A Virginia regulatory panel approved, then suspended, a sweeping overhaul of the state's stormwater program aimed at reducing the amount of polluted runoff flowing into its rivers, and ultimately the Chesapeake Bay.
The controversial regulations require more aggressive use of techniques that capture and reuse stormwater on new development sites. And, for the first time, they require all cities, towns and counties to create their own stormwater management programs, or ask the state to do it for them.
Previously, only large cities and areas near the Bay were required to have stormwater programs.
The Virginia Department of Conservation and Recreation spent nearly four years laying the groundwork for the regulations, but they met with intense public reaction when released for comment this summer.
As a result, the final regulations include so many revisions that the Soil and Water Conservation Board, which approved the regulations in October, immediately suspended them until December, to collect one more round of public comments.
"We knew there would be controversy," said DCR spokesman Gary Waugh, "but we tried to make it the most open process that we could, to hear all sides and accomplish what we could without losing the integrity of the environmental regulations."
According to the Bay Program, stormwater runoff is the only major source of pollution that is still increasing in the Chesapeake watershed, largely because as development converts forests and fields to hardened surfaces, more and more stormwater washes off the landscape. It enters streams, rivers and the Bay laden with sediment, oil, heavy metals and other pollutants that damage water quality and destroy aquatic habitat.
Virginia's regulations aim to correct this pattern with a focus on newly developed land.
They would reduce the amount of phosphorus allowed in stormwater discharges from new construction sites from 0.45 to 0.28 pounds per acre per year within Virginia's portion of the Bay watershed. Phosphorus measures are important because they are closely tied to the levels of other pollutants, such as sediment, nitrogen and heavy metals.
"We understand that a huge part of the stormwater problem is retrofitting older development, when there were no standards at all," Waugh said. "But that's one of the reasons we feel this is so important. Ten years from now, today's development will be old and we don't want to have to look at retrofitting that, too."
A recent report from the Chesapeake Stormwater Network estimates that 75 percent of the existing impervious surfaces in the Bay watershed are either inadequately treated for stormwater runoff or receive no treatment at all.
The regulations would require that phosphorus levels for redevelopment projects be lowered 10-20 percent from their current levels. The phosphorus standard for redeveloped land is less stringent in part because the costs for retrofitting developed sites is far more expensive than applying them to a fresh site.
To meet the new standards, developers must employ a suite of low-impact techniques that either harvest rainwater for reuse or allow it to soak slowly into the ground, instead of allowing it to rush off the land and ?into streams.
The projected costs vary widely.
The DCR said that compliance costs will increase, but modestly.
Homebuilders, who strongly opposed the regulations, warn that the new methods are costly and consumers will likely pick up the tab. Barrett Hardiman, vice president of regulatory affairs for the Homebuilders Association of Virginia, questioned the science behind the new requirements and said that the DCR has underestimated the full cost of compliance.
"The regulations' new technical quality and quantity standards create an undue burden on new development and redevelopment with only minimal benefits provided to the overall environment," Hardiman wrote to the DCR on behalf of the homebuilders association.
"The cheapest alternative for compliance with the proposed regulations will be large lot development where land is the cheapest, resulting in urban sprawl," he wrote.
Tom Schueler of the Chesapeake Stormwater Network said that the cost estimates vary in part because few people have implemented the full sweep of low-impact development techniques called for in the new regulations.
"In one workshop, we got wildly different cost evaluations for the same site," he said. "But if you do a whole site analysis and start from scratch, and are creative in your approach, you can come up with a pretty reasonable cost for compliance. It's how you cherry-pick the practices."
There are 103 locally managed stormwater programs in Virginia, located in either the Bay preservation area or in cities requiring federal stormwater permits. Roughly 222 localities do not have a local program. Now they must create one or concede management to the DCR.
In general, 70 percent of the fees collected through the new permitting structure will support the local programs. Still, local governments question the economic impact of the regulations and worry about the cost of developing and operating their own stormwater management programs.
"There are major concerns about the fiscal impacts of the regulations," said Larry Land of the Virginia Association of Counties. "The long-term costs might be higher than this cost structure has to offer."
