On Monday, August 23, 2010, the Virginia Department of Environmental Quality released Virginia’s 2010 Water Quality Assessment Report, and its findings appear to be just as murky as the James River.

As with many things in life, there’s the good news, and the bad news. The good news is that more than 430 waters have been removed from the impaired waters list because they now fully meet water quality standards. And an additional 600 waters have been removed for a least one impairment. The bad news – DEQ added about 1,400 miles of streams and rivers, and 2,500 acres of lakes to the impaired waters list.

So while some of Virginia’s waters are being restored, others seem to be degrading just as quickly. The Report provides detailed information on more than 1,200 watersheds in the Commonwealth, and includes assessment information from January 2003 to December 2008. How the state’s waters have fared since 2008 remains unknown. Also unknown is what effect the states’ new stormwater regulations and Watershed Implementation Plans (topics previously discussed in our blog) may have on some of these water sources in the future. We will have to wait and see.

You can find a copy of the draft report here. DEQ is encouraging public comment on the contents of the report until September 24, 2010, at 5 p.m. Those comments must be submitted in writing by letter or email attachment.  A webinar summarizing the findings in the report will be held on the Internet on August 26, 2010, from 11 a.m. to noon. Those interested must register in advance at https://www1.gotomeeting.com/register/267343337. Questions about the report may be submitted online during the webinar.

Even with the report only in draft stage, what seems crystal clear is that for land owners, localities, and major contributors whose activities may be impacting and degrading Virginia’s waters, close scrutiny and additional restrictions are just around the bend. Virginia’s environmental lawyers such as our team at Sands Anderson, are looking for workable solutions for clients who have the responsibility to improve and maintain the quality of our state’s waters. What solutions do you think might be workable in this challenging effort to keep Virginia’s waters clean?

On August 13, 2010, EPA announced draft sediment limits for the jurisdictions and major river basins in the Chesapeake Bay Watershed, including those affecting Virginia, its rivers and the Eastern Shore. Virginia, along with other watershed states and the District of Columbia, are expected to use the limits, along with those issued for nitrogen and phosphorus last July 1, to develop Watershed Implementation Plan(s) (“WIPs”). WIPS, in turn, will detail how each state intends to meet the “strict pollution diet” that was set in motion by an Executive Order, issued by President Obama in May 2009. Virginia has until September 1, 2010, to provide a first draft of its WIP to EPA.

While EPA has provided this final piece of the “pollution diet”, the real challenge will be in determining how the diet will be implemented in Virginia. Nobody likes to diet. And since the nutrient allocations were disclosed in July, some state officials and lawmakers have voiced concern that the limitations go too far. David K. Paylor, director of the Virginia Department of Environmental Quality, was quoted by the Richmond Times-Dispatch as stating that the state wanted to make sure the pollution reductions were “justified.” . The Governor’s Secretary of Natural Resources, Doug Domenech, has been more pointed saying “[s]ome in the environmental community appear to not care if people lose their jobs, or they don’t care if taxes have to be raised on everybody to pay for this clean up.”

Currently, representatives of stakeholder groups from across Virginia are working together with state officials to develop the required WIP. Represented sectors include wastewater, agriculture, urban storm water and onsite-septic. Materials from the work group meets are available here. But while the stakeholders clearly have their own interests to protect, for us as Virginia environmental lawyers it was gratifying to hear expressed, during the Stakeholder Advisory Group meeting on June 16, 2010, an overriding interest by participants that the WIP process not deteriorate into an exercise of self-preservation, with members looking to others to “pollute less.” We will see what is produced on September 1, 2010 when Virginia’s WIP is unveiled Until then, we can continue to hope that the stakeholders, state officials, and legislators alike will keep the process moving forward and from becoming, as cautioned by Wilmer Stoneman of the Virginia Farm Bureau “economic-sector civil war.”

Forty years ago today, Earth Day was born. Its conception marked the beginning of the modern environmental movement in the United States, and according to its founder, Wisconsin Senator Gaylord Nelson, was the day “the environmental issue came of age in American political life.”

What many might not know, however, is that the environmental movement in Virginia began long before April 22, 1970. Almost a quarter century before mainstream environmentalism hit the streets, Virginia adopted the State Water Control Law, one of the first comprehensive statewide efforts to control water pollution in the country. Becoming effective on July 1, 1946, the law established the State Water Control Board, which was tasked with a mission to “protect existing water quality, to reduce and prevent water pollution, and to restore and maintain state water to a quality that w[ill] protect human health and aquatic life.”

