February 2, 2010

Regulatory Coordinator

Virginia Department of Conservation and Recreation

203 Governor Street

Suite 302

Richmond, VA 23219

Subject:  December 10, 2009 NOIRA to establish water quality design criteria for new development activities within the Chesapeake Bay Watershed that are consistent with the pollutant loadings called for in the Virginia TMDL implementation plan

Dear Sir/Madame:

We submit these comments on behalf of the Virginia Fountainhead Alliance, an organization of businesses interested in Virginia’s environmental and economic future.  The Alliance applauds the Board’s recognition that the originally proposed 0.28 (#/acre/year) phosphorus standard does not appear necessary to achieve water quality goals as well as its decision to authorize the Department of Conservation and Recreation (DCR) to create a new Regulatory Advisory Panel (RAP) to review and develop a separate standard for the Chesapeake Bay watershed .

At the Board’s December 10, 2009 meeting, the Alliance’s representative, David E. Anderson, made the following comment which we wish to restate as a part of our comments to the NOIRA

As I understand it, the DCR staff proposal before you today would provide for [a reexamination of the proposed phosphorus standard].  The 0.28 standard in the Chesapeake Bay watershed would be set aside in favor of what has come to be known as the “new” 0.45 standard.  That standard would go into effect next July with the rest of the proposed regulations.  In the meantime, a new Regulatory Advisory Panel (RAP) would be created to develop a new phosphorus standard using the latest and best data as it becomes available during the EPA TMDL process … Of course, it is essential that a new RAP be given the latitude to go where the science and data lead and that the scope of its mandate be broad enough to encompass fully and fairly the various issues that underlie the creation and application of a new standard (emphasis added).

The Alliance requests confirmation that the NOIRA published by DCR does allows for the full consideration of all issues that underlie the creation and application of a new standard.  Specifically, the NOIRA states as follows:

[T]he Board also authorized and directed the Department of Conservation and Recreation … to consider compliance methodologies and mechanisms associated with any new design criteria (emphasis added).

It is our concern that limiting the RAP’s authority to considering methodologies and mechanisms associated with new design criteria may be interpreted  to exclude ancillary issues, for example those dealing with grandfathering, which may be necessary to assure a fair and efficient implementation of the new standard.  Consideration of such issues will be necessary even if the standard currently in the regulation (the “new” 0.45) is retained.  Indeed, if the General Assembly takes action to delay the implementation of the regulations, there would be little question that the application of the “new” 0.45 standard would be the creation and implementation of a new regulation.  We  recommend that DCR issue a response advising that  this RAP is authorized to consider compliance methodologies and mechanisms associated with the establishment of any  phosphorus standard for any portion of the state or for  the entire state..

Respectfully submitted,

 David E. Anderson

 David Johnson