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
Previous Comment     Next Comment     Back to List of Comments
8/21/09  3:45 pm
Commenter: Ted Miller, Kimley-Horn and Associates, Inc.

Proposed Stormwater Regulations
August 21, 2009
Joseph H. Maroon
Department of Conservation and Recreation
203 Governor Street, Suite 302
Richmond, Va. 23219
Dear Mr. Maroon:
I’m writing to you today to provide comments on the proposed Virginia Stormwater Regulations (4 VAC 50-60). As someone who grew up in Maryland, within minutes of the Chesapeake Bay and who now is a 13 year resident of Virginia Beach, I love the water. I love the seafood it produces, I love the beauty it provides and I love the recreational opportunities that exist. Because I value the Chesapeake Bay and know that the long term viability of the Bay is critically important to the welfare and quality of life of my children and my children’s children, I believe that the opportunity to effect change with this regulation is tremendous. The proposed regulation has an opportunity to make a significant difference in the health and welfare of the Chesapeake Bay.
Unfortunately, I believe the current draft misses the mark and will not make the significant difference the region is hoping for. My fear is that 10-20 years from now, we’ll see very little change in the water quality of the Bay and we’ll look back and wonder why the significant water quality improvement never materialized.  Why?? I believe this regulation will impose a tremendous cost on the development community and the cost associated with the water quality benefit is extraordinarily high for very little benefit to the Bay.
Please consider this analogy: Americans across the country have lots and lots of debt. The average family owes money on their home, their car, school loans, credit cards and other things. If given the opportunity to spend $100,000 to reduce their debt, the family will survey their loans, evaluate the interest amounts associated with each of these loans, and then will pay off the loan or loans with the highest interest rates to make sure they are getting the most “bang for the buck” from the $100,000.  No one will choose to pay off a 3% school loan if they also owe money on a 23% interest rate credit card. It just makes sense- determine how best to spend the financial resources you have to most effectively reduce the family debt. Get the most “bang for the buck”.
I believe the Commonwealth of Virginia finds itself in a similar situation to the family in debt mentioned above. The Commonwealth, and DCR specifically, is attempting to improve water quality to the Chesapeake Bay and should be proactive in finding ways to most effectively allocate the millions and millions of dollars that will be spent by the development community over the next 20 years.
If a single person was responsible for improving water quality to the Bay, their approach would be simple:
  1. Determine the sources of the pollution
  2. Determine ways to reduce the pollution
  3. Allocate financial resources: Utilize the most cost effective measures to most quickly reduce the pollution
I believe the approach of the Commonwealth should be the same.
Determine the Source of Pollution: As noted in the Commonwealth of Virginia Chesapeake Bay Nutrient and Sediment Reduction Tributary Strategy, January 2005 (TS) (one of the primary source documents upon which the proposed regulations are based) the phosphorus loading to the Bay comes from the following:
  1. Agriculture       36%
  2. Point source     26%
  3. Urban runoff    18%
  4. Mixed open      16%
  5. Other               4%
Determine Ways to Reduce the Pollution: As noted in the TS, there are a number of ways to mitigate the pollution impacts from each of the pollutant sources. Whether field buffers are established on agricultural fields or wastewater treatment plants are upgraded to reduce more phosphorus, or ponds are installed to treat urban runoff, there are a myriad of ways to treat runoff. The key to effective legislation is making sure that the dollars spent to treat water quality to comply with the legislation is used in a manner most effective to the cause – cleaning up the Chesapeake Bay.
Allocate Financial Resources: Utilize the Most Cost Effective Measures to Most Quickly Reduce the Pollution: The cost to implement pollutant reducing measures vary greatly depending on the “solution”.  The TS anticipates the Agricultural BMPs will reduce 2.8 million pounds of phosphorus at a cost of $859 million dollars or roughly $307 per pound. The TS anticipates the Point Source (wastewater treatment facilities) will spend $1,141 million to remove 3.2 million pounds of phosphorus or $353 per pound. Similarly, the TS anticipates BMPs to treat Urban development will cost $7,519 million to remove 1.1 million pounds of phosphorus or $7,095 per pound.
The conclusion reached based on the costs developed in the TS and the goal of improving water quality of the Chesapeake Bay, is that the Commonwealth of Virginia should proactively promote the expenditure of financial resources to the BMPs that will best benefit the Chesapeake Bay and the residents of the Commonwealth of Virginia. Why spend $7,095 to reduce a SINGLE pound of phosphorus if I can spend $307 to remove the same amount? Going back to the analogy of the individual homeowner trying to pay off debt, the Commonwealth, with the ultimate goal of cleaning up the Bay, should promote spending financial resources to clean up the Bay in the most efficient way possible.
I am aware that wastewater treatment plants are being regulated and need to reduce their pollutant contribution to the Bay and the fact that farmers are encouraged to utilize nutrient management programs, conserve land, create buffer land and conservation areas. That is fantastic and I applaud those efforts. However, that doesn’t change the fact that if I can get more “bang for the buck” with those types of BMPs, that is where the Commonwealth should be funneling financial resources toward.
