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Fairfax County Stream ConditionsFairfax County Stream Conditions
BAD
UGLYGOOD
Implications of Pending Implications of Pending Federal and State Federal and State
Stormwater Regulations Stormwater Regulations for Fairfax Countyfor Fairfax County
April, 2010April, 2010
Current Regulatory EffortsCurrent Regulatory Efforts
Accotink Creek Benthic TMDLAccotink Creek Benthic TMDL MS4 PermitMS4 Permit Chesapeake BayChesapeake Bay
Executive OrderExecutive Order TMDLTMDL Federal LegislationFederal Legislation
Stormwater (STW) RegulationsStormwater (STW) Regulations StateState FederalFederal
Federal and State STW EffortsFederal and State STW Efforts
FederalFederal
RegulationRegulation
StateState
RegulationRegulation
Impacts Impacts Ches BayChes Bay
WatershedWatershed
ImpactsImpacts
Entire Entire StateState
ImpactsImpacts
FairfaxFairfax
Accotink TMDLAccotink TMDL ?? xx xx
MS4 PermitMS4 Permit ?? xx xx
Ches Bay Exec OrderChes Bay Exec Order xx xx xx
Ches Bay TMDLChes Bay TMDL xx xx xx
Connolly BillConnolly Bill xx xx xx
Cummings BillCummings Bill xx xx x x
Cardin BillCardin Bill xx xx xx
State STW RegsState STW Regs xx xx xx
Federal STW RegsFederal STW Regs xx xx xx
Accotink Creek Flow TMDLAccotink Creek Flow TMDL EPA is leading effort for the stateEPA is leading effort for the state Using flow is “non-traditional” Using flow is “non-traditional”
Pollutant of concern is sedimentPollutant of concern is sediment Flow to be used as a surrogate for sedimentFlow to be used as a surrogate for sediment
DEQ must change state regulations to allow itDEQ must change state regulations to allow it DCR attorneys are still questioningDCR attorneys are still questioning 50% reduction of 1-yr 24-hr flow50% reduction of 1-yr 24-hr flow RDRD May require retrofitting of existing development May require retrofitting of existing development
including private property including private property R$R$ April 2010 : Public Comment PeriodApril 2010 : Public Comment Period Late-Spring 2010 : TMDL ApprovedLate-Spring 2010 : TMDL Approved
Key: Key: $$ = Fiscal Impact, = Fiscal Impact, RR = Regulatory Impact, = Regulatory Impact, DD = Development Impact = Development Impact
MS4 PermitMS4 Permit
Currently being negotiatedCurrently being negotiated Requires standards that address Requires standards that address
downstream impairments downstream impairments RDRD Requires retrofits – Treat xx% of existing Requires retrofits – Treat xx% of existing $$ Requires implementing TMDLs Requires implementing TMDLs R$R$ Encourages offset program Encourages offset program RDRD
Key: Key: $$ = Fiscal Impact, = Fiscal Impact, RR = Regulatory Impact, = Regulatory Impact, DD = Development Impact = Development Impact
Chesapeake Bay Protection and Chesapeake Bay Protection and Restoration Executive Order Restoration Executive Order
Signed by President Obama 5/12/2009Signed by President Obama 5/12/2009 Established Shared Federal Leadership, Planning, and Established Shared Federal Leadership, Planning, and
AccountabilityAccountability New Accountability FrameworkNew Accountability Framework
Two-year milestonesTwo-year milestones $$ Consequences for failure Consequences for failure RR
New rulemakings/actionsNew rulemakings/actions Expand coverage and set stronger minimum performance Expand coverage and set stronger minimum performance
standards for CAFO and MS4 permits standards for CAFO and MS4 permits $$ New or expanded discharges must be offset New or expanded discharges must be offset RDRD
Draft Strategy for Protecting and Restoring the Draft Strategy for Protecting and Restoring the Chesapeake Bay published 12/9/2009Chesapeake Bay published 12/9/2009
Final Strategy to be published in May 2010Final Strategy to be published in May 2010Key: Key: $$ = Fiscal Impact, = Fiscal Impact, RR = Regulatory Impact, = Regulatory Impact, DD = Development Impact = Development Impact
Chesapeake Bay TMDLChesapeake Bay TMDL Largest and most complex TMDL ever Largest and most complex TMDL ever
DevelopedDeveloped Will establish limits on nutrients and sediment Will establish limits on nutrients and sediment RR
