On behalf of The Nature Conservancy, I am writing to submit our formal comments on the proposed amendments to Parts I, II, and III of the Virginia Stormwater Management Program Permit Regulations (Amendments) to address water quality and quantity and local stormwater management program criteria.   The Nature Conservancy strongly supports the amendments and asks the Department of Conservation and Recreation (DCR), the Soil and Water Conservation Board, and Governor Kaine to finalize them as expeditiously as possible.  

Before providing additional detail on our comments, let me offer our appreciation to DCR, not only for this opportunity to provide comment, but also for the time and effort that many of its staff have devoted to this issue and the development of these Amendments over the past four years.   We believe the lasting legacy of those efforts will be healthier waters and riparian and aquatic habitats for Virginia’s citizens and its wildlife – results that we feel certain will justify your laudable investment of time and energy in this work.  

Background on TNC and our Involvement with Stormwater Regulations
The Nature Conservancy (Conservancy) is a private, non-profit 501(c)(3) organization with membership and operations in Virginia and around the globe. Our mission is to protect the plants, animals and natural communities that represent the diversity of life on Earth by protecting the lands and waters they need to survive. We are a science-based organization that works with partners to identify and implement solutions to complex conservation problems. We have over one million members worldwide and more than 30,000 here in Virginia. Since our inception in 1951, we have protected more than 120 million acres of land and 5,000 miles of streams.

The Nature Conservancy has been aware of, and concerned with, the growing impact of stormwater runoff on the health of our nation’s freshwater and estuarine systems for many years.  This awareness and concern grew largely out of our direct experience with hundreds of stream conservation and restoration projects across the country.   We supplemented this field experience with investigations into the larger dynamics of aquatic systems – what leads to their decline and what strategies are required to ensure their long-term viability.  

Here in Virginia, our work on the Rivanna watershed, including the creation of the Rivanna River Basin Commission, provided compelling evidence, both from the field and from an examination of the existing scientific literature, that sediment is literally choking the life out of this critical Virginia river system.  A rigorous examination of the state of the Rivanna watershed revealed that the growth of impervious and less pervious surfaces (buildings, roads, parking lots, and lawns) and the quantity and quality of the stormwater running off those surfaces represented the single biggest threats to the health of the Rivanna and its waters going forward.   Based on that information and our strong desire to address this threat in a comprehensive and effective manner, the Conservancy participated in the Technical Advisory Committee that DCR first assembled in 2006 to help the agency develop the proposed amendments to the Stormwater Management Program.  Our participation in the TAC solidified our understanding of the impact of stormwater pollution and the necessity of improving the associated regulations. 

The Nature Conservancy’s Comments on the Amendments
In appreciation of their thoroughness and technical merit, the Conservancy adopts and incorporates by reference the August 17 comments of the Chesapeake Bay Foundation on the Amendments (note one typo in the CBF letter:   in second column in first row of Table 2 on Page 9, 2,500 acres should read 2,500 square feet).

The Conservancy believes that when the Commonwealth evaluates the efficiency, effectiveness, and overall acceptability of the Amendments, fundamentally it must answer five critical questions:

1. Do the Amendments address a real and documented problem?  More simply, are the Amendments needed?  
2. Do the Amendments adequately address the problem? 
3. Is compliance with the Amendments technically and financially feasible for the regulated community?
4. Are there credible alternatives to the Amendments that would achieve a better result for a lower cost?
5. Have the regulated entities, affected stakeholders, and general public been given adequate opportunity to participate in the development and refinement of the Amendments? 

The Conservancy submits that answering these questions demonstrates clearly that approving these Amendments is both a necessary and sensible course of action that will serve as a key component the Commonwealth’s long-standing efforts to improve the health of our streams and rivers and the quality of Virginia’s waters. 

Do the Amendments Address a Real and Documented Problem?
The indisputable answer to this question is yes.   Information and materials developed and compiled over four years these Amendments were developed, including peer-reviewed articles and reports, provide clear and compelling evidence that stormwater pollution poses an existing and, if not addressed, growing threat to the quality and integrity of Virginia’s waters.   In addition, recent reports (including the 2008 State of the Chesapeake Bay Program Report) demonstrate clearly that efforts to clean the Chesapeake Bay and its tributaries are losing ground specifically because increased stormwater pollution is offsetting progress being made from wastewater treatment plants, agriculture, and other sources.   A few relevant facts illustrate this basic issue:

• In Virginia, stormwater contributes 25 percent of the nitrogen, 32 percent of the phosphorus, and 28 percent of the sediment pollution to the Chesapeake Bay and its tributaries.  Statewide, pollution from stormwater has increased more than 15 percent since 1985.
• Approximately 1,570 stream miles across Virginia are polluted because of stormwater.
• Unless corrected, stormwater problems will only get worse as more land is developed. At current rates, as much forest and farmland in Virginia will be developed in the next four decades as was developed in the past 400 years.

