Thank you for the opportunity to comment on the proposed stormwater management regulations. First, let me clarify that I am the County Engineer and acting Program Administrator for Albemarle County, but these are my independent comments as a professional engineer in Virginia. As one of the primary persons responsible for implementing these regulations, I cannot completely separate these two facets of my professional life, but I want to be clear that these comments have not been reviewed by any Boards or Committees at Albemarle County, and are from my reading of the proposed regulation as a technical professional, my brief participation in the DCR Technical Advisory Committee, my review of the sample manual chapters, and the various review and information sessions I have attended.

 

I have some general comments (A-C), which I consider to be “big picture” items, followed by more detailed technicalities (1-16) about the proposed regulation and language.

 

 

A.                     The program should be results oriented: The overall approach to criteria (Part II) seems to be exactly the same as in past years. That is, it is “compliance by design”. The new regulation makes the design more stringent and more complex, but it still remains fundamentally “compliance by design”, where engineers design a solution which theoretically meets requirements. I have experienced the potential for misapplication with such an approach, and reviewed the studies showing limited success with many existing BMP’s. I too often see post-construction results fall short of the design goals. I believe it is time to consider alternatives to the “compliance by design” approach, and begin to incorporate monitoring, and post-construction compliance verification. I believe a “results orientation” is the new direction that is needed. The current draft demands incredible detail in design, but focuses very little on the actual results. I believe design should remain very flexible, but the burden of satisfactory results should be firmly on the property owner and developer.

 

B.                     VSMP deficiencies need to be resolved before the program is delegated to localities: While I appreciate the perspective that delegating the VSMP to localities puts the enforcement in the hands of those closest to the projects, it is not the only issue to be resolved with the program. From my perspective, the VSMP appears to have seen limited success because it is largely a rigid program with excessive paperwork requirements and insufficient staffing for inspections, education or training. Localities are no more able to overcome this problem than the state, and simply delegating it to the localities will not fix it. I fear the fee structure only builds on the problems, and I will see a never-ending cycle of frustrations; when the desired results are not realized, there will be a demand for higher fees to support more staff. I encourage you to seriously consider whether the entire program should be restructured to a results orientation that allows localities the flexibility to adjust to specific conditions. Localities should be able to match programs to available funding, or match funding to available programs. 

 

C.                     Shortcomings in the existing program structure should be addressed before a new program is built upon it: The overall approach to local programs (Part III) seems to be to build upon the current hierarchical structure of the Erosion and Sediment Control Program.  I have seen a huge disparity in enforcement of the Erosion and Sediment Control (E&SC) Program, both in comparison to neighboring localities, application to state projects, and in the perspective of the state agencies.  For example, the E&SC regulations have an inspection schedule that very few, if any, localities meet with any consistency. There is an even wider disparity on what constitutes an “inspection”. Next, I have seen limited guidance being supplied by the state. For example, the “Green Book” has not been updated since the 1980’s, though a lot has been learned over the last two decades on what works. From my perspective, staff shortages, turnover, location, and low compensation have hindered DCR’s ability to support the hierarchical structure. Instead of providing us support, guidance and oversight, as should be happening with the current structure, I have very infrequent contact with DCR staff, and I often find a need to teach relatively inexperienced employees how to relate field conditions to the theory and regulations. In summary, the hierarchical approach requires a program commitment to provide continual updates, the flexibility to change and make prompt decisions, and a state compensation package committed to attracting and keeping the most expert and experienced staff.   Without these shortcomings addressed, I hesitate in supporting a new stormwater management program which follows the same model.

 

Detail Comments: 

 

1.                      I would like to see provisions for grandfathering existing projects. Albemarle has a number of very large development projects which I anticipate will continue for years to come. This includes projects that have been rezoned to very specific designs but have not proceeded to site plans due to the economic downturn.  If the expectation is that all of these projects will comply with the new regulations, it may necessitate some go back through the rezoning process, which is both lengthy and expensive.       

 

2.                      I would like to see more specific regulation (area limitations, fees, approval criteria, etc.) and a sample plan for allowing off-site reductions. Within urban development areas, off-site reductions appear to be a cornerstone of the new regulation, as the water quality criteria appears impossible to meet otherwise.  I suspect some localities will need this same off-site reduction in order to implement the state mandated urban development areas. I believe this regulation is premature without specific guidance and details on how this can really work. 

 

3.                      I would like to see fees charged per review submission. [4VAC50-60-108 B 3] The regulation proposes only an application fee. I have found this to be inadequate for a few reasons; (a) when multiple rounds of revisions are necessary, costs are not covered and there is a reviewer incentive to let deficiencies slide rather than go through another review; (b) there is a disincentive to complete plans properly, as it is far easier and faster to submit incomplete documents and have the reviewer provide the quality control, recognizing the regulations require the reviewer to provide a list of items for completion, like free instructions; (c) this approach punishes the plan preparer who takes the time and effort to get their plan right, as they are bearing the cost of the quality control rather than dumping this on the locality.

 

4.                      I am not clear on whether the proposed fees are just for the stormwater management regulations, or if they would also incorporate E&SC fees. (If the latter, I already know the fees are inadequate for a typical program.)

 

5.                      The fee structure does not appear to give a locality the ability to recover costs from a program that goes beyond the state minimums. Effectively, the regulations are telling localities they should not do anything more than the minimum required by the state, or their citizens will need to pay for the cost in taxes. This is counter to the common philosophy that development should be responsible for all associated costs, including reviews for compliance, inspections, revisions, etc. 

