Non-MS4 Stormwater Management
Stormwater management falls under two major jurisdictions- MS4 and non-MS4. The regulatory landscape for MS4 communities is relatively clear, but there is a great deal of confusion in non-MS4 localities in VA, specifically whether a locality has decided to “opt-out” & designate the VA Department of Environmental Quality (DEQ) as the local Virginia Stormwater Management Program administrator or “opt-in” & assume the added burden & expense of administering the VSMP. Most non-MS4 localities are rural without the financial resources, staff capacity, or stormwater expertise to administer the VSMP & are concerned about the financial liability of guaranteeing maintenance of practices installed on private property. Those who choose to “opt-out” are faced with confusing circumstances coordinating land-use development decisions with DEQ approving stormwater management plans. Additional challenges stem from the fact that most rural lands are in private ownership & stormwater runoff is typically untreated & uncontrolled or controlled through a drainage ditch system that is partially in private ownership & partially owned and maintained by Virginia Department of Transportation (VDOT). Ditches that run parallel to public right of ways are maintained by VDOT, whereas, ownership & maintenance responsibilities for ditches that drain properties outside the right of way, yet discharge into the VDOT ditches are uncertain and contentious.
Increased storm events, groundwater infiltration into drainage ditches that reduce ditch capacity to handle extreme stormwater events, & increased tidal influx as sea levels rise will add strain on an already stressed rural stormwater ditch system. Having several different authorities responsible for stormwater program administration & compliance & a lack of coordination among the different authorities creates confusion. Confusion & ditch failure is further compounded by the ditch ownership & maintenance responsibility issues, as improperly maintained ditches contribute to local flooding.
Localities can use their zoning ordinances, policies, & land-use approval process to encourage environmental or better site design & planning techniques for new development & redevelopment that reduces impervious surfaces & preserves natural open space, thereby reducing stormwater.
Accomack County: allows clustering for development within the Agricultural, Rural Residential, and Village Residential Districts. This form of development clusters buildings on smaller lots together to reduce impervious surfaces & preserve meaningful open space, thus reducing landscape fragmentation & minimizing sprawl. Without the clustering option, the minimum lot size in Accomack’s Rural Residential District is 3 acres, with no maximum lot size. The clustering option reduces the minimum lot size to 20,000 sq. ft, with a maximum size of 2 acres. When developed using an environmental site design approach, a cluster development can preserve natural resources in open space while also benefiting the developer with density bonuses. Because Accomack County has a green infrastructure plan that has identified “meaningful” open space to protect, the locality can request that any new development proposals comply with the conservation & development recommendations of the green infrastructure plan.
Two localities on Maryland’s Eastern Shore, Talbot & Wicomico Counties, have been working to convert portions of their drainage ditch systems into stormwater BMPs. Talbot County installed and is testinga two-stage drainage ditch through a partnership between local government, the Chesapeake Bay Foundation, the Nature Conservancy, the Mid-Shore Riverkeeper Conservancy & Environmental Concern Inc. The BMP has the potential to remove an estimated 36-40 lbs of nitrogen annually. The cost of these ditch retrofits are low as long as right-of-ways are government owned (no need to purchase easement from property owner). Note that the two-stage drainage ditch seems to combine “Wet Swale” and “Constructed Wetland” BMPs.
Kent County Maryland Code §46.1: Creation, composition of the Public Drainage Association
"The Kent County Public Drainage Association is hereby created. It shall have five (5) members appointed by the County Commissioners... All members of the Association shall be residents, property owners and registered voters of Kent County. §46-4 Powers and duties. It shall be the duty of the Association to recommend… the location or locations to establish ditches, drains or canals and to cause to be constructed straightened, widened or deepened any ditch, drain or watercourse for the purpose of draining wet, swampy or overflowed lands or lands subject to overflow…"
VDOT Rural Rustic Road Program: Used to pave existing unpaved roads in rural localities. The program was amended in 2011 to provide flexibility in meeting VSMP requirements.
Virginia Agricultural BMP cost-share program: funds for the voluntary installation of BMPs.
Virginia Conservation Assistance Program: provides reimbursements to property owners for BMP installation, including cistern construction and rain gardens
There is confusion among non-MS4 localities about whether or not to “opt-in” or “opt-out” as a designated VSMP administrator. If localities self-identify as the VSMP administer, as opposed to designating DEQ as the authority, there are major complications & added responsibilities. The VSMP is ultimately responsible for verification that all practices are properly designed, installed & maintained long-term. Localities are concerned that if they choose to act as the VSMP authority they will need to require a cash surety for every BMP installed, to ensure funding for maintenance & repair. These localities perceive that the high cost of this cash surety would be a major barrier to development.
- Rural localities have less impervious surface & more open space for stormwater infiltration & more space for implementing non-structural stormwater practices, such as riparian buffers and reforestation
- Opportunities to address unmanaged stormwater within the existing right-of-way
- Opportunities to address unmanaged stormwater & water quality issues on private property by partnering with soil and water conservation districts & their voluntary stormwater retrofit cost-share programs.
- Planned infrastructure improvements can be coordinated with stormwater work to increase efficiency
- Most of the land in rural areas is in private ownership, making it more difficult for localities to retrofit existing properties with new stormwater practices.
