RD540 - Report to the Governor and the Chairmen of the House Committee on Agriculture, Chesapeake and Natural Resources and the Senate Committee on Agriculture, Conservation and Natural Resources, Pursuant to House Bill 177 4 (2017) – December 1, 2017

Executive Summary:

This report was required by House Bill 1774 (2017), in which the General Assembly requested that the Commonwealth Center for Recurrent Flooding Resiliency convene a workgroup to study the administration of the Commonwealth’s current stormwater management program, as well as the potential treatment and use of water in roadside ditches in rural, Tidewater Virginia localities.

Under the Virginia Stormwater Management Act, the Department of Environmental Quality administers stormwater management requirements for any localities that opt out of becoming a Virginia Stormwater Management Program authority, but only for land disturbances of one acre or more that are covered by the Virginia Pollutant Discharge Elimination System General Permit for Discharges of Stormwater from Construction Activities issued by DEQ. However, in localities that are subject to the Chesapeake Bay Preservation Act, the stormwater management and erosion and sediment control requirements must be applied to all land disturbances of 2,500 square feet or more. This Workgroup was convened and this report was created to propose potential solutions to address rural Tidewater localities’ concerns regarding administration of regulatory coverage for land disturbances of between 2,500 square feet and one (1) acre, and to assess potential innovative alternatives for treatment and use of stormwater in these rural Tidewater localities.

Key Findings:

• A nutrient or volume credit trading system for water within roadside ditches in Tidewater Virginia would not be feasible. Such an approach would require the expansion of the current credit trading scheme beyond a single river basin, which is not allowed under current law as it is not protective of local water quality. Further, there is currently little market for nutrient or volume credits in Tidewater Virginia, making this approach impractical.

• At this time, the use of Comprehensive Stormwater Management Plans for land disturbances between 2,500 square feet and one (1) acre is not viewed as providing rural Tidewater localities with an easier to administer option, since they can involve significant investment in time and money to develop.

• Implementing a large-scale program to treat stormwater in ditches in rural Tidewater localities would not achieve a significant reduction in pollutants to assist the Commonwealth in achieving its nonpoint source load allocation under the Chesapeake Bay Total Maximum Daily Load; i.e., the amount of pollutant reduction achieved would not justify the cost of treating all ditches in the ditch network. However, most of the pollutant load in these ditches comes from agricultural land uses, so the Commonwealth could have an interest in seeing targeted BMPs implemented to reduce these pollutants and provide meaningful water quality progress in targeted areas.

• There currently is an extremely low level of development in rural Tidewater localities.


The Workgroup agreed that all of its recommendations apply to rural Tidewater localities, which it defined as localities within the Northern Neck, Middle Peninsula, and Accomack-Northampton Planning Districts that are eligible to join the Rural Coastal Virginia Community Enhancement Authority established by § 15.2-7600 and are subject to the provisions of the Chesapeake Bay Preservation Act, § 62.1-44.15:67. The Workgroup also noted that, throughout their discussions, they thought of Caroline County as one of the localities that should be covered by these recommendations, and data from Caroline County was used as part of the Workgroup’s decision-making process.

• Given the fact that the Chesapeake Bay program is currently reviewing ditch management as an effective stormwater management practice, the Workgroup identified seven possible funding sources that the Governor, General Assembly and others could consider to fund the development of targeted BMPs to reduce agricultural pollutant load in rural Tidewater localities and potentially save money for the Virginia Department of Transportation (VDOT) if private entities improve and assume maintenance of some ditches in VDOT’s drainage network. Such possible funding sources include the creation of a subfund for the Stormwater Local Assistance Fund.

• In order to address concerns raised by rural Tidewater localities concerning administration of a stormwater management program, the Workgroup identified the implementation of a tiered approach to the water quantity requirements of the stormwater management program that is based upon the percent of impervious cover in a watershed. Each of the three tiers within this approach would require the application of different water quantity requirements, with varying levels of complexity. This approach may allow rural localities in Tidewater Virginia to implement less complex (yet still protective) water quantity requirements within areas with only a small amount of development and associated impervious cover for development activities disturbing less than one acre. This tiered approach would require increasing levels of protection and regulation with increasing percentage of impervious cover. This approach will also require rural Tidewater localities to develop, by ordinance, watershed maps indicating impervious cover. The Workgroup also noted that a high level of scientific analysis was necessary in order to reach this recommendation, as can be seen in Appendix 11, and a similar level of analysis would be necessary if this proposal were considered for expansion beyond the rural Tidewater localities.

• The Workgroup recommends that both a VSMP/VESCP authority and a Tidewater Virginia locality that has opted out of administering a VSMP program be authorized to require and accept stamped/sealed plans and supporting calculations, as well as required inspection/ monitoring reports, from a licensed professional retained by the applicant in lieu of local plan review and the requirement for a local certified plan reviewer/inspector.

• Finally, the Workgroup also supports further research into expansion of the use of an Agreement in Lieu of a stormwater Plan (ALP) to non-residential sites between 2,500 square feet and an acre.

The Workgroup came to consensus on this report and its recommendations. The representatives associated with Virginia state government (the Department of Forestry, Department of Transportation, Department of Environmental Quality, the Secretary of Natural Resources’ Office, and the Chesapeake Bay Commission) noted that they participated in the work of the group and identified no technical concerns, but recused themselves from voting on the recommendations since the report involves potential legislation. Additionally, DEQ noted that the stormwater management program, in general, needs sustainable funding.