The Virginia Association of Counties is reviewing the revised regulations, which include an option to petition for higher levels of funding.
"It will still impose a cost," Land said. "With economic conditions as they are, you can understand that there is tremendous sensitivity about that across the state."
Revisions in the final regulations also allow for grandfathered projects that are already under way and provide more flexibility in situations where site constraints make compliance difficult.
In some situations, for example, developers with difficult project sites may offset increased runoff by making stormwater improvements off-site at approved nearby locations. If no local sites or other acceptable mechanisms exist, developers may pay a fee-called a "buy-down"-to a state-directed stormwater management fund.
To promote redevelopment, the regulations were tweaked to allow higher phosphorus levels in designated urban development areas.
The biggest change to the original proposal was the abandonment of a proposed statewide phosphorus standard of 0.28 pounds per acre. As revised, the 0.28 standard applies only in the Chesapeake watershed. The rest of Virginia-approximately 40 percent of the state-will remain under the existing 0.45 standard.
Some worry that could hurt waterways in other parts of the state, especially for exceptional rivers in Virgina's southwest watersheds, which are home to a number of rare or endangered aquatic species. The Nature Conservancy supports the amended regulations, but government relations director David Phemister said that this revision may be shortsighted.
"Our fear is that in 10 or 15 years, we're going to look at some of these issues outside the Bay watershed and realized that .45 is not sufficient there either-when damage has already been done," he said. "It's a lot less expensive and more effective to have a higher standard initially, to prevent problems, rather than try to address them after the fact."
The Nature Conservancy was among the environmental groups that mobilized support over the summer to voice support for the regulations. Others included the James River Association, Potomac Conservancy, Virginia Conservation Network, Friends of the Rappahannock, Chesapeake Bay Foundation, Southern Environmental Law Center, and Shenandoah Valley Network.
More than two-thirds of the roughly 3,400 public comments supported the new regulations.
Bill Street, executive director of the James River Association, was still surprised by the amount of opposition. He was also frustrated by misinformation circulating among stakeholders.
"I think some of the concerns were based on an incomplete assessment of the tools that would be available to help meet compliance," he said. "And that still continues to this day."
Street said the experience may be a preview of the discussions that will unfold as state and federal agencies develop new cleanup plans for the Bay and its tributaries.
"In retrospect, it would have been great to have better information, widely recognized as an objective, impartial assessment of what the policy changes actually were," Street said.
"DCR went above and beyond what is required to try to address some of the concerns that were raised," he said. "They probably went further than we would have done, but I think they still maintain a lot of the key components of the program that make it an important step forward for Virginia."
Street is ready to move forward.
The public comment period for the revised regulations will end on Nov. 25. By law, the regulations cannot take effect before July 1, 2010, and it could be more than two years before the local programs are up and running.
For information about the regulations or the public comment period, visit www.dcr.virginia.gov/lawregs.shtml.
Stormwater scorecard issued for Chesapeake Bay region
The Chesapeake Stormwater Network has produced the first "stormwater scorecard" for the Chesapeake region. And while some state agencies take issue with the result, others say the scores were generous.
Grades were based on 10 categories of permits, regulations, outreach, enforcement and financing.
The District of Columbia took top marks with a B+, followed by Virginia (C+), West Virginia (C), ?Maryland (D+), and Pennsylvania (D).
Network coordinator Tom Schueler wrote the report and notes that the analysis includes a number of "incompletes" for work in progress.
"But I shared the grades with about 12 experts, and they thought I was a very liberal grader," he said.
Schueler said the Bay region needs to understand the effectiveness of its stormwater programs. "It's so easy to get confused by stormwater when it's regulated by so many different entities and acronyms and permits," he said.
Schueler found commendable progress but said that existing regulatory programs aren't doing all they could to reduce polluted stormwater runoff.
Recommendations in the report include a regional stormwater summit hosted by the EPA and a series of oversight hearings by state legislators.
"We need accountability for stormwater on a regular basis," Schueler said.
The next annual scorecard is planned for September 2010.
For a copy of the scorecard, look for Issue #11 at www.chesapeakestormwater.net/blog/.