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