Stormwater Regulations Could Significantly Affect Property Rights

We all value our physical environment, and value efforts to clean up our waterways, including the Chesapeake Bay. We also value our homes, our private property, and the jobs and benefits that accompany economic development in the County. Balancing economic development, private property rights and environmental protection is not easy. Fairfax County does a pretty good job of it, but recent regulations promulgated by the U.S. Environmental Protection Agency may disrupt that balance.

In recent months, I have attended meetings, listened to advice from experts and wrestled with budget demands generated by programs designed to improve the Chesapeake Bay. Fairfax County has 30 Watersheds with 850 miles of perennial streams that empty into the Bay via the Potomac River. In 2002, the County undertook a complete physical assessment of all its streams and, in 2003, initiated a process to develop a comprehensive management plan for each watershed. The goal of this program is to improve the hydrology, water quality and habitat of our streams, and to reduce the stormwater impacts that degrade them. Today, plans for much of the county have already been adopted by the Board of Supervisors, with the remaining expected to be passed by Spring, 2011.

The Board has funded this effort by separating out a stormwater tax from its property tax assessment - not an additional fee, but a piece of the property tax, explicitly delineated for stormwater infrastructure. This penny and a half funds efforts to repair or replace some 1,500 miles of pipes, 20,000 outfalls and retrofitting 1,400 stormwater ponds. It also goes toward retrofitting dams and dredging lakes. The County’s stormwater conveyance system is valued at over $1 billion, and most of it is over 35 years old. To prevent system failure, restore our stream valleys and meet new pollution regulations, we need to continue to improve our stormwater infrastructure.

Most of our residents abstractly value the Chesapeake Bay, but we more clearly recognize the degraded stream in our own neighborhood. At a recent forum on the Accotink Watershed, the 2nd largest in Fairfax County, we were advised that it has been declared by the State’s Department of Environmental Quality to be “impaired.” Ninety-one percent of its stream channels were classified as unstable and experiencing severe erosion. The Accotink plan alone identifies $48 million in projects to be completed during the next 10 years, but it must compete with a similar number of projects in 29 other Watersheds, and with the infrastructure program. Right now, we have dedicated only $25 million per year to undertake all this work. We will need to do more.

Compicating matters, however, last week, the EPA released new regulations regarding the Chesapeake Bay. Unfortunately, these regulations disrupt the balance in current County policy. For the first time, the federal government seeks to mandate reductions not only in the pollutants that enter the Bay, but in the volume of water that flows into the Bay as well. Despite Fairfax County’s aggressive efforts to protect the watershed, these new regulations could strangle our economy and significantly affect property rights. EPA has proposed, for the first time in a developed urban watershed that is already 87 percent developed, to regulate FLOW (the volume of water) instead of regulating the measurement of any particular pollutant.

The draft rules propose to restrict all new construction in the entire watershed to only five percent per year. EPA may, in fact, force the County to look at ripping out existing infrastructure to create more pervious soil. Shopping malls and office buildings could be required to reconstruct parking lots and roadways to contain stormwater on site, which would be very expensive. In the worst case scenario, private homeowners could be required to construct stormwater retention facilities on their property if they wish to expand a driveway, add a patio or construct an addition on the house. Fairfax County has brought these concerns to EPA’s attention. I will, in coming months, keep you apprised of the changes that may have an impact on your home, your wallet and the quality of life you expect when you live in Fairfax County.

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