Accomack County Comments Re Nutrient Trading Cert Regs

The following comments are provided on behalf of Accomack County, Virginia to the Virginia Department of Environmental Quality / State Water Control Board proposed Nutrient Trading Certification Regulations.

A. Under 9 VAC25-900-90.C.2.a. & b. the strict limitation of all credit exchange to credits generated upstream of impaired waters and within the local TMDL watershed is unduly restrictive and contrary to the aims & objectives of nutrient reduction as a whole. This limitation naively assumes the availability of credit-generating activity upstream of impaired waters. Much of the Eastern Shore and Tidewater areas of the Commonwealth – which comprise hundreds of square miles - lack sufficient topography to generate upstream credit because there is no “upstream.” Yet, these areas are in dire need of exchange opportunities in order to meet laudable pollution reduction goals, and they also harbor profound and unique nutrient-reduction opportunities.

Some credit - if only a modest portion of all available credit - should be available for exchange even if generated at the point of entry into impaired waters or generated within the impaired waters themselves. Nutrient reduction at these points offers the powerful advantage of immediacy of effect. Immediate, measurable nutrient reduction (especially in impaired waters) can offer immediate pollution reduction in impaired waters and can be a huge incentive to nutrient reduction as a whole. There is also great potential benefit in allowing the whole Bay Watershed to trade for or otherwise implement (even to buy) some nutrient reduction credit for strategies implemented outside their local TMDL watershed - particularly for those far upstream and removed from the Bay.

This regulation as drafted offers virtually no credit (and certainly no incentive) for the Eastern Shore (and other "topographically challenged" areas of the Bay Watershed) to undertake any innovative or aggressive nutrient reduction strategies. The Shore includes broad expanses of land so flat that the direction of "downstream" is frequently ambiguous, and so low that the Bay's tide dominates the stream. As demonstrated by nutrient & pollution reduction activities such as the Elizabeth River Project, strategies implemented in-stream and immediately adjacent to impaired waters can be profoundly effective. Such strategies deserve a place in Virginia's TMDL toolbox. Allowing some credit exchange across the whole Bay Watershed would also be a great incentive and enhancement to the TMDL program. 

Here on the Eastern Shore, we are at the receiving end of nearly everything that flows down the Chesapeake Bay watershed. Naturally, we are very passionate about improving the health of the Bay. While lots of folks like and even say that they love the Bay from a distance, we here at and in the Bay have a significant population that depends upon the Bay and that is subject to the water quality and elevation of the Bay on a daily basis. Our interest in improving the Bay is immediate and it is long-term. Being one of the poorer regions of the Commonwealth everything we do is done with an eye towards economy and cost-effectiveness and we are forever on the lookout for ways to create jobs.

We would like to see the Nutrient Trading Certification Regulations make room for something we call “last pound” nutrient reduction. (The analogy is to the “last mile” broadband deployment effort, wherein the state gave extra resources and special consideration to the extension of internet to areas that are unusually tough and/or expensive to serve.) The thought is that, good as it is, Virginia’s nutrient reduction & Bay clean-up program can be very costly to implement – especially when it comes to the “last pound” of compliance on a dense, highly-engineered development site (think Northern Virginia). In places like Northern Virginia, full on-site nutrient reduction can be very expensive. In some cases, we would expect that meeting the last 5-10% of required nutrient reduction would be the most expensive and the least economically efficient. Where such expense and inefficiency become extreme, we would argue for relief in the regulations to enable less owner/developer money to be spent to produce greater environmental benefit by moving the nutrient reduction strategy off-site and directly into the Bay.

[Hypothetically speaking, instead of spending $200,000 for a site improvement to provide the last 5-10% of nutrient reduction required on a site, why not instead allow an expenditure of $100,000 or $150,000 to purchase off-site nutrient reduction that will provide 3X to 5X the nutrient reduction that could be achieved by the on-site improvement? This sort of relief would be better for the Bay and better for business in our state.]

Here on the Shore, we would like to see a couple of changes in the Commonwealth’s nutrient reduction scheme as stepping stones to the sort of “last pound” program we’re talking about –

1.       We would like to see some credit for “in-stream” strategies such as bio-filtration mats and filter-feeder planting. We are particularly drawn to in-stream strategies that hold potential for both efficient, virtually immediate nutrient reduction and for job creation here on the Shore. In-stream strategies can be extremely effective (see, e.g.: The Elizabeth River Project) and are apparently creditable for nutrient reduction in places like Maryland. How can Virginia say we are doing all we can for the Bay if we don’t use these strategies?

2.       We would like to see some nutrient reduction credit transfer between localities across the Bay watershed. Enabling site owners far up the Bay watershed to buy just a small “last pound” portion of their nutrient reduction can offer the benefits of (1) more nutrient reduction, (2) more cost-effective nutrient reduction, (3) real, direct (and even marketable) connection between development up the watershed and the Bay itself, (4) a bit of site design flexibility were it is arguably most desirable and certainly most valuable.

Note that by “some” in both of these items we’re talking about only a very small share of the total – 5% or so of the overall nutrient reduction required on a given site. Our sense is that even just a small portion of the total would be a valuable change – particularly for some of the large, highly-developed localities far up the Bay watershed.

The sort of nutrient trading we envision could be a win-win proposition on both sides of the Bay, both up and down the Bay watershed. It can foster smarter, affordable, better development in the upper reaches of the watershed, create jobs on both sides of the Bay, and provide significant near-term nutrient reduction that can show measurable improvement in water quality.

B. The provisions in 9VAC25-900-100.C.2.c. regarding the storage of poultry waste appear unduly burdensome to the Eastern Shore poultry industry. Particularly, the minimum separation of 100 feet between poultry waste stored outside or not under a roofed structure and "any surface water" or "intermittent drainage" is a patently impossible, unattainable standard. Nearly any significant rain event here on the Eastern Shore produces some surface water and/or intermittent drainage anywhere outdoors that is not covered by a roofed structure. So, as written, the regulation appears intended to make every poultry operator a violator every time a significant rain event occurs. (None of the terms used in prescribing this separation is defined in the regulation so as to give this requirement an understandable or realistic meaning.) As it is, this regulation seems blatantly hostile to the poultry industry, at least as it exists on the Eastern Shore. This standard needs to be reconsidered and replaced with one that is realistic & workable for the poultry industry in order that we avoid driving our poultry industry away. The Eastern Shore values our poultry industry. Our community needs these jobs!

Respectfully submitted,

Mark B. Taylor, Esquire
County Attorney
County of Accomack

Post Office Box 709
Accomac, VA 23301
757-787-5799