Regulations not coordinated stormwater management and will inhibit urban redvelopment
T
August 21, 2009
Mr. Joseph Maroon
Director
Virginia Department of Conservation and Recreation
203 Governor’s Street
Richmond, Virginia 23219
Re: Proposed Amendments to Virginia’s Stormwater Management Regulations
Dear Mr. Maroon:
The City of Roanoke appreciates the opportunity to provide comments on the proposed amendments to the Virginia’s Stormwater Management Regulations [4 VAC 50 – 60] for consideration by the Virginia Department of Conservation and Recreation (DCR). The City is committed to protecting state waters by implementing effective stormwater management practices, but there are several areas of the proposed amendments that we believe are counterproductive to this goal. Our concerns are summarized in the bullet points below, and are explained in greater detail in the paragraphs following the bold headers.
•Regulations intended for conditions in the Chesapeake Bay should not be applied statewide.
•The proposed changes do not coordinate with other water quality requirements being placed on MS4 communities.
•The proposed changes will inhibit redevelopment of urban areas.
•The proposed fee system is flawed.
Regulations for the Chesapeake Bay should not be applied statewide.
The proposed regulations are based on goals for the Chesapeake Bay. It is inappropriate to extrapolate studies and technical requirements developed for a specific watershed and its problems to every watershed in the Commonwealth. The 2007 EPA report 2007-P-00031, “Development Growth Outpacing Progress in Watershed Efforts to Restore the Chesapeake Bay,” clearly lays the failure to achieve Bay cleanup goals to new greenfield development. Applying regulations written to mitigate nutrient and sediment loads generated by new suburban development (Northern VA) to an urban area where infill redevelopment (Roanoke, VA) is the major objective will be counterproductive. The simple, one size fits all approach will be ineffective and will most likely lead only to further suburban sprawl.
The proposed regulations take an indefensibly narrow and potentially counterproductive approach to addressing other equally important aspects of water quality improvement. The use of phosphorus as the key indicator is inappropriate as it ignores the fact that streams in our area are subject (or will be subject) to Total Maximum Daily Loads (TMDLs) for other priority pollutants that are more critical to address. Phosphorus is not a key pollutant in a highly urbanized, compact city such as Roanoke; therefore it is improper to use it as the key indicator. This is especially true in view of the conclusions of the Virginia Department of Planning and Budget that “the cost of incremental reductions in nutrient loads from the application of stormwater controls is high relative to other nutrient removal options. Uncertainties exist over the long-term cost and effectiveness of many stormwater control practices. The cost of achieving additional nutrient reductions in highly urban settings and other areas with site specific constraints is still uncertain but potentially high.”
The proposed water quality criteria set forth in section 4VAC50-60-63 are based entirely around reduction of the nutrient phosphorus. It is understood that allowable pollutant loads for new development and prior development lands, were limited based on a model prepared by DCR. However, it appears that no consideration was given to the feasibility of this approach on tightly constrained infill redevelopment sites with large impervious ratios. Are the proposed phosphorus reduction numbers achievable on these more restrictive redevelopment sites? Has the Department performed actual site designs with these new numbers to verify feasibility? If so, are those studies available for review?
The proposed changes do not coordinate with other MS4 requirements.
Roanoke is an MS4 community, and the City feels the proposed regulation is also irrationally selective about when and where it chooses to associate with, and/or relate to other sections of the VAC dealing with MS4 operational compliance under a VSMP General Permit, specifically 4VAC50-60-1240 Sections I and II. Under Section I of the General Permit regulations (effective July 2008) MS4s are required to adapt their stormwater management program plans to address all priority pollutants named in any TMDLs within their jurisdictional boundaries. Section II details six (6) specific minimum control measures that MS4s must adopt and report on. Namely: 1) Public Education, 2) Public Involvement, 3) Illicit Discharge Detection & Elimination, 4) Construction Site Run Off Control, 5) Post Construction Stormwater Management, and 6) Pollution Prevention by the MS4 Permitee. Note that only two (2) of those minimum control measures deal with land disturbance (numbers 4 & 5).
