Metropolitan Washington Council of GovernmentsChesapeake Bay & Water Resources Policy Committee
Stormwater Update: Impacts on MD & VA Local Governments
Lisa M. Ochsenhirt
September 19, 2008
1
Presentation Overview
• The Big Picture• Virginia MS4 Permit Update• New Site Design Standards
– Maryland Stormwater Act of 2007– Virginia Stormwater Management Regulations
• Financing Local Stormwater Programs • State Legislative Forecast
2
The Big Picture:Major Changes for Site Designs
• Major regulatory transition period• New generation of regulatory requirements• Increasing emphasis on actually achieving water
quality standards – Rather than “best management” approach – Desirable but can be very difficult to achieve
• Emphasis on single lot stormwater controls – Inspection, maintenance and enforcement will really
“hit home”
3
The Big Picture:Enormous Unfunded Mandate
• Very limited federal/state funding assistance– So significant costs being pushed down
• Costs will be borne by – Localities: For MS4 permit compliance, regulation of
local developers, and long-term O&M of BMPs on individual lots
– Developers: For design/treatment measures – Landowners/Homeowners: For higher home or
development costs and long-term maintenance costs
4
The Big Picture:Legal Liability Exposure
• Heightened Scrutiny – By federal/state regulators – By citizen groups
• Big Sticks– EPA, States or Citizens can initiate
enforcement actions against localities – Regulators are increasing audits and
inspections to determine level of compliance – CWA includes substantial civil penalties for
permit violations ($32,500 per day)
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The Big Picture:What Will Localities Need to Do?
• Should work to ensure pending regulations are reasonable and cost-effective
• Must typically raise more funds for staffing and other compliance costs with the growing number of programmatic requirements
• Should manage stormwater systems similar to other highly-regulated utilities (e.g., drinking water, wastewater) to promote and document compliance
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It’s Norfolk’s Permit: Why Does It Matter?
• The final Norfolk MS4 Permit will be the VA template
• 3-year development/negotiation and counting
• Virginia DCR will not be willing to negotiate significant changes with other localities including those in Northern Virginia
• Northern Virginia (and Central Virginia) will be stuck with whatever Hampton Roads localities accept
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Norfolk Permit Key Issues:Compliance “Traps”
• Draft seems to require locality to guarantee water quality standards will be achieved instream– This is what environmental groups are demanding– But impossible in many streams/many circumstances
• Failure brings strict CWA liability – No excuses allowed (not even good ones)– See previous side about enforcement and liability– With enforcement, control of local programs & budgets
shifts to regulators, citizen plaintiffs and judges
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Norfolk Permit Key Issues:Compliance Challenges
• Many studies/program changes required for stormwater discharges near impaired waters– The entire DC metro area is contributory to impaired
Chesapeake Bay waters
– Automatic incorporation of TMDL cleanup requirements as mandates on the locality
– What will the Bay TMDL mandate for MS4s?!!!
• Requirements for retrofitting existing development
• Many new requirements for traditional 6 BMPs
• Tremendous documentation and reporting burden
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Maryland’s Stormwater Management Act
of 2007
Implementing Environmental Site Design (ESD) to the Maximum Extent Practicable (MEP)
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Stormwater Management Act: MDE Regulatory Process
• July 31, 2008 meeting at MDE• MDE presented
– MDE Response to Core Principles drafted by Stormwater Consortium (see next slide for members)
– ESD Sizing Criteria Draft (Ch. 5-Design Manual)
• Redevelopment Policy Draft • Next Step: Draft Regulations
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MDE Redevelopment Policy Draft: Impacts on MD Localities
• More redevelopment projects will be regulated more stringently as new development– Site must be 40% impervious to qualify as redevelopment– Any increase in impervious area triggers “new dev” rules– More costly to redevelop (subject to all design criteria)
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MDE Redevelopment Policy Draft: Impacts on MD Localities (cont.)
• Remaining redevelopment projects– Current 20% reduction/treatment of impervious area
increases to 50%– Reduce impervious area by 50%, provide ESD treatment
for equivalent or combo of the two
Making redevelopment in urban corridors
less attractive?
15
MDE ESD Sizing Criteria Draft: Impacts on MD Localities?
• More treatment will be driven by defining the predevelopment characteristics (design baseline) as “Woods in Good Condition”
• As the phrase implies, this is a tough, tough standard
• Will increase the number, size and cost of stormwater controls required
• Effect on development patterns and cost?
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Amendments In Progress
• Parts I (Definitions)
• Part II (Technical Criteria) (i.e., Site Design)
• Part III (Local Programs)
• Part XIII (Permit Fees) (i.e., MS4s and Sites)
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Technical Criteria
• Requirement to treat a greater volume of water– Design storm = 1” storm– Up from current ½ inch requirement
• Requirement to control Phosphorus better– New development standard
• Current: 0.45 lbs/acre/yr• Proposed: 0.28 lbs/acre/yr
– Redevelopment standard• Current: 10% reduction• Proposed: 20% reduction
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Technical Criteria (cont.)
• Significant Challenges To Development of Technical Criteria Regulations:– Time Constraints– Significant missing technical information– Very limited testing of criteria to determine real world
impacts on sites (e.g., feasibility, lost lots, etc.)– Economic analysis begun, but neither complete nor
available
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Local Programs
• All MS4s and Bay Act localities must run local construction site water quality permit program– Permit issuance and modification– Construction and post-construction inspections– Oversight of long-term maintenance– Enforcement obligation
• Technical criteria pushing single lot BMPs (e.g., rain gardens, swales, pervious pavement)– Enforcement nightmare at the homeowner level– Locality’s failure to enforce would be CWA violation
under MS4 permit21
Permit Fees
• Much higher permit fees for MS4s – Roughly tripled from current levels
• Much higher permit fees for land developers• DCR’s oversight charge
– What percentage of state mandated permit fees for development will DCR retain for its oversight?
– DCR proposing 28% – Seems inefficient and excessive to many localities
22
Black & Veatch 2007 Storm Water Survey
• 80 % of respondents use storm water fee to fund storm water control programs
• 65% of those fees are based on impervious area• Most bill property owner monthly• Monthly charges ranged from approximately
$1.00 to $16.82
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Maryland Stormwater Financing
MDE:• May 2008 Report on Stormwater Fee Systems. Very few municipalities in
Maryland have stormwater utilities in place:– City of Tacoma Park– Montgomery County– City of Rockville
Legislature:• Statewide SW $$$ Task Force (Administration and Stormwater
Consortium)• Statewide legislative push to require SW utility?• Bay Restoration Fund/Flush Fee (incentive for localities to adopt
stormwater utility)?
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Virginia Stormwater Financing
• No state general funding• Local programs will receive share (72%) of state
permit fees when locality adopts new program– But adequacy of that 72% is doubtful
• Anticipate that most localities will consider establishing stormwater utilities– Va. Code §15.2-2114 allows localities to create utility or
adopt service charges for stormwater control – E.g., the larger Hampton Roads localities have done so
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Maryland Legislative Forecast
• Probably won’t see major legislation this year
• MDE very busy moving forward with implementation of SWMA of 2007– ESD requirement– Redevelopment– Coming regulations
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Virginia Legislative Forecast
• New regulations are very stringent– But due to rushed rulemaking schedule are
currently lacking technical and economic support
• Development community is suffering economically and closely watching these rules that have direct impacts
• Conditions could fuel legislative attack now