Will set standards for MS4 permits Will set standards for MS4 permits $$ Final load allocations due by December 2010Final load allocations due by December 2010
State Watershed Implementation Plans (WIPs)State Watershed Implementation Plans (WIPs) Reduction targets and schedule by impaired segment, Reduction targets and schedule by impaired segment,
county and sectorcounty and sector Identify existing capacity, commit to fill capacity gapsIdentify existing capacity, commit to fill capacity gaps Enforceable or binding commitments that controls will Enforceable or binding commitments that controls will
be implemented and maintainedbe implemented and maintained EPA estimates $7.9B/yr for MS4 communities EPA estimates $7.9B/yr for MS4 communities $$
Key: Key: $$ = Fiscal Impact, = Fiscal Impact, RR = Regulatory Impact, = Regulatory Impact, DD = Development Impact = Development Impact
Federal LegislationFederal Legislation Representative Connolly: Chesapeake Bay Representative Connolly: Chesapeake Bay
Restoration Act of 2009 (H.R. 3265)Restoration Act of 2009 (H.R. 3265) Extends MS4 coverage to all local governmentsExtends MS4 coverage to all local governments Establishes new development standard for sites Establishes new development standard for sites
greater than 1 acre with less than 5% impervious greater than 1 acre with less than 5% impervious cover cover RDRD
• Infiltrate, evapotranspire or harvest the volume of the 95th Infiltrate, evapotranspire or harvest the volume of the 95th percentile precipitation event percentile precipitation event RDRD
Authorizes, but does not appropriate, $1.5B to Authorizes, but does not appropriate, $1.5B to implement (EPA estimates total cost at $7.9B/yr)implement (EPA estimates total cost at $7.9B/yr)
Introduced 7/20/2009, referred to House Introduced 7/20/2009, referred to House Subcommittee on Water Resources and Subcommittee on Water Resources and Environment 7/21/2009Environment 7/21/2009
Key: Key: $$ = Fiscal Impact, = Fiscal Impact, RR = Regulatory Impact, = Regulatory Impact, DD = Development Impact = Development Impact
Federal LegislationFederal Legislation Representative Cummings: Chesapeake Clean Water Representative Cummings: Chesapeake Clean Water
and Ecosystem Restoration Act of 2009 (H.R. 3852)and Ecosystem Restoration Act of 2009 (H.R. 3852) Sets a TMDL deadline of 12/31/2010, requires permits issued Sets a TMDL deadline of 12/31/2010, requires permits issued
after 1/1/2011 to be consistent with TMDL wasteload allocationsafter 1/1/2011 to be consistent with TMDL wasteload allocations Requires states to develop WIPs by 5/12/2011, fully implement Requires states to develop WIPs by 5/12/2011, fully implement
WIPs by 5/12 2025 and report progress biennially beginning WIPs by 5/12 2025 and report progress biennially beginning 5/12/2014 5/12/2014 $$
Extends MS4 coverage to all local governments Extends MS4 coverage to all local governments Requires infiltration, evapotranspiration or harvesting of the 95th Requires infiltration, evapotranspiration or harvesting of the 95th
percentile precipitation eventpercentile precipitation event RDRD Bans phosphorus in cleaning agentsBans phosphorus in cleaning agents Requires EPA to establish a nitrogen and phosphorus trading Requires EPA to establish a nitrogen and phosphorus trading
program program RDRD Prohibits introduction of Asian OystersProhibits introduction of Asian Oysters Authorizes, but does not appropriate, $1.5B to implement (EPA Authorizes, but does not appropriate, $1.5B to implement (EPA
estimates total cost at $7.9B/yr)estimates total cost at $7.9B/yr) Introduced 10/20/2009, referred to House Subcommittee Introduced 10/20/2009, referred to House Subcommittee
on Water Resources and Environment 10/21/2009on Water Resources and Environment 10/21/2009Key: Key: $$ = Fiscal Impact, = Fiscal Impact, RR = Regulatory Impact, = Regulatory Impact, DD = Development Impact = Development Impact
Federal LegislationFederal Legislation Senator Cardin: Chesapeake Clean Water and Ecosystem Senator Cardin: Chesapeake Clean Water and Ecosystem