- Non-MS4 localities have different challenges than their MS4 counterparts, including roadside/ditch erosion & failing culverts
- Sediment contributions from gravel roads in rural localities can be significant
- Smaller localities often face increased financial strain, limiting opportunities to implement new stormwater management programs
- Traditional zoning ordinances can create disincentives for the implementation of LID- including wide roads & oversized parking requirements, even in low-density areas.
- Maintenance is a major barrier to the effectiveness of roadside ditches. Both localities & VDOT are unlikely to want additional responsibility for maintaining ditches out of the right-of-way
- Even with regular maintenance, groundwater inflow & tidal influx into existing drainage ditches has reduced the capacity of the ditch system to handle excess stormwater
Non-MS4 localities within Virginia’s Tidewater region are required to comply with the requirements of the Virginia Stormwater Management Program (VSMP). The localities can either “opt-in” choosing to administer the program locally with a stormwater management ordinance that regulates land disturbing activities and must integrate, as a condition for the approval of new construction and redevelopment plans, local erosion and sediment control, flood insurance and floodplain management. VSMPs for non-MS4 localities who “opt-out” are administered and enforced by DEQ. Tidewater localities that “opt-out” can no longer administer stormwater management through a local stormwater management ordinance; however, the localities must still address stormwater quantity requirements through erosion and sediment control and new channel protections and flooding criteria and adopt requirements to regulate Chesapeake Bay Preservation Act land-disturbing activities for any development or redevelopment projects less than an acre and greater than 2,500 square feet.
Poorly maintained roadside ditches result in inadequate stormwater drainage.
Potential Improvement: The creation of a Roadside Drainage Authority could help repair the system and reduce flooding events, while helping to meet nutrient reduction requirements in the Chesapeake Bay TMDL and Virginia’s Watershed Implementation Plan.
Example: In Maryland, Public Drainage Associations have been established with the authority to locate, establish, and maintain ditches. There are over 100 active Public Drainage Associations on Maryland’s Eastern Shore, which maintain approximately 820 miles of ditches.
Delaware Department of Natural Resources and Environmental Control (DNREC) has established a program to convert rural ditches and non-productive farmland into functioning streams and wetlands for water quality and habitat restoration. This program might serve as a model for rural Virginia localities seeking to meet water quality goals and as a way to work with agricultural property owners whose lands are converting to tidal wetlands and no longer farmable.
Credit for small scale flood control projects that protect insurable buildings, or storage facilities with natural buffers or wetlands
Credit for regulations requiring restrictions on land-disturbing activities over a given size threshold
Credit for regulations that plan for stormwater discharge amounts resulting from various sizes of storms
Credit for regulations that require the maintenance and inspection of stormwater facilities
Credit for regulations or policies requiring the annual maintenance of storage basins for stormwater management
Credit for prohibiting development in areas that are preserved or restored in an effort to manage stormwater
Credit for raising public awareness of stormwater issues
Locality regulations that require regular and emergency maintenance of watershed channel
Code of Virginia § 62.1-44.15:27
In 2016, the Virginia General Assembly passed several major pieces of legislation concerning stormwater. The Virginia Erosion & Stormwater Management Act seeks to consolidate stormwater management programs with erosion and sediment control. Localities have expressed concern that the legislation does not address the "donut hole" problem affecting the ability of small, rural localities to opt out of managing their stormwater program.
For more information on the "Donut Hole" issue, view An Analysis of the 2016 Stormwater Bill from the Virginia Coastal Policy Center.
Code of Virginia, § 15.2-5102:
Localities are authorized to create a water, sewer, or stormwater control authority.
Code of Virginia § 15.2-2114:
Localities can establish a system of service charges to support the local SWM program
Code of Virginia, § 62.1-44.15:33:
Localities are authorized to adopt more stringent stormwater management ordinances
Code of Virginia, § 62.1-44.15:34
Construction General Permit required for the development of single family lots with 1 acre or greater of land disturbance.
9 VAC 25-870-99:
Authorizes the creation of a regional stormwater management plan.
Better Site Design Guidelines (Center for Watershed Protection)
Rural Stormwater Management Model (Ausable Bayfeld Conservation Authority)
Impervious Surface Analysis Tool (Digital Coast): ArcGIS tool that can be used to calculate the percentage of impervious surfaces within a given area
Roadside Ditch and Shoulder Water Quality Enhancement Plan (Kitsap, WA): Local guide to enhance roadside ditches in rural areas
EPA. (2010). Green Infrastructure Case Studies: Municipal Policies for Managing Stormwater with Green Infrastructure . Environmental Protection Agency, Office of Wetlands, Oceans and Watersheds
MPPDC. (2015). Drainage & Roadside Ditching Authority. Middle Peninsula Planning District Commission.
JRA & WEG. (2013). Integrated and Enhanced Stormwater Management & Erosion and Sediment Control. James River Association, Williamsburg Environmental Group.
Browning M., Burke D., Dunn J, & Barthelmeh, T., “Converting Drainage Ditches and Non productive Farmland into Functioning Streams and Wetlands: A Model for Improving Water Quality and Wildlife Habitat in Delaware”. In A Sustainable Chesapeake Better Models For Conservation Chapter 2 Stream Restoration. The Conservation Fund.