HBAR Government Affairs Updates

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DCR Incurs Legislators’ Wrath at JCAR Hearing

The General Assembly’s Joint Committee on Administrative Rules (JCAR) met for about four hours Wednesday to discuss the proposed stormwater regulations from the Department of Conservation and Recreation (DCR), and several committee members made it very clear they see serious problems with the regulations.

DCR was one of seven groups, including HBAV, that made presentations about the regulations to the 12-person bi-partisan committee made up of six senators and six delegates. DCR director Joseph H. Maroon was questioned for almost two hours by the committee as he laid out the parameters of the new regulations, as well as several changes DCR has proposed as a result of comments received during the public comment period in the summer.

Maroon told legislators that phosphorus pollution in the Chesapeake Bay, the body of water at which these changes are directed, had increased from 5 percent in 1985 to more than 30 percent in 2005. He said while phosphorus had also increased from wastewater and agricultural sources, it has been declining from those sources recently.

Del. Bob Hull, D-Falls Church, led much of the opposition to the regulations. He questioned how much new development, as opposed to existing development, had contributed to the phosphorus increase.

“Isn’t much of the problem with phosphorus due to fertilizer?” Hull asked Maroon. “This is not due mainly to new development but to property that’s already developed.”

Maroon said the evidence shows new development is a problem. He did not address whether existing development, or residents overfertilizing yards, is a problem.

Hull, along with Del. Chris Saxman, R-Staunton and Del. Morgan Griffith, R-Salem, questioned Maroon extensively about the fees to be charged as a result of the proposal. DCR proposes a statewide stormwater fee that larger urban jurisdictions will find easier to meet than rural areas.

“Local governments and residents will pay more for stormwater control under these regulations – is that an accurate statement?” Griffith asked Maroon. After being asked several times, Maroon finally admitted this would result in more fees for Virginia residents.

Hull and JCAR chair Sen. Frank Wagner questioned whether the regulations meet the intent of the legislation passed in 2004 to allow these regulations.

“As I recollect, the original legislation was to simply allow a transfer of the (stormwater management) program from DEQ (Department of Environmental Quality) to DCR,” Wagner said. “I don’t recollect anything about a new fee structure or new powers.”

“There is no specific authority for a statewide program or fee structure,” Hull said. “In my opinion, this goes way past the legislative intent.”

“The title of the regulation, calling it a ‘reorganization,’ indicates it is a minimal program,” said Del. Lee Ware, R-Powhatan.

Maroon said the enabling legislation allows the proposal. The bill, HB 1177, is titled, “A Bill to amend and reenact (certain sections) of the Code of Virginia… relating to the reorganization of stormwater management programs…”  A review of the bill shows it appears to establish, among other things, what duties DCR and the Soil and Water Conservation Board (SWCB) would have in the program after it is transferred from DEQ. It does not appear to allow for making regulatory changes.

Wagner announced at the end of the meeting that JCAR would hold at least one more meeting on the regulations, but did not specify a date or time. He said an “informal” poll of the committee members told him that, were the regulation in effect today, the committee would most likely vote “by an overwhelming majority” to suspend the regulations as not meeting the legislative intent.

Soil Board Hears About Proposed Changes, Urged Not to Move Forward

In related news, on Thursday the SWCB heard during its regular monthly meeting about the changes proposed in the regulations by DCR, as well as from about 40 people, most of whom asked the Board not to approve the regulations as they currently stand.

DCR has offered nine changes based upon the public comment it received over the summer. Among the changes, which were only released publicly Monday:

• Removing the 0.28 phosphorus standard for areas of the state not in the Chesapeake Bay Watershed.
• Allowing a 0.45 phosphorus standard on new development sites of less than one acre within the watershed.
• Adopting a 10 percent reduction in phosphorus standard for redevelopment sites disturbing less than one acre.
• Allowing a phosphorus standard of up to 0.45 in Urban Development Areas (UDA).
• Allows developers to pay for phosphorus reductions they cannot achieve at a rate of $15,000 per pound, but it will only apply when other offsite options are not available for use or where a local government elects to allow the payment.
• Grandfathers in projects where a plan of development has been filed or approved by a local government by January 1, 2010.

HBAR sees the changes as superficial and will do very little to reverse the damaging effects these regulations will have on business and development in Virginia. HBAV regulatory affairs director Barrett Hardiman called the changes a small first step, but “far from where we need to be.” Hardiman said the changes evade the main problem in the regulations, which is the 0.28 phosphorus standard that is not based on any science and should be thrown out.

The SWCB is expected to approve the regulations during its October meeting, and Gov. Tim Kaine is expected to sign the regulations before his term expires. If signed, however, the regulations will not take effect until July 1, 2010.