Storm Water Management and Pollution

The following information about storm water management and pollution in Lake Barcroft was originally posted to the Lake Link on 5 may '03 by Diane Davidson, Environmental Quality Committee Chair.

Storm Water Management and Pollution
-Diane Davidson

First, let me apologize for the extreme length of this message. But the time has come for me to step forward inform the community about my participation in the water quality vs pollution credit sale debate.

Now,

In a message dated 5/2/2003 6:33:59 AM Eastern Daylight Time, LakeLink@yahoogroups.com [Mr. David Alne] writes:

While the County has identified 150 regional sites and has brought 46 of them into operation, there is no mention of Lake Barcroft--notwithstanding that our Lake has to be de facto one of the largest such regional detention facilities in the County. Clearly the fact that we are privately owned and self-managed has effectively moved us to Mars. There is also no mention of the apparently developing market in which a new developer can buy credits from an over-complying neighbor in the watershed although one such transaction, the Eckerd purchase of credits from Lake Barcroft, is in process and two others (I understand) have been completed. The report does recognize that there is pro rata cost sharing program (estimated to reach $41 million during the next 10 years of County "buildout"), under which new developers share the cost of some existing (or planned) regional pond and avoid thereby the cost of some equivalent on-site facility. Such sharing in a regional facility maintained by the County seems equivalent to an Eckerd payment to Lake Barcroft since we maintain the BMPs here (dredging, aeration, etc) ourselves.

The WID and the LBA has recently concluded an agreement under which each of us will exercise the role of Lake "owner" in connection with transactions like the Eckerd case. I see a clear parallel between (a) the County's judgment, in connection with regional detention ponds that it owns, whether to accept pro rata sharing payments from new developers in the pond's watershed because the developer's incremental imperviousness is minimal or to require on-site ponds because the incremental imperviousness is major and (b) the WID/LBA judgment that payment should be accepted from some new developer in its watershed (because the developer's impact is minimal) or that we should withhold such agreement because the impact of the new developer is too large.

(submitted by David Alne, Trustee Chairman, WID)
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For months and months I have refrained from bringing my views, concerns, frustrations and at various times fury over this issue into public debate and questions regarding the Eckerd transaction and the concept of WID selling pollution credits to developers instead of fastidiously fighting for the pure water quality of our Lake. Being completely new to the LBA Board of Directors and personally ignorant of past community politics (although there is plenty of hearsay and advice readily available), I felt it wise to keep my mouth shut, listen and learn. I asked to be the Chairperson of the Environmental Quality Committee because that subject was most interesting to me and I had lots of ideas for projects and programs, etc for the community.

As Environmental Quality Chair, I soon learned that this meant that I was also the liaison between LBA and WID, and that I was the LBA Board representative expected to attend the monthly WID meetings. I was happy to do this as I was quite interested in just what WID did and how the lake was maintained, because I really did not understand quite what the difference was between WID and LBA. So you see I had much to learn. Lucky for all of us I am a VERY quick study. I heard many stories about personality differences and turf battles and misunderstandings and bad feelings over many years between WID and LBA. To me all of that was irrelevant -- I would make my own judgments through my own interactions.

However, because of this history, I felt it extremely important to behave as diplomatically and professionally as possible. In many past lives professionally I have been in the position of crafting a solution in which everyone wins. It did not seem to me that that should be difficult, because in the end, we all live here and want the best for the community and for the best resource we have -- our lake.

To be fair, you should know where I stand. I am a very strong conservationist, particularly with respect to water and marine conservation, and I am a lawyer. I am not an expert in environmental law, but I have years and years of experience in writing laws and regulations, analyzing them, consensus building and dealing with regulatory entities. I have a strong science education and have personally conducted scientific research. I have worked in law firms, federal government, and corporations. I know how to look at an issue from all angles, and my preferred strategy has been to solve a problem or controversy by working towards a goal where everyone wins or at least thinks they do.

