Rappahannock River Basin Commission

December 5, 2012; 1:00 PM

Senate Room 2

Capitol Building

Richmond, Virginia

LEGISLATIVE MEMBERS:

Senator Emmett Hanger

Senator Bryce Reeves

Delegate Keith Hodges

Delegate Margaret Ransome

Delegate Michael Webert

LOCAL GOVERNMENT MEMBERS:

Mr. Steve Nixon, Culpeper County

Mrs. Margaret Davis, Essex County

Mr. Christopher Parrish, Rappahannock County

Mr. Joe Grzeika, King George County

Mr. Dave Allen, Madison County

Mr. Jonathon Weakley, Madison County

Mr. Pete Mansfield, Middlesex County

Mr. Woody Hynson, Westmoreland County

Mr. Jason Bellows, Lancaster County

On phone:

Ms. Ann Heidig, Spotsylvania County

Mr. David Ross, Spotsylvania County

Mr. George Solley, Fredericksburg

Ms. Tricia Lewis for Senator Richard Stuart

SWCD MEMBERS:

Mr. Mac Saphir

STAFF MEMBERS:

Mr. Eldon James

GUESTS:

Mr. Jim Wesson, Virginia Marine Resources Commission

Ms. Valerie Rourke, DEQ

Mr. Ernie Hoch, Madison County

Mr. Neil Zahradka, DEQ 

Mr. Bill Norris, DEQ,

Ms. Susan Conner, USACE

Ms. Holly Carpenter, USACE

Ms. Ginny Snead, DCR

Mr. David Nunnally, Caroline County

Mr. Steve Hubble, Stafford County

Mr. Jacob Powell, Virginia Conservation Network 

The meeting was called to order at 1:00 p.m. by Chairman Grzeika.  Mr. James noted that a quorum was present. He reviewed who was currently on the phone.  Mr. Nixon moved that in accordance with the Code of Virginia Section 2.2-3708.1.A.3,

Rappahannock River Basin Commission members Councilman George Solley, Supervisor David Ross, Alternate Member of the Commission and Supervisor Ann Heidig of Spotsylvania County have notified the Commission that they must participate by telephone; that Mr. Solley is calling from the City of Fredericksburg and Ms. Heidig and Mr. Ross are calling from Spotsylvania County and that we have made arrangements for all three members to be heard by all persons at this location. Mr. Allen seconded the motion. The motion passed unanimously. Chairman Grzeika welcomed everyone to the meeting and reviewed the agenda. 

Adoption of Agenda  - Chairman Grzeika suggested that item ten be struck from the agenda, since the item was not ready for the meeting. Mr. Nixon made a motion to amend the agenda and Mr. Saphir seconded the motion which passed unanimously. 

Adoption of Minutes from September19, 2012 meeting - Mr. Thomas made a motion to accept the minutes as they stand and Delegate Hodges seconded the motion. The motion passed unanimously.

Chairman Grzeika presented a plaque to past Chairman Senator Hanger for his work over the years for the RRBC. Senator Hanger thanked the Commission for the plaque. 

The Success of Oyster Rotational Harvesting, Restoration Success Including Job Creation, and Water Quality in the Lower Rappahannock  - Jim Wesson, Virginia Marine Resources Commission.  Mr. Wesson noted that he presented on the beginning of the program at the Commission 12 years ago. He reviewed the history of the program and the scope of the project, with all the partners who helped it. He reviewed a graph demonstrating private vs. public oyster harvesting, and the changes that they have seen. He said it all started with the RRBC’s involvement years ago. He discussed how they divided the river into sections and decided on a strategy that would not open everything at the same time. The two key things VMRC can do as a manager is control harvest and replace shells. He reviewed the three-year rotation and the oyster diseases plaguing the bay will kill the oysters when they are three years old. He said they rotate to escape the disease and that it gives the oysters an opportunity to spawn. He reviewed the designated areas for rotation. After monitoring the area below the Route 3 (Norris) bridge, they discovered in the fourth and fifth year it showed that they were getting the same harvesting, below and above the bridge. He reviewed the areas that are open and what years they started. He said this gave them time to better mix sanctuaries. In the same

