Virginia Regulatory Town Hall View Comments

Department of Conservation and Recreation

Virginia Soil and Water Conservation Board

Stormwater Management Regulations AS 9 VAC 25-870 [4 VAC 50 ‑ 60]

Action	Establish water quality criteria for new development activities within the Chesapeake Bay Watershed
Stage	NOIRA
Comment Period	Ended on 2/3/2010

7 comments

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2/1/10 6:29 pm

Commenter: Barrett Hardiman, Home Builders Association of Virginia

Review of Stormwater Regualtion

On behalf of the Home Builders Association of Virginia, I appreciate this opportunity to comment on this new regulatory stage related to urban stormwater runoff. As stated in the NOIRA, EPA has released new data demonstrating that Virginia is within 1% of its target loads of Nitrogen, Phosphorous and Sediment. As a result adjustments are needed in the recently adopted stormwater regulation.

The recently adopted regulations were predicated on older data from EPA indicating that the Commonwealth had much further to go in order to reach the goals set out in the last round of allocations for the Chesapeake Bay. Recognizing that the old data that lead to the creation of the entire regulation adopted on December 9th, it is the request of HBAV that this NOIRA be interpreted broadly to include detailed reveiew of all of the contents of Part II of the Stormwater Regulation.

This review should include a review of the grandfathering provisions, the off-site credit purchase programs, and the method by which stormwater is calculated, in addition reacting to the new numerical targets established by the EPA.

Recognizing that much work has gone into this regulation, HBAV is prepared to provide as much pertinent and thorough information as needed by the Soil and Water Conservation Board to create a regulation that is both good for the environment and directs resources in the most efficient and effective manner possible.

Best regards,

Barrett Hardiman

Vice President of Regulatory Affairs

CommentID: 11255

2/2/10 11:22 am

Commenter: Jim Owens, Hampton Roads Association for Commercial Real Estate (HRACRE)

NOIRA for 4VAC50-60, Virginia Stormwater Management Regulations

On behalf of HRACRE, we appreciate this opportunity to offer comments regarding the above referenced NOIRA. We applaud the Virginia Soil and Water Conservation Board for their recent action tabling the implementation of the final Virginia Stormwater Management Program regulations which were adopted on December 9, 2009. We understand EPA’s plan is to publish final Bay Total Maximum Daily Load (TMDL) requirements for phosphorus, nitrogen by December 21, 2010, and have states incorporate local target loads into their plans and submit the plans to EPA by November 1, 2011. We request consideration of the below comments during the DCR’s and Board’s review of economic impacts on businesses and establishment of water quality design criteria for new development within the Chesapeake Bay Watershed.

The following are our specific comments and recommendations:

· We are especially concerned about the economic impact the intended regulations may have on the small business enterprises in the development industry and their supporting small businesses. Many of the developers, property managers, and supporting professional services firms, vendors and contractors throughout Hampton Roads are small businesses who will have to pass on the cost of the new regulations to their clients and customers. Increasing fees is challenging during good economic conditions, but could be catastrophic during the current economic climate when firms are already postponing projects and reducing payroll. Impacts of stormwater regulations should therefore span all sources of stormwater pollution, not just new development.

· Of greatest concern is that the intended regulatory action once again focuses on new development while other sources of water quality impairment, such as agricultural practices and the application of fertilizers by existing single family homes are not addressed to the same degree (aggressive limits and mandated requirements are both absent). Without all stakeholders sharing responsibility in cleaning up the Chesapeake Bay, we believe it is unlikely Virginia will meet the goals of the EPA-approved Virginia TMDL Implementation Plan for the Chesapeake Bay Nutrient and Sediment TMDL in a timely fashion and in an equitable manner.

o Based on the 2003 Virginia Tributary Strategy, 40% of phosphorus loadings come from agricultural land while 14% come from mixed open space and 19% come from urban land.

o Fertilizer containing soluble nitrogen and phosphorus should be banned. All remaining forms of lawn fertilizers should be regulated by the proportion of nitrogen and phosphorus allowed. One estimate states 3.26 million pounds of fertilizer are fed into the Chesapeake Bay every year.