When I first learned of the proposed Eckerd transaction, I absolutely could not believe what I was hearing or comprehend why on earth WID would do such a thing. I was also angry at myself because I had unintentionally missed the WID meeting at which the subject first came up. I was quite ill that day with a migraine headache and simply forgot about the meeting, so not only did I miss it but did not ask another Board member to attend in my stead. A couple of weeks later I learned that the transaction was first raised at this meeting, there was quite a bit of debate, and the Trustees approved it within 24 hours, with no community input or notice, or further investigation. I felt sick that I had not been there because you can be sure I would have raised holy hell, and maybe the vote would not have been made quite so quickly.

Let me assure you, I have monitored this transaction ever since. I have not addressed it in public because I hoped to be able to negotiate a reasonable solution. The issues were very hard to understand, and I did not want to comment publicly on Lakelink or otherwise because I knew that I could not explain comprehensively or adequately enough to assure completely accurate information. And I felt that it would not serve the community for people to get upset without careful and thorough analysis and explanation.

However, I have argued and discussed the various matters involved in this transaction with WID ad nauseum. After many hours of research, investigation and conversations with WID, County representatives and other Board members, I finally came to the conclusion that the amount of additional pollution to the lake was probably sufficiently minimal (even though completely objectionable to me personally) that it was not worth starting a divisive and potentially harmful controversy in the community by attempting to stop WID from getting County approval of its deal.

BUT, I could only accept that outcome if the outcome also included a written agreement between WID and LBA that WID would never again entertain any such type of transaction without seeking community input and without receiving LBA written consent before signing any agreements with developers. And that is the recommendation I made to the LBA Board, and that is the position the Board adopted.

I will not provide an exhaustive he said, she said account of what has transpired over the past several months because I do not want to raise my blood pressure any more and I do not believe that would be in the best interest of the community. Suffice it to say it has been a long and tortured process. However, I do now want to provide my advice and counsel to the community, and to respond to certain of Mr. Alne's comments in his 5/1/2003 LakeLink posting.

LBA and WID finally did reach an agreement that was signed immediately preceding the WID annual meeting. However, I emphatically disagree with Mr. Alne's characterization of that agreement. "The WID and the LBA has recently concluded an agreement under which each of us will exercise the role of Lake "owner" in connection with transactions like the Eckerd case." This statement simply does not reflect the terms of the Agreement. First of all, there are TWO agreements involved. In order to obtain County approval of the Eckerd deal, WID had represented itself as the "Owner" of the lake and was going to sign a Stormwater Management agreement with the County as "owner". WID does not own Lake Barcroft. The County or some other arm of the government owns the water. LBA (actually BBI, to be completely precise) owns the property under the water (the lakebed). Therefore, LBA ultimately refused to allow WID to represent to the County that WID had sufficient legal authority to sign such an agreement alone. LBA agreed to co-sign the County Agreement with WID in order for WID to get the money, so long as WID signed an agreement with LBA promising that it would notify LBA immediately upon identifying any future credit transactions, and that it would not proceed with any such transactions without prior written consent from LBA.

In the County Agreement, a specific "boilerplate" form is required and the county has set up the "terms" and definitions. Both LBA and WID together had to be referred to as "owner" in the context of that agreement because while LBA is the sole owner, WID actually does the dredging that creates the existence of any credits. "Owner" in the context of the county agreement refers to an entity that both owns the property and dredges. So, LBA and WID were jointly referred to as "owner" in that agreement and that agreement alone. LBA did not in any way agree that WID has any right of ownership in the lake, and WID absolutely may NOT legally act as "owner" without LBA's approval. Therefore, I respectfully disagree with any such description or characterization.

Further, LBA has been extremely concerned with the engineering plans and proposals submitted in the process of seeking approval of the Eckerd transaction. Ken Young of GKY Engineering expressly assured George McLennan and myself that even though the plans as submitted called Lake Barcroft a "regional wet pond", we would still be able to ensure that future development could have Stormwater management requirements imposed in order to receive county approval of the site plan. Mr. Young maintained that nothing would change in County review of site plan applications even if the lake was accepted by the county as a "regional wet pond."

Moreover, Mr. Young also assured George and myself that the sand filters at Eckerd were required only for the phosphate removal, and that separate conditions and methods were imposed by the County to protect the lake from drainage including fuel runoff, oil, and potentially carcinogenic chemicals from the cars and parking lot. These assurances were absolutely critical to LBA's acquiescence to the WID filing, and LBA did co-sign the filing.

