Comments on a proposal to: Amend the General Permit for Discharges of Stormwater from Construction Activities found in Part XIV of the Virginia Stormwater Management Permit Program Regulations and its associated definitions found in Part I of those Regulations (4 VAC 50 – 60).
These comments are submitted to the Virginia Soil and Water Conservation Board and the Department of Conservation and Recreation (DCR), on behalf of members of the James River Association (JRA) and supporters of the Upper James Riverkeeper program. Our members enjoy a wide range of recreational activities, including fishing, swimming, and boating, throughout the James River Basin and in other Virginia water bodies. Also, our members have important economic, professional, and aesthetic interests in the health of Virginia water bodies. Thus, our members have direct, substantial, and ongoing interests that will be affected by this regulatory action.
The proposed amendments to the General Stormwater Permit include important measures that will contribute to the control of sediment pollution from regulated construction sites in Virginia. However, the General Permit, in its current proposed form includes some important deficiencies that fail to meet the requirements of the Clean Water Act (CWA) or adequately uphold Virginia’s Water Quality Standards (WQS or Standards) and support its “designated” and “existing” uses, as these are defined in federal and state regulations.
The greatest weakness of this proposed amendment to the General Permit is its failure to incorporate effluent limitations that will prevent sites from causing or contributing to violations of standards in “water quality limited” water bodies. Reliance on only technology-based pollution control measures (Best Management Practices or BMPs) is not and cannot be effective at maintaining water quality, especially as those BMPs are not closely and effectively suited to the diverse and particular environments in which they will be used.
Many of Virginia’s water bodies are acknowledged to be “impaired” under CWA section §303(d), including those the State explicitly declares to be polluted by sediments. Where new permitted discharges are to be permitted under CWA § 402 (NPDES permitting), these discharges may not contribute additional pollutants that will contribute to or even exacerbate the violation of Water Quality Standards in the receiving waters or in other waters affected. This permit amendment fails to enforce the Clean Water Act and Virginia requirements, because discharges allowed under it will inevitably contribute to violations already existing in §303(d)-listed waters. Abundant scientific findings exist to prove that the BMPs or technology-based limits imposed in the General Permit cannot be expected to eliminate the pollutants that will further contribute to violations in Virginia waters and the Virginia DCR has produced no evidence in support of a contrary finding. Because Virginia regulators have the burden of making sure that all CWA and State requirements are met by these permits, it also bears the burden of proof that its proposed limits are adequate for that purpose – in this instance the State has failed to meet that burden.
Another important concern regarding the legality of this regulatory amendment and the Construction Stormwater General Permit, is the failure of the regulation to adequately address antidegradation requirements in the CWA or in Virginia WQS. Antidegradation is a part of Water Quality Standards that must be upheld (according to federal regulations at 40 CFR § 131.12 and Virginia regulations). These provisions require that antidegradation reviews related to each applicable regulatory action assess whether the application of Tier I, II, or III measures are needed to prevent illegal degradation of water quality. Since the application of this general permit does not provide for variations in requirements based upon findings of high quality conditions in waters that may be affected, the General Permit and this amended regulation are inadequate and fail to meet legal requirements.
We believe there are other deficiencies in the proposed regulation that must be addressed but have presented our most important concerns in these comments. We encourage the Virginia Soil and Water Conservation Board to issue this general permit only for a term of one year (in whatever form it emerges from this public review), rather than the proposed five year period, because we believe that new information and scientific and regulatory findings (particularly those related to EPA’s current review of federal construction stormwater permits) require this action to be reviewed in the near future.