Restoration Act of 2009 (S. 1816)Restoration Act of 2009 (S. 1816) Sets a TMDL deadline of 12/31/2010, requires permits issued after Sets a TMDL deadline of 12/31/2010, requires permits issued after
1/1/2011 to be consistent with TMDL wasteload allocations1/1/2011 to be consistent with TMDL wasteload allocations Requires states to develop WIPs by 5/12/2011, fully implement WIPs by Requires states to develop WIPs by 5/12/2011, fully implement WIPs by
5/12 2025 and report progress biennially beginning 5/12/2014 5/12 2025 and report progress biennially beginning 5/12/2014 $$ Requires development and redevelopment exceeding an impervious Requires development and redevelopment exceeding an impervious
footprint threshold to be determined by EPA to maintain or restore footprint threshold to be determined by EPA to maintain or restore predevelopment hydrology or compensate for unavoidable impacts predevelopment hydrology or compensate for unavoidable impacts RDRD
Bans phosphorus in cleaning agentsBans phosphorus in cleaning agents Requires EPA to establish a nitrogen and phosphorus trading program Requires EPA to establish a nitrogen and phosphorus trading program RDRD Prohibits introduction of Asian OystersProhibits introduction of Asian Oysters Authorizes grants to support Nutria eradication programsAuthorizes grants to support Nutria eradication programs Calls for a study of the impacts of commercial harvesting of Menhaden on Calls for a study of the impacts of commercial harvesting of Menhaden on
water qualitywater quality Authorizes, but does not appropriate, $1.5B to implement (EPA estimates Authorizes, but does not appropriate, $1.5B to implement (EPA estimates
total cost at $7.9B/yr)total cost at $7.9B/yr) Introduced 10/20/2009, referred to Senate Committee on Introduced 10/20/2009, referred to Senate Committee on
Environment and Public Works Subcommittee on Water and Environment and Public Works Subcommittee on Water and Wildlife 11/9/2009Wildlife 11/9/2009
Key: Key: $$ = Fiscal Impact, = Fiscal Impact, RR = Regulatory Impact, = Regulatory Impact, DD = Development Impact = Development Impact
Virginia Stormwater RegulationsVirginia Stormwater Regulations Regulatory process began in 2006Regulatory process began in 2006
Only address new development and redevelopmentOnly address new development and redevelopment More treatment required for new development and More treatment required for new development and
redevelopment redevelopment RDRD Encourage LID techniques, more small private Encourage LID techniques, more small private
facilitiesfacilities $$ Encourage offsets program Encourage offsets program RDRD Regulations trumped by TMDLsRegulations trumped by TMDLs
Regulations adopted by the Soil and Water Regulations adopted by the Soil and Water Conservation Board in December 2009 but Conservation Board in December 2009 but delayed for additional commentdelayed for additional comment
Multiple bills introduced in General Assembly to Multiple bills introduced in General Assembly to delay implementation of VSMP regulations until delay implementation of VSMP regulations until Bay TMDL is complete (December 2010)Bay TMDL is complete (December 2010)
Key: Key: $$ = Fiscal Impact, = Fiscal Impact, RR = Regulatory Impact, = Regulatory Impact, DD = Development Impact = Development Impact
National Stormwater RegulationsNational Stormwater Regulations EPA issued a Federal Register Notice on 12/28/2009 EPA issued a Federal Register Notice on 12/28/2009
seeking stakeholder input on stormwater practicesseeking stakeholder input on stormwater practices Five preliminary regulatory considerations:Five preliminary regulatory considerations:
• Expand the area subject to federal stormwater regulations Expand the area subject to federal stormwater regulations • Establish specific requirements to control stormwater discharges Establish specific requirements to control stormwater discharges
from new development and redevelopment RDfrom new development and redevelopment RD• Develop a single set of consistent stormwater requirements for all Develop a single set of consistent stormwater requirements for all
MS4s MS4s RR• Require MS4s to address stormwater discharges in areas of existing Require MS4s to address stormwater discharges in areas of existing