· The utilization of the Virginia Runoff Reduction Method for achieving the 0.45 pounds/acre threshold requirement should be re-evaluated, as this standard will be far more challenging to meet than the methods prescribed in the current regulations. Further, the method was arrived at in a very short time period with data that may be inaccurate and/or not well substantiated.

o The primary tool for establishing the pollution limitations is Virginia’s Chesapeake Bay Tributary Strategy Model. Unfortunately, the model does not take into account the benefits from the construction of stormwater best management practices (BMPs) installed in Tidewater since adoption of the Chesapeake Bay Preservation Act (CBPA).

o We understand that the model includes the incorrect assumption that less than 1% of all developed lands in Virginia since the adoption of the CBPA 20 years ago possess stormwater management BMPs. This is clearly incorrect as the majority of development in the last 20 years has occurred in the Golden Crescent (Washington metropolitan area, Richmond and Hampton Roads), which was the very focus of the phosphorus limitations and stormwater requirements of the Bay Act.

· We request the creation of a Technical Advisory Committee (TAC) for the development of design criteria and consideration of compliance methodologies and mechanisms associated with the design criteria. The TAC should include an equal number of representatives from each hydrogeophysiographic region (Lower Coastal Plain, Upper Coastal Plain, Piedmont, etc.) and from the development industry, stormwater engineering consultants, local government, regional entities, state agencies, conservation organizations and manufacturers of stormwater quality treatment systems. This TAC should be authorized to recommend legislative initiatives to provide an equitable, comprehensive solution to stormwater treatment as the enabling legislation for the existing regulations may not allow DCR to address pollution from agricultural, existing residential lands and other sources.

As Virginians, we all desire and deserve clean water and healthy rivers and streams. At the same time, the cost of achieving these goals needs to be equitable to all property owners in the Commonwealth and not be so burdensome to those developing property that costs rise far faster than private enterprise can afford to pay. In the end, the restoration of our state's waters should be done in a manner that is equitable, achievable, and fair.

CommentID: 11259

2/3/10 11:10 am

Commenter: David E. Anderson, Virginia Fountainhead Alliance

12/10/2009 NOIRA to establish water quality design criteria for new development activities ...

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

CommentID: 11263

2/3/10 1:28 pm

Commenter: David Warriner, PE

Problems with the regulations

Two issues that occur during the design/review phase of plans involving runoff. There is verbiage in the regulations associated with maintaining pre-developed runoff volume. Almost all developments are going to increase volume and peak rates. Controlling peak rates is relatively simple, it's just a matter of the appropriate detention design. Volume is another matter. Infiltration works well in some parts of the state, but in others either the clay content or Karst make infiltration unfeasible. This leaves reuse as the other option. Most developers do not want to get into double plumbing to utilize gray water for flushing. It also adds pumps that would have maintenance issues and the problem with power outages affecting the ability of graywater plumbing working in a building. The other alternative is irrigation. Many developments do not want or need irrigation. This leaves a quandry on what to do with the increased volume.

The second issue is the adequate channel criteria. Many sites drain to wetlands. These wetlands have little if any channels in them. Creating a channel is considered an impact by USACOE and DEQ. There needs to be an alternative design allowed to discharge into wetlands. My experience is that every regulator has a different opinion on what constitutes an adequate conversion from man made improvements, (storm pipe or ditch) into the wetlands.

CommentID: 11266

2/3/10 4:25 pm

Commenter: David Phemister

The Nature Conservancy comments on NOIRA for stormwater regulations

On behalf of The Nature Conservancy, please accept these comments regarding the notice of intended regulatory action (NOIRA) to amend the Virginia Stormwater Management Regulations. The Nature Conservancy has been involved with the development and public discussion of these regulations for the simple reason that stormwater poses a real and growing threat to the ecological and hydrological integrity of Virginia’s streams, rivers, and the Chesapeake Bay. These waters harbor significant biological diversity and provide an array of health, recreational, and economic benefits to citizens of the Commonwealth. We believe strongly that development and implementation of these regulations are critical to achieve Virginia’s water quality commitments and to ensure that Virginia can achieve the mutual goals of clean water and economic growth.

As decided by the Virginia Soil and Water Conservation Board (Board), the water quality criteria for the stormwater regulations will be reviewed based on the Virginia Total Maximum Daily Load Implementation Plan (TMDL) for the Chesapeake Bay Nutrient and Sediment TMDL. As the Board and the Department of Conservation and Recreation (Department) re-examine the regulations, The Nature Conservancy encourages all involved to acknowledge the tremendous amount of work that has been accomplished on this issue to date. We also submit that we are all best served if we focus our efforts on building on that body of work, which national stormwater experts have deemed technically and scientifically sound and a commendable approach to tackling what is an admittedly complicated issue.

