FROM: Home Builders Association of Virginia (Andrew Clark – Vice President of Government Affairs)

Subject: Streamlined Plan Review for Construction Stormwater Plan and Erosion and Sediment Control Plans (Guidance Memo No. 22-2011) and Stormwater Management and Erosion & Sediment Control Design Guide (Guidance Memo No. 22-2012)

Ms. Davenport: Thank you for the opportunity to comment on the Department of Environmental Quality’s proposed Guidance Memos 22-2011 and 22-2012. The Home Builders Association of Virginia (“HBA of Virginia”) has reviewed the draft guidance documents and, in consultation with member firms across the Commonwealth, prepared the following comments for your consideration.  We have included several general comments which we would ask to be included in the record for both Guidance Memos; we have also included comments related to specific provisions of Guidance Memo 22-2012.

Executive Summary/General Comments:

• The HBA of Virginia is sincerely appreciative of the tremendous momentum in the Department over the last nine months towards addressing many of the regulatory issues affecting the housing industry and economic development in the Commonwealth.  The Director and Department staff have worked diligently to open the lines of communication with various stakeholders, identify pressing issues, and expeditiously implement short- and long-term goals and solutions.  We believe that these efforts will have a positive impact on the Commonwealth’s environmental and economic development objectives.
• Both proposed Guidance Memos seek to enhance efficiencies and advance “best practices” for the Department and the regulated community; the HBA of Virginia is fully supportive of any balanced and common-sense efforts to accomplish those goals.  However, the General Assembly must also proactively address the Department’s budgetary constraints and staff shortages, which our industry views as a significant impediment to enhanced efficiency in regulatory reviews and sustained communication between regulators and the regulated community on best practices. 
• HBA of Virginia Positions on Proposed Guidance Memos:
  • Guidance Memo 22-2011: Support
  • Guidance Memo 22-2012: HBA of Virginia has identified several questions and concerns, which are detailed below; request additional time for stakeholder engagement and consideration of revised language and/or alternative approaches to meeting overarching objectives.
• Based on discussions with Department staff, the HBA of Virginia believes that many of the concerns raised by stakeholders re: Guidance Memo 22-2012 can likely be resolved through additional discussions between the Department and the regulated community.

HBA of Virginia - Guidance Memo 22-2011:

The Home Builders Association of Virginia supports the Department’s efforts to provide streamlined reviews of stormwater management (SWM) and erosion and sediment control (ESC) plans in localities where the Department serves as the VSMP or VESCP authority and provided that certain conditions are met.

HBA of Virginia - Guidance Memo 22-2012:

The Home Builders Association of Virginia acknowledges that the Department is attempting to address several legitimate issues through its Guidance Memo 22-2012.  However, our members have raised substantive questions about, and concerns with, the proposed document and various provisions which may adversely impact the residential land development industry and other stakeholders. We are extremely grateful for the time that Department staff has dedicated to meeting with HBA of Virginia staff and member firms and remain committed to continue working with the Department on this proposal.

Primary Concerns

5.200 (A) and (B)“Post-development drainage areas and drainage divides should replicate, as nearly as practicable, the pre-development drainage areas and drainage divides. See Va. Code § 62.1-44.15:28 A 10.”

HBA of Virginia Comments: This statement seems to conflict with Va. Code § 62.1-44.15:28 A 10.  It replaces the parameters of rate of flow, runoff characteristics, and site hydrology with “drainage areas and drainage divides” and ignores the provision that the law provides for improvement of existing erosion and flooding conditions. 

“Post-development drainage areas should deviate from the pre-development condition by no more than plus or minus 10%.

HBA of Virginia Comments: As proposed, Section 5.200 (A) and (B) would allow a deviation between pre- and post-development drainage area conditions no greater than 10%.  While possibly feasible in dense, urban communities, compliance with this requirement outside of Northern Virginia is generally not practical for many sites and types of projects given varying pre-development conditions (i.e., topography, size of site, geographic location). Compliance would likely result in a significant increase in the number of onsite BMPs.

Based on feedback that we received from our member firms, we believe that additional discussion between the Department and the regulated community may help identify a more manageable, alternative approach.

5.302 (D)“The hydrologic soil group (HSG) used for post-development CN selection should be based on the ultimate development condition of the subject land-disturbing activity…For disturbed soils (e.g., pre-development soil profiles that will be mixed or removed or fill material from other areas will be introduced), the design professional should:

1. Adjust the pre-development HSG by at least one factor (i.e., HSG A to HSG B; HSG B to HSG C; HSG C to HSG D) when selecting the post-development CN. See Section 5.302 D herein; or …”

HBA of Virginia Comments:

• Post-developed adjustment is not currently required in existing VSMP Regulations, Virginia’s Stormwater Handbook, or in any guidance issued by the Department of Environmental Quality.
• Modification of the pre- to post- HSG is not possible with the Agency-provided VRRM spreadsheets.  If you do not provide matching soil area totals, the VRRM worksheet returns an error and does not compute.
• Rural areas would be particularly impacted by this provision, given that pre-development land is largely undisturbed.

3.305.2 and 3.307 (D)“Piped or channelized stormwater runoff converted to sheet flow prior to discharge should comply with 9VAC25-870-66 B (see Section 3.302 herein) and 9VAC25-870-66 C (see Section 3.303 herein) or “Safe Harbor” (see Section 3.304 herein).”