In 1966, Virginia adopted the Air Pollution Control Law and established the Air Pollution Control Board. The Council on the Environment (a precursor to the Virginia Department of Environmental Quality) was established in 1970, and the regulation of solid waste by the Virginia Board of Health began in 1971.

On July 1, 1971, Article 11 of the Virginia Constitution became effective, making it the policy of the Commonwealth to “conserve, develop, and utilize its natural resources, its public lands, and its historical sites and buildings and protect its atmosphere, lands, and waters from pollution impairment or destruction, for the benefit, enjoyment and general welfare of the people of the Commonwealth.” Virginia was one of the first states to include the protection of natural resources in its constitution.

Since then, Virginia has taken great strides in trying to clean up the Chesapeake Bay and its watersheds, to reduce air pollution, and to protect our natural resources. There may still be much work to do, and with new federal mandates for both water and air quality having recently been implemented by EPA, some might think it will be hard for Virginia to keep up. But, fear not, here in the Old Dominion, we have always led the way.

Happy Earth Day!

(Hat tip to the Virginia Department of Environmental Quality for their informative Web site.)

And it may be a foreshadowing of more to come.

Earlier this year, Virginia Attorney General Kenneth T. Cuccinelli, II, filed a suit against the EPA calling into question certain data upon which some global warming regulations were based.

At a press conference yesterday, two Virginia legislators, state senator Ryan T. McDougle (R-Hanover), and delegate Timothy D. Hugo (R-Fairfax) called into question EPA data related to percentage increases in impervious surface areas. The data, which indicates that from 1990 to 2000, impervious surfaces in the Chesapeake Bay watershed increased by 41% while the population increased 8%, has been cited by EPA and state regulators as a reason for strengthening Virginia’s Stormwater Regulations. The amendment of those regulations remains an ongoing, at times divisive, process in Virginia, and one that I have written about here and here.

The EPA responded to the legislators issuing a statement reported by the Richmond Times-Dispatch that said, in part, that the statistic on population and impervious surface from 1990 to 2000 was generated using the best data and analysis available.

But this current challenge to EPA’s data on impervious surfaces may only be a foreshadowing of the groundswell to come.

During their press conference, Senator McDougle and Delegate Hugo also called on the EPA to “use sound science and accurate data, research and analysis” in developing the 5.3 Chesapeake Bay model. The 5.3 Chesapeake Bay model will be used by EPA to set the target loads for nitrogen and phosphorus that the Chesapeake Bay states, including Virginia, will be required to meet in order to comply with the stringent Bay cleanup requirements that were set into action by Executive Order 13508 issued in May 2009, and which we have written about here and here.

We will have to wait and see whether Virginia’s leadership will accept the data ultimately used by EPA to set the total maximum daily loads (TMDLs) for the Chesapeake Bay, but I can anticipate where that data too will be heading. Ironically, one may not have to look very far to find cause to question EPA’s modeling. At the Environment Virginia Symposium held at VMI earlier this month, during a presentation on model updates, EPA publicized that “Watershed Phase 5.3 is here!” and its “Scenario builder is built… And working!” but then immediately recanted and admitted that the models need more work. An April 15, 2010 meeting of the Chesapeake Bay TDML Stakeholders Advisory Group was then cancelled because EPA had not yet finalized the elements of the Bay model, and Virginia was in a position of not knowing what its allocations would be.

Can you feel the storm brewing? What must EPA do to prevent a challenge from Virginia to its Chesapeake Bay modeling data? Do you think future battles loom on the horizon?

What a Difference a Year Makes!

During last year’s Environment Virginia Symposium at the Virginia Military Institute’s Center for Leadership and Ethics, scientists and speakers joined then Governor Tim Kaine in addressing the nexus of economic prosperity and economic stewardship in the quest for a more sustainable environment. Not surprisingly, climate change was a “hot” topic, as was the discussion of whether reducing global warming would mean reducing the economic well-being of our state and of our nation as a whole.

“Not so,” said the speakers. Not only could climate change be profitable, they said, but it should be viewed as a strategic priority, and necessary to manage ever increasing environmental risks to human health. The Commonwealth of Virginia was touted as a potential leader in identifying environmental risks and proposing economically beneficial solutions related to climate change for the future.

Fast forward about one year.