development through retrofitting the sewer system or drainage area development through retrofitting the sewer system or drainage area with improved stormwater control measures with improved stormwater control measures R$R$
• Explore specific stormwater provisions to protect sensitive areas Explore specific stormwater provisions to protect sensitive areas Listening sessions held in January, 2010Listening sessions held in January, 2010 Comment deadline was February 26, 2010Comment deadline was February 26, 2010
EPA to publish final Information Collection Request EPA to publish final Information Collection Request notice with 30-day comment period in spring 2010notice with 30-day comment period in spring 2010
EPA to propose a rule for public comment in late 2011EPA to propose a rule for public comment in late 2011 Final action in late 2012Final action in late 2012
http://cfpub.epa.gov/npdes/stormwater/rulemaking.cfmhttp://cfpub.epa.gov/npdes/stormwater/rulemaking.cfmKey: Key: $$ = Fiscal Impact, = Fiscal Impact, RR = Regulatory Impact, = Regulatory Impact, DD = Development Impact = Development Impact
ThemesThemes
Regulatory process is focusing on urban and Regulatory process is focusing on urban and suburban stormwatersuburban stormwater
New development will have much stricter New development will have much stricter requirements requirements RD$RD$
Redevelopment will have much stricter Redevelopment will have much stricter requirementsrequirements RD$RD$
Wasteload allocations requiring retrofits Wasteload allocations requiring retrofits R$R$ Offset program Offset program RDRD More enforcement More enforcement $$
Key: Key: $$ = Fiscal Impact, = Fiscal Impact, RR = Regulatory Impact, = Regulatory Impact, DD = Development Impact = Development Impact
InteractionsInteractions
Proposed federal laws and state STW Proposed federal laws and state STW regulations are different regulations are different
MS4 may establish different standardsMS4 may establish different standards TMDLs trump regulations and will be TMDLs trump regulations and will be
regulated in MS4 permitregulated in MS4 permit Different parts of the county may be Different parts of the county may be
governed by different standardsgoverned by different standards Offset credits may divert funding from Offset credits may divert funding from
county needscounty needs
Clean Water Act
ImplementationThrough EPA
Section 402NPDES Permits
Section 117Chesapeake Bay
Section 303Water Quality Stds
Delegationto States
Local Government
Construction
Industrial Dischargers
WWTPs
Impaired Waters& TMDLs
Benthic(Sediment/Flow)Ex: Difficult Run
BacteriaEx. Four Mile Run
PCBsEx. Tidal Potomac
Bay TMDL
Wastewater Permits
MS4 Permits
Load Allocation(Nonpoint Source)
WasteloadAllocation
(Point Source)
VoluntaryImplementation
RegulatoryImplementation
Through Permits
Executive Order Federal Legislation
Nutrients &Sediment
2008 Impaired 2008 Impaired WatersWaters
49 Streams1 Reservoir
17 Tidal Embayments67 Total Impaired Waters
$0.0
$5.0
$10.0
$15.0
$20.0
$25.0
$30.0
$35.0
FY2005 FY2006 FY2007 FY2008 FY2009 FY2011Contributory/Fringe (General Fund) Operations Operations, Fringe and Contributory
General Fund (Operations) Public Works Construction (Fund 308) Penny Dedication (Fund 318)
Stormwater Funding History
FY05FY05 FY06FY06 FY08 FY08 FY09 FY09 Fy 11Fy 11 Full Full UtilityUtility
.015.015 @.04@.04
OperationsOperations $5.80 $5.80 $6.70 $6.70 $7.60 $7.60 $8.60 $8.60 $11.40$11.40 $14.00$14.00
PlanningPlanning $0.00 $0.00 $3.50 $3.50 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.80 $0.80
InfrastructurInfrastructuree $0.00 $0.00 $2.50 $2.50 $6.80 $6.80 $3.70 $3.70 $5.15 $5.15 $17.40$17.40
ProjectsProjects $0.10 $0.10 $7.80 $7.80 $9.80 $9.80 $4.70 $4.70 $5.15 $5.15 $38.50$38.50
DamsDams $0.10 $0.10 $2.70 $2.70 $2.70 $2.70 $2.70 $2.70 $2.70 $2.70 $3.80 $3.80
RegulatoryRegulatory $2.50 $2.50 $3.00 $3.00 $3.10 $3.10 $3.00 $3.00 $3.00 $3.00 $3.10 $3.10
Total exp.Total exp. $8.50 $8.50 $26.20 $26.20 $30.00 $30.00 $22.70 $22.70 $28.00 $28.00 $78.20 $78.20
Federal Legislation Needs to Federal Legislation Needs to Assist UsAssist Us
