Fairfax County Stream Conditions

1. GOOD UGLY BAD Fairfax County Stream Conditions

2. Implications of Pending Federal and State Stormwater Regulations for Fairfax County April, 2010

3. Current Regulatory Efforts • Accotink Creek Benthic TMDL • MS4 Permit • Chesapeake Bay • Executive Order • TMDL • Federal Legislation • Stormwater (STW) Regulations • State • Federal

4. Federal and State STW Efforts

5. Accotink Creek Flow TMDL • EPA is leading effort for the state • Using flow is “non-traditional” • Pollutant of concern is sediment • Flow to be used as a surrogate for sediment • DEQ must change state regulations to allow it • DCR attorneys are still questioning • 50% reduction of 1-yr 24-hr flowRD • May require retrofitting of existing development including private property R$ • April 2010 : Public Comment Period • Late-Spring 2010 : TMDL Approved Key: $ = Fiscal Impact, R = Regulatory Impact, D = Development Impact

6. MS4 Permit • Currently being negotiated • Requires standards that address downstream impairments RD • Requires retrofits – Treat xx% of existing $ • Requires implementing TMDLs R$ • Encourages offset program RD Key: $ = Fiscal Impact, R = Regulatory Impact, D = Development Impact

7. Chesapeake Bay Protection and Restoration Executive Order • Signed by President Obama 5/12/2009 • Established Shared Federal Leadership, Planning, and Accountability • New Accountability Framework • Two-year milestones$ • Consequences for failure R • New rulemakings/actions • Expand coverage and set stronger minimum performance standards for CAFO and MS4 permits $ • New or expanded discharges must be offset RD • Draft Strategy for Protecting and Restoring the Chesapeake Bay published 12/9/2009 • Final Strategy to be published in May 2010 Key: $ = Fiscal Impact, R = Regulatory Impact, D = Development Impact

8. Chesapeake Bay TMDL • Largest and most complex TMDL ever Developed • Will establish limits on nutrients and sediment R • Will set standards for MS4 permits $ • Final load allocations due by December 2010 • State Watershed Implementation Plans (WIPs) • Reduction targets and schedule by impaired segment, county and sector • Identify existing capacity, commit to fill capacity gaps • Enforceable or binding commitments that controls will be implemented and maintained • EPA estimates $7.9B/yr for MS4 communities $ Key: $ = Fiscal Impact, R = Regulatory Impact, D = Development Impact

9. Federal Legislation • Representative Connolly: Chesapeake Bay Restoration Act of 2009 (H.R. 3265) • Extends MS4 coverage to all local governments • Establishes new development standard for sites greater than 1 acre with less than 5% impervious cover RD • Infiltrate, evapotranspire or harvest the volume of the 95th percentile precipitation event RD • Authorizes, but does not appropriate, $1.5B to implement (EPA estimates total cost at $7.9B/yr) • Introduced 7/20/2009, referred to House Subcommittee on Water Resources and Environment 7/21/2009 Key: $ = Fiscal Impact, R = Regulatory Impact, D = Development Impact

10. Federal Legislation • Representative Cummings: Chesapeake Clean Water and Ecosystem Restoration Act of 2009 (H.R. 3852) • Sets a TMDL deadline of 12/31/2010, requires permits issued after 1/1/2011 to be consistent with TMDL wasteload allocations • Requires states to develop WIPs by 5/12/2011, fully implement WIPs by 5/12 2025 and report progress biennially beginning 5/12/2014 $ • Extends MS4 coverage to all local governments • Requires infiltration, evapotranspiration or harvesting of the 95th percentile precipitation eventRD • Bans phosphorus in cleaning agents • Requires EPA to establish a nitrogen and phosphorus trading program RD • Prohibits introduction of Asian Oysters • Authorizes, but does not appropriate, $1.5B to implement (EPA estimates total cost at $7.9B/yr) • Introduced 10/20/2009, referred to House Subcommittee on Water Resources and Environment 10/21/2009 Key: $ = Fiscal Impact, R = Regulatory Impact, D = Development Impact

