Action | Amend and Reissue the General Permit for Discharges of Stormwater from Construction Activities |
Stage | Proposed |
Comment Period | Ended on 6/7/2013 |
June 7, 2013
The Regulatory Coordinator Submitted Via Electronic Mail
Virginia Department of Conservation
and Recreation
203 Governor Street, Suite 302
Richmond, Virginia 23219
Re: Response to Public Notice: General Permit Regulation for Dishcarges of Stormwater from
Construction Activities (4VAC50-60-1100 et seq.) (Part XIV)
Dear Sir or Madame:
I submit these comments on behalf of Shenandoah Riverkeeper and its members. Please
include this letter, along with documents attached or cited for incorporation by reference,
in the official record for this regulatory action, as that record is assembled in accordance
with the requirements of the Virginia Administrative Process Act, at § 2.2-4027.
Introduction
The proposed regulation fails to meet Clean Water Act and Virginia law in a number of
very serious respects. Therefore, we assert that the State Water Control Board
has a duty to reject this proposal in its present form, require significant
modifications, and open a new draft of the permit to public notice and
comment. The numbered paragraphs below explain the bases for our objections.
Shenandoah Riverkeeper
Shenandoah Riverkeeper operates under Potomac Riverkeeper, Inc., a 501(c)(3) nonprofit
corporation. The mission of the organization is to use community action and
enforcement to protect and restore water quality in the Shenandoah River watershed for
people, fish, and aquatic life. Many of the 1600 Riverkeeper members use the
Shenandoah watershed’s streams and other waterbodies across Virginia to swim, fish,
boat, and recreate, as well as for business uses and as drinking water. Many of our
members live and own land along waterbodies that will be affected by this regulation and
have direct economic and property interests connected to the health and quality of these
waters. The Shenandoah Riverkeeper organization and it members have direct,
substantial, past, and ongoing interests that will be affected by this regulatory action.
Shenandoah Riverkeeper will hereinafter be referred to as “Riverkeeper.”
The Scope of the Threat
Because thousands of land-disturbing activities have been and will be covered under the
construction stormwater general permit, the impact of its requirements will be a major
determinant of water quality conditions in thousands of Virginia water bodies and a
significant influence on the quality of life in hundreds communities. The affected water
bodies range in size from intermittent streams to major rivers and the Chesapeake Bay; in
quality from pristine mountain streams to heavily degraded waters; but all have value to
the state, to the larger ecosystems to which they belong, and to the people who use or
want to use them.
Likewise, a very broad spectrum of conditions exists across the various landscapes in
Virginia and the sites to be developed, including variations in factors such as land slopes,
climate, prior land uses, soil types, phosphorous saturation and erosion rates. The wide
variety of characteristics of receiving waters and building sites make the application of a
“one-size-fits-all” general permit unacceptable.
To be clear, the reason general permits are used by regulators, in Virginia and elsewhere,
is to reduce the time, effort, and resources needed to permit thousands of additional
pollution sources to impact our waters. General permitting systems provide no benefits to
water quality that individual permitting does not. They provide, inherently, less scrutiny
of each polluting activity and less assurance that the wider public interests and the
objective of the Clean Water Act (“CWA”) will be adequately served. And while greater
efficiency in permitting is a worthy goal, it may never be allowed to override the
important interests which the CWA and state water quality laws were adopted to serve.
Given the widely-acknowledged fact that pollution affecting the Chesapeake Bay, though
decreasing from other sectors, is increasing from development activities, a much more
effective system for regulating construction site discharges is essential. The current
proposal from the Department of Conservation and Recreation (“DCR”) under review
here falls far short of that goal.
Objections
1. The record assembled to support the regulation and general permit contains neither
evidence nor analysis to show that the permit’s conditions will uphold Virginia’s water
quality standards.
The requirements in Virginia’s proposed permit are supposed to carry out the mandates
of state law and of the Clean Water Act, under which the state issues discharge permits
pursuant to delegation from the U.S. Environmental Protection Agency (“EPA”). States
may issue permits with conditions that are more stringent than those required by federal
law but may not fall below the standards set under the CWA and EPA regulations.
