August 21, 2009

 

The Regulatory Coordinator

Virginia Department of Conservation and Recreation
203 Governor Street, Suite 302
Richmond, Virginia 23219

 

Re: Comments on the proposed parts 1,2,3 and 13 of the Stormwater Regulations

 

The Virginia Municipal League (VML) is a statewide, nonprofit, nonpartisan association of city, town and county governments established in 1905 to improve and assist local governments through legislative advocacy, research, education and other services. Our membership includes all 39 cities in the state, 158 towns and 10 counties. In regards to the proposed regulations VML offers the following comments and recommendations:

 

VML has a long history of supporting water quality improvements to Virginia’s streams, rivers and the Chesapeake Bay. We support the intent of the proposed regulations as a culmination of the 2004 Virginia Stormwater Management Law. Specifically, the development and delegation of VSMP permit program at the local level will improve the coordination of land development activities in regards to stormwater quality and stormwater quantity, the latter being particularly important to maintaining and improving natural stormwater conveyance systems (i.e. streams and rivers). In terms of nutrient and sediment pollution, flooding and erosion are local problems that ultimately impact our larger water bodies, the major tributary basins and the Chesapeake Bay. We also support the runoff reduction method as means to address both water quality and water quantity when designing and implementing Best Management Practices (BMPs). 

 

Of our 207 member governments, 71 (32 cities, 8 counties, 36 towns) will be required to adopt the local program to administer and enforce the VSMP permit. The remaining 136 member governments (7 cities, 2 counties, 122 towns) will have the option of administering the program. In reviewing the draft regulations VML’s overarching concerns are (1) the administrative costs and burdens for our members required to adopt the local program; and (2) determining the potential impact on our members that choose not to adopt the local program.

 

In regards to addressing these concerns we propose the following specific recommendations:

 

From a statutory standpoint the General Permit only covers stormwater discharge during the construction phase. In fact, the current 5-year General Permit states:

 (VAR10 - Section A.1. Coverage under this permit)

 

And;

 

(VAR 10 - Section B.1. Limitation on Coverage: post-construction discharges)

 

Further, in regards to requirements for post-construction water quality versus coverage under the general permit, 4VAC50-60-63.A (lines 976 – 978) of the proposed regulations state (in part):

 

 

However, under the existing Virginia Administrative Code for establishing limitations, standards and other conditions of the General Permit (4VAC50-50-460.C.1), additional requirements can only be applied to

 

These standards are related to “in stream” concentration levels and unrelated to the proposed total phosphorous load standard proposed in Section 2 of the regulations. To be clear, VML does not dispute the statutory authority of the Soil and Water Conservation Board to establish both the water quality and water quantity criteria for post-construction stormwater. It is the enforcement of these standards through a Clean Water Act permit delegated to the Commonwealth (and now proposed for delegation to local governments) that is unworkable.

 

From a practical standpoint, VML firmly believes that the general permit is for construction activity only, and, as intended by the 2004 Stormwater Management Law, to be combined with the currently required Erosion and Sediment Control permit program administered by local governments and their delegated authorities. Further, many local governments with existing stormwater programs already review post-construction designs via their site plan review process. Developers, and their consultant engineers, are aware of the design standards to be met on site for post-construction runoff and plan accordingly regardless of the timing to apply for a land-disturbance permit.

 

166 local governments already administer the Erosion and Sediment Control permit program and are familiar with the procedures for monitoring and enforcing the provisions for controlling stormwater runoff during the construction phase. By allowing local governments to adopt this part of the program they can begin to collect revenues, hire additional staff, and plan for budgetary adjustments as needed for when they are delegated administration of the technical criteria for stormwater quality and quantity. Obviously, given the adoption of House Bill 1991 in the 2009 General Assembly, legislation will have to be introduced that allows local governments to adopt this permitting and administration authority sooner than the 15 months as currently defined in Virginia Code. VML supports a legislative amendment to the code to allow for this.

 

A specific goal VML’s 2009 Environmental Quality Policy statement is to advocate for “…legislation and policy initiatives that provide sufficient resources to implement the least costly and most efficient mandates”. While the proposed regulations include the implementation of fees to cover administration costs at the local level, VML is certain that our members will have to rely on general funds from their operating budgets to implement and maintain these programs.

