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  6:42 pm
Commenter: Robert P. Kerr, President, Kerr Environmental Services

Proposed Stormwater Regulations and Nutrient Reduction
I would like to thank the Department for this opportunity to provide my comments. While several of the comments cannot likely be addressed in these regulations, I hope that the DCR, together with other necessary agencies, the General Assembly, and the Governor’s office can incorporate them into future regulatory and/or policy efforts to reduce pollution loading to the Chesapeake Bay and the other watersheds in the Commonwealth. 
The following are my specific comments and recommendations:
·         Perhaps of greatest concern is that this regulatory action and the related Stormwater Law narrowly address development and redevelopment efforts, and the regulation of other sources of nutrients and sediment to the Bay, specifically agriculture and the application of fertilizers by 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 Commonwealth’s waters, I believe it is unlikely Virginia will meet the goals of the Tributary Strategies in a timely fashion and in an equitable manner.
The proposed stormwater regulations do not provide a fair and equitable balance between the cost the agriculture industry will pay for water quality improvements and the cost to be borne by the development industry.  Laws that provide funding and mandatory practices for phosphorus load reduction from farmland are sorely needed.  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.
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 as done in other areas within the United States.  Lawn application companies should also be restricted regarding the proximity to surface waters that they can apply nutrients.  One estimate states 3.26 million pounds of fertilizer are fed into the Chesapeake Bay every year.
·         The 0.28 pounds/acre threshold requirement in the proposed regulations should be re-evaluated before the regulations are adopted, as this standard will be far more challenging to meet than the standard in the Bay Act, and was arrived at in a very short time period, with data that was inaccurate and/or not well substantiated. The primary tool for establishing the pollution limitations proposed by the regulations is Virginia’s Chesapeake Bay Tributary Strategy Model.  Unfortunately, the model does not appear to 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).
I understand that the model includes an incorrect assumption: less than 1% of all developed lands in Virginia since the adoption of the Bay Act 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.
I question whether this limit should be applied to the other river basins that do not drain to the Chesapeake Bay as I am unaware of how it relates to studies of those watersheds.
·         I am especially concerned that the regulations have no allowances or special provisions for the following types of projects and that the regulations will therefore have the unintended consequence of creating sprawl: infill lots, redevelopment, and small sites (approximately 5 acres or less). Engineering firms in Hampton Roads, nearly all of which have attended events sponsored by DCR related to the proposed regulations and/or application of the Runoff Reduction Method, have performed studies of 11 recently approved site plans for a variety of development and redevelopment projects for residential, commercial, and mixed uses.  Kerr Environmental Services was involved in the peer review of these evaluations and attended several meetings that discussed how proposed regulations would be applied to a variety of situations. These findings were submitted to DCR by representatives of the Tidewater Builders Association at DCR’s July 9, 2009 Public Hearing.
These studies have found that the incremental cost per pound or phosphorus removed per year could be as high as $200,000 for commercial development involving LID practices and as high as $3 million dollars for green roofs (high density development).  The cost to remove the additional phosphorus required by the proposed regulations for redevelopment projects ranged between $897,000 and $3.2 million dollars (three projects studied).  Maintenance costs are not considered in these analyses.  I believe these additional costs are not economically justifiable in Tidewater when compared to the small, incremental reduction in phosphorus loads. Additionally, some of these projects would not be economically viable under the proposed regulations.
·         The Virginia Runoff Reduction Spreadsheets tied to the proposed regulations require green roofs, permeable pavement (including the grass portion), and wet ponds be counted as impervious surfaces.  All vegetated and water areas should be considered pervious, especially with regards to channel and flood protection.
·         With regards to the allowance for off-site nutrient reduction, use of pro-rata fees and utilization of the Nutrient Offset Program, I encourage the Commonwealth to establish a Statewide Stormwater Trust Fund or other mechanism to receive moneys and facilitate the construction of stormwater projects (site specific and/or regional) when pollutant removal requirements cannot be met on a site. I believe this will afford the watersheds of the Commonwealth additional benefits. Such a Trust Fund should only be available until such time that private entrepreneurial offset businesses are established or localities establish their own pro-rata share programs. 
Many local governments have indicated that they are not inclined to establish municipal pro-rata programs because the moneys are often too little to construct a meaningful project. Additionally, there will likely be few Nutrient Offset businesses established in the years immediately after adoption of these stormwater regulations. It is therefore essential that the State establish a statewide program, and there are two precedents for such a program: (1) the Virginia Aquatic Restoration Trust Fund run by the U.S. Army Corps of Engineers for wetland and stream mitigation, and (2) the Virginia’s Water Quality Improvement Fund. A Stormwater Trust Fund could be established and would track and expend funds as specified by the proposed stormwater regulations. If the Commonwealth does not establishment such a program, development and redevelopment projects in urban areas will be avoided in some cases, and hampered in many cases, resulting in further urban blight and suburban sprawl.
As Virginians, we all desire and deserve clean water and healthy rivers and streams, but the cost of achieving these goals needs to be equitable to all property owners in the Commonwealth and not be so overwhelmingly burdensome to those developing property that: 1) sprawl will once again be unintentionally incentivized over redevelopment, mixed use development, infill and small lot development, and 2) costs rise far faster than private enterprise can afford to pay. In the end, the restoration of our states waters should be done in a manner that is equitable, predictable, achievable and fair.
Robert P. Kerr, VCPWD, REP                                 
Kerr Environmental Services Corp.
CommentID: 9729