Paved With Good Intentions

The story of how voluntary efforts to clean up the Chesapeake Bay turned into unfunded mandates being imposed from above (and I use that term loosely).

In this blog, we will take a look at the Chesapeake Bay Preservation Act and find out how an act of good will by several states and the District of Columbia eventually ended up with mandatory requirements for our Town.  

There are actually a host of laws and regulations dealing with cleaning up the Chesapeake Bay.  For simplicity, I will call them the Chesapeake Bay Laws.  There are several ways the Chesapeake Bay Laws address water pollution.  There are requirements that any building and/or construction activities near local streams be restricted, mandated improvements to sewage treatment facilities, and requirements that small towns like Herndon reduce the amount of nitrogen, phosphorous, and sediment that flows into local streams every time it rains.  I will be examining the stormwater treatment requirements in this blog.

In 1983, Virginia, the District of Columbia, Maryland, Pennsylvania, and the EPA signed a voluntary agreement “to assess and oversee the implementation of coordinated plans to improve and protect the water quality and living resources of the Chesapeake Bay estuarine systems.”  This was followed by two more voluntary multi-state agreements of increasing complexity in 1987 and 2000.  (See pdfs). 

In 1988, the Virginia General Assembly passed the Chesapeake Bay Preservation Act which requires certain counties, cities, and towns (including Herndon) to incorporate general water quality protection measures into their comprehensive plans, zoning ordinances, and subdivision ordinances.

All of these measures were voluntary efforts to clean up the Bay.  However, the EPA has its own powers and duties under the Federal Clean Water Act.  The Chesapeake Bay Foundation and other entities sued the EPA to enforce these voluntary agreements pursuant to the Clean Water Act.  Here is the explanation for the lawsuits from the Chesapeake Bay Foundation:

“We also have alleged that the Chesapeake 2000 agreement is an interstate compact, enforceable just like any other federal law. The agreement was approved by Congress in the Clean Water Act and by Congress' continuing appropriation of funds for, among other things, the EPA to operate the Chesapeake Bay Program office in support of the agreement.  More fundamentally, the 2000 agreement is a binding contract between the United States, the signatory states-Maryland, Pennsylvania and Virginia-and the District of Columbia that must be honored.

Some have argued that the agreement is simply a voluntary pact between the United States and the states. You and I voluntarily enter into agreements with our mortgage bank and yet are held responsible if we fail to pay our debts on time. Similarly, we believe that the federal government must honor interstate agreements like Chesapeake 2000 or else its written promises to us and the states are meaningless.”

In my opinion, volunteering to help clean up the Chesapeake Bay is not the same as borrowing money to buy a house and being held responsible if you don’t pay the money back to the bank.

At any rate, the EPA knuckled under in one of these suits instead of arguing the point. And worse, the EPA didn’t consult with Virginia officials before it agreed to force Virginia into an accelerated time frame to put into effect measures to filter out nitrogen, phosphorous and sediment from stormwater runoff.  (See American Canoe Association, et al. v. EPA, 54 F.Supp.2d 621 (E.D. Va. 1999).

The upshot of all this is that the EPA is telling Virginia, and localities like Herndon, to reduce pollutants in stormwater runoff in the near future and is threatening a whole host of adverse consequences if it isn’t satisfied with Virginia’s efforts (including taking over Virginia’s stormwater system permitting process).  On March 30, 2012, Virginia submitted its latest plan to the EPA to comply with the EPA’s demands.  Future plans will include the exact amount of pollutants Herndon is expected to remove from stormwater runoff.

Presently our system of rainwater collection in town consists of some retention areas that allow sediment and other pollutants to filter out.  There is a retention area next to the golf course that has a dam at one end with a small hole at the bottom. (The standing water that collects there attracts mosquitoes in the summertime according to my neighbors.)  This isn’t going to be good enough for the EPA.

We are going to have to have a system in place that can result in hard numbers to be given to the EPA once we are told exactly how much pollutants (pound-wise) we have to remove from stormwater runoff.  The good news is that the EPA appears to be contemplating reduction of pollutants using low impact development.  I have attached an EPA brochure concerning Lancaster, Pennsylvania’s efforts in that regard.  So we might not necessarily get stuck having to do expensive retrofits costing millions of dollars but nobody knows at this point in time.  What we will have to do is prove that the Herndon method (whatever that becomes) removes x amount of nitrogen, etc. from stormwater runoff.

I have attached an appendix to Virginia’s Phase 2 submission that shows the types of pollution controls being contemplated. Please note some of the more ridiculous ideas:  “maintain no mow zones in public parks.” Also, please note all the blank spaces in the right hand column which reads: “Resource Needs.” In other words, you and I are getting stuck with the bill. Maybe we can send an invoice to the American Canoe Association.  

My next blog will be about Phase 2 Silver Line Metro Rail funding.  I will describe exactly how a bond issuance works using toll road money and what happens if the Metropolitan Washington Airports Authority defaults on its bonds.

