.

Stormwater regulations ensure the control of stormwater from development sites to slow down the flow of rainwater and snowmelt both during construction and in perpetuity after construction is completed. The collective force of unmanaged stormwater scours streams and erodes stream banks, resulting in large quantities of sediment and other pollutants entering streams, rivers, estuaries and bays every time it rains or snow melts. The US Environmental Protection Agency (EPA) believes that sediment and nutrient pollution contained in runoff from urban/suburban areas is the largest source of water quality impairments to estuaries (areas near the coast where seawater mixes with freshwater) in the United States and has turned its water quality focus on these areas starting with the Chesapeake Bay Watershed and the pollution diet the EPA has imposed on Virginia and the other Chesapeake Bay states.

To reduce the damage caused by stormwater and reduce the contamination carried to our rivers and streams and ultimately the Chesapeake Bay, Virginia developed the Virginia Stormwater Management Act and associated regulations to improve stormwater management often using natural processes. These natural processes manage storm water runoff in a way that maintains or restores the site’s natural hydrology, allowing groundwater to recharge. Low Impact Development, LID, is the term for the site level actions and strategies to do this. LID is a strategy of stormwater management emphasizing conservation and natural features combined with small scale stormwater controls to mimic as closely as possible the natural hydraulic properties of a site. The idea is to move water slowly through open conveyance systems and use distributed stormwater retention in open unpaved areas to allow infiltration of rain water into the earth. This reduces the quantity and velocity of stormwater as it leaves a site reducing the damage that uncontrolled stormwater runoff can cause. The stormwater management program is a key portion of the plan Virginia submitted to the U.S. Environmental Protection Agency (EPA) to meet the mandated reductions in pollution under the Chesapeake Bay TMDL imposed on the state by the EPA.

Under the new regulations the counties or cities are required to:
  1. Review and approve Stormwater Pollution Prevention Plans (SWPPP) for all construction and land disturbance of more than an acre within the county. These plans need to contain an Erosion and Sediment Control Plan, a Stormwater Management Plan, any additional control measures necessary to address requirements under the TMDL  and appropriate management and control of any on-site chemicals and fuels. 
  2. Review and approve registration statement, to obtain the VSMP permit from the state DEQ.
  3. Inspect construction sites to ensure activities conform to the approved SWPPP and permit.
  4. Enforce the stormwater regulations by having specific violation criteria and a process for the imposition of penalties.
  5. Oversee a maintenance program that ensures the ongoing functioning of stormwater management control.
It is likely that the regulations will be delayed because at the last meeting of the Virginia Association of Counties  in the fall, it became apparent that the smaller and more rural counties were not ready to implement the regulation. In addition, many counties were not fully embracing the need or importance of the required stormwater fees that were intended to fund the training and staffing necessary to review plans and ensure that stormwater management strategies work and remain in operation forever. A significant portion of the stormwater fee is intended to go to the state to track data, develop and deliver training both on the basics of the regulations and enforcement of the regulations as well as maintain handbooks and operate the program.

Some of the counties out and out rejected the fee for the state services. Clearly, these communities were not embracing or fully understanding the regulations or simply did not feel that regulatory schemes intended for urban areas should apply to them. Compliance with regulations designed for communities with hundreds of thousands or more than a million residents do not fit well into communities with tens of thousands of residents and is a fundamental problem in the regulated world we live in. In addition, the DEQ itself is not ready, they have not completed the handbook nor completed developing all the training necessary for implementation of the programs. At this time it appears as if a delay of one year will be put into the legislative package.

Until I examined the requirements of the Virginia Stormwater Management Act and associated regulations I did not appreciate how large a challenge it was going to be to meet the current timeline or what the true demands on our communities were going to be from this regulation. Not all areas of the state are Fairfax, Loudoun or Prince William counties and the smallest communities do not have technical expertise to develop and operate these programs or even know how to go about it.
Though regulatory development, oversight and enforcement are costly, they also generate benefits. Regulations protect our health and safety. They preserve the quality of the environment and facilitate efficient operation of markets (real estate, natural resource, financial, commodity- all competitive markets). They protect ownership rights and enforce contractual agreements. We need to be diligent in determining and constantly reevaluating the right balance of regulation, reporting and oversight that produces the desired benefits for society while limiting costs to all of us. Determining the right balance between regulatory cost and benefit is largely based on values and world view. Let your state representatives know your values and views.

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