It is worth noting here that stormwater pollution is a critical concern for Virginia’s so-called “Southern Rivers,” including the Clinch and Powell Rivers in Southwest Virginia, the Roanoke in the southern Piedmont, and the Blackwater, Meherrin, and Nottoway Rivers of the Chowan Basin.  

• While these rivers are far less known to many Virginians than the iconic tributaries of the Chesapeake Bay, they are no less valuable.   In fact, some of these systems, most notably the Clinch-Powell, support world-renowned populations of freshwater fish and mussels, and all provide drinking water, recreational opportunities, and economic value to the communities through which they flow.
• In addition, while these rivers are less studied than rivers and stream of the Chesapeake Bay watershed (arguably the most studied and understood watershed in the world), the ecological and hydrological issues that make stormwater such a threat to the Bay are equally at play in the Southern Rivers.  In other words, the quantity and quality issues associated with stormwater pollution are so fundamental that they are a documented threat to any aquatic system. 
• Lastly, while many of our Southern Rivers are located further from population centers and the attendant growth pressures than are the James, Rappahannock, Potomac, and York rivers, stormwater is nevertheless a growing problem outside the Bay watershed.   Further, as these regulations are primarily designed to prevent degradation from development (as opposed to directly restore impaired rivers), it makes sense to implement them in less developed localities as a preventive protection measure before stormwater can cause difficult to remedy problems. 

Will the Amendments Adequately Address the Problem?
Here again, the answer is indisputably yes, although a few caveats are needed.   First and foremost, the Amendments are designed to prevent degradation and impairment of Virginia waters from new post-construction stormwater runoff.   Stormwater pollution associated with existing development will not have to comply with the new regulations.  Since existing stormwater pollution is a very real problem, it is clear that the Amendments themselves will not ameliorate many existing impairments (improved standards for redevelopment projects will address at least some of these issues over time).  Additionally, as has been noted by DCR and many others in public comments on the Amendments, addressing stormwater pollution – while absolutely critical – is only one of many strategies Virginia must employ to clean up its rivers, streams, and the Chesapeake Bay.   All that being said, there is considerable evidence – assembled through the Technical Advisory Committee, outside assessments, EPA’s Chesapeake Bay Program, and academia – that statewide implementation of these regulations will have a demonstrably positive impact on water quality and quantity issues associated with development projects.   Most importantly, these regulations will significantly reduce further degradation of our rivers and streams, giving our restoration and point source upgrades opportunity to deliver real gains.

Is Compliance with the Amendments Technically and Financially Feasible for the Regulated Community?
Without question, the biggest issue raised by entities either concerned with or opposed to these Amendments is that they will be too difficult and too expensive to implement.   The Conservancy believes that it is important that those supporting the Amendments acknowledge that, in some cases, the Amendments will indeed add cost to certain development projects.   We do so here, and we submit that the environmental community overall has been very upfront on this issue throughout its public comments on the Amendments.   At the same time, however, we believe it is essential that the legitimate questions about cost are not allowed to morph into unsupported and unfounded assertions that the costs will be financially prohibitive or worse, represent a threat to the very health of Virginia’s economy.   Independent analysis of the technical feasibility and costs of the proposed regulations demonstrate that for most sites, reductions could be achieved on site and costs were manageable and remained a small part of a project’s overall expenses.  As the Chesapeake Bay Foundation states well in its August 17 comment letter, “Independent analysis by private engineering firms and individual designers at the charrettes definitively demonstrated that the technical criteria are attainable on site for a broad range of residential, commercial, mixed use, and redevelopment projects.”  Additionally, “Review of the evaluations of the amendments by private engineering firms indicates that developers with sufficient training, creativity, and willingness to employ the full range of urban BMPs and consider different site configurations can comply without a significant increase in costs on most sites.”

The availability of stormwater nutrient offsets – an option created by legislation passed by the General Assembly during the 2009 session – provides additional compliance flexibility and should reduce costs considerably for certain types of projects.   It is important to note that in order for these Amendments to meet their primary objective – reducing stormwater pollution and its associated impacts on Virginia’s waters – offsets must be used as a cost containment measure for achieving compliance (if meeting the last bit of mandated phosphorus reduction onsite would be prohibitively expensive) rather than as a mechanism for shifting wholesale responsibility for phosphorus reductions from development to other sectors (agriculture, for example). 

Lastly, allow me to offer one additional point on cost.  When examining the costs of the Amendments, it is vital that we also consider the costs Virginia is already accruing because of inadequate stormwater management.   Downstream flooding and property damage, expensive restoration efforts to try to clean up problem after the fact, direct economic impacts on our fishery, tourism, and recreational industries, and increased water treatment and maintenance expenses to address pollution of public water supplies and MS4s all represent real costs currently placed on Virginia’s industries, localities, and citizens that have to be accounted for in any fair assessment of the relative costs and benefits of these regulations.   The Conservancy believes that a more comprehensive examination of costs will demonstrate even more convincingly the value of these Amendments.  

