I’ve been looking into which environmental bills and resolutions will be coming up at the 2017 Regular Session of the Virginia General Assembly. The state House and Senate will be meeting in exactly two weeks, on January 11. Several of the upcoming bills deal with water quality issues, as well as fisheries and habitat of tidal water. I’ll outline these proposed bills below, sorted via bill subject, and over the next few weeks, post updates on the states of these bills.
*Note: HB refers to House Bill followed by it’s number ID, SB refers to Senate Bill
Waters of the State, Ports, and Harbors
HB 1423/ SB 818: This bill addresses water quality in the Potomac River Watershed by designating the Virginia Department of Environmental Quality (DEQ) to 1. identify point sources when combined sewer overflow outfalls occurs, discharging untreated wastewater into the Potomac River or its tributaries and 2. gives the DEQ the responsibility of following up with owners of these discharge facilities to come up with action plans to reduce combined sewer outfalls. By doing so, the state will be acting in compliance with the Clean Water Act and the EPA’s Combined Sewer Overflow Control Policy (owners of combined sewer overflow sites must be in full compliance with this federal regulation by July 1, 2027).
A combined sewer system is when wastewater and stormwater are carried to a water treatment facility using a combined system of piping (in a separate sewer system, only wastewater is treated; stormwater flows directly into nearby streams). During periods of heavy precipitation, combined sewer systems can easily be overtaxed, leading to overflows of untreated water into streams and rivers. To my knowledge, only three major cities in Virginia still have this combined system and of these, only the city of Alexandria falls within the Potomac River Watershed. Treatment centers in this area would be subject to HB 1423/ SB 818.
Therefore, related to this last bill is SB 819, which if passed, would require the City of Alexandria to assess discharges from its Combined Sewer Outfall Number 001 (which discharges into the Potomac River) by January 2029. The City of Alexandria would have to submit this assessment to the State Water Control Board, and include an outline of actions and control technologies that must be adopted to prevent overflow discharges to the Potomac River.
HB 1454 would designate a stretch of the James River as part of the Virginia Scenic Rivers System. When the General Assembly designates a river, or sections of a river, as part of the Scenic Rivers System, it means it possesses “superior natural and scenic beauty, fish and wildlife, and historic, recreational, geologic, cultural, and other assets” (Code of Virginia, 10.1-400 Definitions). From my research, I cannot tell that this offers any kind of direct additional protection of these waters or habitats, but the designation may be important for outside conservation efforts.
Water and Sewer Systems
HB 1460 addresses the regulation of private wells, and would allow Stafford County to set standards for the construction or abandonment of private wells. Stafford County would join a growing list of state counties already able to set stronger regulations for their private wells. While this is primarily a public health issue, abandoned wells can impact groundwater, which eventually seeps into bodies of water.
Fisheries and Habitat of Tidal Waters
SB 820 would impact the Virginia Marine Resources Commission’s (VMRC) management of the menhaden industry. The bill would require the VMRC to implement the Interstate Fishery Management Plan for Atlantic menhaden and adopt regulations to manage the industry.
Atlantic menhaden can be found along the North American coast, including the Chesapeake Bay Watershed. As these fish are used for a variety of purposes, they have a long history of being overfished. Menhaden are used as bait for other fisheries (including the crabbing industry), and for fish meal and the production of fish oil. Protecting the stock of menhaden in Virginia protects a number of fishery-related industries.
Is nutrient pollution trading in Maryland the answer to Bay cleanup or just another stalling mechanism? Maryland Governor Larry Hogan has proposed a new pollution trading system focused on nitrogen and phosphorus runoff. The system would allow communities, in need of upgrades to their local sewage treatment plants and stormwater runoff programs, to instead pay area farmers to pollute less. While this may result in fewer loads of nitrogen and phosphorus runoff from agricultural sources, (which is greatly needed), the plan allows urban and suburban communities to shift focus away from their own sources of pollution. The state should instead be focusing on a two-pronged approach, targeting pollution loads from agricultural and urban/suburban sources.
Agriculture is one of the leading sources of pollution to the Chesapeake Bay, but it is not the only major source. Municipal and industrial wastewater (a sector that includes sewage treatment plants), contributes 19% of the nitrogen that reaches the Bay, and 21% of phosphorus; urban and suburban runoff contributes 31% of phosphorus pollution in the Bay (National Research Council, 2011). Just last week, The Washington Post reported on a Maryland-based water treatment plant, just north of Washington, D.C., that has been polluting millions of pounds of nutrients and chemicals into the Potomac River. The Washington Suburban Sanitary Commission (WSSC), which runs the plant, from the outcome of a recent legal settlement, has agreed to make millions of dollars worth of upgrades to its outdated facility, (built in the 1960s). These upgrades are expensive, but they are long overdue, and are needed to improve water quality in the Potomac River, a major tributary of the Chesapeake Bay.
Supporters of the proposed nutrient trading program in Maryland argue that nutrient trading will allow for cleanup of the Bay, while reducing costs to communities, which might have plants that need millions of dollars worth of upgrades, like the WSSC facility . However, I would argue that nutrient trading allows half of the pollution problem to be ignored. Maryland should target both agricultural runoff and urban and suburban sources of pollution if its leaders are serious about cleaning up the Chesapeake Bay.
