Metropolitan Washington Council of Governments Chesapeake Bay & Water Resources Policy Committee

1. Metropolitan Washington Council of GovernmentsChesapeake Bay & Water Resources Policy Committee Stormwater Update: Impacts on MD & VA Local Governments Lisa M. Ochsenhirt September 19, 2008

2. 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

3. 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”

4. 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

5. 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)

6. 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

7. Virginia’s New Permit Template for Large MS4s: Norfolk’s Draft Permit

8. 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

9. 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

10. 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

11. Implementing Environmental Site Design (ESD) to the Maximum Extent Practicable (MEP) Maryland’s Stormwater Management Act of 2007

12. 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

13. Maryland Stormwater Consortium

14. 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)

15. 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?

16. 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?

17. Virginia Stormwater Management Program (VSMP) Permit RegulationAmendments

18. 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)

19. 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

20. 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

21. 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 permit

22. 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

23. Options for Financing MS4 Permit Compliance & Stormwater Management

24. 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

25. 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)?

26. 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

27. Legislative Forecast

28. 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

29. 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

30. Metropolitan Washington Council of GovernmentsChesapeake Bay & Water Resources Policy Committee Stormwater Update: Impacts on MD & VA Local Governments Lisa M. Ochsenhirt September 19, 2008