Comments on EPA’s Total Maximum Daily Load (TMDL) Development for the Chesapeake Bay

Ms. Jennifer Sincock
Environmental Scientist
Water Protection Division
U.S. Environmental Protection Agency Region III
1650 Arch Street
Philadelphia, PA 19103-2029


December 14, 2009

Dear Ms. Sincock:

The purpose of this letter is to provide comments on the EPA’s Total Maximum Daily Load (TMDL) Development for the Chesapeake Bay on behalf of the Fairfax County Board of Supervisors.  Located in Northern Virginia just outside of Washington D.C., Fairfax County is the most populous local jurisdiction in the Chesapeake Bay watershed.  The county has a long history of progressive environmental management, and we are following with great interest recent developments at the federal level to increase the pace of efforts to restore the Chesapeake Bay. 

The Chesapeake Bay Protection and Restoration Executive Order, signed by President Obama in May 2009, is helping to shape a new era of federal leadership in Bay restoration.  Federal legislation being considered in both the Senate and the House of Representatives could help set Bay-wide standards for stormwater management to help insure consistency across state and local jurisdictions and may potentially provide some level of funding.  The TMDL currently under development is believed to be the most complex TMDL ever developed and has the potential to provide invaluable insight into which sources of nutrients and sediment can be most effectively controlled to reduce their impacts on the Bay.

Fairfax County has proven leadership in environmental stewardship dating back to the 1950s, when the Fairfax County Park Authority began acquiring stream valley land for protection, an effort that culminated in the adoption of the Stream Valley Park Plan in 1973.  In the 1960s, the county adopted its Erosion and Sediment Control Ordinance, which became the model for the State Erosion and Sediment Control Law in 1972, and began to require all new development to manage stormwater by reducing peak flow rates to pre-development peak flow rates.  Also in the 1960s, the Pohick Creek Watershed PL-566 Project strategically planned and built six large dams prior to development, thus providing flood protection, as well as water quality and habitat benefits, for an entire watershed.  In the 1970s, the Environmental Quality Corridor (EQC) policy was first incorporated into the Comprehensive Plan as a way to protect areas adjacent to streams from development.  In the 1980s, the Board of Supervisors rezoned nearly 41,000 acres of the Occoquan Watershed, thereby significantly reducing allowed development densities in this area.  At the same time, the Board created a Water Supply Protection Overlay District (WSPOD), implementing water quality best management practice (BMP) controls on approximately 63,000 acres – the first such requirements in the county.  In the 1990s, the Board of Supervisors adopted the Chesapeake Bay Preservation Ordinance (CBPO) to protect areas along tributary streams as Resource Protection Areas (RPAs) and extended water quality BMP requirements to all areas in the county through a countywide Resource Management Area (RMA) designation.  The county significantly expanded the areas designated as RPAs in 2003 to include all perennial streams and was pro-active in performing field reviews to identify perennial streams throughout the county.  In 1998, the county launched an ambitious stream protection strategy (SPS) initiative that reflected a new focus not only on chemical water quality but on the health of the aquatic ecosystem.  Based on the results of the SPS study, the county began a watershed planning initiative in October 2001 to develop Watershed Management Plans for all 30 watersheds by 2010.

In 2004, the Board of Supervisors developed and adopted an Environment Agenda that establishes goals and procedures for water quality protection and environmental stewardship efforts in the county.  This led to the initiation of an Environmental Improvement Program (EIP), which is updated annually to address environmental and policy needs and assist county officials in making decisions regarding environmental funding and project planning.  The county’s Public Facilities Manual (PFM) was revised in 2006 to require more stringent stormwater outfall analysis and design that minimizes impacts from site development.  The PFM was revised again in 2007 to include and promote the use of Low Impact Development (LID) techniques, and many county facilities and schools have since been retrofitted with innovative stormwater controls to demonstrate the use of LID.  The county is committed to smart growth principles, emphasizing higher density development around transit stations, and to green building initiatives—LEED Silver certification is pursued for new county facilities, and green building commitments are routinely sought from developers during the zoning process.  Fairfax was the first county in Virginia to establish a Tree Conservation Ordinance and recently amended the Comprehensive Plan to strengthen protection of headwater streams.  The county has established 42 Agricultural and Forestal Districts, all of which have conservation plans, maintain open space and protect streams.

The county is also a leader in wastewater treatment technology, having recently completed construction of a methanol chemical addition at the Noman M. Cole, Jr., Pollution Control Plant that reduced the nitrogen level in the plant discharge from 8 mg/L to about 4.5 mg/L.  The plant is now finalizing design for the Moving Bed Bio Reactor (MBBR) process which will allow the plant to operate at 3 mg/L, which is the limit of technology (LOT) for nitrogen.  The plant is already operating at the LOT for phosphorus, which is 0.18 mg/L.

Strong community involvement in voluntary water quality improvements and protection also make significant contributions to the health of the county’s streams and watersheds.  The Lake Barcroft Watershed Improvement District traps and removes sediments and provides water quality benefits downstream.  The Reston community adopted comprehensive watershed plans and is restoring all of its streams; the Kingstowne community is restoring two severely degraded stream channels; residents adjacent to Little Pimmit Run funded a natural channel stream restoration, located mostly in parkland.  The many suburban horse-keeping operations voluntarily follow soil and water quality conservation plans and implement best practices to keep nutrients and sediments out of receiving streams.  Organizations, community associations and individuals install green roofs, rain gardens and rain barrels, plant native trees and shrubs, restore riparian areas, and conduct stream cleanups. 