year, they made the agreement that they would buy every orchard that was bigger than four and half inches, to put in the sanctuaries in case there was some resistance. He reviewed the areas of harvesting and sanctuaries and the benefits. The model of giving the areas two years rest is driving the increase of harvesting around the bay. He reviewed each area and the unique signature and how each river is a little different. Mr. Wesson discussed the lessons learned over the last several years. He said oyster disease is the big factor. He discussed the half life of the shells returned to the water and how that impacts how many oysters get harvested. Normal mortality takes 100 shells down 30-40 the first year and by the second year they get 90% lost. He said this is the key to oyster stability and restoration. For oyster restoration, putting shells overboard is an important strategy to maintain productivity. He added that it does not have to be a huge amount and can be done at a very economical price. The flip side is if we don’t put the shells back the areas disappear, which is what happened in the 90s. Mr. Wesson said they have learned how to do the shell planning correctly and monitoring it. He reported that last season about 500,000 bushels were handled with a value of $46 million. In 2010 it was 235,000 bushels with a value of $22 million. He said the feeling is we have turned the corner on what is needed to maintain and now they have found the key, but must work with the budget. He said more than half the product the state uses and most of the harvest will come out of the Chesapeake Bay. He asked the RRBC if they can do anything to maintain the funding for the shells. Chairman Grzeika said it does come with the warming that we have made the investment, that does have a return but it will reach the half life if we don't continue to fund it. Mr. Saphir asked if they restrict the method of harvest in the management of the beds. Mr. Wesson described how they do this with a small hand scrape, not a dredge. There was some discussion on the recapturing of the oyster shells, and how they buy the shells back by the bushel.

Status Report on the Rappahannock River Gauging Analysis - Holly Carpenter, Environmental Engineer, Norfolk District, USACE. Ms. Carpenter discussed the study and why it was initiated and the timeline. She reported that they are currently awaiting some of the funding, and Mr. James said it should have taken place in the last day or two. Ms. Carpenter reviewed the two meetings held thus far. She discussed who attended the first meeting and who gave presentations. She said they initially had input from the RRBC Technical Committee and they are working on what is needed, and who to contact for data collection. She announced they will have another meeting and that she is seeking feedback from all the localities on the work to date. She is reviewing all the TMDL implementation plans that have been approved in the middle and upper basin. They are also reviewing all water supply plans and any water quality plans and studies. She said they are looking at stream gauges, water quality and rainfall gauges. She discussed how the water quality gauges are more needed in all the areas. Ms. Carpenter said not all the

gauges will be able to be implemented with the next portion of the study will focus on prioritizing and organizing the need for gauges. She said this will be based on the data, supporting information on why the localities need the gauge, with documentation in the TMDL plans and other plans.  After she reviews all this, they hope to have another meeting with the stakeholders. Ms. Carpenter said she hopes to present at the March RRBC meeting with the final draft. Mr. Saphir asked if localities are looking at this to determine some TMDL standards. She said obviously the TMDLs are a major driving factor and reviewed other studies that need the information. She said some localities may want more information on their specific area. Mr. Saphir asked as far as funding the rain gauges are funding sources being identified. She said they are coordinating with the agencies that have the available funding such as the National Weather Service. Ms. Carpenter concluded her presentation asking Commission members and guests if they had any information they would like to share, to please contact her. 

Status Report of Basin-wide Water Resources Planning, Opportunities to Integrate TMDLs into a Comprehensive Water Resources Plan for the Rappahannock River Basin  - Susan Connors, Norfolk District, USACE

Ms. Connors said she is acting as the current Planning Chief, and is the program manager for the project. She said to speak to the question about water quality, she reviewed the difference between the agencies. She reviewed they have completed “Section 22” projects with the City of Virginia Beach and City of Norfolk bay to look at nitrogen, phosphorous and TSS removal. She said she has the documents and can provide those to Mr. James. Chairman Grzeika said Mr. James could send this information out to the Commission. She provided a brief overview of the scope and what they still have to do. Ms. Conners said this was an opportunity to work with the stakeholders inputs to identify some of the issues that need to be addressed. She said they are moving to the next step and trying to translate this into a suite of tools. She reviewed the path forward with the scheduling of the mini charrette, to focus on products that can help everyone. She reported that the draft report will be complete February 2012, with a final in March. She said the draft will be available for feedback and can be incorporated into the final report. Mr. Saphir asked if this will be an overview that will lead into a larger process. Ms. Conners said this is not the end product but is a small-scale study. They are trying to set up a framework to better integrate the problems out there to scope out a larger project in the future. Mr. Hynson asked at what point do you feel at cleaning up the waterways for the last 20 years, if there is profit to be made from oysters, are we better off spending some of the money from the state versus spending money on the sewage treatment plants. Ms. Connors said there is a potential for long-term benefits in investing in the oyster restoration. She added that oysters are one piece of the puzzle and help with habitat benefits, and they are the keystone of the Chesapeake Bay water system. She said there