This post is contributed by a community member. The views expressed in this blog are those of the author and do not necessarily reflect those of Patch Media Corporation. Everyone is welcome to submit a post to Patch. If you'd like to post a blog, go here to get started.

Dave Webster April 15, 2012 at 04:35 PM
It was pointed out to me I didn't explain what the term "Low Impact Development" means. Low Impact Development or "green infrastructure" is a generalized term meaning such techniques as porous pavements, sidewalks, rain gardens, green rooms, trees and planter boxes to filter water into the ground or evaporate it and rain barrels, cisterns and pools to capture water and slowly release it.
Don Joy April 15, 2012 at 06:55 PM
Good writing, Dave. The environmentalist big-government federal thugs are about ever-encroaching power and control and coercive abuse of authority under the cloak of do-good appearances, and little else. The founders of this nation envisioned a federal government created by the individual sovereign states voluntarily, not a tyrannical central power holding all the states and citizens hostage to its demands as we have now. When the inevitable debt reckoning comes, all of this will be somewhat rectified. Socialists sooner or later run out of other peoples' money, and even bloated federal leviathans like the EPA will be cut down closer to their proper size. http://www.nationalreview.com/campaign-spot/5588/department-transportation-has-1-690-employees-making-more-170k-year
Barbara Glakas April 17, 2012 at 08:05 PM
Dave, The current Herndon Town Council has been working on this issue for quite a while, preparing to be in compliance with the regulations. You speak a lot about the EPA, but I did not gather from your article what new plan you would enact if you were to be elected as a future Herndon Town Council member.
Dave Webster April 18, 2012 at 09:40 AM
Barbara, I don't have my own Watershed Implementation Plan if that is what you mean. The purpose of the article was to describe in a concise manner the problem the Town needs to solve and provide guidance on which way the EPA appears to be leaning regarding acceptable methods of meeting requirements regarding removing pollutants from rainwater runoff. In all your times sitting through council meetings, have you ever heard a better explanation of the problem we face, and the possible solutions available, than the one I gave here?
Barbara Glakas April 18, 2012 at 04:04 PM
Dave, I have sat through a fair amount of staff briefings and council hearings on the subject, so I’m pretty familiar with what the town is facing and compliance requirements. But since you are running for council I was just curious as to how you would address this issue as a council member.
Ann H Csonka April 19, 2012 at 06:39 PM
btw, the "green rooms" from the Lancaster document should read : "green roofs". Green roofs have become quite practical and another way to reduce operating expenses as well as energy use in new structures (sometimes in retrofitted structures. You surely know that the "Town Green" where FNL etc are enjoyed is a GREEN ROOF over the below-grade parking. Unfortunately, it's theo nly green roof in town. Green roofs are obviously not always feasible, but they are one techniquein the toolbox of environmentally positive construction.
Ann H Csonka April 19, 2012 at 07:02 PM
The issue is not government--it's human habits. Do you prefer living in a cesspool? Do you recall when Lake Cuyahoga kept catching on fire because of water pollution. No? Oh, well. If all of us who occupy this shared space on the planet would take responsibility for learning and functioning in ways that keep water drinkable/swimmable/fishable and air fit to breathe, then big bad government rules would not be there. Compensation comparison between the average federal civilian employee and average private-sector employee oversimplifies the debate, ignoring critical differences in occupation, skill level, age, and education that determine salaries. Typically, federal workers at the top of the wage scale make less than their private-sector counterparts, while the reverse is true for those with entry-level jobs: For example, Cabinet secretaries earn a fraction of what corporate CEOs are paid. The CEO of Entergy, a Louisiana-based energy company that has 15,000 employees and generated $10.7 billion in revenues last year — received a salary of $1.34 million and a total compensation package of $27.3 million last year, according to Forbes magazine. But Dept. of Energy Secy Steven Chu — co-winner of the Nobel Prize for Physics in 1997 who oversees a department of 14,945 employees and a $28.4 billion budget—earns a salary of $199,700, the same as other Cabinet secretaries. [http://factcheck.org/2010/12/are-federal-workers-overpaid/ and many other reference]
Ann H Csonka April 19, 2012 at 07:08 PM
The approaches, measures, etc. are not new and are well-known "in the industry". Technologies keep improving for water quality analysis, for example. Choices of approach to resolve problems also are not new...its soft-tech vs. pipe-tech (gross oversimplification-- short on time). SEVERAL QUESTIONS, not a good time mid-campaign to actually answer them, but to think about: (1) Are you acquainted with the Town's existing Stormwater Management Plan? (2) Have you read the Chesapeake Bay chapter of the Town's Zoning Ordinance? …including action items at the end? (3) Why do you think simple low-cost, cost-saving and cumulatively high-value measures such as having "no-mow" areas in parks is "ridiculous"? …and what other smart approaches to improve water quality in our streams and the Bay do you think are "ridiculous"? (4) Have you reviewed the Low-Impact Development and related sections of the Fairfax county PFM (Public Facilities Manual) that is incorporated in the town’s Code by reference? (5) Do you recognize the Chesapeake Bay as a major economic engine of this region? If so, or if not, why? continued...
