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.

EPA approves DC Water’s Green Infrastructure Plan

Image from DC Water: GI= green infrastructure, CSO= combined sewer overflow

On Friday, December 14, 2012, the US Environmental Protection Agency officially announced its support for District of Columbia Water and Sewer Authority, DC Water's, proposal to extend the deadlines in the Consent Decree with the United States in order for them to test green infrastructure (GI) alternatives to its Clean River Project, its long term plan to control overflows for the District’s combined sewer system. Currently, the Clean Rivers Project is a $2.6 billion system of tunnels and diversion sewers for the capture of stormwater to prevent overflows to Rock Creek and the Anacostia and Potomac rivers and storage for later treatment at DC Water’s Blue Plains Advanced Wastewater Treatment Plant.

The EPA has announced its support of the modification of the consent decree so that DC Water may construct Green Infrastructure Demonstration projects. These projects will be used to evaluate (over the next 8 years) the effectiveness of green infrastructure to reduce stormwater runoff using techniques that mimic natural control measures to meet water quality goals under the National Pollutant Discharge Elimination System, NPDES, permit . If successful, these techniques could be used to help address the combined sewer overflow problems in the District, potentially reducing costs and/or improving control of stormwater overflows. As part of the agreement with EPA, DC Water will proceed with preparation of the Environmental Impact Statements required for the Potomac Storage Tunnel while the GI Demonstration Project and Alternatives Analysis are underway and as indicated above the Anacostia Tunnel projects will proceed on schedule.

District of Columbia's sewage system is one of the oldest in the United States and the combined storm water and waste water flows in the oldest section of the system have created a pollution problem whenever it rains. The combined volume of rainwater and sewage is too much for the Blue Plaines Advanced Wastewater Treatment Plant to process, so DC Water releases the excess rainwater mixed with untreated sewage to the Anacostia River, Potomac River and Rock Creek to prevent the sewage from backing up in homes and businesses and the Capitol. The sewage flow released in this way has violated the National Pollutant Discharge Elimination System, NPDES, permit which is how EPA regulates sewage treatment plants. The history of Washington DC’s NPDES permit and allowed outflows can be read here.

The BluePlains Advanced Wastewater Treatment Plant is located on the southernmost tip of Washington DC, across the river from Alexandria. Blue Plains sits on 150 acres of land and has a rated annual average day capacity if 370 million gallons per day (mgd) and a peak wet weather capacity of 1,076 mgd. The system needs a larger storm rated capacity to accommodate the old central city section which accounts for one third the area of the District and still has the old combined sewer system that overflows with predictable regularity during rain storms. DC Water is under a consent order from the EPA and the Department of Justice to meet new effluent limits for total nitrogen released and better control of the system during storms. To comply with the consent order DC Water developed the $2.6 billion Clean Rivers Project.

The Clean Rivers project was amended in 2007 to include the construction of Enhanced nitrogen removal, ENR, facilities for additional $950 million. The new ENR facilities will have the capacity to provide complete treatment for flow rates up 555 million gallons per day for the first 4 hours, 511 million gallons per day for the next 24 hours and at a rate of 450 mgd. When all the Clean River Project and ENR facilities components were completed, the Blue Plains Advanced Waste Water Treatment Plant is projected to be able to meet the nitrogen release standard under the NPDES operating permit, reduce the number of uncontrolled storm related releases of waste, but still not meet the Chesapeake Bay TMDL.  Buried in Appendix B of the Watershed Implementation Plan II, WIP II, for Washington DC is the fact that they cannot meet the EPA mandated TMDL for the Chesapeake Bay for the combined sewer system and Blue Plains Waste Water Treatment plant with the existing programs. More needs to be done.

In addition, seven years into the Clean Rivers Project, DC Water is facing the reality of the rate increases necessary to support the combined costs of the projects that will still not meet the TMDL. Building the 13-mile network of 23-foot-diameter tunnels to carry combined storm runoff and sanitary sewage to the Blue Plains Advanced Wastewater Treatment Plant for treatment rather than releasing untreated sewage and stormwater runoff to the rivers and creeks during heavy rainstorms is incredibly expensive and still may not be enough to solve the problem. So far the more than $600 million that has been spent for the Clean Rivers Project for in engineering preliminary work address mostly the Anacostia River Tunnel (which is really an interconnected series of three tunnels). According to Alan Hayman of DC Water, the Anacostia Tunnels will cost about $1.6 billion when completed and will have the greatest reduction in overflow releases. DC water is hopeful that the green infrastructure will allow downsizing of Potomac and Rock Creek tunnels (delay sewer rate increases) and ensure that DC Water ends up compliant with the NPDES permit, consent decree and the Chesapeake Bay TMDL. Green Infrastructure, if successful, can continue to grow and expand in effectiveness as these practices become commonplace and accepted.  

from DC Water 

Local Stormwater Management in the Chesapeake Bay Watershed

Winter is coming and so the woods on the back seven acres of my land are easily accessible and I can walk to the stream behind my house. My intension was simply to collect the trash that accumulated in the area since spring, but I am bothered by the erosion I observe in the stream bank. It is not noticeably different from the spring, but certainly there has been some impact to the area and I can only guess it is from paving the road in my neighborhood. It is a private road about 2 miles long that is maintained by the 34 property owners who live in our neighborhood. During big storms it is clear that the stormwater runoff is inadequately controlled by the ditch that runs along side the road and terminates on the crest of the hill down to the stream. Yet, the challenge is to get a group of rugged individualists to spend money to address a problem only two homeowners see and care about.

