Virginia Regulatory Town Hall
Department of Conservation and Recreation
Virginia Soil and Water Conservation Board
Stormwater Management Regulations AS 9 VAC 25-870 [4 VAC 50 ‑ 60]
Action Amend Parts I, II, and III of the Virginia Stormwater Management Program Permit Regulations to address water quality and quantity and local stormwater management program criteria.
Stage Proposed
Comment Period Ended on 8/21/2009
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8/19/09  10:18 am
Commenter: David Slutzky

Proposal to address unintended consequences
18 August 2009
The Regulatory Coordinator
Virginia Department of Conservation and Recreation
203 Governor Street
Richmond, Virginia 23219
Re: Proposed Stormwater Management Regulations
Dear Sir/Madam:
As so many others have also commented on the proposed stormwater management regulations, I will keep my comments brief. My comments are my own, and not representative of any organization with which I am associated.
First, by way of establishing my bona fides on the matter, I currently serve as Chairman of both the Albemarle County Board of Supervisors, and the Charlottesville-Albemarle MPO. For the last seven years I have taught a class entitled Brownfields Redevelopment in the Urban and Environmental Planning Department of the University of Virginia. I formerly served as the founding Director of the Urban Initiative at the USEPA, and as a Senior Policy Advisor at the White House, working at the President’s Council on Sustainable Development. I am an owner of E2 Inc., an environmental policy consulting firm located in Charlottesville, and I have a JD degree in Environmental and Energy Law.
As I tell my students every year, environmental regulation is as much about process as it is about intent. NEPA is a brilliant example: most of the language of the law establishes that it is the intent of our government to consider every federal action through a lens of intergenerational moral responsibility, yet the law is quite limited in terms of process, and thus is only nominally effective in this regard. Similarly, as we all recognize the urgent need to protect the Chesapeake Bay and the Commonwealth’s rivers and streams from further degradation, we must make sure that our “process” efforts do not lead to unintended consequences that in the end undermine our honorable intentions. I respectfully submit that the proposed stormwater management regulations in their current form do exactly that.
I strongly support the objective of protecting the Bay and the waters of the Commonwealth from excessive nutrient loading. DCR has proposed that our goal for phosphorus controls for new development projects should be 0.28 pounds per acre per year (lb/ac/yr). One may quibble about the underlying science that supports this determination, but at a Zen level, this seems about right to me, so I will focus my comments on the unintended consequences that implementation of the proposed regulations can be expected to have on the environment.
One unfortunate consequence is that the proposed regulations impose a disproportionate burden on local governments, homeowners and developers.
Local Governments:
If the regulations are adopted as proposed, local governments would have the choice of establishing a local stormwater program, or allowing DCR to administer the program for the locality. If development related plans had to be submitted to DCR for approval, this would likely cause delays in the approval of development projects. If the locality therefore established their own program, additional staffing resources would be required for implementation. While there are additional fees provided for in the proposed regulations, it is not clear how that would work and whether the fees would be sufficient to cover the costs of local administration of a stormwater program.
The proposed stormwater regulations, if properly implemented, would in many instances require complex stormwater treatment practices that would need to be maintained by homeowners and land owners into perpetuity, yet most of these responsible parties have little or no understanding of the practices or ultimate cost of such maintenance.
The Chesapeake Bay Commission, in a December 2004 report (Cost-Effective Strategies for the Bay - Smart Investments for Nutrient and Sediment Reduction) identified the six practices which would deliver the largest nutrient reductions for the least cost. Of the six, five were agricultural; leading the list was upgrading wastewater treatment plants. Yet the new stormwater management regulations as currently proposed focus nutrient reduction efforts on new development projects. At the extreme, the new regulations require that the maximum post-development runoff from a development will have to equal pre-development levels as if the pre-development condition was a forest, yet they impose no new regulatory burden on the agricultural sector, Virginia’s largest source of phosphorus loading into the Bay.
In addition to the fairness issues addressed above, I have particular concerns about the unintended consequences of renewed urban sprawl and stale zoning that can be expected to occur if the proposed regulations are not modified, thereby negating years of local efforts to adopt comprehensive plans that create Urban Development Areas (UDAs).
At the heart of my concerns about the proposed regulations, including those that relate to volumetrics, is the expectation that as written, they will most certainly lead to de-densification of new development activities in the UDAs. In an article scheduled for publication in 2009 in the Journal of the American Water Resources Association, the authors suggest that higher density development itself is a Best Management Practice (BMP) for urban stormwater quality. The question they asked was whether the reduced land consumed by higher-density development (versus standard suburban developments) would offset the worse water quality generated by a greater amount of impervious surface in the smaller area. Total runoff volume and per acre loadings of total phosphorous, total nitrogen, and total suspended solids increased with density as expected, but per capita loadings and runoff decreased markedly with density. For a constant or given population, then, higher density can result in dramatically lower total loadings than more diffuse suburban densities.
If the proposed regulations are not modified to allow for off-site options to achieve phosphorus reductions, the inevitable outcome will be increased open space on-site, which in turn will result in reduced density development outcomes. Further, several economic analyses of the proposed new regulations suggest that there will be significant increases in direct on-site development costs. These costs are associated with additional BMPs, as well as volume related stormwater control facilities required by the regulations. The direct financial impact appears to be greatest for commercial, mixed-use, and higher density residential projects that have been the focus of local planning efforts. These increased direct development costs will be compounded by the indirect costs that result from de-densification of development projects – baseline overhead development costs will be spread over fewer residential units and lesser commercial square footage. This will result in some higher-density growth area development projects becoming economically non-viable, which in turn increases the relative appeal of rural area development opportunities where development expenses would be lower.
