Governor Youngkin issued Executive Order Number 19 on June 30, 2022 (“EO No 19”).  EO No 19 established the Office of Regulatory Management (“ORM”) to coordinate and administer regulatory review consistent with EO No 19.  EO No 19 directs that ORM implement a 25% reduction in regulatory requirements of state agencies on local governments and the regulated community and most importantly the private citizens and their families in the Commonwealth of Virginia. 

I have practiced law as a land use and real estate attorney in Virginia for more than 40 years.  I make these comments in my capacity representing developers in commercial, residential, multifamily, solar and just about all kinds of development projects in the Commonwealth of Virginia. 

In addition, for more than 40 years, first, as a member of the Virginia House of Delegates and after concluding my public service, representing clients as their legal counsel on such matters before the Virginia General Assembly.  I also make these comments in my capacity representing clients in drafting and lobbying for and against legislation, and in working through the regulatory processes that implement related legislation.  

The overall goal of EO No 19 is to reduce the regulatory burden on the public, which I wholeheartedly support. I compliment the Governor for taking a leadership role in this important effort.  I also compliment ORM for its good work on the detail work necessary to achieve a true 25% reduction in regulatory burdens.  

My comments are limited to the proposed Stormwater Management Handbook (the “SWM Handbook”). 

First, let me say that I support the goals stated by the Department of Environmental Quality (the “DEQ”) in streamlining the stormwater management (the “SWM”) processes. Second, I participated in the SWM Handbook Stakeholder Advisory Group (the “SAG”) and appreciate the significant efforts made by DEQ Staff to provide opportunities for public participation.  My comments are in no way intended to be negative towards DEQ Staff and in fact, to the contrary, DEQ Staff are to be commended because streamlining the SWM Handbook was a massive undertaking by all concerned.

Having said all that, the proposed SWM Handbook is more than 1,600 pages long.  It is hard to say that any document that is 1,600 pages long would actually “streamline” a particular process.  The SWM Handbook is not supposed to change any existing substantive policies, when in fact I believe there are a number of substantive changes, which will increase regulatory burdens and increase costs to the regulated community, and to landowners, Virginia citizens and their families.  I believe that these substantive changes actually work against the goals of reducing regulatory burdens set out in EO No 19. 

I associate myself with the comments of Developers, Engineers, & Contractors, LLC (the “DEC”) made to the SWM Handbook.  Gentry Locke has provided some representation of DEC in the SAG process but DEC has done much of the professional analysis on their own.  DEC is comprised of groups of engineers and developers who regularly deal with erosion and sediment control (“E&S”) and stormwater management (“SWM”) as licensed professional engineers. As licensed professionals, their team has read and evaluated the 1,600 plus pages of the proposed SWM Handbook.  While DEC has focused on just 10 items, their professional opinions are that there are a number of other items that are subject to interpretation, which will result in additional time and costs to the regulated community and developers, but more importantly the consumers and citizens of Virginia. 

Among the studies done in the last few years relating to the impact of additional costs on affordable housing, one study estimates that 4,000 families would not be able to purchase a new home for every $1,000 of increased costs. Using this study as a base, DEC did an analysis for the fiscal impact of just the 10 items DEC identified as the most significant concerns in the proposed draft of the SWM Handbook.  Just for those 10 items, the estimated costs would be $19,705 per lot (in a 60-lot subdivision) DEC’s fiscal impact analysis shows that more than estimated 78,820 Virginians would be unable to purchase a new home making our affordable housing crisis more difficult, again at cross purposes with the big picture goals of EO No 19. DEC has prepared a detailed excel spreadsheet available for further review and consideration.  In addition, this fiscal impact is at cross purposes with the Governor’s “Make Virginia Home” Plan announced at the 2022 Governor’s Housing Conference, which has as one of its goals to streamline and reduce the regulatory burdens.  

The ORM Economic Review (the “ER”) prepared and issued a fiscal analysis of the impacts of the proposed SWM Handbook on January 26, 2024.  I concur with ORM’s restatement of the goals of benefits of streamlining the existing SWM handbooks but do not agree with ORM’s ballpark estimates of projected costs savings. The projected costs savings by ORM are based upon the reduction of the amount of time necessary for professional engineers and developers to prepare permit applications and the anticipated savings for plan review.  The projected cost savings do NOT include the projected cost increases to the regulated community and Virginia’s citizens and families as a result of the substantive changes contained in the SWM handbook.  As we all know, cost increases in the development processes are passed along to the ultimate consumer, whether impacting the affordability of housing, the costs of electricity in the case of solar development or in any type of development of real property.   

Therefore, I strongly recommend that further fiscal analysis by DEQ, ORM and other stakeholders would be appropriate.  I would also observe that the time savings identified by ORM include the streamlining achieved by using private third-party professional engineers to be the primary plan reviewers instead of DEQ Staff, with DEQ Staff reviewing and approving the recommendations of private engineers.  If non-licensed DEQ Staff reject the recommendations of private licensee engineers, or determine there is an incomplete application even if the application complies with the proposed SWM Handbook, some or all of the projected costs savings would not be realized. 

I am not sure how the language edits made by DEQ Staff affects linear development projects like water, sewer, power or fiber where the improvements are underground.  I would recommend that the language in the final SWM Handbook clarify that such linear projects are subject to the provisions or not. 

DEQ has stated that the proposed SWM Handbook is a “living document”, which means that when an issue comes up, an applicant for a SWM permit may request an alteration to the SWM Handbook given a particular set of circumstances. The proposed SWM Handbook would provide that DEQ would control that review process, who participants in the review process and whether a requested change would be considered or not.  I believe a more structured process would be appropriate including a regular schedule for updates on an annual basis and to what extent updates to the SWM Handbook are subject to public notice and open comment through the normal public participation processes.  With due respect to the DEQ Staff, the DEQ Staff should not be put in the position of unilaterally making substantive changes to the 1600 page SWM Handbook.

With appreciation to the DEQ Staff and all of those stakeholders who participated in the SAG and in providing comments, I hereby submit these comments.