Authorization in state law for this regulation is provided by the Virginia Stormwater
Management Law, §10.1-603.1 et seq. of the Code of Virginia, which is administered by
the DCR and the Virginia Soil and Water Conservation Board (“the Board”). The Board
acts under mandates “to ensure the general health, safety and welfare of the citizens of
the Commonwealth as well as protect the quality and quantity of state waters from the
potential harm of unmanaged stormwater” and “to protect properties, the quality and
quantity of state waters, the physical integrity of stream channels, and other natural
resources.”1
In accordance with federal regulations, the draft general permit contains effluent
limitations for construction stormwater discharges based upon Effluent Limitations
Guidelines (ELGs) established by the EPA.2 The EPA has a duty under the Clean Water
Act to establish ELGs for various categories of industrial dischargers, based upon an
assessment of the capabilities of treatment technologies on a national scale. These ELGs
constitute technology-based controls and are intended to be a “floor,” below which the
quality of discharge effluents may not fall.
Additionally, as is the case for all technology-based NPDES permit limits, these ELGs “do
not account for the level of pollutant control that may be necessary in a specific area to
meet applicable water quality standards. CWA Section 301(b)(1)(C) and EPA’s regulations
at 40 CFR 122.44(d)(1) require permitting authorities to include additional or more
stringent permit requirements when necessary to achieve water quality standards.”3
To determine whether the technnology-based limits in Virginia’s construction stormwater
permit can fully uphold the state’s water quality standards, the permitting officials would
have first needed to determine the quality of effluent that would be produced by the
treatment systems required under the proposed permit - this has not been done.
Where ELGs for many categories of industries include numeric limits on particular
pollutants, those developed for construction and development activities include only a set
of practices that must be implemented. The effluent limits in EPA’s “General Permit for
Discharges from Construction Activities” are described as shown below. While the EPA
1 4VAC50-60-40.
2 Federal Register, Vol. 74, No. 229, Tuesday, December 1, 2009, Effluent Limitations Guidelines and
Standards for the Construction and Development Point Source Category, Environmental Protection
Agency (EPA), Final Rule, 40 CFR Part 450, pp. 62996 - 63058.
3 Federal Register, Environmental Protection Agency, Final National Pollutant Discharge Elimination
System (NPDES) General Permit for Stormwater Discharges from Construction Activities, Vol. 77, No. 40,
Wednesday, February 29, 2012, p. 12290.
permit applies only to states and tribes not having approved NPDES programs, this
federal permit directly incorporates the components of the ELGs and serves as an
example to guide state programs.
Effluent Limitations Applicable to All Discharges from Construction Sites
You are required to comply with the following effluent limitations in this Part for discharges from
your site and/or from construction support activities (see Part 1.3.c).
. . .
• Erosion and Sediment Control Requirements (Part 2.1)
• Stabilization Requirements (Part 2.2)
• Pollution Prevention Requirements (Part 2.3)4
Virginia’s construction stormwater regulation incorporates a system of Best Management
Practices (“BMPs”) that are designed to reflect the ELGs. Given the fact that Virginia’s
general permit allows for operators to design a plan that uses a combination of BMPs,
meeting minimum standards but not requiring any particular set of pollution controls, the
performance of the treatment systems may produce a range of effluent qualities, often
with large concentrations of pollutants, even when all measures are correctly
implemented and maintained. When plans are not carefully reviewed by regulators and
enforcement is lax, these problems will be much more serious.
EPA documents and the work of independent experts illustrate extreme ranges in the
pollutant loads and concentrations produced by different BMPs. These sources also
demonstrate that the amounts of pollution not removed from the stormwaters pose very
high risks of waterbody impairments, violations of water quality standards, and
interference with designated and existing uses.
Examples of construction stormwater BMPs implemented at sites in Virginia are
provided in EPA documents prepared in conjunction with issuance of the ELGs and
federal general permit. Unfortunately, EPA’s analyses include only treatment efficiency
information for removal of sediments. EPA assumed that parameters such as turbidity,
Total Suspended Solids (TSS), or other solids measurements could serve as adequate
surrogates for other pollutants of concern for construction stormwater - an assumption
that is known to be inappropriate for dissolved pollutant fractions. In fact, there are
insufficient data to prove the correlations between removal efficiencies for either nutrients
or sediments and a range of other pollutants.
For silt fences, which are used almost universally across the state EPA’s document states:
4 U.S. EPA, National Pollutant Discharge Elimination System General Permit for Discharges from
Construction Activities, 2012, p. 9 of 74.
(End of Part 1 of submittal)