 

6.                      The extent of services the state is providing to localities and applicants in exchange for almost a third of the fees is not clear. To me, this appears excessive.

 

7.                      The Water Quality criteria requirements [4VAC50-60-63] appear impossible to meet with some types of development. The existing regulations are already a challenge to meet on commercial and high-density residential sites, and I often end up simply doing the best I can with the available technology. With a lot more computation effort, perhaps a few changes in BMP placement and types, or an off-site credit program that must be managed by the locality, this does not appear to change. It appears to get worse.

 

8.                      I would like to see much more simplified design computations. The reliance on loading computations, complex spreadsheets, and other engineering calculations is extremely burdensome to local reviewers. It is also burdensome to owners and developers, who must bear the cost of engineering consultants to perform these increasingly complex computations to the satisfaction of local reviewers. Discussions over small differences in numbers and formulas inevitably create a confrontational relationship. Every effort possible should be made to design based on simple BMP tables chosen from basic areas and land patterns. Straightforward capture volumes might be the most complicated aspect.

 

9.                      In my experience, it is a mistake to codify technological standards, such as BMP removal rates or hydrologic methods, which may change over time. [4VAC50-60-65 and 66] I have found it much more efficient to set these by reference to a design manual or policy.

 

10. More guidance and regulation are needed for the channel protection sections to work [4VAC50-60-66, related to MS-19]. As written, they are ineffective because they do not address these common cases and concerns;

(a)    The case where there is no downstream channel at all;

(b)    The case where drainage divides change on-site as a result of the development;

(c)    The case where a downstream pipe system does not overflow, but is pressurized during peak storms, and was not designed for pressurized flow;

(d)    The case where a designer chooses an advantageous point of discharge analysis that may not reflect conditions upstream, or at multiple discharge points;

(e)    The case where an adequate channel cannot be obtained. In this last case, the regulations need to be very clear on what happens. If the intent is to not allow a development if the conditions are not satisfied, the state should be very clear about this expectation and be willing to provide project specific direction. Otherwise, localities are exposed to a claim that an indirect taking of land has occurred.

(f)     The cases where sheet flow is acceptable, and how much. More detail is needed regarding the limitations of the sheet flow exception, and the level spreader solution, as given in 4VAC-50-60-66D. I have found that these are frequent claims, but these facilities usually do not work over the long term. I have never seen a level spreader work in a rural setting, or an urban setting, though I think the latter might work if it has high visibility and maintenance. The only time sheet flow appears to work is on large-lot (minimum lot size of 2 acres) rural subdivision roads with large road frontages. Even in these low density developments, ruts are common with steep roads. It is recommended that if this exception is allowed, it be applied only to limited areas of disconnected imperviousness (< 2000sf) or to large lot rural subdivisions (2 acre lots or greater). For the former, “disconnected” would have to be well defined by criteria.

(g)    The cases where a modification or waiver would be appropriate. There do not appear to be any provisions or guidance for modifying or waiving the requirements.

I have also found the guidance referenced in 4VAC-50-60-66G for Technical Bulletin #1 to be ambiguous. It is the source of much contention on these issues. I suggest this document be revised, or a more general reference be used in the code. To illustrate, I had a project where a car dealer was trying to expand a display area. It discharged into a storm sewer that encompassed a 60 acre urban drainage system that had never been studied. As the 1% rule had not been met, should I have required the applicant to complete a $50,000 drainage study of the outfall before they built a $50,000 display area? My experience told us that the study would almost certainly show a failure of the downstream system. 

Also in section 4VAC-50-60-66G, the requirement for “evidence of this refusal” from an uncooperative downstream owner is often impossible to obtain, especially once that property owner realizes their upstream neighbor is effectively hostage to their demands.  

 

11.                  Reliance on the 1yr 24-hour storm is problematic. Existing hydrologic methods do not provide data for this storm event. It must be interpolated. To rely on this storm event, as much of this code currently does, I believe DCR should provide the design storm each locality should use.  

 

12.                  In my experience, there is no point in providing “recommendations” in regulations, as in 4VAC50-60-80 A and B. I often provide recommendations and try to work with the applicants, but this does not need to be in the regulations.   Putting this in the regulations only confuses inexperienced staff as to whether this can be required with a reluctant applicant. I must bear in mind that both the state and localities see a lot of staff turnover in these programs.

 

13.                  I would like to remove the requirement for a narrative in 4VAC50-60-108, or be allowed to modify this requirement on a project by project basis. From experience, the narratives required by the erosion and sediment control program are of no use during construction. All useful information is on plans. I find it enough of a challenge just to make sure the approved plans are on the job-site and being used.

 

14.                  I would like to specifically add digital correspondence (e-mail, phone text, established website) as an acceptable method of informing applicants and owners in writing. I can require return receipts on this form of correspondence, so there is evidence of it being received.  The business community and world do most of their communication through email now, and I see no reason the state should overlook this form of communication.  

 

15.                  More detail is needed regarding the as-built plan required by 4VAC50-60-114.   A detailed checklist, review schedule, fees, and criteria for approval are necessary in my experience. The same comment as before applies to fees for each plan submittal.  

 

16.                  Some exceptions are needed in the maintenance of records in perpetuity under 4VAC50-60-126, in cases where the facilities are removed for redevelopment, replacement, or other reasons, for example.

 

I hope you find these comments and suggestions helpful.

 

Sincerely,

 

Glenn Brooks, P.E.