Stale Zoning:
In cases where an existing rezoning includes commitments of significant proffers, the de-densification impact of the proposed regulations may tip the scales of economic viability, and the unfortunate result may be stale zoning. Fewer homes and less commercial square footage will be available to spread the costs associated with the new stormwater requirements, yet the proffered obligations will not be reciprocally reduced, so in some cases the developer cannot afford to move forward with the project. Vesting of existing rezonings may be an appropriate solution, but the proposed regulations do not currently address this concern.
In order to achieve the intended protection of the Chesapeake Bay, the proposed stormwater management regulations should be modified as follows:
Developers should have the following five options for achieving phosphorus reductions to the proposed new standard of 0.28 pounds per acre per year (lb/ac/yr):
1.      Achieve as much as possible on-site. There are many BMPs that could be utilized on-site to reduce nutrient loads in a cost-effective manner. Collaborative dialogue between developers and environmental stakeholders may increase usage of some less traditional yet cost-effective BMPs. Ultimately, however, it must be up to the developer to determine which practices are cost effective on site, and thus will be used on-site.
2.      Purchase credits directly from agricultural sources. Developers must be allowed to negotiate directly with farmers to obtain DCR approved credits for the equivalent phosphorus reductions needed for the development project to be compliant with the 0.28 pounds per acre per year (lb/ac/yr) standard. Some may argue that only those reductions beyond what is currently expected but not required of agricultural properties should qualify for transferable credits. For example, current expectations of the agricultural sector are for 35 foot setbacks with fencing, watering systems, proper buffer vegetation, and permanent easements to ensure long-term protectiveness. Developers should at least get credit for the reductions attributable to the difference between a 35 foot buffer and a 100 foot buffer, although some may argue that without the participation of the developer, no buffer would have been implemented, in which case the value of the entire buffer should be available for credit.
3.      Purchase credits from agricultural credit “brokers”. Developers must also be allowed to purchase agricultural credits through aggregators of these credits. Such aggregators are likely to provide a more predictable market price for the credits, and they are more likely to be able to ensure long-term legitimacy of the implemented nutrient reduction practices, including regular monitoring of easements and maintenance of fences and watering systems.
4.      Make a payment to the locality: Many localities have responsibility for various projects relating to water quality improvements of local waters. Often, these localities do not have enough money to pay for such projects. Developers must be permitted to proffer or pay directly to the locality a fixed dollar amount per pound per acre per year where the locality uses the money to fund actual on the ground projects, and the developer gets the credit for nutrient reduction. The price of these credits should be established by DCR, and that price should be equal to the price of the credit discussed in option five (5).
5.      Make a contribution to a DCR controlled tax-credit program: Under the current stormwater regulations, for development that occurs on previously developed land, redevelopers are required to achieve a 10% reduction below predevelopment levels. The proposed regulations increase this requirement to a 20% reduction. My proposal is that DCR establish a fund to be used to pay for tax credits that would be awarded to redevelopment projects where reductions of greater than 20% would be achieved. The redevelopers would compete against each other for tax credits equal to the full cost difference between the required 20% reduction, and the higher reductions they propose to achieve. DCR would make the award decisions based on which projects provide the greatest benefit to the Bay. Developers could choose, under this Option Five, to pay a predetermined price per pound per acre per year into the DCR fund. The funds would have to be expended each year to fund viable, on the ground projects or EPA might object. If there were not sufficient projects competing for the funds in any given year, DCR would be required to award grants to localities for local projects that are “shovel ready”, or to local wastewater treatment projects. Based on my discussions with many environmentalists and developers and other interested parties, I expect that DCR will establish a price of $15,000 per pound per acre per year. This price should be adjusted based on a market driven formula at periodic intervals.
Each of these five options would be available to developers, at their discretion. Any off-site credits would need to be applied to actual on the ground projects. Credits should only be available under options 2, 3 and 4 if they are located in the same tributary as the on-site property, so that the full benefit to the local waters is achieved as well as the benefit to the Bay.
Of additional concern is the vesting issue. This can be resolved if the proposed regulations state clearly that development or land disturbance which is part of an approved zoning or plan of development as to which a landowner’s right is vested under the Va. Code Section 15.2-2307 as of January 1, 2009 shall be vested with respect to these stormwater management and water quality standards. Further consideration should also be given to the unintended impact of the volumetric requirements of the proposed regulations. Many of my concerns expressed with respect to sprawl and stale zoning would also apply to these requirements as well.
I strongly commend Governor Kaine and Secretary Bryant for making the protection of the Bay such a centerpiece of their respective legacies. I believe that with appropriate revisions, the proposed stormwater management regulations will reinforce that legacy. If the five options discussed in this comment are made available to developers, I believe that the resulting protection of the Chesapeake Bay will be greater and achieved in a shorter timeframe than if the proposed regulations are promulgated as proposed by DCR. This is because existing approved development plans and localities’ comprehensive plan densities will not be rendered obsolete and because of the increased protectiveness associated with the improvements in redevelopment projects.
Respectfully Submitted,
David Slutzky
2417 Northfield Rd.
Charlottesville, VA 22901
CommentID: 9700