The proposed new regulations completely disregard the MS4’s obligation to address TMDL priority pollutants under Section I of their permit, as well as the MS4’s requirement to meet the other four (4) minimum control measures under Section II of the permit, while instead placing an abundance of emphasis on the land disturbance controls. The proposed new regulation would make local administration of the proposed new regulations a requirement for MS4s, who have adopted a stormwater management program, while completely ignoring the application of TMDL criteria, as well as four (4) of the minimum control measures. This requirement indicates that the development and adoption of a comprehensive stormwater management plan is important in order for a locality to be able to implement the proposed new regulations, but elsewhere the same new regulations are quick to exclude all VSMP requirements other than those dealing with land disturbance. This association, on one hand and exclusion, on the other hand is problematic in that it disregards both the relevance and relatedness of the other VSMP requirements, and it overemphasizes land disturbance impacts, while grossly under-recognizing others.
Roanoke is required to adapt our program plans to address the priority pollutants named in the TMDLs for our jurisdiction. Many of the TMDL priority pollutants are organic or biological agents, and due to their inherent chemical and physical characteristics, are subject to much different environmental fate and transport processes than inorganic nutrients such as phosphorus. However, the proposed new regulations use specific Best Management Practices (BMPs) to reduce phosphorus levels that may have absolutely no or little effect in reducing TMDL priority pollutants. The proposal to require the use of various BMPs to reduce phosphorus, while completely ignoring significant TMDL pollutants, is at best inefficient.
The proposed water quality regulations require that the technical criteria be applied independently within each Hydrologic Unit Code (HUC) (watershed boundary). This is another area where the proposed new regulations are selectively associating themselves with the broader VSMP General Permit, specifically the Section I requirements to address TMDLs. Note that the TMDL criteria are assigned by HUC. The proposed new regulation seeks to make use of these watershed boundaries established for comprehensive Clean Water Act and TMDL applications, yet paradoxically it seeks to exclude the priority pollutants named in those same water quality efforts from consideration, to instead focus exclusively on phosphorus.
This proposal places the localities administering the proposed program in the awkward position of being very stringent and prescriptive in one area of named importance (phosphorus), while being virtually mute in another area of named importance (TMDL priority pollutants). At the very least, any effort to amend the regulations to improve water quality should address most, if not all, of the named pollutants of concern. To focus so stridently on one, while ignoring the others is inappropriate.
The proposed changes will inhibit beneficial redevelopment.
Changes in required pollutant discharge reductions (being raised from 10% to 20%) and the method of calculating predevelopment and conditions (conditions at the time of an application), will be a great and potentially devastating disincentive to revitalization of urban cores. The cost of achieving the additional nutrient reduction will be very high and as such would render redevelopment projects infeasible. Furthermore, the physical limitations of higher density urbanized sites render the technical application of these regulations impractical. These changes are contrary to recently adopted legislation (House Bill 3202) whose goal is higher density, compact, sustainable development as opposed to the pattern of suburban sprawl that has been at the root of declining water quality.
For localities such as the City of Roanoke, redevelopment of sites that came into existence long before stormwater regulations existed is a major, perhaps the major, focus. The City has expended particularly great efforts to promote the redevelopment in core areas of the City. Both the quality and quantity provisions of the proposed rule stand to adversely impact the redevelopment of such properties. Some core properties are also brownfields, which by definition are already impaired, and restoring them to productive reuse is a critical aspect of water quality improvement, infrastructure and tax base preservation, and efficient land use. Finding qualified buyers and developers for these sites is already difficult enough, and there should be no additional burdens placed on restoring them to safe and productive reuse. Furthermore, by redeveloping sites localities are better able to abate or stabilize contaminated lands, while eliminating neighborhood blight, and suburban sprawl, all of which adversely impact water quality.
For these reasons, provisions should be made in the proposed regulations that would provide credits for the positive impacts of redevelopment. Additionally, there should be a site specific review of stormwater technical criteria for previously developed sites that would allow for innovative rather than prescriptive BMP design and implementation. These provisions are needed to ensure that both the environmental clean-up and stormwater pollution prevention goals of these projects are addressed in a comprehensive and maximally beneficial manner for all.
