June 7, 2013

 

The Regulatory Coordinator Submitted Via Electronic Mail

Virginia Department of Conservation

and Recreation

203 Governor Street, Suite 302

Richmond, Virginia 23219

 

Re: Response to Public Notice: General Permit Regulation for Dishcarges of Stormwater from

Construction Activities (4VAC50-60-1100 et seq.) (Part XIV)

 

Dear Sir or Madame:

 

I submit these comments on behalf of Shenandoah Riverkeeper and its members. Please

include this letter, along with documents attached or cited for incorporation by reference,

in the official record for this regulatory action, as that record is assembled in accordance

with the requirements of the Virginia Administrative Process Act, at § 2.2-4027.

 

Introduction

The proposed regulation fails to meet Clean Water Act and Virginia law in a number of

very serious respects. Therefore, we assert that the State Water Control Board

has a duty to reject this proposal in its present form, require significant

modifications, and open a new draft of the permit to public notice and

comment. The numbered paragraphs below explain the bases for our objections.

Shenandoah Riverkeeper

 

Shenandoah Riverkeeper operates under Potomac Riverkeeper, Inc., a 501(c)(3) nonprofit

corporation. The mission of the organization is to use community action and

enforcement to protect and restore water quality in the Shenandoah River watershed for

people, fish, and aquatic life. Many of the 1600 Riverkeeper members use the

Shenandoah watershed’s streams and other waterbodies across Virginia to swim, fish,

boat, and recreate, as well as for business uses and as drinking water. Many of our

members live and own land along waterbodies that will be affected by this regulation and

have direct economic and property interests connected to the health and quality of these

waters. The Shenandoah Riverkeeper organization and it members have direct,

substantial, past, and ongoing interests that will be affected by this regulatory action.

Shenandoah Riverkeeper will hereinafter be referred to as “Riverkeeper.”

 

The Scope of the Threat

Because thousands of land-disturbing activities have been and will be covered under the

construction stormwater general permit, the impact of its requirements will be a major

determinant of water quality conditions in thousands of Virginia water bodies and a

significant influence on the quality of life in hundreds communities. The affected water

bodies range in size from intermittent streams to major rivers and the Chesapeake Bay; in

quality from pristine mountain streams to heavily degraded waters; but all have value to

the state, to the larger ecosystems to which they belong, and to the people who use or

want to use them.

 

Likewise, a very broad spectrum of conditions exists across the various landscapes in

Virginia and the sites to be developed, including variations in factors such as land slopes,

climate, prior land uses, soil types, phosphorous saturation and erosion rates. The wide

variety of characteristics of receiving waters and building sites make the application of a

“one-size-fits-all” general permit unacceptable.

 

To be clear, the reason general permits are used by regulators, in Virginia and elsewhere,

is to reduce the time, effort, and resources needed to permit thousands of additional

pollution sources to impact our waters. General permitting systems provide no benefits to

water quality that individual permitting does not. They provide, inherently, less scrutiny

of each polluting activity and less assurance that the wider public interests and the

objective of the Clean Water Act (“CWA”) will be adequately served. And while greater

efficiency in permitting is a worthy goal, it may never be allowed to override the

important interests which the CWA and state water quality laws were adopted to serve.

Given the widely-acknowledged fact that pollution affecting the Chesapeake Bay, though

decreasing from other sectors, is increasing from development activities, a much more

effective system for regulating construction site discharges is essential. The current

proposal from the Department of Conservation and Recreation (“DCR”) under review

here falls far short of that goal.

 

Objections

1. The record assembled to support the regulation and general permit contains neither

evidence nor analysis to show that the permit’s conditions will uphold Virginia’s water

quality standards.

 

The requirements in Virginia’s proposed permit are supposed to carry out the mandates

of state law and of the Clean Water Act, under which the state issues discharge permits

pursuant to delegation from the U.S. Environmental Protection Agency (“EPA”). States

may issue permits with conditions that are more stringent than those required by federal

law but may not fall below the standards set under the CWA and EPA regulations.

