August 30, 2022

Dear Ms. Davenport and Mr. Hammond:

Our firm represents American Land Holdings, LLC ("American Land"), a developer and parent company for multiple lakefront and waterfront vacation home developments on the East coast. Two of American Land's premier projects under development are located in Virginia: Rock Island Landing and Compass Cove, both lakefront on Lake Anna in Louisa County. American Land's affiliate also in 201 7-19 successfully completed and sold Kennedy Shores with lake-front residential lots on the banks of Smith Mountain Lake in Franklin County.

The owner of American Land also owns Spring Creek Land Development, LLC ("Spring Creek Development"). Spring Creek Development has years of experience as a developer of high end residential lots, and its signature project is the 980-acre residential and golf resort community of Spring Creek, located in Louisa County. Spring Creek is a primary economic driver of the County's growth and has, over the last several years, been the underpinning of the growth area in the Zion Crossroads District. The projects of these two developers provide critical tax revenues for the County.

American Land generally applauds the Virginia Department of Environmental Quality's ("DEQ's) efforts to provide guidance to· standardize project design and review in the Commonwealth. Such guidance is needed and will help reduce the inconsistent reviews of projects that developers have been experiencing across the state. However, one sentence in the guidance unnecessarily and adversely affects the development of lakefront lots on Lake A1ma and Smith Mountain Lake without any environmental benefit. The draft guidance directs that waterbodies such as these two man-made lakes must be considered natural stormwater conveyance systems instead of man-made systems. [DEQ, Guidance Memo No. 22-2012, Stormwater Management and Erosion & Sediment Control Design Guide, at 18 (stating: "A manmade lake or reservoir not created for the purpose of managing post-development stormwater should be considered a natural stormwater conveyance system.")]

The regulation defines "manmade stormwater conveyance system" as "a pipe, ditch, vegetated swale, or other stormwater conveyance system constructed by man except for restored stormwater conveyance systems." 9 VAC 25-870-10.  On the other hand, a "natural stormwater conveyance system" is defined as "the main channel of a natural stream and the flood-prone area adjacent to the main channel." Id. The image that presents for the latter is of a creek or stream with its adjacent floodplain. Lake Anna and Smith Mountain Lake are not natural streams with adjacent floodplains. Instead they are flooded valleys, controlled by manmade dams, with lake levels manipulated according to power plant needs rather than fluctuating in the way of natural lakes. There is very little that is "natural" about these two lakes and they clearly do not fit within the natural stormwater conveyance system definition. They are, however, "other stormwater conveyances" under the definition of a manmade stormwater conveyance system.

Our client's concern is not water quality treatment for lakefront developments, but rather water quantity for projects specifically on Lake Anna and Smith Mountain Lake. By identifying these lakes as natural stormwater conveyance systems, DEQ guidance demands the use of the energy balance method to address water quantity. The method is designed to provide that pre- and post-development runoff into a natural stormwater conveyance system is the same - primarily to avoid erosion and degradation due to full bank events of natural streams. But concentrated discharges at Lake Anna and Smith Mountain Lake are not to natural streams with banks to protect. Designing and implementing a solution to meet energy balance requirement is not more beneficial to the shorelines of these lakes than meeting DEQ's requirements for discharges to manmade stormwater conveyance systems.

Both of these lakes have very large watersheds and the volume of water discharged in the 2-year, 24-hour storm calculated for a project assuming the lakes are manmade systems is miniscule compared to the volume of water discharging to the lake from all other sources in the watershed during that same 2-year, 24-hour storm. And when the discharge point from the storm water system is close to the lake itself or water is discharged over a level spreader, the volume of water discharging to the lake does not create an erosion issue for the lake or any natural channel.

Applying the energy balance method to concentrated discharge points on Lake Anna and Smith Mountain Lake often results in zero-discharge requirements because of the small contributing drainage area at each point and sheet flow conditions at the shoreline. That makes the development of such lots economically impossible. By this requirement, DEQ effectively halts the development of waterfront lots on the state's lakes, whether large or small.

Lake Anna and Smith Mountain Lake are unique in their size in the Commonwealth and in their use for power plant management. Because of the reasons described above, our client strongly recommends that DEQ guidance be changed so that Lake Anna and Smith Mountain Lake are considered manmade stormwater conveyance systems.

We also noticed that DEQ sent out a pre-publication version of the guidance to multiple individuals and Certified Stormwater Reviewers on the DEQ mailing list. The pre-publication version of the guidance did not include the sentence identified in Footnote 1 above about how to consider lakes like Lake Anna and Smith Mountain Lake. We have already noticed individuals providing comments on the pre-publication version of the guidance rather than the version that was published in the Virginia Register. While we know that the published version is the version that everyone should review, the fact that DEQ sent out the pre-publication version under Michael Rolband's signature makes it likely that many people will not see the language that was added to the final publication version. We recommend that DEQ notify all individuals on its mailing lists who received the prepublication version the guidance and that the agency provide an additional 30-day comment period to ensure that it is receiving comments on the correct document version.

Our client is available to discuss these comments at your convenience.

Respectfully submitted,

McGuireWoods LLP

Heather N. Stevenson