are other water quality benefits that can be received from that. Mr. Hynson discussed the cleaning capacity of the oysters and if they were multiplied 150 fold, what it can do for the Bay. She discussed a document just produced by the USACE to look through the individual tributaries to see how much it will cost to sustain the oyster populations. She added that it will be on the USACE website. She said it is one of the more cost effective. Mr. James noted that remembering Mr. Wesson’s presentation in 2000, someone on the Commission said we will never succeed at cleaning up the bay unless we restore the oysters. Delegate Ransome asked if it is all sanctuaries or some harvest. Ms. Connors said the document is based on the science out there, which does advocate for sanctuaries. She said they have agreed to work with VMRC on rotational harvest since they are the current cost share partner. She added that there are things they have to balance. Delegate Ransome said they did the project and there is proof that there is a longer life plan. Ms. Connors reviewed other studies and laid out what VIMS and other studies they rely on for conflicting data. 

Proposed Amendments to the Water Reclamation and Reuse Regulations - Valerie Rourke, Water Reclamation and Reuse Coordinator, DEQ. She said this was a relatively new regulation that came into effect in 2008. She said during the initial implementation period, DEQ identified several limitations of the regulation that could not be addressed with just guidance. The amendments will improve the ability of the SWCB and DEQ to more effectively promote and encourage the reclamation and reuse of wastewater in a manner protective of the environment and public health. She discussed that a regulatory advisory panel (RAP) had been put together to assist the agency with amendments to the regulation. She reviewed who was on the RAP. She added that to facilitate the RAP’s discussion, amendments under consideration at the time were divided into minor or significant groups. Significant amendments required more discussion by the RAP overall. She noted that for this presentation, she was going to focus on significant amendments. She reviewed an amendment for a new variance provision and some of its advantages. Ms. Rourke discussed other specific amendments that would directly promote and encourage water reuse and reclamation. She then discussed significant amendments that would indirectly promote and encourage water reclamation and reuse. Ms. Rourke said significant amends that indirectly promote and encourage water reclamation would do so, in part, by increasing end user confidence in the safety and reliability of the reclaimed water. This, in turn, would increase the likelihood of a water reclamation and reuse project succeeding. Mr. Nixon asked that if he has a discharging wastewater treatment plant (WWTP) and wanted to reclaim 2 million gallons per day of the discharge for reuse, does that quantity of flow diverted from the discharge to reclamation and reuse need to be justified. Ms. Rourke said that per proposed amendments to the regulation, diversion of any portion of a WWTP discharge to water

reclamation and reuse may be considered a consumptive use of that water, requiring a cumulative impact analysis (CIA) to ensure that beneficial uses of the receiving water for the discharge are not significantly impacted by the loss of water. Although a CIA would be required for each new or increased diversion of a discharge from a WWTP, CIAs would not stop all water reclamation and reuse projects because each project has different variables and impacts. Mr. Nixon asked about the cost of the analysis and Ms. Rourke said there is no fee to perform the analysis for new or existing permits.  Mr. Saphir asked about the use of reclaimed water for watering livestock. Ms. Rourke said that the use of reclaimed water is already listed as an acceptable reuse in the regulation. She added that these regulations do not apply to the reclamation and reuse of harvested rainwater. The Virginia Department of Health (VDH) has guidelines for the proper treatment and use of harvested rainwater, and the Department of Housing and Community Development has regulations under development in the state plumbing code for harvested rainwater non-potable systems inside buildings and structures.

