Bay Journal

Effort to protect clean water in Loudoun, VA, runs into opposition

Confusion over resource protection and management areas puts citizens on edge

  • By Rona Kobell on October 01, 2010
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Cars back up at a light during rush hour in Leesburg, VA. Loudoun is one of the fastest growing counties in the nation yet it lacks strong water protection laws. A 2008 study found that 78 percent of the county's streams were impaired.  (Rona Kobell) Eric DeJonghe, left, and Daniel O'Shea, stand outside a packed public meeting, watching testimony on a television screen outside. They're part of the Loudoun Environmental Council, which opposes regulations designed to help clean up the county's impaired waterways.  (Rona Kobell)

When the Loudoun Board of Supervisors began talking about better protection for the northern Virginia county's streams and drinking water two years ago, they heard barely a whimper from their constituents. After all, Loudoun is one of the fastest growing counties in the nation, and its residents prize the rural character and booming winery business. And besides, who could be against clean water?

But the county's attempts to put that protection into law via a state statute called the Chesapeake Bay Preservation Act have been anything but quiet. Residents have inundated supervisors with complaints that the act, which establishes resource protection areas that restrict building, will drive businesses from the county, send home values plummeting and restrict their freedom to build decks and pools.

Angry citizens have formed groups such as the Loudoun Environmental Council to fight the ordinance, taking to the web to assail the county's plans and organize homeowner opposition. Traditional environmental groups, in turn, have complained that the Council is a phony group, run by Realtors and developers, that spreads misinformation and fear.

The vitriol culminated in two public meetings on Sept. 20 and 21 in which a clean streams advocate and a cameraman on the Loudoun Environmental Council nearly came to blows; another LEC member threatened to sue a member of the Piedmont Environmental Council; and a county supervisor read from the book, "Freakonomics" to describe the situation.

After hours of debate, the supervisors agreed to kick the ordinance back to a land use and transportation committee working group to increase "flexibility" in the law, granting more permitted land uses in the buffer area and taking some of the lands out of the restrictions altogether. But even that debate proved contentious, as the supervisors couldn't agree on who would be on the working group.

The Loudoun debate illustrates the complexities of introducing environmental regulations across the watershed - including places that are distant from the Chesapeake Bay and therefore, in the opinion of many, not responsible for its pollution. It may be a preview of things to come as the EPA unveils parameters for the total maximum daily load, which will require all states to come up with pollution budgets. And it also shows the limitations of laws and mandates.

Loudoun County's road to the Chesapeake Bay Preservation Act began in December 2008, when the board of supervisors directed county staff to study the county's streams. The study found that 78 percent of them were impaired, a number that didn't surprise many environmentalists. While Loudoun is still relatively green and rural, it lacks strong water protection laws. Recently, when the Trump National Golf Club cut down nearly 500 trees along the Potomac River, it didn't even have to ask the county for permission.

Loudoun did pass a stream protection law in 2003, but the courts invalidated it in 2004, according to Chesapeake Bay Preservation Act program manager Laura Edmonds. Edmonds and her staff turned to the state's Department of Conservation and Recreation for guidance, which advised consistency: If Loudoun adopted the same protections other counties had under the state's act, it would be less vulnerable to challenges.

The Virginia General Assembly adopted the Chesapeake Bay Preservation Act in 1988 and mandated it in 84 localities that are subject to tidal influence, including nearby Fairfax and Prince William counties.

Loudoun was not required to adopt the ordinance, but the Board of Supervisors voted to do it anyway this year when they learned of the streams' condition. It would be the first county in the commonwealth to undertake such an effort voluntarily.

Under the act, all water bodies would have a 100-foot setback where development would not be allowed that would be called the resource protection area.

The act's second level of protection is the resource management area, which would require a grading permit for any land-disturbing activity of more than 2,500 square feet. Currently, the county's rule is 5,000 square feet for townhouses and multi-family projects and 10,000 square feet for single-family homes. The act also requires a pump-out every five years for septic systems.

As word spread among homeowners, so did confusion. People wanted to know if their home would be included; if stormwater management ponds counted as bodies of water (they do); and if they would still be able to build a deck (most likely).

The county furnished maps showing which areas were in the resource protection and resource management areas and which were not, but that seemed to confuse and anger residents even more.

Rob Gehrke, who lives in the Broad Run Farms subdivision, was in a resource management area at first, but after the county surveyors came out and looked at his land, they took him out of it. County officials apologized, he said, saying their maps were from 1948.

"If you want to use science, use science," Gehrke said. "But it's got to be good science."

The county hastily arranged a meeting with homeowner associations on Sept. 18. About 30 came, armed with more questions.

By the Sept. 20 public meeting, the public was furious. More than 100 people came to speak at the hearing, which went until almost midnight.

The crowd was a mix of farmers in coveralls, vintners in pressed shirts and homeowners in casual clothes. Most were against it, although a smattering of environmental advocates spoke and held up "clean streams now" signs.

The landowners and businesspeople claimed the ordinance was an infringement on property rights and yet another example of Big Government coming into their backyards. The mayors of several small towns complained the ordinance was an unfunded mandate for already strapped local governments. At least one speaker at the public hearing took issue with the "elitist" environmental groups who were pushing the law; many more questioned the science behind the report. And even if the reports were to be believed, the opponents claimed, the ordinance would not solve the water-quality problems.

"This is a 2-decades old, one-size-fits-all approach with insufficient data that will possibly have a huge impact," said Stephen Mackey of the Loudoun Wineries Association. "It does not solve the problems, whatever they may be."

The clean-stream advocates countered that the law had worked just fine in neighboring Fairfax County and the 83 other jurisdictions it covers, and that the Realtors and builders were using scare tactics and outright lies to rile up a public that was, understandably, confused about the proposed law. They also said the science was ironclad. Finally, they pointed out that the EPA's effort to make states develop pollution budgets was going to force the county to adopt something like the ordinance anyway; it would be prudent to be ahead of the coming regulation.

"I'm 53 years old. My entire life, I've been watching streams die, rivers become polluted, trees cut down for no good reason. I want to be part of the generation that stems the decline," said Tom Foster of the Clean Streams Coalition. "You don't have clean water, and you're not going to get it until you make sacrifices."

Otto Gutenson, a Lovettsville resident who recently retired from the EPA's office of water, didn't testify at the hearing. While he says the county "could have done a better job" communicating with people, he said the people complaining about the streams study were either misinformed or just didn't want to accept it.

"There's not an ecologist among them," Gutenson said of the opponents. "To me, this is an issue that shouldn't be debated. It's a science issue."

On Sept. 21, Edmonds came back to the Board with a proposal that took into account a lot of residents' concerns and relaxed many of the requirements, including taking out several of the stormwater ponds. The supervisors questioned her about the proposal for nearly two hours, then debated among themselves. Though they praised the staff's efforts, they couldn't agree to vote on the regulation.

They are hoping the transportation committee refines the ordinance and comes up with better maps so that they can debate it again.

Most of the supervisors acknowledged they'd done a poor job communicating, and that they were now dealing with an angry populace that no longer trusted them.

"We just have blown this," said the board's chairman, Scott York. "And I would like to start all over."

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About Rona Kobell

Rona Kobell is a former writer for the Baltimore Sun. .(JavaScript must be enabled to view this email address).

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