We encourage the Department to initiate and proceed promptly with this regulatory action. The Nature Conservancy looks forward to continuing to work with the Board, the Department, and other stakeholders on this issue. Thank you for the opportunity to provide these comments.

Sincerely,

David Phemister

Director of Federal Government Relations

CommentID: 11267

2/3/10 4:42 pm

Commenter: Patrick Felling, Virginia Policy Director, Potomac Conservancy

Potomac Conservancy Supports Timely Rulemaking Using Best Available Science

Re: Regulatory Action to Establish Water Quality Design Criteria for New Development (4VAC50-60)

The Virginia Soil & Water Conservation Board has shown a determination to use the best available science during the recent revision to post-construction stormwater regulations. With the Board’s December 2009 decision to initiate a new regulatory effort to base the water quality criteria on the latest modeling data from EPA, they continue to demonstrate a commitment to establishing rules on the strongest scientific basis.

Potomac Conservancy requests the Board and DCR initiate this regulatory action without delay, laying the groundwork now with the creation of a balanced Regulatory Advisory Panel, and designing a process for incorporating the best science into this regulation. The outcome of this rulemaking will help ensure that future economic growth within the Commonwealth does not negatively impact our waterways and water resources.

Thank you for the opportunity to comment on this regulatory action.

Sincerely,

Patrick Felling

Virginia Policy Director

Potomac Conservancy

19 W. Cork St, Suite 201

Winchester, VA 22601

CommentID: 11268

2/3/10 5:31 pm

Commenter: John Carlock, HRPDC

Establishment of water quality criteria for new development within the Chesapeake Bay Watershed

Dear Mr. Dowling:

Pursuant to the Notice of Intended Regulatory Action published in the Virginia Register of Regulations on December 12, 2010 that the Virginia Soil and Water Conservation Board is considering amendments to the Stormwater Management Regulations (4 VAC 50-60) in order 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, the staff of the Hampton Roads Planning District Commission is submitting the following comments and recommendations on behalf of the HRPDC Regional Stormwater Management Committee.

As you are aware, the HRPDC staff and the Regional Stormwater Management Committee have participated extensively in the legislative and regulatory processes associated with stormwater management for years. The region has participated in the process of developing this new stormwater management regulation since the inception of the process in 2006. Prior to that, the HRPDC and localities were involved in the studies and development of HB 1177, which established the legislative basis for this regulation, the initial implementing regulations, and the Phase II General Permit Regulation. Regional Committee members have or are participating in the charettes convened by DCR and the ASCE and serve on the BMP Clearinghouse and Handbook Advisory Committees.

Based on its review of the NOIRA, the HRPDC Regional Stormwater Management Committee encourages DCR to carefully coordinate this process with EPA’s Chesapeake Bay TMDL development and Virginia’s Chesapeake Bay TMDL Implementation Plan development processes. The Committee strongly suggests that DCR delay development of Chesapeake Bay specific stormwater criteria until final loading targets are released by EPA in August 2010.

At its meeting of January 7, 2010, the HRPDC Regional Stormwater Management Committee recommended that Hampton Roads representatives continue serve on the Regulatory Advisory Panel to assist the Department of Conservation and Recreation in establishing water quality design criteria for new development activities within the Chesapeake Bay Watershed that are consistent with the pollutant loadings called for in the EPA approved Virginia TMDL Implementation Plan for the Chesapeake Bay Nutrient and Sediment TMDL. The Committee recommended that the following individuals serve on the TAC:

Mr. David Kuzma, Newport News

Mr. L.J. Hansen, Suffolk

Mr. Tim Hare, CH2MHill

Ms. Jennifer Tribo, HRPDC

The staff of the Hampton Roads Planning District Commission and the members of the Regional Stormwater Management Committee appreciate your consideration of our comments. We look forward to continuing to work with DCR to develop regulations that will enhance the ability of the Commonwealth and the region’s localities to effectively manage stormwater. If you have any questions, please do not hesitate to give me a call.

Sincerely,

John M. Carlock, HRPDC Deputy Executive Director

CommentID: 11269