On February 17, 2010, Virginia Attorney General Kenneth T. Cuccinelli II, on behalf of the Commonwealth of Virginia, filed a petition with the United States Environmental Protection Agency, and the United States Court of Appeals for the District of Columbia, calling into question the data upon which certain global warming regulations were based. The Attorney General asserted that “falsified data” led to scientifically unfounded predictions which then led to unnecessary calls for climate action. The Attorney General requested that the EPA’s finding of December 15, 2009, that carbon dioxide is a greenhouse gas subject to agency regulation, be reconsidered. On March 19, 2010, Cuccinelli stated that because global warming regulations “could severely impact Virginia jobs; energy, agriculture, manufacturing and other industries; as well as put a tremendous financial burden on Virginia citizens” the regulatory appeal was necessary.

What is Virginia’s position in the global warming debate? Are we to be a leader in identifying solutions to the environmental risks posed by global warming, or a leader in calling those risks into question? Are the two mutually exclusive? How can we both challenge the notion that global warming is a real harm and benefit economically from businesses developing  solutions to a situation that  our own state government claims doesn’t exist?

Since May 2009, when President Obama issued Executive Order 13508: Chesapeake Bay Protection Restoration and a new federally mandated cleanup initiative for the Chesapeake Bay was born, it has been unclear what consequences might be imposed by EPA if the states did not meet the new clean up requirements. Now we know.

On December 29, 2009, in a letter to the six states in the Bay watershed and the District of Columbia, EPA’s “accountability framework” was revealed. The framework is in addition to the EPA requirements set forth in November, 2009, when standards for the implementation of Watershed Implementation Plans were set, and milestones towards achieving the goals of those plans were established.

The identified enforcement actions that may be taken if adequate progress towards plans and milestones is not made include: EPA’s expanding coverage of NPDES permits to currently unregulated sources and/or increasing federal oversight of state NPDES permitting; requiring additional pollution reductions from point sources (i.e. wastewater treatment plants); increasing federal enforcement and compliance; require net improvement offsets; conditioning or redirecting EPA grants; revising water quality standards for local and downstream water, and establishing finer scale load allocations in the final Bay TMDL than those proposed by the states and D.C.

So now it it clear. If the states and D.C. cannot develop their own water quality and permitting standards and criteria to meet the aggressive limitations previously set by EPA, then EPA will do it for them. But is the threat of federal mandates, and the other “accountability measures” enough? Is it a realistic framework? Will it work any better than federal oversight in the past?

We knew tighter federal requirements for reducing pollutants in the Chesapeake Bay were on the way, and on Wednesday, Virginia and the other Chesapeake Bay states got their first taste of what federal oversight of Bay restoration might really mean. Each of the impacted states received letters from EPA detailing tighter restrictions on what pollutants could enter the Chesapeake Bay watershed and in what amounts. The EPA directed that states will have to limit annual discharges of nitrogen to 200 million pounds and phosphorus to 15 million pounds by 2025. Controls will need to be in place by 2017 to meet 60% of the mandated reductions.

While Virginia has taken action to reduce pollutants, most notably the new stormwater regulations that significantly limit nitrogen discharges from new and redevelopment, and limits on the amount of nitrogen that sources such as power plants and wastewater treatment plants may discharge, there is significantly more work to be done. This was true before the Obama Administration stepped in with the May, 2009 Executive Order mandating greater discharge limitations, and it remains true today – even more so.

The EPA is expected to release a draft strategy for handling pollutant limitations next week, and then it is up to the Chesapeke Bay states to come up with a methodology to meet EPA’s new stringent standards. But what then? Will Virginia, and the other affected states, really be able to meet those requirements will any greater success than it has in the past? And what will happen if they don’t? EPA officials have indicated that consequences could include even more stringent requirements for pollution sources such as sewage treatment plants, prohibitions on new or expanded discharge permits, or withholding federal funds.

We have no doubt the development and future enforcement of new restrictions is going to be a painful process. Consider how long it took to get the new stormwater regulations through the administrative process. And now EPA is demanding more. It appears that the state will have little option but to look beyond regulations that effect only development projects and major pollutant sources, and adopt regulations that will affect us all.

The question on everyone’s mind: Is Virginia ready for the next step? And if not, what will be the consquence?

As we’ve told you before, the Department of Conservation and Resources has new restrictive stormwater regulations in the pipeline. Just this past Monday, the Virginia Soil and Water Conservation Board Meeting approved them for implementation. And then suspended them.