Ann H Csonka April 19, 2012 at 07:10 PM
..continued from above: (6) Do you recognize the Chesapeake Bay as a major environmental asset of this region? (7) Do you recognize the connections between all the "everyday" ways that all of us contribute pollution to the local watershed---or can prevent the same types of pollution? (8) Do you care about the fact that the more we pollute local streams, part of which are processed for consumer use, the more expensive it becomes to clean up that water to become our drinking water? (9) Do you think localities should simply ignore the effects of practices in our developed areas on the natural water assets in our county, state, and region? (10) Aren't you glad that this is no longer a farming community so there is one less set of problems related to water quality to learn about?
Dave Webster April 19, 2012 at 08:17 PM
1. Yes. I have read it. 2. Yes. 3. Not cutting the grass attracts insects including mosquitoes and doesn't do a lot to reduce the flow of pollutants into local streams. If someone proposes turning the Town green into a "no mow zone" I don't think many people would agree. 4. No 5. I would presume it is a major economic engine by virtue of the amount of shipping there. 6. Yes 7. Yes 8. Yes 9. No 10. Farms produce food. I don't regard farms as a problem that I am happy to see go away.
Ann H Csonka April 20, 2012 at 06:02 AM
Thanks for the quick attention, Dave. Will have to pick up this a bit more after Earth DAy -- because there are many ways to cut and not cut grass and infiltration rates vary. Farms produce food of course, and dairy products and they were nice to have here. Though farms are no longer a problem here because we've replaced so many with pavement and rooftops -- new sets of problems for water quality. But we eat, and wherever farms are in the area, and the state, they send a lot of additional nutrients to the rivers and the Bay.
Dave Webster April 20, 2012 at 11:32 AM
Ann, I will be glad to take a look at any information you have. My primary concern is how the Town can comply with reducing pollutants going into local streams at the lowest cost to the taxpayer.
Dave Webster April 20, 2012 at 12:54 PM
Here is an article from the Sun Gazette on Vienna's plans. http://tinyurl.com/8yywspr
Don Joy April 20, 2012 at 01:24 PM
Ann, Dave was not really so much writing about human habits as regards pollution, he was mainly writing about the very human power-grabs that happen when humans in government over-step their proper limited role according to our Constitution--it's about the proper relationship of the federal government to the governments of the individual sovereign states, and about when 'voluntary' measures are co-opted into coercive schemes--hence the title of the article. How did you miss that? Interesting that you brought up Steven Chu, the guy who(along with the rest of the rabid, power-mad, global-warming believer crowd) works overtime to intentionally push gas prices up to $10/gallon, believing the combustion engine is evil and that Americans should all be forced into rickshaws and matchbox cars. If you think a Nobel prize is really indicative of anything anymore, I have some hope and change to sell you again.
Don Joy April 20, 2012 at 02:15 PM
Furthermore, Ann, what private companies do with whatever revenues they may be fortunate enough to accrue by their skills is their own business, because again, it is a matter of that revenue being the result of voluntary participation/purchasing by consumers(for the record I oppose all government subsidies to private industry)...contrast that principle with the government taking, by force, of private property/earnings for the purposes of funding the types of abuse and waste, fraud, endless redundancy, torpor, bloat, expansion, inefficiency, cronyism, affirmative action, graft, make-work schemes, and never-ending lavish displays of arrogance, audacity, and excess as we see at GSA and at every single government department that exists, who are supposed to be stewards of our public trust--all of it perpetuated by the coercive force of government by gunpoint, with 51% of the voters able to hold the other 49% hostage to whatever kind of corruption they wish to foist upon them. Try to tell me THAT isn't what's really our biggest crisis; the fact that our nation is umpteen trillions of dollars in debt because people keep electing those who promise more and more and more and more "affordable" this, "affordable" that...while the agencies just continue to expand and metastasize, as the private sector struggles to survive and produce enough for the socialists to loot, and still have some left over with which to induce those of ability to lead the way of industry, without coercion.
Barbara Glakas April 20, 2012 at 06:54 PM
Ann and Dave, Ann, thanks for asking your quesitons. Dave, thanks for answering them.
Bob Bruhns April 21, 2012 at 01:21 PM
People need to look at that article. Vienna might have to pay as much as $75 million for process upgrades. This appears to be a BIG issue, and Herndon certainly needs to think carefully about this, and about any other spending. Thanks for that link, Dave!
Don Joy April 23, 2012 at 01:23 PM
Don Joy April 25, 2012 at 03:36 PM
Don Joy April 26, 2012 at 02:50 PM
Leading global warming guru admits it's all bogus: http://www.humanevents.com/article.php?id=51043


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