Subject:  Proposed Draft Amendments to 4VAC 50-60-10, 4VAC60-60-1200 et seq.

General Permit for Discharges of Stormwater from Small Municipal Separate Storm    Sewer Systems (Part XV) – Published November 2012

Dear Sir or Madam:

The City of Alexandria (City) appreciates the opportunity to provide the following comments during the 60-day public comment period ending January 4, 2013 for the Proposed Draft Amendments to the General Permit for Discharges of Stormwater from Small Municipal Separate Storm Sewer Systems (MS4) as published in the Virginia Register of Regulations Volume 29, Issue 5; November 5, 2012).  The draft regulations are anticipated to be effective July 1, 2013.  As a regulated community that strives to protect and enhance its water resources, the City has participated in the process and continues to track the progress of these regulations.  Given the number of regulatory actions taking place in the stormwater arena in response to the Chesapeake Bay Total Maximum Daily Load (TMDL), the City recognizes the hard work performed by Virginia Department of Conservation and Recreation (DCR) staff in drafting these regulations. 

The City has some concerns with the proposed regulations and the overall approach with respect to the reductions for the Chesapeake Bay TMDL.  Localities should have the maximum flexibility to meet these reductions at the local level through the implementation of innovative techniques that will work to reduce the level of nutrients and sediment that may impact the Bay.  DCR should create incentives for the use of innovative techniques and not tie the localities hands by only allowing those BMPs currently being proposed through the BMP Clearinghouse.  While the City somewhat agrees with DCR’s approach to regulating proprietary devices at the state level, the City has regulated the use of water quality BMPs at the local level since 1992 by applying reasonable assumptions and observing effectiveness for local conditions.  Consequently, the City should be able to try new, innovative BMPs at the local level without going through the long and laborious process required for proprietary devices being sold on the open market.  Given the short schedule to meet the reductions, competing priorities, space constraints for siting practices, and funding needs; the City must have maximum flexibility to be creative and not be limited by the current menu of BMPs to meet these unfunded mandates.  Given the enormous initial order of magnitude cost estimates generated when considering strategies to meet the entire target reductions, maximum flexibility must be allowed at the local level. 

For instance, DCR should allow for trading within the locality from unregulated to regulated lands via this permit, and between regulated sectors with separate state permits held by the same locality. Specifically, sediment removal as part of channel maintenance should be considered as a BMP since sediment is being removed from the system and can no longer impact downstream.  Given the armored natured of these altered local flood channels, much of the sediment deposited in these channels originates from upstream.  If the City removes this material, the locality should be granted comparable removal efficiencies for the sediment and the associated nutrients that are removed from the system, and be able to apply these reductions toward the target reductions for the regulated area.  DCR has already set this precedent with the stream restoration credits.  Additionally, reductions in the combined sewer system that is regulated under the City’s VPDES permit should be transferrable internally to the MS4 regulated area without having to go through the formal credit exchange program. This is the sort of flexibility that would benefit the Bay without creating unnecessary hurdles or disincentives.

The following specific comments are also provided in response to this proposed draft.  Thanks in advance for your consideration. 

Section I.B:  Special Conditions for TMDLs other than Chesapeake Bay

The permit places the burden or drafting the required action plans on the locality, while these appear to basically be implementation plans that the state would draft in consultation with entities that have been given a wasteload allocation in the TMDL.

1. Section I.B.2.d-e. Lines 1111-1128. Evaluation of TMDL Action Plans.  These TMDLs assigned wasteload allocations (WLAs) for the entire MS4 based on the jurisdictional boundary, not the regulated MS4 area.  Further, it did not assign WLAs for individual facilities owned/operated by the MS4.  Performing monitoring for these facilities and creating models for each facility is overly burdensome and provides little value in protecting water quality.  Also, many of these TMDLs were developed with limited data points, and the theoretical assumptions on which the WLAs were predicated likely bear little resemblance to actual land use conditions.  Further, Part VI.A of the November 2, 2012 Fact Sheet that accompanies this draft argues for the use of  “narrative effluent limitations requiring the implementation of Best Management Practices (BMPs), rather than water quality based standards to be the appropriate form of effluent limitations for MS4s.”   The City agrees with the Fact Sheet and fails to see the value in assigning limited resources to perform monitoring and modeling for these purposes. 
2. Section I.B.5.b. Lines 1142-1144. Other TMDL Action Plans Evaluation Due. If the previous requirement stands, when would the evaluation be due?  Twelve months after the Action Plan is due, with the subsequent annual report?

