Albemarle County’s draft water protection ordinance, quietly submitted to the State Department of Environmental Quality last week and set to become local law after brief public review in June, is a long-awaited road map to implementing federal- and state-mandated reductions in pollution from stormwater. Within its 47 pages are rules that will impact development in the county for decades to come, and potentially hike local taxes.
Director of Neighborhood Development Services Mark Graham laughs when he’s asked about the origin of the new plan. How far should he go back? To the 2013 federal court ruling that handed Ken Cuccinelli a victory in his fight to stop the EPA from regulating stormwater as a pollutant? To the signing of the Clean Water Act in 1972?
“Really, it all is because Virginia is committed to the Chesapeake Bay TMDL, and these are outcomes from that,” he said.
Bear with us: A Total Maximum Daily Load (TMDL) agreement is one of the tools handed to the EPA by the Clean Water Act, a forced “pollution diet” employable when waterways are ailing. Tens of thousands have been set up since the ’70s, but the Bay TMDL, settled on in 2010 but planned for the prior decade by the six states that make up its watershed, is the largest and most complex yet, covering 64,000 square miles—including most of Virginia.
The TMDL aims to reduce the volume of the three worst polluting culprits—nitrogen, phosphorous, and sediment, a.k.a. dirt—flowing into the bay by 20 to 25 percent by 2025. To do it, the EPA turned to the states, whose own regulatory agencies turned to individual counties and cities. The burden of implementation, handed down the chain of command, has become a classic unfunded mandate, said Graham.
It’s rubber-meets-road time in Virginia, and Albemarle, like other municipalities, had to turn over its pollution reduction plans in the form of a draft ordinance on January 15.
Some of the ordinance deals with keeping a range of toxic substances out of the water supply—paint, gasoline, slurry flushed out of cement trucks. But the bulk of it tackles stormwater, and how to stop the displaced dirt and pollutant-laden runoff that comes with development from flowing into waterways.
Lonnie Murray, who represents Albemarle County on the Thomas Jefferson Soil and Water Conservation District Board of Directors, said there’s a new emphasis on quality as well as quantity—that is, how to reduce the volume of water entering streams while also lowering the amount of pollutants the runoff is carrying. To that end, new best management practices encourage developers to employ more pollutant-blocking options—buffering streams with trees and other plants and employing biofilters, for instance.
The county is also responsible for cutting back on and cleaning up the water entering streams from storm drains in already-urbanized areas, and the ordinance lays out long-term milestones for those improvements.
Implementation is going to require a major scaling-up. Albemarle’s Department of Neighborhood Development Services doesn’t have the staff to properly monitor stormwater management as it is, said Murray. Development sites are spread out all over the county, and “they just don’t physically have enough people to check these sites every year,” he said.
And so it comes back to the money question. The ordinance is set up to pay for at least some of itself. Developers will have to fork over more in land disturbance fees, which will offset the cost of more county staff to review permits and conduct site inspections.
The county Board of Supervisors is currently grappling with how to pay for the rest, including millions in updates to the municipal stormwater systems that will have to be rolled out in the decades to come. Charlottesville ended the debate over how to fund its own massive infrastructure overhaul last year when officials approved what amounts to a new tax on impervious surfaces. Whether the county will approve a similar you-pave-it, you-pay-for-it approach or pick another method remains to be seen, and the clock is ticking.
Neil Williamson, president of the pro-business Free Enterprise Forum, said developers are already protesting what they see as an unfair funding structure that could make them pay twice—once when they dig, then again if they have to pay stormwater fees associated with impervious surfaces. But more concerning, said Williamson, is the fact that the state has made localities hand in their draft ordinances before getting public input.
“Staff put it together, sent it to the board, and they haven’t even talked to the development community,” Williamson said. There will be just one public meeting, on May 15, before a June 13 approval deadline. That’s why there are currently bills in the General Assembly and State Senate to delay implementation another year, he said.
Money matters aside, Murray isn’t convinced that the long-term plan in the county’s new runoff rulebook is going to achieve the lofty goals of stream health set by the EPA.
“Each time a new development goes in, they’re adding an additional burden of nutrients and sediment,” he said. At the rate Albemarle is growing, zeroing out the impacts will get harder and harder. “When you add in all these new developments, I just don’t see how they’re going to do it.”
Graham agreed that it’s a tall task, but he’s more optimistic. When it comes to meeting the bar set by the federal government Albemarle is “light years” ahead of some neighboring counties.
And if the broad fixes to a sick watershed were easy and cheap, they would be done already. Federal and state government has been targeting pollution in the bay for decades. “Originally, they planned to have this problem fixed by 1995, and then it was 2002, then 2008, and now we’re looking at 2025,” Graham said.
Now, it’s time to pay the piper.
“It’s not a question of if we’re going to fund these things, it’s how we’re going to,” he said. “We don’t have a choice.”