Metropolitan Washington Council of Governments Chesapeake Bay

1
Metropolitan Washington Council of
GovernmentsChesapeake Bay Water Resources
Policy Committee

• Stormwater Update
• Impacts on MD VA Local Governments
• Lisa M. Ochsenhirt
• September 19, 2008

2
Presentation Overview

• The Big Picture
• Virginia MS4 Permit Update
• New Site Design Standards
• Maryland Stormwater Act of 2007
• Virginia Stormwater Management Regulations
• Financing Local Stormwater Programs
• State Legislative Forecast

3
The Big PictureMajor Changes for Site Designs

• Major regulatory transition period
• New generation of regulatory requirements
• Increasing emphasis on actually achieving water
  quality standards
• Rather than best management approach
• Desirable but can be very difficult to achieve
• Emphasis on single lot stormwater controls
• Inspection, maintenance and enforcement will
  really hit home

4
The Big PictureEnormous Unfunded Mandate

• Very limited federal/state funding assistance
• So significant costs being pushed down
• Costs will be borne by
• Localities For MS4 permit compliance, regulation
  of local developers, and long-term OM of BMPs on
  individual lots
• Developers For design/treatment measures
• Landowners/Homeowners For higher home or
  development costs and long-term maintenance costs

5
The Big PictureLegal Liability Exposure

• Heightened Scrutiny
• By federal/state regulators
• By citizen groups
• Big Sticks
• EPA, States or Citizens can initiate enforcement
  actions against localities
• Regulators are increasing audits and inspections
  to determine level of compliance
• CWA includes substantial civil penalties for
  permit violations (32,500 per day)

6
The Big PictureWhat Will Localities Need to Do?

• Should work to ensure pending regulations are
  reasonable and cost-effective
• Must typically raise more funds for staffing and
  other compliance costs with the growing number of
  programmatic requirements
• Should manage stormwater systems similar to other
  highly-regulated utilities (e.g., drinking water,
  wastewater) to promote and document compliance

7

• Virginias New Permit Template for Large MS4s
• Norfolks Draft Permit

8
Its Norfolks Permit Why Does It Matter?

• The final Norfolk MS4 Permit will be the VA
  template
• 3-year development/negotiation and counting
• Virginia DCR will not be willing to negotiate
  significant changes with other localities
  including those in Northern Virginia
• Northern Virginia (and Central Virginia) will be
  stuck with whatever Hampton Roads localities
  accept

9
Norfolk Permit Key IssuesCompliance Traps

• Draft seems to require locality to guarantee
  water quality standards will be achieved instream
• This is what environmental groups are demanding
• But impossible in many streams/many circumstances
• Failure brings strict CWA liability
• No excuses allowed (not even good ones)
• See previous side about enforcement and liability
• With enforcement, control of local programs
  budgets shifts to regulators, citizen plaintiffs
  and judges

10
Norfolk Permit Key IssuesCompliance Challenges

• Many studies/program changes required for
  stormwater discharges near impaired waters
• The entire DC metro area is contributory to
  impaired Chesapeake Bay waters
• Automatic incorporation of TMDL cleanup
  requirements as mandates on the locality
• What will the Bay TMDL mandate for MS4s?!!!
• Requirements for retrofitting existing
  development
• Many new requirements for traditional 6 BMPs
• Tremendous documentation and reporting burden

11
Marylands Stormwater Management Act of 2007

• Implementing Environmental Site Design (ESD) to
  the Maximum Extent Practicable (MEP)

12
Stormwater Management Act MDE Regulatory Process

• July 31, 2008 meeting at MDE
• MDE presented
• MDE Response to Core Principles drafted by
  Stormwater Consortium (see next slide for
  members)
• ESD Sizing Criteria Draft (Ch. 5-Design Manual)
• Redevelopment Policy Draft
• Next Step Draft Regulations

13
Maryland Stormwater Consortium
14
MDE Redevelopment Policy Draft Impacts on MD
Localities

• More redevelopment projects will be regulated
  more stringently as new development
• Site must be 40 impervious to qualify as
  redevelopment
• Any increase in impervious area triggers new
  dev rules
• More costly to redevelop (subject to all design
  criteria)

15
MDE Redevelopment Policy Draft Impacts on MD
Localities (cont.)

• Remaining redevelopment projects
• Current 20 reduction/treatment of impervious
  area increases to 50
• Reduce impervious area by 50, provide ESD
  treatment for equivalent or combo of the two
• Making redevelopment in urban corridors
• less attractive?