Ms. Rourke said she was aware that expanding water reclamation and reuse in Virginia is a topic of particular interest to the RRBC. DEQ and VDH produced a report on this topic in response to a line item in the 2012 Appropriations Act and at the request of Delegate Harvey Morgan. She discussed the primary objectives of the report and identified several advantages and disadvantages of water reclamation and reuse identified in the report. 

Mr. Mansfield asked if she was suggesting that we need to reduce the amount of water diverted from WWTP discharges to water reclamation and reuse, so we have enough water to drink. She said that for public water supply, we must look at the impact of diverting the discharge away from the stream. Ms. Rourke said that unintentional reuse, which involves the unplanned or unintentional use of WWTP effluent downstream of the discharge, has happened historically for years. She added there are over 390 surface water withdrawals for public water supply and many are downstream from discharges and may, therefore be dependent to some degree depend upon that volume of flow from the discharge. Mr. Mansfield asked that if a discharge was diverted to some reuse, how many of the municipal water supplies would be negatively impacted? Ms. Rourke said it may impact quite a few of them to some degree, determined by a variety of factors, including but not limited to, the size of the receiving stream, the volume of the discharge, where the discharge is located on the receiving stream, and whether the reuse is consumptive (e.g., irrigation) or non-consumptive (e.g., toilet flushing, once-through closed loop cooling, etc.).

She discussed the public comment period for the regulations, currently open and closing on 1/11/13, and reviewed the ways that public comments may be submitted to the DEQ.

Mr. Mansfield talked about the county where he has another residence in Florida, how much reuse water the county produced, how the countyy made 11 million gallons per day of wastewater, and where it was used. He said that by producing 11 million gallons per day of water for reuse, the county (in Florida) is preventing a half of million pounds per year of nitrogen from entering surface waters, a significant treatment cost savings. He reviewed the other advantages of doing this in Florida including the watewater operators being able to sell the reclaimed water as a product. Chairman Grzeika said there are mechanisms in place, and actions that can be taken to help the General Assembly.

Mr. Mansfield expressed concerns that we are not going far enough in the amendments to the regulation to promote the reuse option. Ms. Rourke agreed with Mr. Mansfield in that water reclamation and reuse is an option to reduce nutrient loads from WWTPs to surface water but there are differences between Virginia and Florida that need to b considered before requiring all WWTPs in Virginia to divert their discharges to water reclamation and reuse. Unlike Florida, greater than 90% of Virginia’s public water supply comes from surface waters. She said there are amendments to the regulation to ensure that new or increased diversions of WWTP discharges to water reclamation and reuse would not impact downstream withdrawals for public water supply. She said there are other non-discharging options in lieu of water reclamation and reuse to reduce nutrient loads to surface waters from WWTPs. One such option is land treatment of wastewater, designed and operated in accordance with the Sewage Collection and Treatment Regulations. Land treatment, in most cases, allows a greater rate of application than irrigation reuse of reclaimed water. She said that one significant difference between land treatment sites and irrigation reuse sites is that no groundwater monitoring is required at irrigation reuse sites. Ms. Rourke also discussed other requirements for land treatment.

Mr. Mansfield said that what concerns him is the four-month storage requirement during which wastewater cannot be applied. This is cost prohibitive. He is concerned we are underestimating the environmental value that exists even when land applying during those four months. Ms. Rourke said DEQ would be happy to with work with Mr. Mansfield, whether the project involves land treatment or water reuse. There was some discussion about land treatment, irrigation reuse or a hybrid of both. Are there relaxed limits and if so, do they need to meet these limits before being discharged into the stream. Which is most cost effective?

Ms. Rourke said that the rate of application for reclaimed water to an irrigation reuse site is intended to meet the water demand of the irrigated vegetation and will typically be lower than the rate of application for partially treated wastewater to a land treatment site, which is most often intended to meet the nutrient demand of the irrigated vegetation. Due to the higher wastewater application rates at land treatment sites there are concerns about breakthrough of nitrogen and phosphorous to groundwater. Therefore, land treatment sites require groundwater monitoring. 