11. Federal Legislation • Senator Cardin: Chesapeake Clean Water and Ecosystem Restoration Act of 2009 (S. 1816) • Sets a TMDL deadline of 12/31/2010, requires permits issued after 1/1/2011 to be consistent with TMDL wasteload allocations • Requires states to develop WIPs by 5/12/2011, fully implement WIPs by 5/12 2025 and report progress biennially beginning 5/12/2014 $ • Requires development and redevelopment exceeding an impervious footprint threshold to be determined by EPA to maintain or restore predevelopment hydrology or compensate for unavoidable impacts RD • Bans phosphorus in cleaning agents • Requires EPA to establish a nitrogen and phosphorus trading program RD • Prohibits introduction of Asian Oysters • Authorizes grants to support Nutria eradication programs • Calls for a study of the impacts of commercial harvesting of Menhaden on water quality • Authorizes, but does not appropriate, $1.5B to implement (EPA estimates total cost at $7.9B/yr) • Introduced 10/20/2009, referred to Senate Committee on Environment and Public Works Subcommittee on Water and Wildlife 11/9/2009 Key: $ = Fiscal Impact, R = Regulatory Impact, D = Development Impact

12. Virginia Stormwater Regulations • Regulatory process began in 2006 • Only address new development and redevelopment • More treatment required for new development and redevelopment RD • Encourage LID techniques, more small private facilities$ • Encourage offsets program RD • Regulations trumped by TMDLs • Regulations adopted by the Soil and Water Conservation Board in December 2009 but delayed for additional comment • Multiple bills introduced in General Assembly to delay implementation of VSMP regulations until Bay TMDL is complete (December 2010) Key: $ = Fiscal Impact, R = Regulatory Impact, D = Development Impact

13. National Stormwater Regulations • EPA issued a Federal Register Notice on 12/28/2009 seeking stakeholder input on stormwater practices • Five preliminary regulatory considerations: • Expand the area subject to federal stormwater regulations • Establish specific requirements to control stormwater discharges from new development and redevelopment RD • Develop a single set of consistent stormwater requirements for all MS4s R • Require MS4s to address stormwater discharges in areas of existing development through retrofitting the sewer system or drainage area with improved stormwater control measures R$ • Explore specific stormwater provisions to protect sensitive areas • Listening sessions held in January, 2010 • Comment deadline was February 26, 2010 • EPA to publish final Information Collection Request notice with 30-day comment period in spring 2010 • EPA to propose a rule for public comment in late 2011 • Final action in late 2012 http://cfpub.epa.gov/npdes/stormwater/rulemaking.cfm Key: $ = Fiscal Impact, R = Regulatory Impact, D = Development Impact

14. Themes • Regulatory process is focusing on urban and suburban stormwater • New development will have much stricter requirements RD$ • Redevelopment will have much stricter requirementsRD$ • Wasteload allocations requiring retrofits R$ • Offset program RD • More enforcement $ Key: $ = Fiscal Impact, R = Regulatory Impact, D = Development Impact

15. Interactions • Proposed federal laws and state STW regulations are different • MS4 may establish different standards • TMDLs trump regulations and will be regulated in MS4 permit • Different parts of the county may be governed by different standards • Offset credits may divert funding from county needs

17. 2008 Impaired Waters 49 Streams 1 Reservoir 17 Tidal Embayments 67 Total Impaired Waters

18. Stormwater Funding History

22. Challenges Stormwater is on top of what our residents already pay for wastewater, drinking water Federal regulations need federal funding Need to acknowledge local needs Need sustainable science Federal Legislation Needs to Assist Us Successes • Residents already spending $350M on wastewater treatment upgrades • Stormwater service district established • Watershed planning in accordance with tributary strategies • Strict development conditions

23. Federal and State STW Efforts

24. Questions?

25. Draft Strategy for Protecting and Restoring the Chesapeake Bay Source: Executive Order 13508: Draft Strategy for Protecting and Restoring the Chesapeake Bay, November 9, 2009, Figures 2, 3 and 4

26. Current State Target Loads Nitrogen Phosphorus All loads are in millions of pounds per year Source: Chesapeake Bay TMDL Webinar held 2/25/2010