Paved With Good Intentions

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.