ChallengesChallenges Stormwater is on top of Stormwater is on top of
what our residents already what our residents already pay for wastewater, pay for wastewater, drinking waterdrinking water
Federal regulations need Federal regulations need federal fundingfederal funding
Need to acknowledge Need to acknowledge local needslocal needs
Need Need sustainable sciencesustainable science
SuccessesSuccesses Residents already Residents already
spending spending $350M on$350M on wastewater treatment wastewater treatment upgradesupgrades
Stormwater service district Stormwater service district establishedestablished
Watershed planning in Watershed planning in accordance with tributary accordance with tributary strategiesstrategies
Strict development Strict development conditionsconditions
Federal and State STW EffortsFederal and State STW EffortsCurrent ResponseCurrent Response Proposed ActionProposed Action
Accotink TMDLAccotink TMDL Bad idea as we understand itBad idea as we understand it Continue to work with state and EPAContinue to work with state and EPA
MS4 PermitMS4 Permit Desirable to complete before Ches Bay Desirable to complete before Ches Bay TMDLTMDL
Continue negotiations with stateContinue negotiations with state
Ches Bay Exec OrderChes Bay Exec Order Good intentions but sustainable science Good intentions but sustainable science is still emergingis still emerging
Follow DevelopmentsFollow Developments
Ches Bay TMDLChes Bay TMDL We need to engageWe need to engage Participate in state WIP developmentParticipate in state WIP development
Connolly BillConnolly Bill Good ideas, too much too fastGood ideas, too much too fast Follow DevelopmentsFollow Developments
Cummings BillCummings Bill Good ideas, too much too fastGood ideas, too much too fast Follow DevelopmentsFollow Developments
Cardin BillCardin Bill Good ideas, too much too fastGood ideas, too much too fast Follow DevelopmentsFollow Developments
State STW RegsState STW Regs May be the best we get, could help with May be the best we get, could help with our MS4 permitour MS4 permit
Waiting on DCR Board, Governor, and Waiting on DCR Board, Governor, and Bay TMDLBay TMDL
Federal STW RegsFederal STW Regs Good intentions but sustainable science Good intentions but sustainable science is still emergingis still emerging
Follow DevelopmentsFollow Developments
Questions?Questions?
Draft Strategy for Protecting and Draft Strategy for Protecting and Restoring the Chesapeake BayRestoring the Chesapeake Bay
Pollution SourcePollution Source NitrogenNitrogen
(%)(%)
PhosphorusPhosphorus
(%)(%)
SedimentSediment
(%)(%)
AgricultureAgriculture 3232 4545 6060
Urban and Suburban LandsUrban and Suburban Lands 1414 3131 1919
Wastewater TreatmentWastewater Treatment 1919 2121 ----
Air PollutionAir Pollution 3232 ---- ----
Natural SourcesNatural Sources 11 33 2121
TotalTotal 9898 100100 100100
Source: Executive Order 13508: Draft Strategy for Protecting and Restoring Source: Executive Order 13508: Draft Strategy for Protecting and Restoring the Chesapeake Bay, November 9, 2009, Figures 2, 3 and 4the Chesapeake Bay, November 9, 2009, Figures 2, 3 and 4
Current State Target LoadsCurrent State Target Loads
StateState20082008LoadLoad
TributaryTributaryStrategyStrategy
TargetTarget LoadLoad
DCDC 3.543.54 2.122.12 2.372.37
DEDE 9.919.91 6.436.43 5.255.25
MDMD 58.0058.00 42.3742.37 41.0441.04
NYNY 16.7116.71 8.688.68 10.5410.54
PAPA 114.40114.40 73.4873.48 73.6473.64
VAVA 72.8272.82 56.7556.75 59.2159.21
WVWV 7.777.77 5.935.93 5.715.71
TotalTotal 283.15283.15 195.75195.75 197.76197.76
StateState20082008LoadLoad
TributaryTributaryStrategyStrategy
TargetTargetLoadLoad
DCDC 0.140.14 0.100.10 0.130.13
DEDE 0.340.34 0.250.25 0.280.28
MDMD 3.103.10 2.542.54 3.043.04
NYNY 0.830.83 0.560.56 0.560.56
PAPA 3.993.99 3.103.10 3.163.16
VAVA 7.187.18 6.416.41 7.057.05
WVWV 0.700.70 0.430.43 0.620.62
TotalTotal 16.2816.28 13.3913.39 14.8414.84
NitrogenNitrogen PhosphorusPhosphorus
All loads are in millions of pounds per yearAll loads are in millions of pounds per year
Source: Chesapeake Bay TMDL Webinar held 2/25/2010Source: Chesapeake Bay TMDL Webinar held 2/25/2010