LBA has later learned that apparently Mr. Young was incorrect on both accounts. There are no other requirements for removal or control oil, gas, other chemicals. The sand filter itself would have taken care of all of that. WID contends that sand filters do not work. I fail to understand this position because throughout the country the use of sand filters is considered one of the most effective stormwater management tools. They must be maintained, but maintenance is cheap and relatively simple. A review of the report identified by Mr. Alne will show that Fairfax County itself considers sand filters to be a top choice in effective stormwater management, as does Arlington and Alexandria.

Secondly, the way WID's engineering portion was designed, Lake Barcroft was to be designated by the county as a "regional wet pond." Once that happens, there is no more requirement that any developer within our watershed provide stormwater management. Representatives at the County and at the Northern Virginia Soil and Water Conservation District have informed me that the designation of Lake Barcroft as a regional wet pond means that Lake Barcroft itself meets all requirements, and the County will not impose any stormwater management responsibilities on future development or applications for site plan approvals. WID has been advised and believes this designation will allow them to sell more credits in the future, and they believe this is good for the community because it can help pay for maintenance of the lake, dam and dredging and lower WID taxes. According to advice I have received, the opposite is true -- the regional wet pond designation eliminates the possibility of selling any credits because no developer will actually need them if the lake is a regional facility.

Fortunately for all of us, last week the WID application was rejected by the County (this was a third rejection of a WID submission). Therefore, Lake Barcroft still is not defined as a "regional wet pond" because the County Agreement was rejected and the status quo remains. Please note that while the Eckerd transaction may not ultimately go through, there is still a written agreement between WID and LBA that WID cannot undertake any future transactions like this without notice to LBA and prior written consent. This agreement remains effective and fully enforceable.

Mr. Alne's report and analysis posted on LakeLink indicates that WID apparently now seeks to achieve its end through the current reevaluation of stormwater management policies, and WID may be urging the County to designate Lake Barcroft as a regional pond in this process. You have been urged to attend the Mason District meeting addressing stormwater management this Tuesday, May 6 at 7pm. I also encourage as many residents to attend as possible. But you need to know what this meeting is actually about.

It is NOT about the Eckerd deal, and it is in no way appropriate to ask questions about that deal in this forum. This meeting is a formal means of community outreach by a special committee that has been formed to analyze and recommend how Fairfax County should make stormwater management decisions and impose requirements in the future.

Briefly I will try to explain exactly what is going on. In 1989 Fairfax County decided that "regional retention ponds" were a desirable and preferred means of stormwater management because various developments could be "consolidated," if you will, by coordinating their stormwater management obligations and sharing the associated costs by setting aside money to build a regional detention facility that could service all of those new developments. This method really only works for new developments farther out in the County, but seemed to be a great idea at that time and many such facilities (150 I believe) have been proposed and planned. HOWEVER, there has been significant community opposition to such facilities and much complaining to the County. Citizen groups have become extremely vocal opposing such ponds. County Supervisors in certain areas have imposed moratoriums against building specific ponds due to community concerns. Finally, in 2002, the County established a committee of various experts throughout the County departments (public works and environmental, engineering, etc) as well as other experts, and citizen input, to review its policies. The Committee is co-chaired by an expert representative of the County Department of Public Works and Environmental Control (? not sure of last word?) and by Diane Hoffman, a Member of the Northern Virginia Soil and Water Conservation District (NVSWCD). In March of this year the Committee put out its report and recommendations that regional retention facilities no longer be treated as a "preferred" method, but rather as one of many methods of stormwater management. Now the Committee is holding four public meetings throughout the County to gather further community input before any final decision is made by the County. I attended the first meeting last week at the Fairfax County Government Center so that I could learn just what this was all about. I will also attend the Mason District Meeting on Tuesday.

Added:
I should have provided the site for anyone interested to view the committee Report. It is many many pages, and some can only be obtained by asking for a copy from the county, but the information is very helpful. Go to:
www.fairfaxcounty.gov/gov/DPWES/Watersheds/ponds.htm
Or you can call and request a printed copy of the report by calling 703-324-5500, TTY 711. (You might have to pay for the copying charges, I don't know).