In regards specifically to section 4VAC50-60-10 Definitions, of the proposed amendments, the City has concerns over the revised definition of predevelopment. The predevelopment definition refers to conditions that exist at the time that plans for the land development of a tract of land are submitted to the plan approval authority. Currently, the City allows a 5 year window for redevelopment sites. As an example: if a site originally contained a building and was 60 percent impervious and the building was demolished and removed 4 years before the submission of the site plan, changing the impervious percentage to 40 percent, then the pre-development condition used in the calculations may be based on the previous 60 percent impervious area. The reason for this allowance was that we did not want to penalize a property owner for demolishing an unsafe/unsightly structure and cleaning up a property. The revised definition would eliminate this option in our design manual and will be a disincentive for redevelopment.
The proposed fee system is flawed.
The cost of administering these regulations will be high, yet there is no full cost recovery mechanism provided to local government being tasked with implementation. In fact, the regulations require the sharing of 28 percent of fees collected at the local level with the state. Many of these proposed regulations are unfunded mandates. Additional staffing and finances will be required to successfully get this program up and running and for it’s on going operation and maintenance. There are already requirements in the current regulations that are not being enforced by DCR, due to lack of staff and resources (i.e. plan review, permit issuance, etc). The same requirements are now being assigned to the localities that also have insufficient staff and resources to implement, yet localities are going to be held accountable. Where is the Department’s accountability?
The fee system also double charges some properties. It is understood that the proposed fee schedule [4VAC50-60-820] is written such that new lots of a common plan of development within developments of greater than 1 acre, but less than 5 acres, will each have to pay $2,700.00 to obtain a VSMP permit, if the lots are owned/developed by someone other then the developer. This is excessive. Essentially the same property is being permitted twice, once under the permit for the common plan of development, and a second time under the development of the individual lot. An overall stormwater management plan is required for the common plan of development and an erosion and sediment control plan is required, both to protect downstream waters. What truly is being accomplished by permitting individual lots that are part of a common development when stormwater management parameters have already been applied to the individual lot?
The lack of coordination extends to the area of prescribed fees as well. Section 4VAC50-60-700 is unclear to the City in regards to how the fee can be used. This section states “Sections 10.1-603.4 and 10.1-605 of the Code of Virginia authorize the establishment of a statewide fee schedule for land disturbing activities and for municipal storm sewer systems,” yet later in 4VAC50-60-780(B) – Deposit and use of fees - the proposed regulation states that where these fees are collected by a qualifying local entity, they “...shall be used solely to carry out the local program’s responsibilities pursuant to Part II and Part III A of this chapter.” These sections are contradictory in that the latter rules out the use of associated revenues for any use other than for the implementation and operations of the local program directed at ensuring compliance with the technical criteria related to land disturbing activities.
The proposed fee use restriction ignores the need for funding to support the remaining efforts required of localities for compliance with the other aspects of their MS4 permits; i.e. illicit discharge detection and elimination, public education and involvement, and the permitee’s own development and use of stormwater BMPs. As such, this provision leaves a significant portion of the locality’s relatively recent (July 2008) compliance obligation without a funding source, but still needing considerable staffing and other resources in order to be both successful and compliant. If the intent of the proposed new regulation is to provide a revenue source to offset the cost of implementation of the stormwater program, then revenue needs to be provided for administratively, by incorporating a comprehensive fee structure into the new regulations.
In short, so long as localities agree to use revenues collected from their stormwater management programs, solely for the ongoing operation of those same programs, the state should not mandate how localities use those same revenues. Such restrictions ignore the obvious resource needs of the other very important aspects of locally administering a comprehensive stormwater management program. The proposed 566% increase in our MS4 Permit Fee (from $600 to $4,000) also is excessive. Especially when paired with the above noted restrictions on our use of fees collected from our own administration of the land disturbance provisions. If a permit fee increase of this magnitude is required, it should be either phased in, or have no restrictions on what revenue stream the funds come from, or both.
The City of Roanoke appreciates DCR’s effort to clarify aspects of the stormwater quantity regulations. However, we respectfully encourage the Department to retain the stormwater quality regulations that currently apply to areas outside of the Chesapeake Bay Watershed. We also urge the state to consider its approach to stormwater management more holistically, and to develop regulations that coordinate all of the requirements that are applicable to MS4 communities. The proposed regulation does not provide for a comprehensive stormwater management program.