Are there credible alternatives to the Amendments that would achieve a better result for a lower cost?
While the discussion associated with the release of the proposed Amendments has revealed a few places where the Amendments could benefit from further refinement (see Recommended Minor Refinements to Amendments below), The Nature Conservancy asserts that opponents of their overall adoption have not articulated a credible alternative.  The Chesapeake Bay Foundation summarizes a commonly referenced alternative proposal supported by the Home Builders Association of Virginia in its August 17 comment letter. 
 
Like the Chesapeake Bay Foundation, The Nature Conservancy appreciates that this proposal sought to find a way to achieve better results at a lower and more certain cost to the development community.   Even late in the process, we must all be open to different and new approaches.   Fundamentally, however, our examination of this proposal and discussions with others even more knowledgeable reveal that it is based on inaccurate calculations and unrealistic assumptions.  For those reasons (and others that the Chesapeake Bay Foundation enumerates more fully in its August 17 comment letter), The Nature Conservancy cannot support it as a viable alternative to the Amendments.  
 
Have the regulated entities, affected stakeholders, and general public been given adequate opportunity to participate in the development and refinement of the Amendments? 
The Nature Conservancy wants to emphasize a point that DCR has made in documentation and comment on the Amendments.  Namely that this has been and continues to be one of the most open and transparent public environmental regulatory processes ever conducted in Virginia.  While not everyone got everything they wanted – TNC included – no party can defensibly assert that its voice has been excluded from either the discussions or deliberations.

Recommended Minor Refinements to the Amendments
Based on a careful examination of the five questions outlined above, The Nature Conservancy believes that the Amendments represent scientifically sound, fair, effective, and necessary improvements to the Commonwealth’s regulations to minimize impacts of stormwater pollution on Virginia’s waters.    We believe it would be appropriate to finalize the Amendments as proposed.    Like the Chesapeake Bay Foundation, however, we encourage DCR to consider two small refinements to the Amendments that address legitimate concerns raised by stakeholders during the public comment period.  

Revisions to Water Quantity Requirements for Redevelopment in Urban Development Areas
The Nature Conservancy offers its concurrence with the recommendations submitted to DCR by the Southern Environmental Law Center (SELC) to adjust the water quantity criteria in the Amendments for redevelopment projects located in Urban Development Areas.  Like SELC, we recognize that the quantity requirements may serve as a disincentive for redevelopment (although we would also submit that many studies have suggested that if quality requirements are met onsite, compliance with quantity requirement is typically not an issue).   SELC’s proposal is narrowly tailored to redevelopment sites in Urban Development Areas, however, and the pro-active affirmation of the importance of incentivizing that sort of development outweighs the possible impacts associated with easing the quantity requirements.     

The narrow scope and limited application of SELC’s proposed refinements to the Amendments on this issue is important to the Conservancy.  As the Chesapeake Bay Foundation articulates well in its August 17 comment letter, there is simply no evidence to suggest that these Amendments would cause sprawl.  Local land use decisions, the expansion and extension of critical infrastructure (roads, water, sewer, etc.), and larger economic and demographic factors all dwarf the role of stormwater or other environmental regulations play in development patterns.   While SELC’s proposed changes (or some other similar, narrowly-drawn proposal) are likely warranted, The Nature Conservancy opposes larger, wholesale changes to the regulations based on nebulous or unproven claims that the Amendments will drive sprawl.

Project Grandfathering
During the public comment, the development community has raised the issue that the Amendments need to be more clear on what projects would be subject to these new rules and what projects would be grandfathered and could proceed under the existing regulations.  The Nature Conservancy agrees that this is a legitimate issue that DCR should address with minor refinement to the proposed Amendments.   We believe that the principles the Chesapeake Bay Foundation outlines in its August 17 comment letter are very well reasoned and provide a good roadmap for how DCR should proceed on this.  We include those principles here for additional emphasis:

• Limits such an exemption to long-term projects that as a part of normal business practice finalize approvals and financial arrangements with localities well in advance of starting construction on the entire project;
• Only exempts projects that received formal approval of a stormwater concept plan or equivalent by the permit-issuing authority on or before the final amendments are published in the Virginia Register; and
• Expires if the stormwater concept plan is not implemented after some reasonable time period after the amendments’ publication date.

In conclusion, let me thank you once again for the opportunity to comment.  Let me also again offer the Conservancy’s appreciation to DCR staff, the Soil and Water Conservation Board, and many in Governor Kaine’s administration for their excellent work on these Amendments.    Again, we urge your consideration of the two minor refinements outlined above in the context of your overall approval and adoption of the Amendments.   If you have any questions, please do not hesitate to contact me directly at 804-644-5800 x121 or dphemister@tnc.org.

Most sincerely,

David Phemister
Director of Government Relations