Status of Nutrient Trading Regulations and Timetable for Completion & Overview of the Integration of Virginia’s Stormwater Management Program - Ginny Snead, Manager, Office of Regulatory Programs, Division of Stormwater Management, DCR. Ms. Snead said she planned to put the two presentations together. Ms. Snead discussed some of the major efforts in implementation in the state. She also discussed the impact on localities with MS4 permits. She discussed Arlington County and their efforts in putting a template together for reissuing MS4 permits and plans to submit a draft to EPA. She reported the plan is to get something out as a proposed permit, which is the next step, and can be done in January. Mr. James asked if there are any Phase One MS4 permits in the Rappahannock. Mr. Hubble confirmed that there are none but there are Phase Two permits in the Rappahannock. Ms. Snead said they are on a very short timeframe to get these in place. She also discussed the public comment period on Phase two, and how all the information is available on the Regulatory Town Hall. 

Ms. Snead said they are trying to see consistency specifically for the Chesapeake Bay TMDL they have specific language of the processes. Another goal is to ensure flexibility for the permit holders. She said the limits in each permit needs to be reachable and they work with the stakeholder group to do this.

She discussed the nutrient trading expansion and what the law says concerning this. She said it is what they are establishing in the Rappahannock, and what is expected of them, and what they will be charged with at DCR. She said they have a second meeting to discuss the regulations and parts of it. Because of the General Assembly schedule, they will be taking a couple month break due to most of the stakeholders being busy with the legislative session, and will reconvene in February. Ms Snead said even if they were to finish this in several months it would take at least two years to get the regulations in place. Mr. Saphir asked if this is a study, or are they setting up the processes for

evaluation for localities that may or may not have a bay model. Ms. Snead said they are using available technology and if they have to do a separate study they will. She said with the MS4 communities they are anxious to have this in compliance to reach the Bay objectives. Specifically to oyster restoration, the goal is to establish a market for buying credits and the goal is to encourage implementation of BMPs to reach the common goal. 

Ms. Snead discussed the study that the Secretary of Natural Resources asked VIMS to do, and about the actual removal rates for oyster harvesting. It was estimated by the private entities, whose harvest yielded small reductions, it is an effective resource of revenue, but not a good source of nutrient reduction in the bay. She said they have had six meetings with the group and a number were involved in the stormwater regs six years ago. She discussed the accelerated timeframe with the Construction General Permit so localities could use this, and they are in the process of starting the local drafting of this without the actual final permit. 

Ms. Snead said the main issues are determining a common plan of development and to specify the EPA guidelines. She said they have come up with very few requirements to put into the Effluent Limitation Guidelines (ELG).  She discussed the issue of impacts crossing jurisdictional lines and how these are handled in addressing the TMDL. She added the controversy surrounding self-inspections. She discussed the simplification of the permits because the people reading these need to be able to understand what do to, because if they don't understand how will they be able to comply. Mr. James provided a scenario and asked if a holder of a permit wanted to have the discharge monitored for quality and volume could the permit holder be exempt for some of the prescriptive oversight of design and construction – a performance-based approach. Ms. Snead said currently they do not allow this in the regs. It is the part that deals with reduction and they typically argue against monitoring, and secondly the monitoring is a permit requirement and based on how the Clean Water Act is written, it is terminated at the end of construction since it is covered by the Construction General Permit. Mr. James said he is relaying some of the discussions of the RRBC Technical Committee expressing concern that we may be missing an opportunity to focus more on outcomes. Ms. Snead said stormwater is evolving and many of these regs have been put in place a long time ago and technology is still evolving and will continue to evolve. It is our hope that the regs that will facilitate more flexibility in how to get the right outcomes. Chairman Grzeika said sometimes we regulate the process without the long-term end result fully in mind. 

Ms. Snead discussed the stormwater criteria to address land use changes as a result of development, and local stormwater program adoption She discussed the compliance in