It is my understanding the road was built by the developer of the lots in 2004. I bought my home from a bank in 2007 so I rely on information from my neighbors. Stormwater management for the development of the road and for the road itself was not regulated within the rural crescent (the area within Prince William County that requires 10 acres per home with some limitations and loopholes). On January 29, 2005 Virginia Soil & Water Conservation Board & Department of Conservation & Recreation responsible for municipal separate stormwater sewage systems, MS4s, and Construction General Permits for stormwater. The DCR did not issue regulations until December 9, 2009 when they adopted the Final Regulations Parts I, II, and III Virginia Stormwater Management Program (VSMP) Permit Regulations, but then just over a month later on January 14, 2010 the DCR suspended the regulations and convened hearings.

Though the DCR retains regulatory responsibility for the MS4 and Construction and General Permits for managing storm water, localities with MS4 permits and localities within the Chesapeake Bay Protected Area must adopt a local stormwater management programs to comply with the requirements of the Chesapeake Bay Act and the US EPA mandated TMDL. These elements will have to be incorporated in to the environmental chapter for the Prince William County comprehensive plan. Part of the challenge is to have the plan or requirements reach in a reasonable manner the stormwater management of our community and other communities like us. To meet the requirements of the EPA TMDL we need to reduce nutrient pollution from all existing sources, not just ban new development and increase regulation on point source polluters. Though I do not know if it will be reasonable, the obvious solution is to tie obtaining permits to maintain and repave the road with installing stormwater best management practices, BMPs, to ameliorate the excessive flow of water during storms.

Natural systems like our land and stream respond to runoff volumes, frequencies, durations and temperatures. Even though “pollutant” is defined broadly by the EPA in the Clean Water Act to include virtually every imaginable substance added to surface waters, including heat, it does not include water volume. A more straightforward way to regulate stormwater contributions to the Chesapeake Bay Watershed impairment would be to use flow or possibly something like impervious cover, as a measure of stormwater loading and then require BMPs based on the amount of pavement. Flow of stormwater is easier to monitor, model, and even approximate rather than the complicated modeling of the loadings of individual contaminants in stormwater effluent. Using BMPs to simply reduce stormwater flow will automatically achieve reductions in pollutant loading. Moreover, flow is itself responsible for erosion and sedimentation that is damaging our streams and rivers within the watershed.

The Leviathan in the Chesapeake Clean Water Act

Each year, hundreds of millions of pounds of nitrogen, phosphorus and sediment reaches the Chesapeake Bay. The majority of this pollution comes from sewage treatment plants, large-scale animal operations, agriculture, and air pollution from vehicle exhaust and power plants and other industrial sources. Other sources of pollution include septic systems, runoff from roadways, runoff from commercial development, residential and commercial lawn fertilizers, and small scale animal and agricultural sources (the keeping of horses, poultry, and other animals and growing vegetables in predominately suburban or exurban locations. Solutions to this pollution include upgrading sewage treatment plants, proper operation of septic systems, using nitrogen removal technologies on septic systems, decreasing fertilizer applications to and agriculture, controlling suburban and exurban animal waste, and controlling storm water run off from urban, suburban and agricultural sources.

Over the past quarter century the excess nutrient and sediment contamination to the Chesapeake Bay has decreased in total, but the Bay’s waters remain seriously degraded and considerably short of attaining the 2010 water quality goals set forth in the Chesapeake 2000 agreement. During this time agricultural and industrial sources of pollution have been significantly reduced while urban runoff and suburban sources have increased significantly. As a result US EPA is developing a new federally mandated Total Maximum Daily Load (TMDL) plan to establish and apportion an allowable pollution budget among the states. However, S.1816/H.R. 3852, the Chesapeake Clean Water and Ecosystem Restoration Act (known as the Chesapeake Clean Water Act), represents a radical change in the regulatory approach and an expanse of federal power. Congress will vote on this act to control “non-point” source pollution and delegate to the federal control of every backyard in the six state area of the Chesapeake Bay basin. This legislation would take regulation down to every drop of water and every household activity, uniformly across the region.

The federal government will decide across the six state region whether you can have dogs, cats or other pets, how many if you can let them out in your yard or if you need to gather their waste. There will be regulations for maintaining a horse in hunt country, if you can fertilize your lawn, the types and quantities of plants, if you can wash your car, wash or even build a patio or deck, and acceptable materials of construction for these items. The allocation of the pollution budget will be based on the negotiating power and influence of the federally recognized “stakeholders,” which has never included the American homeowner. In addition, the legislation changes the definition of waters regulated under the Federal Water Pollution Control Act beyond navigable water of the United States down to all the waters, every storm sewer, creek and puddle in the Chesapeake Basin. This is a fundamental increase in power for the federal government.

While it is necessary to put the states on a pollution diet by mandating the TMDL, the determination of how to achieve those goals should be left to local control and homeowner within the region need to have strong representation. As it stands now homeowners are not invited to the table with the other stakeholders. EPA has determined the TMDL allocations based on models of the Chesapeake basin. These models are evolving and improving, but still are only approximations of the ecology of the watershed. EPA has found the modeled results tend to show more attainment from implementation than the monitored results, the cause of this difference has not been fully determined. While the states are insisting they have not been given full credit for agricultural mitigations called “best management practices or BMPs,” the EPA reduced the allocations by an arbitrarily applied margin of safety of about 20-25%. However, now this legislation proposes to use these models to create monetary value from installing mitigations that need to be maintained and that can be bought and sold instead of using monitoring results. This creates the possibility of large scale operations exploiting any flaw in the model to game the system for profit. When there is money involved, there will be someone to find them.

Furthermore the legislation enables the EPA to control growth through pollution allocations, pollution offsets and acceptance of methods of control. Federal power to regulate my backyard is not granted by the constitution under any interpretation of the interstate commerce clause. The federal government exists to serve the individual, and the family not rule it. The Federal government is not the highest expression of moral good and has never been granted the kinds of power assumed here.