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.

The Cost of the Chesapeake Bay TMDL for Virginia

From Senate Finance Committee Report November 18, 2011

For the last three weeks of this month The Virginia Department of Conservation and Recreation, DCR, is holding a series of public meetings on the Phase II of Virginia’s Chesapeake Bay Total Maximum Daily Load, TMDL, Watershed Implementation Plan (WIP) across the state. Meetings are scheduled in Richmond on May 23; Eastern Shore on May 23; Ruther Glen on May 30; Covington on May 30; and Harrisonburg on May 31.  For more information, call the DCR, Richmond office (804-786-1712). 

The Phase II WIP was submitted to EPA on March 30 and opened a formal public comment period on that will conclude on May 31.  The DCR planned a total of 8 meetings beginning on May 9th in Chesapeake, VA to provide a brief update on the status of the Phase II WIP, the next steps in the Chesapeake Bay TMDL planning process and to provide local governments, planning district commissions, soil and water conservation districts and other stakeholders with an opportunity to comment on the Phase II WIP.  The meetings were held with little publicity or advance notice.

On Tuesday, May 15th 2012 I attended the meeting in Prince William County  in a very overcrowded meeting room.  If you missed the meeting, don’t worry about it, DCR plans to put the presentation on line and all the details covered were included in the slides and there is still time to attend another meeting. Check the TMDL Homepage to see the presentation. The meeting was opened by Marc Aveni of Prince William County who had taken the time to personally call me to tell me about the meeting because I had called his office to ask if he knew when the meetings were planned.  James Davis-Martin of DCR presented the overview of the WIP Phase II.

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 pollution control measures called best management practices, 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. The Virginia TMDL is 53.4 million pounds of nitrogen, 5.4 million pounds of phosphorus and 2.6 billion pounds of sediment per year. That translates into a 21% reduction of nitrogen and sediment and a 25% reduction in phosphorus from 2009 the base year. The Virginia TMDL is further broken down into the 39 segments of the river basins that are in Virginia and EPA established a specific TMDL for each segment that must be met. To develop the Phase II WIP which required Virginia to identify how the counties and towns will implement the 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). Each community was asked to input land use data that was not in agreement with the federally supplied data, catalog existing BMPs, develop implementation strategies and identify resource needs.  

Many of the smaller communities did not have the data or resources to even know if the land use data supplied by EPA was accurate. However, the larger communities and cities were able to provide much more detailed information, but that information is not currently publicly available. The northern Virginia communities were unable to obtain  approval of the planned strategies from the county elected officials before the submission deadline. In addition, 1.7 million acres (12.3%) of the Virginia portion of the Chesapeake Bay Watershed is federal land. Though this federal land includes the Jefferson National Forest, it also includes military bases and land controlled by 12 federal departments. The Virginia DCR plans to develop a memorandum of understanding, MOU, with the Department of Defense to develop a plan for their compliance with the TMDL and then extend that MOU to the other agencies. Several of the federal departments did not respond to the Virginia DCR request. 

The Phase II WIP drove the planning process for compliance with the TMDL down to the local level. This past legislative session, the Virginia legislature passed several bills to facilitate compliance with the federal mandate. HB 176 and SB 77 Nutrient credit certification; regulations.  HB 932 Voluntary Nutrient Management Plan Program; DCR to develop training and certification program. HB 1009 Land-disturbing activities; service of order for violation. HB 1065 Erosion & Sediment Control Stormwater, & Chesapeake Bay Preservation Acts; integration of all related programs.  Previously, the  Virginia General Assembly passed SB 1831 that bans phosphorus in most lawn fertilizers and more tightly restricts the use of fertilizer by professional lawn and turf service companies.  The Stormwater Regulations, 4VAC50-60,  finally went into effect on September 13, 2011 after a difficult journey. In addition, the James River Study was incorporated into the WIP.

From Senate Finance Committee Report 2011

The Chesapeake Bay TMDL and WIPs are a continuation of work begun with the 1983 Chesapeake Bay Agreement, Virginia’s 1998 Water Quality Improvement Act and the 2005 Tributary Strategies (designated in the chart above as TS). Over the years substantial improvement has been made in upgrading waste water treatment plants though many improvements to the combined sewer systems in Richmond and Lynchburg still need to be addressed. Also, significant progress has been made in implementing agricultural BMPs through the cost share program. Virginia’s nitrogen and Phosphorus loads into the Chesapeake Bay have fallen since 1985, but we have failed to meet the promised reductions under the various acts over the years. So, now under the Chesapeake Bay TMDL EPA can impose “backstops” to ensure that goals are met.

EPA has legal authority to regulate point source releases or contaminants and pollutants- wastewater, industrial, and municipal separate stormwater system (MS4), and concentrated animal feeding operation permits. If Virginia fails to meet the goals set under the TMDL in other areas (as identified under the Phase II WIP), EPA will reduce the allowable releases under the permits to make up the difference. In some cases these back stock measures would require an additional layer of treatment. In short this would be the most expensive way to meet the TMDL, so it represents a good "stick."  The best estimate of the cost to meet the TMDL (without EPA imposing “backstop”punishment measures) was the report prepared by the Virginia Senate Finance Committee at the end of 2011. They estimated that the total cost complying with the TMDL over the next 7-13 years will be $13.6 billion to $15.7 billion paid for by individual home owners in the case of septic system upgrades, water and sewage rate payers in the form of increased rates, property owners in the form of higher stormwater management fees and tax rate, state government and VDOT who get their funds from tax payers and local governments who also get their funds from tax payers. 

So, that big number will be paid for directly and indirectly by us (no matter what promises are made by local politicians) and someday soon the Chesapeake Bay will be clean. Like all estuaries the Bay is an incredibly complex ecosystem that we are only beginning to understand. Estuaries are very productive ecosystems and habitats. The Chesapeake Bay serves as a nursery ground for the fish and shellfish industry and protects the coast from storm surges and filters pollution. The estuary filters water that is carrying nutrients and contaminants from the surrounding watershed, protecting and restoring our drinking water supplies, the commercial oyster harvest and the beauty and ecological balance of the largest estuary in the United States.