The story is that the DCR wants a little more time for public comment, for which they set the period of Oct. 26 to Nov. 26. The board will meet again on Dec. 9. Spokespeople don’t expect any substantive changes in the rules, but the debate between consumer and business groups has been intense. The last chance comment period is likely to be, as well.

The DCR is now part of Federal effort to coordinate planning and action on behalf of the Bay cleanup. On October 2, EPA and state officials briefed Virginia stakeholders on the process for developing a new Bay cleanup plan. They may have no choice but to ratchet up the regulations and shut polluted runoff down. The General Assembly might have a thing or two to say about the implementation next January, as well.

If you’ve any thoughts on the regulations as proposed, no time like the present to get them before the DCR. If you’re interested in more information on the changes, just contact our Virginia and North Carolina environmental lawyers.

Isn’t it time we improved the health of the national treasure called the Chesapeake Bay?

(Hat tip to RichmondbizSense.com for the Tidewater news story.)

For twenty years, federal and state regulators, local governments, and citizen interest groups have been struggling with the issue of the declining health of the Chesapeake Bay. Agreements have been made – and broken. Laws have been passed, regulations promulgated, executive orders issued…and to what result? The Bay is apparently no worse off today, but no better.

Recently, the Richmond Times Dispatch assembled a panel to discuss what they considered to be Virginia’s top environmental issues. While many agreed the cleanup of the Bay was one of, if not the most, important issue, how to correct what one panelist characterized as “400 years of development in Virginia,” and other causes of degradation, was harder to pin down.

In evaluating the current condition of the Bay, a lack of meaningful standards and enforcement measures were articulated as a current problem, as were water usage practices that had not changed for decades. On the development side, local regulations that increase a development’s impervious footprint were also listed as a root cause of the problem. Agricultural activities, municipal and residential usage, wastewater treatment plants, and an overall failure of political will to incorporate water quality mandates into daily living were also identified as problems. Clearly, consensus is hard to build, but without it, can Virginia do its part to up the Chesapeake Bay?

Virginia, and other states in the Bay Watershed may not have a choice. Earlier this spring President Obama issued The Chesapeake Bay Protection and Restoration Executive Order that established a Federal Leadership Committee to oversee and add accountability to Bay cleanup efforts. The EPA will chair the Committee, which will be comprised of representatives from the departments of Agriculture, Commerce, Defense, Homeland Security, the Interior, Transportation and a few others.

The Committee’s job is to work with the seven states in the watershed to coordinate and publish an annual plan that describes how federal funding will be applied to Bay restoration in the next 12 months. We’ll be watching closely to see if this new Committee can actually help improve the health of the Chesapeake Bay. What do you think? Are you optimistic? What would you suggest this group deal with first?

The Virginia Department of Conservation and Recreation (DCR) is in the process of adopting significant changes to the state’s Stormwater Regulations. These changes will fundamentally alter the way stormwater from construction activities is regulated in Virginia. The changes include new technical criteria limiting the quality and quantity of discharges for new development and for redevelopment. The changes will also result in local stormwater management programs being established in all localities and being administered either by the locality or by DCR.

There has been a considerable amount of interest in and comments on the proposed regulations. Concerns about the cost, effectiveness, and implementation of the regulations have received considerable discussion. Recently, however, the Virginia Chapter of the American Planning Association (APA-VA) published a position paper which addressed the “potential unintended consequences” of the proposed regulations “on Virginia’s urban areas and their capacity to absorb continued and inevitable population growth.” While generally supportive of the overall purpose of the amended regulations, APA-VA is concerned that the burden the regulations place on redevelopment projects creates a “disincentive to redevelop urban areas,” and may actually increase sprawl. APA-VA’s position paper also posits that the “emphasis on using undeveloped spaces to reduce runoff conflicts with the mandated use of new urbanism..” The Association suggests several changes to the new stormwater program, including the incorporation of credits for smart growth BMPS.

You can read APA-VA’s position paper in its entirety here.

You can find the new Stormwater Regulations here: (Amendments to Parts 1, 2 and 3) and (Amendments to Part 13).

Public comment is open for another 30 days but the public meetings are over. Electronic comments may be submitted here for this proposed regulation.

What do you think about APA-VA’s position? Do you agree? What about smart growth credits? What effect, if any, do you see on new urbanism if the proposed amendments are adopted? Do you have your own concerns?