those residents getting a permit is estimated at 42%, and that moving this to a local level may increase the compliance rate. She discussed some of the VSMP local programs. She said they have held 12 different regional meetings across the state, focusing on the interest and understanding of the permit process. She added that there was a lot less resistance to the outreach process, but there were more questions and concerns for those who already have the programs and are not necessarily open to changing what they are doing. Ms. Snead reported that a stormwater advisory committee will help advise them as they move forward at the state level, to help understand things at the local level. She said they had an overwhelming response to the outreach they did in the summer, and will have more. She discussed the model ordinance and hope to release it soon. She also discussed the RFP program for localities looking to develop their own program. She reported 94 localities are already starting to work on draft plans and working to create a draft local ordinance. She discussed the funding for this phase, with $3.7 million requested and only $2.4 available. Ms. Snead showed a map of the localities funded. She discussed the training plan and the development of a certification program similar to erosion control certification. She discussed how it would be offered in a dual way with a stormwater certification program administrator, as well as how they can be provisionally certified. She also discussed the program adoption timeline, substantive progress package and the establishment of the toolkit and the BMP clearinghouse, and Virginia technology assistance protocol or VTAP as phases of acceptance. She said they will be evaluating the treatment they require on their manufactured divide to try to bring private dollars into the stormwater market. In general compliance coordination is key. She summarized the multiple ongoing efforts. She referred to the concern expressed about the challenge this creates for the individual building or adding to their home. She said they would have to comply with the Construction General Permit with would mean installation of BMPs and development of an individual Stormwater Pollution Prevention Plan (SWPPP). They are putting together a template for single family homes so they do not need to create their own stormwater plan, but can use can use this template to make sure they have everything in line. She added that the homeowner still has to get coverage under the general permit. She stated that they must comply with the Clean Water Act.

She discussed the fees that were passed and how they are higher for a number of reasons, but there is concern about the ability to cover costs. There is also concern that the cost for the individual may be prohibitive. She said there is a provision in the law and in the regs to enable alternate fee structures.

Mr. James said after listening to the Technical Committee, they have suggested that anything DCR can do to streamline the local government administration, and anywhere

they can focus on performance and lend results and not worry so much about the process, would help the local government. Mr. Hynson said because we are working toward the same goal, he said, he has gotten more complaints in the last six months concerning permits and the cost for these. He said people are saying to him, for the first time in history, they will not get a permit because it is cheaper to pay the fines when they get caught. He said we need to realize that asking for a permit is the same as upping people’s taxes, and no matter what level of government we are in, do we want to pass on such an expense. Ms. Snead said she understands this and that it is a real problem, but they need to figure out how to pay for compliance, as well as how to fund it.  

Potential Legislation Issues

Mr. James said they should have put in a bill last year to revise the legislative membership of the Commission based on re-districting. Delegate Cole has filed the bill for this session to make the revision. Chairman Grzeika said they need to look at the items out there such as reuse and make sure we are not cutting off items that have potential. Senator Hanger said there are a handful of items they are working on focusing on a bond bill for state wastewater treatment, regs on fisheries management dealing with poaching and piracy not being tolerated in the state. He also said Menhaden harvest is a big issue, trading programs, and he hopes we can have some legislation that includes additional funding for oyster harvesting and the broad subject we will talk about more is growth. He added that growth is a good thing and we are doing a lot of things to promote it, but there needs to be a general responsibility of the public to pay for that growth and some of the money coming out of the General Assembly to also help pay for it. Chairman Grzeika suggested that if there are any items that the legislators need to review to send them to Mr. James, so he can forward to the legislative members of the Commission. 

Status Update on the Annual Work Plan - Staff

Mr. James referenced the written report and said he would be happy to answer any questions.

Public Comment - No public comment at this time. 

Future Meeting Dates and Future Agenda Items:

March 20, 2013 - Caroline County

June 12, 2013 - Lower Basin

September 18, 2013 - Upper Basin

December 16, 2013 - Richmond

Identification of potential agenda items for March 20, 2013 meeting:

• Reports on the USACE projects;

• Buck Kline has offered discuss some of the items the DOF is working on.

• Mr. James asked if we want to invite VDH to talk about the rainwater harvesting program.

• Mr. James reported that the Technical Committee has been spending time on the BMP clearinghouse and that this is a potential agenda item.

• Mr. Mansfield asked that we invite someone from Florida to talk about the success of their reuse efforts. Mr. James suggested that New Kent County has a new wastewater treatment plant that uses much of the discharge to irrigate golf courses, having someone to tell of that effort might be useful. Mr. James said he will do some work on this and see what is practical as far as the budget goes for the RRBC.

• Senator Hanger said he is impressed with all the work the USACE is doing, which compliments or duplicates some of the work others are doing. He said he would be very interested in some of the work and learn of the details from these agencies.

The meeting adjourned at 4 pm.