 

In the December 31, 2008 report “Economic Impact Analysis of Revisions to the Virginia Stormwater Regulation” submitted to DCR, the authors correctly identified the problems associated with relying on permit fees to provide the necessary revenue to administer the program:

 

 

Local governments administering the program will need to hire engineers, inspectors, administrative, and support staff to apply the new technical criteria. Variations in cost of living by geographic region will require local governments to adjust salaries in order to hire qualified staff. While this recommendation will potentially require an amendment to the existing law, it will provide local governments greater flexibility in adjusting revenues to meet the demands of program administration. 

 

The problems associated with requiring more stringent standards for stormwater runoff for new development and redevelopment within our smaller urban and more rural jurisdictions requires a comprehensive analysis of how best to accommodate growth while improving the health of local streams and natural conveyance systems. Many of our members are required by state law to identify urban development areas (UDAs) and others are developing strategies to concentrate development within existing or planned service areas. VML is concerned that strict application of the standards on individual sites with no consideration of a comprehensive watershed plan that is consistent with the goals of a local land use plan, will lead to land use patterns contrary to better design and improvements to water quality. Additionally, local programs administered by DCR need to take into account how permit decisions will affect the local economic climate and how best to invest in rebuilding and improving stormwater infrastructure (whether manmade or natural). By developing a comprehensive watershed stormwater management plan DCR can assist local governments in better investment when offsite controls are necessary to accommodate to new development.

 

While Virginia Code specifies that localities required to adopt a local program can do so no sooner than 15 months upon adoption of the regulations, adoption of DCR administered programs are subject to an implementation schedule adopted by the Soil and Water Conservation Board. For sake of consistency, and to avoid a situation where smaller and more rural jurisdictions may be subject to more stringent technical criteria prior to the required local programs, VML recommends the same early adoption date for all local programs.

 

While the majority of VML localities have experienced population growth since 2000, a surprising 46% of our members have experienced population decline in that same time period (Source: Weldon Cooper Center population estimates). Overall Virginia’s 39 cities have seen an increase of almost 63,000 persons for a growth rate of 2.7% (2000 – 2008); however VML towns have seen an overall decline of more than 32,000 persons for a negative growth rate of 7% (2000 – 2007). VML is concerned that a more stringent standard for phosphorous will impede revitalization of Virginia’s urban areas, especially our small towns that are struggling to keep population and increase commercial activity.

 

During the process that developed these regulations, and more recently in public hearings, there has been much debate regarding the proposed phosphorous standard of 0.28 lbs/acre/year. We have reviewed the September 5, 2008 discussion paper on the origin of the proposed standard (e.g. the Chesapeake Bay Tributary Strategy) and find that it is misses the point in regards to achieving water quality improvements.  Specifically, our analysis of the proposed regulations leads us to conclude that the proposed criteria for treating stormwater quantity will have a more significant impact in improving water quality than the proposed criteria for treating stormwater quality. The reason for this is that an increase in impervious surface in our urban areas leads to greater stormwater volumes and velocities subsequent to rainfall events. In our view the majority of sediment and nutrient pollution coming from stormwater is due to the scouring and erosion of our natural stream channels (our stormwater conveyance systems). Additionally, the proposed phosphorous standard is based on a theoretical model that is outdated and inconsistent for the following reasons:

 

·        The 2004 Virginia tributary strategies input deck showed that by 2010 Virginia would increase forest acres by more than 800,000 and see a loss of more than 35,000 acres of developed land. This is clearly not going to happen.

·        Many of the input deck actions to reduce nitrogen and phosphorous are unrealistic. For example, the nonpoint source input deck (Appendix D of the January 2005 tributary strategy) shows the conversion of 171,588 acres of farmland and mixed open space to wetlands. As of 2002 only 297 acres had been converted to wetlands.

·        A 2009 recalibration of the theoretical model shows that actions of the input deck across the whole Chesapeake Bay watershed fall well short of the reduction goals for nitrogen and phosphorous:

 

 

Given the inconsistencies of the model and our belief that the proposed stormwater quantity criteria will play a greater role in improving water quality, we recommend keeping the standards at the current level for phosphorous while allowing for the runoff reduction method to achieve compliance. 

 

In conclusion, VML congratulates DCR on developing innovative new criteria and program elements to address stormwater runoff. It is our hope that we can partner with the Commonwealth in developing local stormwater programs as a means to achieving our water quality goals.

 

Regards,

 

Joe Lerch

Director of Environmental Policy