August 17, 2009

Regulatory Coordinator
Virginia Department of Conservation and Recreation
203 Governor Street, Suite 302
Richmond, Virginia 23219

RE:  Stormwater Management Regulations (Proposed) 4VAC50-60

To the Coordinator:

Thank you for giving me the opportunity to comment on the proposed stormwater management regulations.  I appreciate the tremendous effort the DCR has undertaken to ensure that all voices are heard, and that the public is adequately notified of the impending regulations.  As a longtime resident of the Bayfront area of Virginia Beach, and an active participant in many past water quality initiatives, I understand the complexity and importance of providing water quality protection in Virginia, and offer the following comments and observations.

I am professional engineer with over 25 years of experience in the field of stormwater management.  While working as the VPDES administrator for a large municipality in the early 1990s, I worked with several regional committees, including the Hampton Roads Regional Stormwater Committee, to implement a comprehensive plan to address stormwater discharges throughout our watersheds, including discharges from development and redevelopment sites, as well as construction site activity.  Prior to the VPDES regulations, the municipality I worked for, Virginia Beach was on the forefront of stormwater management, adopting their own Stormwater Management Ordinance in 1988, and implementing the Chesapeake Bay Preservation Ordinance in 1991.  Virginia Beach and other communities of Tidewater also relied heavily on the Virginia Erosion and Sediment Control regulations to protect our waterways from excessive erosion and sedimentation during construction.  Working together on the regional stormwater committee, the communities of Tidewater forged a regional approach to many stormwater issues that became a model for the rest of the State.  I am no longer working for Virginia Beach, but I consider myself very fortunate to have worked with the regional committee which still stands today.

Like other stormwater engineers who have worked in the field for many years, both in the private and public sector, I can attest to the fact that one of the greatest difficulties in effectively regulating stormwater at the local level is deciphering the many conflicting, overlapping requirements of the numerous State and Federal agencies that promulgate regulations.    All Hampton Roads communities have land areas within the Chesapeake Bay Preservation Area, but some also have a portion of their land area outside the Bay area. Many communities had a confusing array of requirements depending on which watershed a project was located in, and many requirements of the State Stormwater Management Regulations slipped through the cracks as a result.  The purpose of 2001 revisions to the State Stormwater Management Regulations was to rectify the confusing situation so that watersheds were adequately protected, and to ensure that stormwater requirements were more evenly applied within all watersheds.  I strongly supported the 2001 revisions in the hopes that they would provide a unified approach to stormwater in all watersheds, and that they would provide a clearer path to conformity to the State’s stormwater program.  Alas, due primarily to limited resources within the municipalities, and perhaps due to some fatal flaws within the regulations, very few were able to amend their own programs sufficiently to conform to the 2001 revisions.  I have performed internal audits of ordinances for local municipalities, and have found several holes in compliance to the Stormwater Management Regulations, the Erosion and Sediment Control Regulations, and the Chesapeake Bay Preservation Act.  These lapses were in no way intentional, but as a direct result of limited resources, and the difficulty in achieving the required coordination between many beleaguered city departments.  One local municipality revised their stormwater ordinances and manuals by literally crossing out the old requirements and typing in the new ones.  Others simply ignored the 2001 revisions all together and maintained their existing programs, however lacking.  Most local municipalities were very slow to adopt or use of the “Blue Book” (Virginia Stormwater Management Handbook) even though it provided practical design guidance for most common stormwater management facilities in use in Virginia.  Obviously, all these examples are a clear indication of limited resources.  Sadly, the 2001 revisions did little to ensure statewide compliance with stormwater management initiatives, but instead overloaded the communities already working diligently toward effective water quality and volume controls under their existing MS4 programs. 

This brings me to the subject of today’s proposed Stormwater Management Regulations.  It is my understanding that the intent of HB 1177 was to consolidate the State’s stormwater management program under one department (the DCR), ensure statewide adoption of stormwater management regulations, and to ensure consistent and equitable application of stormwater management regulations across the state.  I wholeheartedly  endorse  the original intent of today’s proposed regulations, but   believe that they reach far beyond  ensuring statewide compliance,  add a degree of difficulty due to the return of the  very old concept of the “keystone pollutant”, and   require  that each municipality drastically revise the programs they already have in place, regardless of whether they are effective or not.   And further, it is very difficult to understand how these revisions will provide additional water quality protection in the urban/suburban communities of Hampton Roads, especially in municipalities where the majority of the developable land is already developed. 

I have long been a proponent of statewide stormwater management requirements.  Some of the worst cases of streambank erosion, hillside erosion, and sedimentation can be seen in the central and western part of the state.  And the degradation of the Chesapeake Bay is due to, in great part, the agricultural activities within the entire Bay watershed, and the lack of adequate sanitary sewer treatment facilities within the entire watershed, and is certainly not solely due to development within the Hampton Roads areas or other areas east of Richmond.  So I applaud the statewide application of stormwater controls not only because of the issue of fairness, but because it will result in a reduction of pollutants to our natural waters. 