Section I.C:  Special Conditions for the Chesapeake Bay TMDL

To paraphrase the City’s response to DCR’s November 2011 Information Request:  DCR’s 5.3.2 Local Goal Data that was submitted to localities in 2011 provides overwhelming evidence that the Chesapeake Bay TMDL, the WLA for “Regulated Stormwater”, and the resultant target reductions that further allocated the TMDL loads to the local level, were not based on actual local land use data or local stormwater quality facility BMP inventory data.  This is not just true for the City, since other localities have voiced this same concern.  It is practically common knowledge by those close to the process that the Chesapeake Bay Model cannot be applied at the local level.  Yet the process moves forward without accurate data.  Early estimates are in the hundreds of millions of dollars to meet the phased MS4 permit reductions for the City alone.  These types of dollar amounts and fiscal commitment warrant better information.

3. Section I.C.2. Table 2.b. Line 1176.  Estimating Existing POC Loads.  Given that the Regulated Stormwater WLA and the DCR target reductions from the 2009 Progress Run were not based on actual data, the revised loading rates for the entire Potomac Basin (which are higher than the previous rates) do not adequately reflect the City’s level of effort for the past 20 years in requiring stormwater quality BMPs for development and redevelopment.  The loading rate and resultant “Estimated Total POC Load Based on the 2009 Progress Run” generated therefore does not accurately reflect the number of actual BMPs installed, the regulated MS4 area, or actual land use.  The application of this generalized loading rate to the entire Potomac Basin does well to simplify the calculations, but creates an inequity by lumping the City’s progressive program in with less progressive programs.  Therefore it is highly likely that the total POC that is actually being generated at the local level is greatly overestimated.
4. Section I.C.2. Table 3.b. Line 1192. Determining Total POC Reductions, this Permit. Given the inaccuracy of the loading rate and Estimated Total POC as described above, the veracity of the L2 scoping and the Total Reduction Required First Permit Cycle that are predicated on these calculations and assumptions are highly questionable. 
5. Section I.C.2.a.(5)-(6): Lines1180-1184, 1200-1203. Estimate of Total Reductions to Meet L2, Means and Methods Utilized to Reduce Existing Sources by 5%.  DCR needs to provide formal guidance and direction for the accounting of credits for pond retrofits, treatment trains (for Pre-2009 and Post-2009 BMPs) and proprietary BMPs.  Through our continued efforts to find some clarity on the subject, staff was able to track down draft chapters of the 2012 Virginia Stormwater Management Handbook on the SLGAC webpage on the DCR website.  Chapter 7 of the Handbook contains some information in common with the “Recommendations of the Expert Panel to Define Removal Rates for Urban Stormwater Retrofit Projects (Schueler and Lane, October 2012); however, no pending date for final guidance has been communicated to the localities.  With budget planning underway and no guidance coming from DCR on this subject, the locality is at a disadvantage when requesting the necessary funds to meet permit reduction through the many projects that will be needed.  The City is moving forward with the best available information and using ranges of efficiencies, but it is very difficult to accurately plan without this guidance.  Estimating across ranges of efficiencies translates to possible orders of magnitude costs, which hampers our ability to effectively plan.  Please provide direct, clear guidance sooner than later.  The accounting methodology should be clear, concise and not overly burdensome to the locality/permittee.
