To:  Ms. Debra Harris; Va. DEQ; Richmond, Va.             March 11, 2015

Re: My Comments: DEQ's Proposed- Nutrient Trading Certification Regulations

Dear Ms. Harris & Va. DEQ,

Yes, the Va. DEQ staff has worked long and hard to gain many strong points in subject, needed Regs.

Yes, some improvements appear needed; here's my offering:

1. Strengthen provisions to protect local water quality.

  a) Double check-- does whole program comply with EPA's guidance regarding timing and location of trades?;

  b) Double check-- do overall Regs. prohibit trades that will degrade { what adverb here?; measurably ?? } local waterways?

2. Ensure *real water quality improvements.

  a) DEQ must specify that baseline conditions on farms/ ranches will include vegetated, robust-designed buffers 35' in width on pastureland, or maybe, in special contour cases along a stream, specify best-practical buffer widths up to 33% of the length of the riparian buffer (per advise of local, trained Soil & Water Conservation Board staff, Va. Extension Service staff, &/or properly certified consultant).

  b) Require practical water testing to demonstrate tangible improvements to both local and downstream waters.

3. Sustain transparency.  

  a) Provide for meaningful public access (ex.- DEQ's website show current, essential information about the practices that will generate *trade-able credits).

  b) Provide a 30-day period for the Public to offer comments &/or alternative actions.

  c) Double-check: For about zero-cost, get some volunteers at each DEQ Regional Office to ask ~25+ citizens/each Region- any problems in seeing these Regs., the nutrient trading and understanding the benefits of these type of pollution trades?  Even some simple focus-groups might be useful.

     Its important to show overall awareness (ex.- big-picture ideas- like the Fed. ADA initiatives)- lots of citizens are not up to 65 MPH, or even 55 MPH-- on the WWW.web (and DEQ's complex web-site), especially those of us over 65! 

Thank you for considering my comments.  Also, thanks for your good service to our vital Commonwealth.

John B. Reeves  P.E.                

    400 Silver Oaks Drive;   Rockingham, Va.  22801-3579

    (540) 433- 9358   JBR1948@Comcast.net

I am very excited to see how far along Virginia is with developing comprehensive water quality credit trading guidelines, but see some room for further development. One concern I have is limited approved choices for land conversion. Going through a case-by-case situation to get approval for different land conversion practices is not cost efficient for traders, yet we need more diversity in approved land conversion practices for the diverse landowners and sites in the Chesapeake Region.

In particular, I think it is important to allow new tree based land conversions that retain revenue possibilities through low input and impact production such as native fruit and nut trees planted. Examples species native to Virginia include pawpaw, persimmon, black walnut, elderberry, and much more.  A system planted with edible products has both potential for timber, food, medicine, and wildlife habitat whereas the typical land conversion to pine only has timber and very limited wildlife benefit. This type of land conversion with edible and floral trees and shrubs can generally fit under agroforestry, the intentional integration of trees into agricultural systems for the benefits they can provide to our water, soil, and wildlife, while retaining opportunities for production (either for personal consumption or as part of a farm enterprise). There are six common temperate agroforestry practices, but three in particular are most appropriate because of their obvious benefits to water quality, these practices include: multifunctional riparian buffers, alley cropping, and multistory farming (aka food forests). 

Multifunctional riparian buffers resemble standard riparian buffers in form and function, but choose specific species for their production of useful and sellable non-timber forest products (e.g. fruits, nuts, florals). Alley cropping is the placing rows of trees (often on contour) between rows of annual crops so that the trees keep the soil in place and filter water in agricultural fields. Multistory cropping is similar in form and function to a forest, but includes tree and shrub species with useful and sellable non-timber forest products.

Including these agroforestry practices as approved land conversion opportunities would provide an option for landowners who want to participate in trading, but also want a system that will provide multiple benefits, including food. On a larger scale, integrating agroforestry practices into water quality credit trading could create a patchwork of riparian and upland food forests to contribute to food security and provide future generations throughout the Chesapeake Bay with a valuable resource beyond clean water.

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

March 16, 2015

Ms. Debra Harris

Virginia Department of Environmental Quality

629 East Main Street

P.O. Box 1105

Richmond, Virginia 23218

RE: CBNLT Public Comment on 9VAC25-900 "Certification of Nonpoint Source Nutrient Credits"

Dear Ms. Harris,

Chesapeake Bay Nutrient Land Trust, LLC (CBNLT) is an owner and manager of nutrient credit generating facilities in Virginia and was an active stakeholder participant on the Nutrient Credit Certification Regulatory Advisory Panel in 2013.  As part of that role, CBNLT has provided both written and verbal comment on the draft regulation on multiple occasions.  In an effort to continue a cooperative approach toward reaching consensus on the regulatory language, CBNLT is hereby submitting public comments on the draft regulations entitled Certification of Nonpoint Source Nutrient Credits (9VAC25-900).