However, a return to the concept of statewide keystone pollutant seems to be a step backward, especially when considering that many municipalities are in the midst of preparing comprehensive implementation plans to address other pollutant loads in impaired watersheds (under another State agency’s purview).  In fact, a recent review of the State’s Impaired Waters List revealed that very few waters are listed as impaired due to phosphorus.  I understand that reducing phosphorus in the Bay is critical to the Bay’s long-term survival.   But reducing other pollutants may be as critical, if not more critical, especially in terms of nearshore uses of the Bay.  In fact, high fecal coliform levels have closed local beaches in recent years, and have drastically reduced oyster harvesting in the waters of Tidewater.  Doesn’t it stand to reason that any watershed management plan should target the pollutant most-impairing that waterway?  Another example of how the keystone approach can be problematic   is in the case of re-development sites or ultra-urban sites such as gas stations, and in some cases, roadways.   I believe BMPs for these sites should be selected to remove as much oil, grease, grit, and sediments as possible.   Where is the source of phosphorus at a gas station, except through air deposition?

Further, an unintended consequence of returning to the keystone approach is in discouraging the development and use of manufactured stormwater devices, which have historically been poor at removing phosphorus but are very effective in removing sediment, oils and grease, heavy metals, and other particulates.  I believe these devices can play a very important role in the removal of such pollutants that are common to roadways, as well as highly developed sites.  Communities need all the tools available to them to address pollutants affecting their waterways. 

Another issue in today’s proposed regulation is runoff reduction and volume control.  Although it is clear that many of our streams and rivers have suffered over the years due to lack of adequate stormwater management, I believe this is more due to the lack of enforcement of the current regulations, not the regulations themselves.  Virginia’s Erosion and Sediment Control Handbook has long been held as one of the best in the nation.  MS-19, the cornerstone of volume control and channel adequacy, can stand on its own if implemented and enforced properly, and it equitably applies additional controls for inadequate or highly eroded channels.  Runoff reduction methodology is one of many tools that communities can now employ to reduce runoff and protect channels.  But many runoff reduction methods are difficult to employ in the coastal regions due to their dependency on infiltration, and their required minimum depth differential to groundwater levels.  Many Hampton Roads communities are already reviewing their ordinances and standards to allow for low impact development (LID) practices, but are concerned about the inspections, maintenance, and tracking of these facilities if they become mandatory.   (Allowing them is one thing:  tracking them is another.)

In closing, those municipalities already hard at work  accomplishing the very time-consuming  but necessary task of developing comprehensive watershed action plans should  be free to implement whatever controls they feel are necessary  to improve water quality within the watershed.  These controls may include much needed source controls, development controls, regulatory action, and retro-fitting in order achieve their watershed-wide goals.  The State stormwater management regulations should provide them with a framework of how best to achieve those goals, without hampering them by imposing overly authoritative, restrictive oversight.  And most importantly, requiring a total revamping of a municipality’s development standards in today’s development climate will only detract from their efforts to protect their watersheds, by requiring them to devote their limited staff and resources to revising controls which will have very little impact in existing developed urban/suburban areas.  

I believe the Department of Conservation and Recreation should limit their revisions to the current regulations to the following:

• Require that all (MS4) municipalities conform to the Virginia Stormwater Management Regulations for both water quality as well as volume control.
• Revise the current regulations to require that all additional impervious areas be treated in accordance with established methodology.  “Established methodology” could include the methodology(s) defined in the BMP clearinghouse, but should be tailored by each community to determine the feasibility of each method.
• Require that all redevelopment reduce pollutants by a minimum of 20%, but allow municipalities to develop watershed retrofitting plans, and allow payment into the retrofitting fund for that watershed.  Any watershed management plan that depends solely on development control to improve water quality will fail miserably, especially in existing urban/suburban areas.  I believe municipalities must increase stormwater fees to fund major retrofitting projects in order to effectively improve water quality. 
• Return to the technology-based criteria, and continue to develop pollutant removal data to update the methodology outlined in the BMP Clearinghouse information.  This will help municipalities tailor their programs to target pollutants of concern.   One detail of the proposed revisions that I believe is long overdue, and will have a profound impact on how sites are developed, is the distinction between managed turf and natural areas.  I believe this simple aspect of the revisions should remain, as it important to both water quality and quantity. 

Again, thank you for allowing me to comment on these regulations.  The process has been illuminating and has forced all of us to think deeply and differently about the State’s role in protecting water quality.

Sincerely,

(Originally Signed By)

June Barrett-McDaniels, P.E., CFM

Aquarius Engineering, PC

2400 Ketch Court

Virginia Beach, VA 23451

757-496-2570