6. Section I.C.2.a.(7):  Lines 1204-1210. Delayed Implementation of Stormwater Regulations.  Localities are not allowed to implement the Virginia Stormwater Management Regulations before July 1, 2014, yet the locality has to account for the load differential from these sources.  This shifts the cost from the developer – who should be responsible – to the locality and the taxpayers.  The locality has a big enough burden without having to unjustly pay more.  This externality is more rightfully borne by the developer, as is the profits.
7. Section I.C.2.a.(8), (10):  Lines 1211-1216, 1223-1224. & Table 4. Grandfathering.  The City was not in favor of the grandfathering provision, and this requirement would shift the cost from the developer to the locality and the public.  This externality is more rightfully borne by the developer, who may also benefit from the project.  Also, providing a list of future projects and associated acreage that may qualify in the Chesapeake Bay TMDL Action Plan is guesswork at best and the locality should not be basing real projects on loose forecasting.
8. Section I.C.2.b.(1):  Lines 1231-1233. BMPs on Unregulated Lands.  DCR should allow for trading among the locality from unregulated to regulated lands in this permit; proportional to the unregulated land being treated.  The entirety of the unregulated treatment should be transferrable internally to the regulated area without having to meet the load allocation. Further, sediment removal as part of channel maintenance should be considered as a BMP since sediment is being removed from the system and is no longer available for deposition further downstream.  Given the armored natured of these altered local flood channels, much of the sediment deposited in these channels originates from upstream.  If the City removes this material, the locality should be granted comparable removal efficiencies for the sediment and the associated nutrients that are removed from the system and be able to apply these reductions toward the target reductions for the regulated area.
9. Section I.C.2.b.(2):  Line 1234. Stream Restoration.  This practice should be credited more than the interim rate is allowing.
10. Section I.C.3.c.:  Lines 1260-1263. Implementation.  The City should not have to address these offsets and essentially bear the burden of the state’s decision to delay the implementation of the stormwater regulations before July 1, 2014 and allowing for grandfathering in the regulations.  If required to address these, the timeframe should be more flexible.
11. Section I.C.4.b.: Lines 1271-1272. Annual Reporting. More guidance is needed on the accepted method of accounting for all retrofits; as well as the reduction efficiencies given to various types of retrofits for existing facilities, and calculating treatment trains.  Where guidance is not forthcoming, deference should be given to the locality on accounting for any credits developed and implementation.
12. Section I.C.4.c.: Lines 1278-1279.  Annual Reporting on Retrofits.  More guidance is needed on the accepted method of accounting for all retrofits; as well as the reduction efficiencies given to various types of retrofits for existing facilities, and calculating treatment trains.  Where guidance is not forthcoming, deference should be given to the locality on accounting for any credits developed and implementation. 
13. Section I.C.4.d.: Lines 1281-1282.  Annual Reporting on expected retrofits.  More guidance is needed on the accepted method of accounting for all retrofits; as well as the reduction efficiencies given to various types of retrofits for existing facilities, and calculating treatment trains.  Where guidance is not forthcoming, deference should be given to the locality on accounting for any credits developed and implementation.
14. Section I.C.5.: Lines 1284-1295.  Reapplication.  More guidance is needed on the accepted method of accounting for all retrofits; as well as the reduction efficiencies given to various types of retrofits for existing facilities, and calculating treatment trains.  Where guidance is not forthcoming, deference should be given to the locality on accounting for any credits developed and implementation.