By Neil Saunders
A Montgomery County judge invalidated the county’s so-called “rain tax,” the stormwater runoff fee program used to fund projects that would reduce polluted runoff from contaminating the Chesapeake Bay. While the holding in the case is limited to the county’s program, many anticipate that it will lead to similar decisions in other Maryland counties and the city of Baltimore. The program, which forms part of Maryland’s overall Watershed Implementation Plan to achieve the reductions required by the Bay TMDL, was designed to reduce urban and suburban stormwater runoff that continues to be a leading source of pollution in the Chesapeake Bay. Without the fee program Montgomery County will have to come up with alternative ways to fund its federally and state-mandated Bay restoration programs.
The Water Quality Protection Charge (WQPC), or “rain tax” as opponents label it, has been hotly debated in Maryland since the law was passed in 2012. That law, which mandates stormwater fees in the nine largest counties and the City of Baltimore be assessed to property owners whose land contributes pollution runoff to nearby streams and the Bay, has been opposed by many Republicans and Governor Hogan, who pledged to repeal it during his campaign. The Democrat-led General Assembly, however, refused to repeal the law outright, and instead amended the law earlier this year to remove the fee mandate and permit the counties to decide for themselves how to fund their stormwater management programs. Some counties, including Montgomery County, chose to keep the fee program in place. Other counties are required to demonstrate how their stormwater management programs will be funded in the absence of a fee program.
The WQPC was created as part of Maryland’s overall strategy for Bay TMDL compliance. In counties that use the fee structures, residential and commercial property owners are assessed annually based on the amount of impervious surfaces on their property. For many homeowners, the fees range from under $30 for Baltimore County to up to $90 for some Howard County residents. Commercial property owners with larger tracts of land that have greater areas of impervious surfaces are assessed larger fees. While the fee structure serves to fund new measures to reduce pollution, it also acts as an economic incentive for homeowners and business owners to take remedial steps to reduce polluted runoff. Additionally, off-set credits are available for individuals or businesses who show that reduction efforts are being taken.
The lawsuit was brought by a commercial developer owner who had been assessed an $11,000 stormwater fee to his 34-acre development. The owner argued that he shouldn’t be assessed any fees because he had built two ponds on his property to collect stormwater runoff from his property, effectively eliminating pollution from reaching the Bay. He also argued that the fee was unlawful under state law. In the lawsuit, the circuit court judge agreed on both issues, holding that the fee was not properly assessed in this case, because it did not fully take into account the remedial actions taken by the landowner (the landowner was only given a 50% credit reduction), and the calculation methodology used by the County did not limit the fee to what the actual services rendered to the property.
The effect of this second point could make it more difficult to manage pollution from stormwater runoff if lawsuits in the other counties and the City of Baltimore reach the same conclusion. While the County was permitted to base its fees on the amount of impervious surface on a property, the circuit court held that the County failed to adhere to the law’s mandate that “a county or municipality shall set a stormwater remediation fee for a property in an amount that is based on the share of stormwater management services related to the property and provided for by the county or municipality.” Env. Art. sec. 4-202(e)(3)(i). Under this provision, the court maintains that a county may charge a fee based on the actual cost of stormwater management services to that property only. In other words, the County is not permitted to use the WQPC to fund other stormwater remediation projects because the law only permits the County to set a charge to cover its costs.
It is not yet clear whether Montgomery County will appeal this narrow interpretation of the law or seek alternative options to fund its stormwater management practices. If this result does extend to the other counties and Baltimore it will likely result in a greatly reduced source of funding for important water quality programs; stormwater runoff remains one of the critical sources of Bay pollution. Hopefully, if similar lawsuits are brought, those courts will apply a much more practicable interpretation of the law, and give the counties the flexibility they require to meet the requirements of the Bay TMDL. Otherwise, the state would have to rely on changes at the legislative level, which is often difficult and moves at a much slower pace.
There’s been a lot of news on stormwater regulations in the Chesapeake Bay watershed this year. The latest comes from Maryland, as some lawmakers seek to reduce or avoid implementing stormwater management fees. The Maryland House of Representatives has, as of now, put a hold on the bill, so we’ll have to see what becomes of this issue in the coming days and weeks. B’More Green outlines the issue, and looks at the different positions.
Several weeks ago I shared an appeal from the Potomac River Conservancy, asking Virginians to contact their lawmakers about legislation on polluted runoff. Virginia passed stricter regulations for polluted runoff several years ago, but has failed to successfully implement these standards. Recent bills attempted to prolong the delay of stronger runoff regulations, but the bills were overturned in the state House and Senate last week. State localities must abide by the new runoff standards as early as July 1. Good news for Virginia’s waterways and for the Chesapeake!
The Potomac Conservancy sent out a letter regarding stormwater runoff regulations for the Potomac River watershed. Stormwater management programs are set to go into effect on July 1, 2014, but legislators in the Virginia General Assembly are being asked to delay implementation. I am urging Virginia readers, along with the Potomac Conservancy, to send a message to your local representatives asking them to not to delay on stormwater management programs. I will post the Potomac Conservancy letter below, which includes a link to contact information for Virginia state legislators.
From the Potomac Conservancy:
No More Delays for Clean Water!
That’s all! Thank you for taking action to help keep our nation’s river clean!