Commenter:
David W. Sligh, Upper James Riverkeeper, James River Association
NOIRA, Amendments to 9VAC25-720-10, Regulating Flows
Comments In Response To Notice Of Intended Regulatory Action (NOIRA), Possible Amendments to 9VAC25-720-10, "Regulating Stormwater Flow through the Total Maximum Daily Load (TMDL) Process" These comments are presented on behalf of the James River Association (JRA), which works to protect and restore the quality of the James River and its tributaries. JRA has members throughout the State of Virginia who use state waters for recreation, commercial activities, and drinking water, and whose property interests are directly affected by the quality of these waters.
Also, JRA has a direct property interest in the quality of state waters, as a leaseholder of property adjacent the James River and through active scientific and educational programs that are dependant on waters throughout the James River Basin. All of these interests are of long standing and will continue into the future.
We support the planned regulatory action and believe it is important that Virginia explicitly recognize, as a matter of law and policy, that changes to quantities of water and flow patterns in state waters are a prominent source of pollution and impairment or denial of designated and existing uses. We believe these regulatory changes should include amendments to all three of the the regulations listed in the "Alternatives" section of the Regulatory Town Hall notice and request for comments, and possibly to other regulations.
We should note that we firmly believe that Virginia's current statutes and regulations provide full authority and responsibility to recognize impairments that flow alterations cause or to which they contribute. We also assert that, upon finding that flow alterations cause or contribute to impairments, Virginia is required to address such problems through any and all regulatory programs intended to protect and restore the integrity of our waters. However, we strongly endorse the need and value of clarifying the regulations and providing more details regarding the correct interpretation of flow-related requirements.
There are many thousands of stream miles and large expanses of reservoirs, embayments, and wetlands for which impairments from flow alterations are well known and thoroughly documented. Many more have yet to be accounted for in Virginia's Water Quallity Assessments (305b reports) or in the 303d Impaired Waters lists.
These impairments include those resulting from increased quantity and severity of stormwater runoff due to development, resulting in transport of pollutants into water bodies and damage to stream channels and associated aquatic and riparian habitats and biota. The public notice for this NOIRA appropriately mentions the need to address excessive flows as a primary stressor that may damage or preclude biological and recreational uses.
However, we assert that these regulatory changes should address a wider range of flow and quantity impairments - including those caused by low flows as well as high flows; by impoundment of streams and subsequent flow alterations both upstream and downstream of dams; and by flow changes due to water intakes and withdrawals.
A number of other states have adopted Water Quality Standfards and other regulations addressing flow alterations. We encourage Virginia officials to do likewise. Options examined should include adoption of narrative standards prohibiting flow alterations that harm the integrity of water bodies, degrade high quality waters, or cause or contribute to any use or quality impairment.
Likewise, both federal and state agencies have extensive experience in developing flow requirements in relation to private and government-owned dam operations. These cases require resource protections under the authority of state and federal wildlife agencies, park and forest management authorities, and others. Since there is considerable overlap between conditions necessary to meet these requirements and those needed to maintain a system where the physical, chemical, and biological integrity is intact, principles and methods used there should be imported into standards development.
Virginia should develop standards and implementation procedures which limit the degree to which flow regimes may be altered from historical or "natural" patterns. These regimes must reflect short and long-term variability and other facets of flow-related conditions, maintain or improve the biologiical and chemical functions, and support beneficial human uses, to include receation, aesthetics, and others. Virginia must consider how waters exhibiting high quality with regard to flow patterns can meet antidegradation requirements.
Thank you for pursuing this important regulatory improvement and we look forward to working with you in developing and implementing workable and effective requirements.
