RD331 - Assessment of the Organization of Water Quality Programs in Virginia - November 2012

Executive Summary:
This report has been prepared as required by Chapters 803 and 835 of the 2012 Acts of Assembly which request a process for transferring the authority of the Virginia Soil and Water Conservation Board from administering the Municipal Separate Storm Sewer System Management Program (MS4) to the State Water Control Board in an effort to provide one stop permitting for constituents and directs the Department of Environmental Quality (DEQ) to seek authorization for delegation for the MS4 program from the Environmental Protection Agency (EPA). Chapters 803 and 835 of the 2012 Acts of Assembly also direct the Secretary of Natural Resources (SNR), working with the Directors of the DEQ and the Department of Conservation and Recreation (DCR), to assess the organization of water quality programs in the Commonwealth and report his findings to the Chairs of the House Committee on Agriculture, Chesapeake and Natural Resources and the Senate Committee on Agriculture, Conservation and Natural Resources by no later than November 1, 2012.

As part of this assessment, the SNR was tasked with identifying organizational measures that may streamline water quality permitting in the Commonwealth as well as changes that may provide for improved long-term and strategic planning for water quality improvements. This report was developed by the SNR and the Directors of the DCR and the DEQ utilizing a workgroup consisting of the DCR and the DEQ staff. Stakeholder groups were consulted and their views considered in the preparation of this report.

This report assesses the benefits of relocating the MS4 stormwater program and the Virginia Stormwater Management Program from the DCR to the DEQ in addition to identifying other changes to improve long-term and strategic planning for water quality improvements. This assessment does not propose to add or reduce any regulatory requirements to existing programs at the DCR or the DEQ.

Transfer of the Stormwater and Erosion and Sediment Control Programs from the DCR to the DEQ

In general, point source pollution activities are regulated by programs conducted by the DEQ, and nonpoint source pollution activities are managed by programs conducted by the DCR. The water quality permitting process is made more difficult under this bifurcated approach because no one agency has the responsibility and authority to look comprehensively at water quality permitting issues. Moving only the MS4 program from the DCR to the DEQ would not achieve full consolidation of permitting functions; additional measures must be taken.

MS4 permit requirements are established using other existing regulatory authority found in the Virginia Erosion and Sediment Control Law and Regulations, the Virginia Stormwater Management Act and the Chesapeake Bay Preservation Act, which are administered by the DCR under the authority of the Virginia Soil and Water Conservation Board. The separation of these underlying legal authorities necessary for compliance with MS4 permit requirements is impractical and inefficient. The Virginia Stormwater Management Program (VSMP) Permit program, including MS4 permits would need to be moved to the DEQ, as well as the Erosion and Sediment Control (ESC) and the Chesapeake Bay Local Assistance (CBLA) Programs. Consolidation of the permitting functions would enable consistent planning, policies and procedures for all VPDES permit programs. Existing regional office permit, compliance and enforcement resources could be leveraged to manage EPA program concerns. A single point of contact for the regulated community, citizens and federal agencies would also streamline the permit process, improve customer service, and streamline Virginia's reporting obligations to EPA.

Consolidation of Water Quality Improvement Programs (point and nonpoint pollution) within a single agency

The advent of the Chesapeake Bay Total Maximum Daily Load (*1) (TMDL) and its related water quality issues has demonstrated the difficulty of having water quality permitting programs in two separate agencies managing point and nonpoint pollution sources. It became apparent early in the development of Virginia's Chesapeake Bay TMDL Watershed Implementation Plan that even with significant consultation and collaboration between the DCR and the DEQ, the process was made more difficult because no one agency was given the responsibility and authority to look comprehensively at nutrient and sediment issues across the full spectrum of sources. With two agencies, significant issues related to the Watershed Implementation Plan (WIP) and the TMDL must be vetted through two management structures making the resolution of differences complicated. A single agency can set priorities and evaluate needs, and address stakeholder concerns more effectively. Consolidation of water quality programs would also ensure that Virginia always speaks with a single voice in response to the public, EPA, sister agencies, the General Assembly and others with regard to WIP and water quality issues. Additionally, a single water quality agency can provide comprehensive support to the critical voluntary conservation programs in partnership with soil and water conservation districts through effective administration of the Virginia Agricultural Cost-Share Program and careful separation of voluntary and regulated programs and focused outreach and education.

As the implementation of the WIP progresses over the next decade and beyond, the interaction between point and nonpoint sources and voluntary and regulatory programs will become more frequent and complex. Difficult policy and budgetary decisions must be made based on a comprehensive view of the impact of various sources and the interaction between them. A single water quality agency would allow Virginia to meet this responsibility in the most comprehensive and cost-effective manner possible. Virginia has many other waters subject to the TMDL process in addition to the Chesapeake Bay, which also would benefit from a single agency approach.

A single agency oversight for point and nonpoint water quality programs would provide for the comprehensive long-term and strategic planning needed to address these complicated and related water quality challenges. According to the Environmental Council of States (ECOS) staff, the majority of states have chosen to manage point and non-point source pollution programs within a single agency in order to manage pollution more comprehensively and effectively.

In addition to moving the Virginia Stormwater Management Program (VSMP) Permit program, including MS4 permits, and the Erosion and Sediment Control and Chesapeake Bay Local Assistance Programs from the DCR to the DEQ the following recommendations are being made to improve long-term strategic planning for voluntary and regulated water quality programs, streamline water permitting and increase the effectiveness of water quality programs in the Commonwealth:

• Consolidate management of programs involved with the Chesapeake Bay Watershed Implementation Plan (WIP) to the DEQ;

• Consolidate management of programs related to water quality planning and TMDLs to the DEQ;

• Consolidate Water Quality Improvement Fund Grants (WQIF), Cost Share Program funding and other financial incentives to the DEQ;

• Consolidate management and administration of Nutrient Trading Programs to the DEQ;

• Co-locate the DCR and the DEQ regional offices when fiscally advantageous and logistically practical;

• Consolidate voluntary and regulatory nutrient management activities to the DEQ; and

• Move responsibility for coordination with the Soil and Water Conservation Board and staff support to the Soil and Water Conservation Board to the DEQ.

This study does not intend or attempt to seek regulatory authority for any programs that are not currently regulated under state or federal law or programs specifically exempted from the Clean Water Act.
(*1) TMDL is a term that represents the maximum amount of a pollutant a waterbody can assimilate and still meet water quality standards. A TMDL considers point sources such as residential, municipal, or industrial discharges and nonpoint sources such as residential, urban, or agricultural runoff.