16
MDE ESD Sizing Criteria Draft Impacts on MD
Localities?

• More treatment will be driven by defining the
  predevelopment characteristics (design baseline)
  as Woods in Good Condition
• As the phrase implies, this is a tough, tough
  standard
• Will increase the number, size and cost of
  stormwater controls required
• Effect on development patterns and cost?

17

• Virginia Stormwater Management Program (VSMP)
  Permit RegulationAmendments

18
Amendments In Progress

• Parts I (Definitions)
• Part II (Technical Criteria) (i.e., Site Design)
• Part III (Local Programs)
• Part XIII (Permit Fees) (i.e., MS4s and Sites)

19
Technical Criteria

• Requirement to treat a greater volume of water
• Design storm 1 storm
• Up from current ½ inch requirement
• Requirement to control Phosphorus better
• New development standard
• Current 0.45 lbs/acre/yr
• Proposed 0.28 lbs/acre/yr
• Redevelopment standard
• Current 10 reduction
• Proposed 20 reduction

20
Technical Criteria (cont.)

• Significant Challenges To Development of
  Technical Criteria Regulations
• Time Constraints
• Significant missing technical information
• Very limited testing of criteria to determine
  real world impacts on sites (e.g., feasibility,
  lost lots, etc.)
• Economic analysis begun, but neither complete nor
  available

21
Local Programs

• All MS4s and Bay Act localities must run local
  construction site water quality permit program
• Permit issuance and modification
• Construction and post-construction inspections
• Oversight of long-term maintenance
• Enforcement obligation
• Technical criteria pushing single lot BMPs (e.g.,
  rain gardens, swales, pervious pavement)
• Enforcement nightmare at the homeowner level
• Localitys failure to enforce would be CWA
  violation under MS4 permit

22
Permit Fees

• Much higher permit fees for MS4s
• Roughly tripled from current levels
• Much higher permit fees for land developers
• DCRs oversight charge
• What percentage of state mandated permit fees for
  development will DCR retain for its oversight?
• DCR proposing 28
• Seems inefficient and excessive to many localities

23

• Options for Financing
• MS4 Permit Compliance Stormwater Management

24
Black Veatch 2007 Storm Water Survey

• 80 of respondents use storm water fee to fund
  storm water control programs
• 65 of those fees are based on impervious area
• Most bill property owner monthly
• Monthly charges ranged from approximately 1.00
  to 16.82

25
Maryland Stormwater Financing

• MDE
• May 2008 Report on Stormwater Fee Systems. Very
  few municipalities in Maryland have stormwater
  utilities in place
• City of Tacoma Park
• Montgomery County
• City of Rockville
• Legislature
• Statewide SW Task Force (Administration and
  Stormwater Consortium)
• Statewide legislative push to require SW utility?
• Bay Restoration Fund/Flush Fee (incentive for
  localities to adopt stormwater utility)?

26
Virginia Stormwater Financing

• No state general funding
• Local programs will receive share (72) of state
  permit fees when locality adopts new program
• But adequacy of that 72 is doubtful
• Anticipate that most localities will consider
  establishing stormwater utilities
• Va. Code 15.2-2114 allows localities to create
  utility or adopt service charges for stormwater
  control
• E.g., the larger Hampton Roads localities have
  done so

27
Legislative Forecast
28

Maryland Legislative Forecast

• Probably wont see major legislation this year
• MDE very busy moving forward with implementation
  of SWMA of 2007
• ESD requirement
• Redevelopment
• Coming regulations

29

Virginia Legislative Forecast

• New regulations are very stringent
• But due to rushed rulemaking schedule are
  currently lacking technical and economic support
• Development community is suffering economically
  and closely watching these rules that have direct
  impacts
• Conditions could fuel legislative attack now

30
Metropolitan Washington Council of
GovernmentsChesapeake Bay Water Resources
Policy Committee

• Stormwater Update
• Impacts on MD VA Local Governments
• Lisa M. Ochsenhirt
• September 19, 2008