I participated in a study sponsored by the Tidewater Builders Association (TBA) to review the proposed Stormwater Regulations and apply them to real world development projects that had previously been designed under the current regulations. Several engineering firms, builders, local governments, and members of the Hampton Roads Planning District Commission participated in this effort. Attached is a spreadsheet that summarizes the results of the study. The results indicate that developers currently pay an average of $137,000 per pound (range of $4K-$677K) of phosphorus removed and can expect to pay $262,000 per pound (range of $9K-$768K) of phosphorus removed. That means the anticipated costs of the urban BMPs required to remove 1 pound of phosphorus is equivalent to the cost of removing 853 pounds of phosphorus via an agricultural BMP or 742 pounds of phosphorus from a Point source improvement. It is simply absurd for anyone to pay hundreds of thousands of dollars per pound of phosphorus removed when technology exists to get the same benefit for only hundreds of dollars per pound.
So, what is the solution?? I believe there is a simple solution. The stormwater regulations have two components- a water quality and a water quantity component. By implementing the water quantity regulations and restricting the post development discharge rates for development projects, the on-site BMPs required to satisfy the water quantity requirement will, inevitably, provide a water quality benefit.  The Commonwealth should provide the developer with the option of meeting the water quality requirements on-site or pay an “in lieu of fee” to the Water Quality Improvement Fund (WQIF). The fee will have to be determined by a Technical Advisory Committee or subset of the DCR to develop an appropriate price to pay in lieu of onsite improvements. Based on discussions with the development community, I think an appropriate fee could be around $10K to $20K per pound. The Commonwealth (or permit issuing authority) could then use the money in the WQIF to make significant water quality enhancements by purchasing conservation areas, assisting waste water facilities with point source improvements, building regional stormwater BMPs, or funding agricultural BMPs – all of which could accomplish more for the Chesapeake Bay than enhancing on on-site BMP, or installing a BMP for the sole purpose of improving water quality from a single development site.
The development community would embrace an opportunity to see their stormwater management dollars be allocated for significant watershed improvements rather than a very small improvement to the stormwater from their specific site. Another obvious attraction to the development community is that the fee will likely be significantly less than what they could expect to pay to satisfy the water quality requirements on-site. Another major benefit to the property owner, municipality and DCR is the reduction in administrative costs associated with tracking all of the on-site BMPs, inspecting and maintaining the BMPs, and reporting on the status and condition of the BMPs. Eliminating the administrative burden alone should make this alternative attractive to all parties. (On a separate note- isn’t it silly to spend time and money to annually inspect on-site BMPs that reduce the pollutant load to the Bay by a fraction of a pound of phosphurus per year?? Unfortunately, the proposed regulations will require this be done. As a resident of the Commonwealth, I ask you to please do NOT spend my tax money on the huge administrative burden that these regulations create, rather, use my tax money on actual water quality improvements…that is the goal after all.)
I understand that a nutrient offset program is currently proposed and some may think it is similar to what I proposed above. The nutrient offset program is at the OPTION of the Permit Approving Authority and can be declined as an option at anytime. This needs to be changed. The DCR should be promoting it and should mandate the option is available for everyone the day the regulations go into effect.
Other items that need to be addressed in the regulations include the following:
  • Grandfather Clause: Master Plan developments or preliminary plans that have been approved must not be subject to these provisions. These developments could span many years into the future, especially given the current state of the development industry, and changing the stormwater regulations “mid-stream” would significantly adversely impact these developments
  • The BMP specifications are not complete. A cursory review of the specifications- particularly the most common BMP, a Wet Pond- revealed design contradictions and inconsistencies.
  • Urban redevelopment will be extremely expensive given these regulations. With the new 20% pollutant reduction requirement, redevelopment becomes much, much more expensive than suburban development. Given the stated desire and initiatives of the Commonwealth to promote urban redevelopment, these regulations effectively contradict those initiatives.
  • Definition of “stable” and “adequate” channel needs to be provided. Without one, it will become standard for a reviewing authority to say that the downstream channel/system is inadequate and require the post development discharge be limited to the pre-developed “forested” condition
It is very important for us all to realize that the proposed regulations will only apply to new development (whether “green field” or redevelopment). New development is only a fraction of the overall contribution from urban and suburban sources. Based on historical land use trends, new development over the next 20 years is estimated to make up only 2.4% of the P contribution to the Bay, or 0.12% per year. Therefore, the new regulations will have little effect on the overall pollutant loading to the Bay, despite the estimated high costs of implementation. Consequently, even if the pollutant load went to 0 for all new development, the reduction in the pollutant load to the Bay is not significant. This is perhaps the biggest reason to mandate the “in lieu of fee” option. Without it, all of the existing urban areas that currently don’t get any treatment whatsoever, will never get any treatment. The only way we can possibly meet the goals of the TS is to install and/or retrofit BMPs in urban and agricultural areas that currently don’t have them. Without a defined funding mechanism like the WQIF, they will never be built.
Ultimately, the residents of the Commonwealth expect that DCR will make the most of the opportunity before us and expect the DCR to adopt regulations that effectively and efficiently accomplish the published goals of reducing the pollutant load to the Chesapeake Bay.
I applaud the efforts of all those thus far contributing to the proposed regulations. We are close to producing a regulation that will significantly enhance the water quality of the Chesapeake Bay and that is a goal we cannot afford to lose sight of. We must accomplish it and the only way to accomplish it is to make the most of the dollars available – “Get the most bang for the buck.”
I appreciate your consideration of my comments and welcome the opportunity to discuss them with you and/or your staff.
Edward (Ted) Miller, P.E.
CommentID: 9885