Unmaintained outfalls occurring on private property in the Commonwealth’s counties have been of growing concern, specifically as a source of recurrent flooding and associated impacts. Consequently, the General Assembly, through Chapter 1289, Item 430M, of the 2020 Virginia Acts of Assembly, directed the Secretary of Transportation and the Secretary of Natural Resources to evaluate the scope of certain drainage outfalls across the Commonwealth and recommend cost-effective solutions and means by which to fund the maintenance of such outfalls (the “Study"). While neither Secretariat has responsibility for the maintenance of outfalls in question, the General Assembly acknowledged that both may have insight on the scope of the problem and be in a position to provide recommendations for counties and private owners to implement.

Although the Study directs an evaluation of the scope of outfalls “with no assigned maintaining entity," the law prescribes that the entity responsible for maintenance is the owner of the land, or holder of a drainage easement, at the site of the outfall. Thus, in a strict legal sense, there are no outfalls without an assigned maintaining entity. There are, rather, outfalls that have not been adequately maintained by the assigned entities. The Virginia Department of Transportation (VDOT) is charged with the sole responsibility of maintaining outfalls located on state-owned rights of way, including appurtenant drainage easements in VDOT’s name. As the subject outfalls are beyond state ownership, the maintenance responsibility necessarily rests with other entities such as the private landowner, homeowners association, developer, or county.

Due to the geographic breadth of the Study and its limited one-year timeframe, it was determined that an on the ground physical count and quantitative assessment of outfalls across the state would be impracticable. Rather, at best, the only feasible evaluation would be one that was conducted through an observational survey distributed (i) to VDOT’s land use engineers given their knowledge of local conditions and (ii) to each of the Commonwealth’s counties given their unique practices and understanding. The surveys were developed to qualitatively evaluate the perceptions of frequency, causes, and possible solutions to unmaintained outfalls from those who encounter such issues on a regular basis.

The process of surveying both state and local professional staff provided the opportunity to assess the relative impacts from county to county and, in total, 142 unique surveys were completed for counties throughout Virginia. The results revealed that the occurrence of unmaintained outfalls is a localized concern and appears across the state in varying degrees. In essence, the lack of clarity regarding owner responsibilities for these outfalls can result in insufficient maintenance because such responsibility is unknown, erratically funded or, due to historical local processes, inadequately deeded in the land records. The lack of clarity regarding allocation of maintenance responsibilities, especially among private entities, has been identified by counties as the single most significant contributing factor that prevents adequate maintenance of outfalls. Furthermore, counties emphasize that there is currently a lack of adequate funding available to address ongoing maintenance of these outfalls.

Based on the Study’s findings, the Secretary of Transportation and the Secretary of Natural Resources, with the support of staff, are providing the following recommendations for counties or private entities to implement with the intent to mitigate the consequences of unmaintained outfalls: clear communication of maintenance responsibility; creation of a pilot process for the systematic identification of existing unmaintained outfalls; development of a statewide best practices guide; and adoption of dedicated and innovative funding sources.