My firm and I appreciate DEQ’s efforts to consolidate and standardize erosion control and stormwater management design guidance in the Commonwealth to ensure that developers, engineers, and plan reviewers have clear expectations surrounding enforcement of Virginia’s stormwater and environmental regulations.

Our clients include Virginians doing business across the state including many rural communities.  We regularly see first-hand how various aspects of the development process drastically affect the feasibility and cost of development - housing in particular.  It is with that in mind that we must urge DEQ to defer and reconsider the addition of certain new rules, technical criteria, and/or guidance (however they may be labeled as) that are present in the draft 2024 manual.

The stormwater regulations have not changed since 2014, however, the handbook and guidance documents issued since 2022 have undeniably introduced policies that were not previously universally adopted or enforced on a statewide level.  These include the following specific items that have been commented on by the group Developers Engineers & Contractors, LLC as well as others:

1. Changes to 1% Rule - Ch 5 Section 5.3.2.1 – The proposed language in the draft handbook represents a change in technical criteria and long-standing state stormwater standard that conveyances receiving greater than 100 times the site area may be assumed adequate and excluded from contributing to the technical requirements that the site is subject to (i.e. energy balance).  This includes the classification of manmade reservoirs (per Section A.5.1.3) such as Smith Mountain Lake as a “natural conveyance system”, making it subject to more stringent technical criteria.  The application of 9VAC25-870-66(B)(3) in the above described scenario violates and represents more stringent technical criteria than the limits of analysis per 9VAC25-870-66(B)(4).  The language in the handbook is also not consistent with other statewide manuals, such as the VDOT Drainage Manual Section 11.5.2.1.7.
2. 10% Drainage Area Shifts - Appendix A, Section A.5.4 - Because after-development runoff can be exponentially changed whether drainage areas/divides are modified or exactly the same, a 10% change in area is arbitrary and substantively irrelevant to the intent of the Virginia Stormwater Management Act and VSMP Regulations or the effects of stormwater runoff on the Commonwealth.  A maximum change in drainage areas is not a valid association to the statutory authority referenced in Va. Code § 62.1-44.15:28 A 10.  Varying pre-development conditions including topography, site size, and geographic location, urban versus rural settings, and linear development projects make application of this new criteria highly impractical.
3. Required Modifications of Post-Development Hydrologic Soil Groups – Appendix A, Section A.3.7.2 - Full implementation of DEQ Spec. No. 4 (Soil Compost Amendment) per the specifications is not practical in western parts of the state due to the slope limitations in the specification.  While the science behind the concept is acknowledged, a requirement to adjust the post-developed CN for disturbed soils is not stated in the VSMP Regulations, current and previous Virginia Stormwater Handbooks, or previous DEQ guidance (Virginia Runoff Reduction Method, GM 16-2001).  Nor is modifying the HSG from pre-to post-development a common practice across the state currently.  Universal application of an adjustment for any disturbed soil would translate to a substantial additional burden on land development, particularly in rural areas where pre-development lands are undisturbed.

Each of these items and others have been specifically commented on previously by myself and other parties since their initial inclusion in Guidance Memo GM22-2012 and through the handbook Stakeholder Advisory Group, however, they continue to be included in the handbook prior to discussion or study of their impacts to the regulated community and the economy of the Commonwealth.  We have also provided suggested modifications to the language for these items, which have not yet been reflected in any of the published materials.

We respectfully request that DEQ acknowledge and consider the potentially damaging consequences that these new policies will have in portions of Virginia and allow the appropriate stakeholders the chance to not only comment but to be a meaningful part of finding solutions that protect the environment in accordance with the law while keeping housing affordable in accordance with Virginia’s goals.