1. 9VAC25-900-10 Definitions - "Management Area"

Comment - The proposed definition of "Management Area" includes "all contiguous parcels deeded to the same landowner".  Some landowners have large tracts of land that may be well-suited for nutrient credit generation, but this over-reaching language may create a disincentive to participation in the Commonwealth's nutrient trading programs.

Proposed Solution - The definition of Management Area should be specific to the type of credit generating practices taking place within the parcel(s).  Specifically, for land conversion projects generating perpetual credits, the Management Area should be limited to those areas undergoing conversion.  Those areas are further subject to financial assurances, legal mechanisms designed to protect the implemented nutrient reductions, and monitoring and maintenance requirements as further outlined in the regulation.

2. 9VAC25-900-90 Nutrient Credit Release and Registration

Part B - "Schedule of release of nutrient credits"

Comment - A staged release is redundant and costly if the Applicant has already demonstrated that a minimum number of trees have been planted and financial assurances are in place should subsequent monitoring indicate that an insufficient density of planted/volunteer woody stems is present.  In addition, should DEQ find that a nutrient credit facility is not in compliance with the regulation, the department has the authority to suspend the ability of that facility to exchange credits.   

Proposed Solution - Nutrient credit release terms for perpetual credits should remain consistent with practices DEQ currently has in place.  Under current DEQ guidelines, once a project has received approval, the Applicant must provide documentation of financial assurances, restrictive covenants/easement and evidence that the nutrient reduction practices (i.e., land conversion) have been implemented.  Upon meeting those criteria, the credits are released for transfer.

Part C - "Registration of nutrient credits"

Comment - The discussion of how credits are "exchanged" has exceeded the intent of these regulations.  The purpose of these regulations is to establish criteria for the certification of nutrient credits and the projects generating those credits.  Regulatory requirements regarding the establishment of nutrient limitations or the mechanics of nutrient credit acquisition are found in existing statute and are not integral to the establishment of credit certification criteria.

Proposed Solution - Under Part C of this section, strike all language following the statement: "Only credits released by the department are available for exchange."

3. 9VAC25-900-120 Implementation Plan

Comment - Part C.2 - The proposed language states that "Survival of planted deciduous trees shall not be established until the start of the second complete growing season following planting.  Survival of planted evergreen trees may be established after completion of the first complete growing season following planting."  The requirement that 75% of the credits are not released until 2 growing seasons have passed for hardwoods is over-reaching.  Even the wetland program administered by DEQ only requires monitoring for one growing season in order to demonstrate successful establishment of the woody vegetation.  We would argue that even a full year is not necessary, given the high likelihood that if a parcel of land in Virginia is planted in trees and protected from agricultural and development activity, it will rapidly develop forested conditions.  In addition, financial assurances are in place in the event that the minimum stem count is not established in the conversion areas. 

Proposed Solution - As mentioned in an earlier comment, nutrient credit release terms for perpetual credits should remain consistent with practices DEQ currently utilizes.  Credits are released upon demonstration that the land conversion activities have been completed and that both the financial assurances and the protective covenants on the land conversion areas have been put in place.

4. 9VAC25-900-330 Insurance

Comment - Part F - The proposed language states that "The insurance policy shall provide that the insurer may not cancel, terminate, or fail to renew the policy except for failure to pay the premium."  It is extremely difficult, if not impossible, for a nutrient credit bank owner to obtain an insurance policy for a structural BMP if that policy is to remain in effect in perpetuity.

Proposed Solution - The language should require that the policy remain in effect for a specified amount of time, for example a 10 year term policy.

In an attempt to keep these comments focused and brief, we have touched on the more critical aspects of the draft regulation.  However, there are numerous other questions and comments that CBNLT would like addressed.  Based on the number and importance of outstanding comments regarding this draft regulation, we recommend reconvening the Regulatory Advisory Panel, which would allow additional stakeholder input and opportunity for consensus.  We appreciate the Department of Environmental Quality's review of these comments and encourage you to contact our office if you have any questions.                      

Thank you,

Brent L. Fults

Brent L. Fults, LA

Managing Member

Chesapeake Bay Nutrient Land Trust, LLC

Develop water quality trading guidelines all you want, but you could just as easily sell an insurance instrument for nutrient loads not to exceed "X".  

Otherwise, this scheme reads like an application for a pollution line of credit, putting up the natural capital of the Commonwealth as collateral.  Problem is that water flows downstream and to what effect will credit-generating activity upstream even contribute to improving impaired waters downstream?

If one can retrofit a septic tank, so that they can trade their "improvement" to someone else buying a nutrient credit in order to keep using their inefficient septic tank, how will this ever translate into measurable nutrient reduction goals for the Chesapeake Bay and its environs?

There are many ways to incentivize investment in restoring the environment, but this one appears counter-productive to that purpose.  If you want to clean up the Bay, it might be better to ask, why is every poultry operator a violator every time a significant rain event occurs?