Numerous articles have created confusion about what is going on in the world of Stormwater Regulations in Virginia – because three (3) separate stormwater management permit regulations are being revised concurrently. Also, as described in other articles, the U.S. Environmental Protection Agency (EPA) just published a rule that will cause more changes in ±18 - 24 months – while the National Research Council completes a study for EPA and suggests that the entire regulatory program be overhauled to delegate the authority and responsibility to localities. So confusion may very well continue to reign as builders, developers, and public works face regulations coming both top down and bottom up!

While state and local government officials diligently work with effected parties to implement new Erosion and Sediment control requirements (see accompanying articles in this newsletter), the U.S. Environmental Protection Agency (EPA) proposed a new rule on November 28, 2008 that includes, for the first time, numeric effluent limits for stormwater discharges for certain large sites. Comments on the rule are due on February 26, 2009.

The National Research Council recently issued a report on Urban Stormwater Management in the United States – calling for an entirely new permitting structure that would put authority and accountability for stormwater discharges at the locality level. Unfortunately, this does sound like another "unfunded mandate" to solve a "Tragedy of the Commons."

On Friday, January 30, 2009, Prince William County’s Department of Public Works and the Virginia Cooperative Extension are offering a Stormwater Education Program from 10:00 AM to Noon at the Sudley North Government Center in the McCoy Conference Room, 7987 Ashton Avenue, in Manassas. Maintenance personnel, pastors, and volunteers are invited to attend. Participation is free but space is limited and pre-registration is required.

Effective November 3, 2008, Prince William County has extended the validity period for approved Preservation Area Site Assessments (PASAs) and Perennial Flow Determinations (PFDs) from twelve (12) months to five (5) years. The policy memo dated November 18, 2008 also allows extensions up to an additional twelve months under certain circumstances.

The process is continuing to expand Resource Protection Areas (RPAs) from buffering only perennial streams to including intermittent and possibly ephemeral streams. The big question is can Fairfax County afford the additional staffing requirements and tax base impacts from such an expansion or is there a partial expansion that is "affordable?" The Planning Commission’s Environment Committee will continue to discuss this topic on Wednesday, December 10, 2008, at 7:00 PM in the Board of Supervisor’s Conference Room.

The Loudoun County Board of Supervisors (BOS) has initiated discussions regarding zoning ordinance amendments that could reinstate environmental overlay districts that were previously struck down by the Virginia Supreme Court. Specifically, the BOS is reconsidering the Limestone Overlay District (LOD), River and Stream Corridor Overlay District (RSCOD), and the Mountainside Development Overlay District (MDOD). Protection of Loudoun County’s sensitive environmental features was one of the main topics identified during the BOS Strategic Planning Worksession held on September 16, 2008. On October 7, 2008, Loudoun County Staff presented its implementation plan of items that came out of this Worksession. Coordination between Loudoun County Staff and the BOS regarding these overlay districts is currently underway. Most recently, the BOS Committee of the Whole met on December 1, 2008 to discuss water quality protection options.

On June 9, 2008, a new mitigation "rule" jointly issued by the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (COE) became effective. Its goal is to enable the EPA and COE to promote greater consistency, predictability, and ecological success for mitigation projects under the Clean Water Act. Unfortunately, one element of this rule, coupled with today’s financial credit crisis, is now causing permittees problems.

The U.S. Army Corps of Engineers (COE) determines whether or not there are wetlands or other Waters of the U.S. (WOUS) (i.e., streams, ponds, lakes, mudflats) regulated by the federal government by issuing a Jurisdictional Determination (JD). In the wake of the complicated and conflicting guidance issued due to the Supreme Court decision known as Rapanos and Carabell on June 19, 2006 (see Field Notes Vol. 14 No.4 and Vol. 15 No. 4) – obtaining an Approved JD became very time consuming for all involved. To ease this burden, the COE issued Regulatory Guidance Letter (RGL) No. 08-02 (which revised much of RGL 07-01) to allow applicants to use Preliminary JDs to obtain permit authorizations. On November 4, 2008, the Norfolk District issued Local Processing Procedures for JDs, giving a five-year life to Preliminary JDs and overcoming a major reason to avoid using Preliminary JDs, as previously they could only be relied upon in association with a permit decision.

Often landowners do not realize that a "ditch" may be a surface water of the State – and even if the U.S. Army Corps of Engineers has not exerted regulatory authority over the ditch feature, the Department of Environmental Quality (DEQ) could. This has become problematic recently during this dry Fall season as landowners take actions to prepare for next year’s crops and development projects are mothballed.