Authorization in state law for this regulation is provided by the Virginia Stormwater

Management Law, §10.1-603.1 et seq. of the Code of Virginia, which is administered by

the DCR and the Virginia Soil and Water Conservation Board (“the Board”). The Board

acts under mandates “to ensure the general health, safety and welfare of the citizens of

the Commonwealth as well as protect the quality and quantity of state waters from the

potential harm of unmanaged stormwater” and “to protect properties, the quality and

quantity of state waters, the physical integrity of stream channels, and other natural

resources.”1

 

In accordance with federal regulations, the draft general permit contains effluent

limitations for construction stormwater discharges based upon Effluent Limitations

Guidelines (ELGs) established by the EPA.2 The EPA has a duty under the Clean Water

Act to establish ELGs for various categories of industrial dischargers, based upon an

assessment of the capabilities of treatment technologies on a national scale. These ELGs

constitute technology-based controls and are intended to be a “floor,” below which the

quality of discharge effluents may not fall.

 

Additionally, as is the case for all technology-based NPDES permit limits, these ELGs “do

not account for the level of pollutant control that may be necessary in a specific area to

meet applicable water quality standards. CWA Section 301(b)(1)(C) and EPA’s regulations

at 40 CFR 122.44(d)(1) require permitting authorities to include additional or more

stringent permit requirements when necessary to achieve water quality standards.”3

 

To determine whether the technnology-based limits in Virginia’s construction stormwater

permit can fully uphold the state’s water quality standards, the permitting officials would

have first needed to determine the quality of effluent that would be produced by the

treatment systems required under the proposed permit - this has not been done.

Where ELGs for many categories of industries include numeric limits on particular

pollutants, those developed for construction and development activities include only a set

of practices that must be implemented. The effluent limits in EPA’s “General Permit for

Discharges from Construction Activities” are described as shown below. While the EPA

 

1 4VAC50-60-40.

2 Federal Register, Vol. 74, No. 229, Tuesday, December 1, 2009, Effluent Limitations Guidelines and

Standards for the Construction and Development Point Source Category, Environmental Protection

Agency (EPA), Final Rule, 40 CFR Part 450, pp. 62996 - 63058.

3 Federal Register, Environmental Protection Agency, Final National Pollutant Discharge Elimination

System (NPDES) General Permit for Stormwater Discharges from Construction Activities, Vol. 77, No. 40,

Wednesday, February 29, 2012, p. 12290.

 

permit applies only to states and tribes not having approved NPDES programs, this

federal permit directly incorporates the components of the ELGs and serves as an

example to guide state programs.

Effluent Limitations Applicable to All Discharges from Construction Sites

You are required to comply with the following effluent limitations in this Part for discharges from

your site and/or from construction support activities (see Part 1.3.c).

. . .

• Erosion and Sediment Control Requirements (Part 2.1)

• Stabilization Requirements (Part 2.2)

• Pollution Prevention Requirements (Part 2.3)4

 

Virginia’s construction stormwater regulation incorporates a system of Best Management

Practices (“BMPs”) that are designed to reflect the ELGs. Given the fact that Virginia’s

general permit allows for operators to design a plan that uses a combination of BMPs,

meeting minimum standards but not requiring any particular set of pollution controls, the

performance of the treatment systems may produce a range of effluent qualities, often

with large concentrations of pollutants, even when all measures are correctly

implemented and maintained. When plans are not carefully reviewed by regulators and

enforcement is lax, these problems will be much more serious.

 

EPA documents and the work of independent experts illustrate extreme ranges in the

pollutant loads and concentrations produced by different BMPs. These sources also

demonstrate that the amounts of pollution not removed from the stormwaters pose very

high risks of waterbody impairments, violations of water quality standards, and

interference with designated and existing uses.

 

Examples of construction stormwater BMPs implemented at sites in Virginia are

provided in EPA documents prepared in conjunction with issuance of the ELGs and

federal general permit. Unfortunately, EPA’s analyses include only treatment efficiency

information for removal of sediments. EPA assumed that parameters such as turbidity,

Total Suspended Solids (TSS), or other solids measurements could serve as adequate

surrogates for other pollutants of concern for construction stormwater - an assumption

that is known to be inappropriate for dissolved pollutant fractions. In fact, there are

insufficient data to prove the correlations between removal efficiencies for either nutrients

or sediments and a range of other pollutants.

 

For silt fences, which are used almost universally across the state EPA’s document states:

4 U.S. EPA, National Pollutant Discharge Elimination System General Permit for Discharges from

Construction Activities, 2012, p. 9 of 74.

 

(End of Part 1 of submittal)