Section II.B. Minimum Control Measures

15. Section II.B.4.e.(3).: Line 1726.  Construction Site Runoff Control, Written Inspection Procedures.  Strike “in plan review” and insert “during inspections”.
16. Section II.B.5.c.(1)(a).: Lines1833-1834. Recorded Inspection Schedule.  The recorded inspection schedule for privately-owned facilities should be based on “facility type and expected maintenance needs” and should be carried out by the owner to ensure proper functioning.  Owner inspections are routine and vary in frequency based on the type and use of the facility.  The City’s inspection schedule is performed as QA/QC to ensure proper maintenance and is not of a frequency to be construed as routine.
17. Section II.B.5.c.(1)(b).: Lines 1837-1838. Privately-owned BMP Inspection Schedule.  Given that much of the recent stormwater regulations have been incorporated in part or by reference into these regulations, the stipulation allowing the program authority to “utilize inspection reports of the owner of a stormwater management facility as part of the inspection program…if the inspection is conducted by a person who is licensed” (4VAC50-60-114 C.) should be incorporated into these MS4 regulations to ensure consistency within the stormwater program.
18. Section II.B.5.e.:  Lines 1910-1912. Statewide web-based reporting.  The City has a mature BMP Inspection Program that centers on an accurate digital BMP inventory, onsite inspections, technical owner outreach, and reporting.  This Microsoft Access database already contains most of the proposed information; however, the City initiated a project prior to these proposed regulations, and has expended time and resources to port these data into Cityworks® (proprietary asset management software that uses the ArcGIS format) for tracking, enforcement and reporting.  The Commonwealth should consider the amount of time and resources expended by mature programs before requiring all localities to use a system that is still under development.  Further, Cityworks® is the software being utilized across the City for assessment management and reporting and web-based complaint tracking, illicit discharge complaint tracking, and basic citizen complaints.  Outfall inspections will be performed using Cityworks® so that this information can be compared with illicit discharge tracking.  It is also being fully integrated into a City-wide effort to improve service delivery in conjunction with customer relations management software.  The BMP Inspection Program should not be fragmented from the City’s other programs; therefore, the City intends to continue our current efforts to fully integrate the program.  The proposed web-based reporting would create a duplication of effort that would further strain limited resources.  The Commonwealth should consider our current robust technologies we have invested time and resources to deploy.  Finally, very prescriptive tracking measures without flexibility across localities may negatively impact cleanup efforts.
19. Section II.B.6.a.(2).:  Line 1953.  Delete “water” and insert “waste”.
20. Section II.B.6.b.(3):  Line 1979.  SWPPP Implementation.  According to Table 1 (Line 960), implementation shall occur “60 months after permit coverage”.  However, this section states that “development and implementation shall be completed within four years”.  Please revise and see #21 below.
21. Section II.B.6. b.(4)(g).:  Lines 1990-1992. SWPPP Schedule.  “The date of each inspection and associated findings and follow-up” cannot be “logged in each SWPPP” if the implementation of the SWPPPs does not occur until “60 months after permit coverage” as stated in Table 1 of this 5-year permit.  A scheduled frequency can be proposed in the SWPPP, but inspections would not yet have been conducted within this permit cycle.  Please consider the value of facility inspections in conjunction with the timing of the SWPPP and the current discrepancies found herein; given the increased requirements of this permit.
22. Section II.B.5.b.(4)(h).:  Lines 1993-1996.  SWPPP Evaluation and Modification.  Please see #20 and #21 above.
23. Section II.B.5.b.(4)(i).:  Lines 1997-1998. SWPPP Copy and Training.  Please see comments above concerning timing for SWPPP implementation.
24. Section II.B.6.c.(3).:  Lines 2026-2028. Deicing.  How long does the locality have to implement no longer using deicing agents that contain urea or other forms of nitrogen or phosphorus?  No timetable is explicit, yet this requirement is listed under “Nutrient Management”, which has a phased timetable that must be 100% implemented by 60 months after permit coverage.  Given the need to locate and procure other means of deicing, the locality should be given time to implement.

Again, thank you for this opportunity to provide these comments in support of the MS4 General Permit.  Please feel free to contact me or Jesse Maines at 703-746-4065 if you have any questions.

Sincerely,

William J. Skrabak, Deputy Director

Department of Transportation and Environmental Services

Office of Environmental Quality

C:  Mark Jinks, Deputy City Manager

      Richard J. Baier, P.E., LEED AP, Director, Transportation and Environmental Services

      Emily A. Baker, P.E., City Engineer

Yon Lambert, AICP, Deputy Director, T&ES, Operations

Lalit K. Sharma, P.E., Division Chief, T&ES, Office of Environmental Quality

Jesse E. Maines, Sr. Environmental Specialist, T&ES, OEQ