HD15 - Implementation Effectiveness of the Virginia Erosion and Sediment Control Program


Executive Summary:
The 1986 General Assembly required that a study of local compliance with the Virginia Erosion and Sediment Control Law (ESCL, Sec. 21-89.1 et seq., Code of Virginia) in the Chesapeake Bay Drainage Basin be conducted by the Division of Soil and Water Conservation (OSWC) of the Virginia Department of Conservation and Historic Resources (DCHR), and that a report of the findings be made to the 1988 General Assembly identifying financial, technical and statutory impediments to compliance with the law.

Since this regulatory program had never been thoroughly evaluated in the 14 years of its existence, the DSWC expanded the scope of the study to include the entire state. While the bulk of effort was concentrated on the Chesapeake Bay Drainage Area, the study was designed so that the results could be extrapolated statewide.

The study scope was also expanded to address closely related issues of stormwater management including prevention of localized flooding and control of nonpoint source (NPS) pollution produced by increased surface runoff from urban development.

A parallel but independent study report funded by the Virginia Water Resources Research Center and conducted by Dr. William E. Cox of the Civil Engineering Department at Virginia Tech, has been circulated recently in draft form. That study concentrated on the ESC Program as the only regulatory program in the state that addresses NPS control issues to any degree.

Those two studies, as well as previous studies and surveys by the DSWC and the Chesapeake Bay Commission, draw many of the same conclusions, which may be summarized as follows:

1. While there is a great range of effectiveness among the 171 local ESC programs, from very effective and well run programs to those that do little, the studies have suggested that the basic structure is sound and should continue to operate as it does, with some additions and clarification of authorities.

2. The biggest problems regarding noncompliance occur at the construction sites, generally due to inadequate regulatory oversight due to insufficient inspection personnel and ineffective enforcement techniques (or the ineffective application of available techniques).

3. The studies have all recommended significant increases in staffing at all levels of government in order to improve implementation and ensure compliance.

4. Both current studies as well as the Chesapeake Bay Commission study done in 1984 recommended that periodic state reviews of local programs be required with penalties for noncompliance.
5. Additional enforcement options and strengthening of current options are considered necessary in all of the studies and surveys.

6. Numerous exempted activities cause ESC problems. Most of the studies have recommended the reassessment or removal of some exemptions and further qualification or clarification of others.

7. Training programs need to become more accessible and some level of certification needs to be required from certain regulatory officials.

8. While the program standards found in the Virginia Erosion and Sediment Control Handbook are considered effective, some minor changes are recommended, as well as a clear distinction between regulations and guidelines.

9. The Bay Commission and the current studies recommend the addition of legislative authority and regulatory standards for stormwater management, both for flood control and NPS control.

10. There are no apparent differences in implementation effectiveness between local ESC programs within the Chesapeake Bay drainage basin and programs outside the basin. Obviously uncontrolled sediments have more direct access to the Bay in coastal plain localities than in the rest of the state, particularly from waterfront development.

The following groups have been contacted or involved in this study:

1. Virginia ESC Handbook review committee (met during the winter of 1985-86).

2. All 171 local ESC programs.

3. Numerous environmental and citizen organizations.

4. State agencies involved in ESC, including VDOT.

5. Commonwealth and municipal attorneys.

6. Virginia Department of Forestry, Virginia Board of Forestry and the Virginia Forestry Association.

7. Virginia Department of Agriculture and Consumer Services and the Virginia Farm Bureau.

8. Virginia Department of Mines, Minerals and Energy.

9. Homebuilders of Virginia.

10. Virginia Association of General Contractors.

11. Railroad companies.

12. Public electric utility companies.

13. The Virginia Telephone Association.

As a result of the findings of these studies, the DCHR/DSWC is recommending that the following general actions be taken with regard to the Virginia Erosion and Sediment Control Program to improve the effectiveness of its implementation by state agencies and local governments.

1. Clean up confusing or ambiguous language in the law.

2. Eliminate or further qualify problem exemptions.

3. Increase DSWC's ESC staff by 20 FTEs (which have been included in this Department's budget initiative).

4. Establish clear authority for state oversight of local ESC programs.

5. Improve enforcement capabilities by:

a. Improving language concerning performance sureties.
b. Clarifying who may be held responsible for compliance.
c. Improving application of stop-work orders and performance guarantees.
d. Establishing that each day of violation constitutes a separate violation.
e. Adding enforcement options such as civil penalties and administrative fines.

6. Remove the processing fee limit so that local programs can better recover the costs of program administration.

7. Establish mandatory certification of inspectors.

8. More clearly distinguish between regulations and guidelines in the Virginia ESC Handbook.

9. Provide additional legislative authority for managing stormwater runoff to prevent localized flooding and nonpoint source pollution. This issue warrants further study.

The following report elaborates considerably on the law, the operation of the program as it was designed, the current effectiveness of program implementation and the complex issues of stormwater management. More specific conclusions and recommendations may be found at the report's end.