While the subject of credit sales is not part of this analysis, something else is going on that is of absolute critical importance to this community. In addition to this review of stormwater management policy, the County is also reviewing and developing NEW watershed management plans for each watershed in Fairfax County. We are within the Cameron Run Watershed, and I have been advised that development of the comprehensive new management plan for our watershed will begin in the next couple of months (perhaps as late as July).

Frankly, I do not know what WID seeks to do in this process. But here is my recommendation, as an environmentalist and one who believes it is imperative to take every possible opportunity to clean this lake rather than allow any additional incremental amount of pollution to enter "for a fee." One of the stormwater management issues discussed in the big report cited by Mr. Alne is dealing with communities that were developed years ago before all the new Chesapeake Bay requirements were put in place, and before the State and County were required to impose cleanup requirements on developers. A big area of analysis and discussion is how to implement programs in these areas to encourage cleanup in highly developed areas, like Cameron Run. This is referred to in the report as "retrofitting" cleanup obligations.

Stuart Finley has been talking about just such programs for years. The street sweeping program he has described is one example. There are other proposals on the WID CD-ROM. WID has been very active over the years is trying to force upstream cleanup before the water gets to Lake Barcroft, and wants to get other contributions to share in the cost of cleaning the lake. WID is correct when they say that, for all intents and purposes, Lake Barcroft is sort of a "de facto" wet pond because all the upstream development run-offs enters our lake, and the County does not help us clean it up. That is why WID is trying the credit approach -- they want to obtain financial assistance from those who contribute to our pollution.

I, and others, simply don't agree that this is an appropriate means. The developments are there, the clean-up requirements were not imposed when they were built. We won't be able to sell any credits to them. And if Lake Barcroft is designated as an existing private regional wet pond, my research completely contradicts what WID has been advised. Rather than having future opportunities to sell credits to any new developments or re-developments, instead the County won't even impose any cleanup requirements because they would already be presumed to be handled by Lake Barcroft.

In new areas being developed, the "pond" to be created does not exist, and the idea of the regional facility is to have all developers there share the cost of building and maintaining it. WID believes that it can try to do this to our lake, but in reverse. The lake is here. The dam is built. We (you) have already paid for everything, and we all continue to pay for all of the maintenance (dredging, etc). WID believes it is a good idea to sell credits because we get the pollution anyway and this way we at least get someone to help pay for the maintenance costs. But I have been advised from multiple sources that it just won't work that way. There will be no credits to sell if WID gets our lake designated as a regional facility. And we will lose any opportunity to insist on upstream cleanup in new site plan approvals.

What can we do? What should we do? WID should take an extremely active and aggressive role in the County's development of the new comprehensive stormwater management plan for our Watershed. And we should insist that every effort be made to develop programs and policies to "retrofit" obligations on areas already developed. Doing so will assist in cleanup of the stormwater runoff before it gets to our lake. Programs like street sweeping consortiums could help. Stuart has complained that the County has ignored this idea, and he is right. I brought it up at the first public meeting last week and immediately certain county officials laughed and said "You must be from Lake Barcroft"... I proudly said you bet I am and guess what our WID did? They swept the entire neighborhood and removed 29 tons of salt and sand before rain washed it into our lake. The other citizens and some other officials were very impressed. Others there mentioned that the County used to require some street sweeping until about ten years ago. And so the people present at that meeting supported me in asking the Committee to include further consideration of street sweeping programs in the analysis of management controls available.

A comprehensive plan for management of our watershed is about to be developed and the County has invited public input and participation. We need to urge WID, and we need to support actively WID in insisting on as many retrofit policies and programs as possible to clean up the water before it gets into our lake.

WID believes it is doing the right thing by trying to obtain financial contributions from others to help us in paying for the dredging and other maintenance of our lake. I certainly understand the concept, but disagree that accepting pollution for a fee is the right thing to do. Instead we need to take every possible opportunity to force our upstream neighbors to do their share of cleaning the water before it gets to our lake. That includes litter control, street sweeping, new installation of filters when parking lots are redone or when developed areas are modified. If you agree with this position, PLEASE tell WID this is what you want and you do not want any program that gives us money instead of additional onsite pollution controls that clean up the water before it gets here.

Diane Davidson
LBA Board
Environmental Quality Committee Chair