Volunteers in a county-wide stream monitoring program collect data, flag emerging problems, and promote awareness in the community of the importance of water quality protection.  Volunteers mark storm drains and conduct community-wide education campaigns on preventing nonpoint source pollution, reaching nearly a quarter of the households in the county.  “Friends of” groups educate their communities, act as watchdogs, and rally support for stream and habitat protection activities.  Land trusts and non-profit groups have effective education programs, encouraging watershed stewardship.  Homeowners across the county maintain watershed-friendly yards with technical assistance from Master Gardeners, Master Naturalists, government agencies and non-profits.  With the help of agency-produced guides, workshops and demonstration projects, residents demonstrate they are willing to implement best management practices to solve environmental problems in a way that protects water quality.  Collectively, these voluntary initiatives involve millions of dollars, reduce significant sediment and phosphorus pollution and provide substantial water quality benefits.

Given our extensive history and continued commitment to effective environmental stewardship, the county looks forward to being an active participant in the development of the Chesapeake Bay TMDL.  While federal leadership is necessary to establish equitable goals and a framework for participation, local involvement in planning and implementation is essential to the success of the TMDL in restoring the Bay.  With that in mind, we offer the following input regarding development of the Chesapeake Bay TMDL for nutrients and sediment.

Clear Expectations

Urban and suburban development are cited again and again as a significant source of pollutants to the Bay, and the vast majority of measures to control these pollutants will be implemented by local governments through their Municipal Separate Storm Sewer System (MS4) Programs and through regulations on private development.  In order for Fairfax County and other local governments to plan for the potentially significant increases in workload and cost that will be associated with this unprecedented restoration effort, EPA and the states need to provide clear expectations regarding the level of effort anticipated, as well as effective tools for tracking progress toward implementation goals.  This clarity will help prioritize the allocation of scarce resources to the most effective projects, and will allow measurement of progress towards implementation and restoration goals.  In addition, there is concern that current legal authority and the proposed method of pollutant load allocation development do not adequately address the shares that must be borne by all responsible parties, beyond permitted sources, and that there is a lack of proven stormwater management technologies that can maintain functionality over the long term.

Consistent Regulations

As described at the beginning of this letter, there are multiple concurrent efforts at the federal level aimed at restoring the Chesapeake Bay.  In addition to the Executive Order, the TMDL, and the House and Senate bills currently being considered, there are a number of efforts at the state level that are aimed at improving water quality, both locally and in the Bay.  These include the adoption of new Virginia Stormwater Management Regulations, the reissuance of Phase I MS4 permits statewide, and the development of an unprecedented flow TMDL for Accotink Creek.  The regulatory environment for stormwater and water resources is in an unprecedented state of flux, and while the county fully supports the water quality goals of these efforts, we are concerned with the inconsistencies between the competing regulatory mandates and the lack of a focused effort to coordinate the multiple regulatory initiatives.  In order for local governments to successfully meet the mandates to improve water quality, it is imperative that the regulations developed at all levels of government be consistent.

Committed Funding

Even with clear expectations and consistent regulations, the task of restoring the Chesapeake Bay is a daunting one, and the costs associated with the implementation of additional stormwater controls in urban and suburban communities would be unprecedented.  EPA’s own draft report fulfilling Section 202a of President Obama’s Executive Order estimates the cost of retrofits in existing MS4 communities in the Chesapeake Bay watershed at about $7.9 billion per year.  Assuming these costs are evenly distributed by area across all of the MS4 jurisdictions in the Bay watershed, this would translate to an additional cost of approximately $290 million per year in Fairfax County.  This is on top of current stormwater program funding totaling close to $150 million since a dedicated funding source was established in 2005, and the cost of recent and ongoing wastewater treatment upgrades estimated at $350 million, which will be passed on to county residents and ratepayers through double digit rate increases over the next several years.  Local governments, and residents who pay local taxes and water and sewer fees, simply cannot shoulder this economic burden alone.  Increased federal funding is crucial and must be made available to local governments in an expedient manner to support the implementation of stormwater controls..

In developing the Chesapeake Bay TMDL, we must all remember that the current conditions in our urbanized watersheds developed over many decades.  Most of the land is privately owned, and there are significant contributions to water quality impacts that are a result of intensive state road infrastructure development.  These land use decisions were based on planning efforts that took place long before modern practices and regulations were in place.  The result is that localities have little ability to influence changes in land use over the short-term.  Plans and programs developed under the current initiatives need to take into account what can be achieved by localities given their unique constraints over the short and long-term.  Goals should be realistic and attainable, focusing on parameters reasonably within the control of local governments and organizations to influence. 

There are significant environmental benefits to redevelopment and transit-oriented development as well as adverse environmental impacts associated with sprawl; and beneficial development and redevelopment projects should not be hindered as a result of this effort.  There are opportunities for redevelopment and transit-oriented development within portions of the watershed; higher intensity development can be concentrated within established growth centers that are served by transit, thereby reducing the pressure for sprawl in other areas that do not have a developed character and that are not well-served by transit.  Redevelopment can also improve water quality conditions through improved stormwater management efforts.  If the costs of these stormwater management efforts are made to be too high, or if the stormwater management standards effectively become unattainable, these beneficial redevelopment efforts will be hindered.  A punitive focus on MS4 permits could ultimately prove detrimental to water quality by preventing development and redevelopment in already urbanized areas and driving new development into rural areas.  Improvements can and should be made in how urban and suburban stormwater is managed, but they must be made in a sustainable manner by working collectively towards a common goal.

Thank you for the opportunity to provide these comments.  We look forward to continued participation in the development and successful implementation of the Chesapeake Bay TMDL and restoration efforts.


Sharon Bulova
Fairfax County Board of Supervisors

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