“Offsite discharges of sheet flow from a level spreader, with the exception of those discharges meeting the requirements of Safe Harbor (Section 3.304) herein, should be encompassed with a drainage easement.”

HBA of Virginia Comments: 9VAC25-870-66(D) is written such that discharges of sheet flow from level spreaders are to be treated the same as those from pervious or disconnected impervious areas, however, they are subject to different technical criteria in this guidance.  By the regulations, requirements of section 3.305.2 (A through N) should only apply when there is an increase in runoff volume or velocity compared to the pre-developed condition.  Otherwise, discharges from level spreaders should only be subject to the requirements set forth in 3.305.1 (A).

3.305.2“The length of sheet flow path to the down-gradient stormwater conveyance system should be less than or equal to the following…”

HBA of Virginia Comments: This requirement is not stated in the regulations and ignores the condition where the pre-development downstream flow path may be shallow concentrated flow or where riparian buffers are wider than the calculated sheet flow length.

3.307 “Storm drainage easements should be obtained and recorded among the local land records to encompass any proposed offsite manmade stormwater conveyance systems (including their outfall structures, such as outlet protection or level spreaders), and any proposed offsite sheet flow paths to an existing stormwater conveyance system.”

HBA of Virginia Comments:

• All discharges that are made in accordance with the Virginia Stormwater Management Act and/or VSMP Regulations and do not require/propose construction, improvement, or modification of downstream flowpaths should not be subject to obtaining offsite easements or agreements from downstream property owners.  This section should specifically exclude discharges to an existing stormwater conveyance system that is not being modified.
• As drafted, the development community would be required to obtain easements from adjacent landowners, which can be a time-consuming and unpredictable endeavor.  If adjacent landowner refuses to grant an easement, the developer has limited options available to meet requirement.

Additional Comments, Concerns, and Questions

2.303 (D)

HBA of Virginia Comments:

• This section should include meeting the channel and flood protection requirements of 9VAC25-870-66 or meeting the Safe Harbor provisions as options for compliance for sediment basin discharges in lieu of analysis of the downstream channel to the limit of analysis.  This is stated in Minimum Standard 19(n) (9VAC25-840-40).
• Creates conflict with 9VAC25?840?40 (6b): “Runoff coefficients used in runoff calculations shall correspond to a bare earth condition or those conditions expected to exist while the sediment basin is utilized.”  Guidance document proposes to eliminate the following provision: “or those conditions expected to exist while the sediment basin is utilized”

3.302.3

• HBA of Virginia Comments:
  • Creates uncertainty in determining when the more restrictive energy balance discharge requirements apply in relation to the point of discharge and the 1% limits of analysis as is done in Section 3.302.1(A)(1).  (Manmade conveyance discharging into large river example)
  • Proposed Guidance Document: “A manmade lake or reservoir not created for the purpose of managing post-development stormwater should be considered a natural stormwater conveyance system.”
    • Proposal modifies the definition of a natural conveyance system (as defined in 9VAC25-870-10); adds additional burden on development community with  minimal positive environmental benefits

3.302.3 (A) and 3.304 (C) (3)“RV_developed = the un-attenuated volume of runoff from the site in the developed condition”

HBA of Virginia Comments: Inserts the term “un-attenuated” which does not appear in 9VAC25-870-66(B)(3). This change would only serve to decrease the allowable discharge from sites and place additional burden on the development community.

3.302.4

HBA of Virginia Comments: This section appears to limit the definition of a natural conveyance system (as defined in 9VAC25-870-10) by saying flood-prone areas (included in the definition of a natural conveyance system and also specifically defined in 9VAC25-870-10) would only be evaluated for inclusion in a natural conveyance system on a case-by-case basis.

3.303

HBA of Virginia Comments:

• Proposed Guidance Document: “The applicable flood protection criteria depends on whether or not pre-development localized flooding exists downstream from the site.”

• • If 10-10 detention is acceptable when there is existing flooding, 10-10 detention should also be acceptable when there is not existing flooding. 

3.303.1 (C) (3) and 3.303.2 (B) (3)

HBA of Virginia Comments:The limits of analysis is inconsistent with the regulations, 9VAC25-870-66(C)(3)(c).  This statement should read “The stormwater conveyance system enters a mapped floodplain or other flood-prone area, adopted by ordinance, of any locality” not just a “FEMA floodplain”.

3.305.1 and 3.305.2

HBA of Virginia Comments: References to 10-yr 24-hour storm velocity are inconsistent with the current regulations.  The VSMP Regulations and all other Virginia standards evaluate erosive velocities based on the 2-yr 24-hour storm.

4.400 – 4.404

HBA of Virginia Comments: We would suggest modifying this section to be clear that demonstration of the inability to achieve compliance onsite is not a requirement for the use of offsite nutrient credits (4.404(A)).  See 9VAC25-870-69(B), which states the operators shall be allowed to utilize offsite options under certain criteria.

5.600“The design professional should screen for the relative risk of encountering acid sulfate soils within the proposed limits of clearing and grading.”

HBA of Virginia Comments: The guidance document and the website for the Virginia Tech School of Plant and Environmental Sciences is unclear whether documented sulfide occurrence triggers the requirement for a site investigation.