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.