SJR 373

Commission on the Future of Virginia's Environment

October 25, 2001, Richmond

The sixth meeting of the Commission on the Future of Virginia's Environment began with a review of cost estimates of statewide environmental protection programs and included presentations on wetlands mitigation and condemnation, litter control laws and awareness efforts, and brownfields development.

Costs of Environmental Protection

Virginia's Secretary of Natural Resources presented cost estimates for statewide environmental protection programs. The report included data collected from the Department of Conservation and Recreation (DCR), Department of Environmental Quality (DEQ), Department of Game and Inland Fisheries (DGIF), Virginia Marine Resources Commission (VMRC), Chesapeake Bay Local Assistance Department (CBLAD), Department of Forestry (DOF), and Virginia Institute of Marine Science (VIMS).

According to the report, which included state, federal and other (non-general fund, non-federal) appropriations, state general fund expenditures for FY 2001 were $138 million (approximately) and accounted for 1,741 full-time employees (FTE). General fund appropriations decrease in FY 2002 to around $105 million, while accounting for six additional FTE. For FY 2003 through FY 2004, the report includes requests for an additional $46 million in state general fund appropriations with an increase of 98 FTE. Finally, estimates of additional general fund appropriations needed for FY 2005 to FY 2010 ranged from a low of $329 million and 217 additional FTE to a high of $3.9 billion and 413 additional FTE. The FY 2005 to FY 2010 amounts represent total appropriation estimates from both state and federal general fund sources; therefore additional state funding requirements would decrease proportionately to any increase in federal funding.

The secretary explained the wide discrepancy in long-range estimates as resulting from a combination of factors. The low estimates represent expenditures necessary to maintain current mandatory programs and achieve the minimum commitments under the Chesapeake Bay 2000 Agreement. The high estimates include uncertainties, such as costs of land conservation and TMDL implementation, pollution clean-up costs including tributary strategies, and discretionary programs. For example, any future costs associated with meeting land conservation commitments would be contingent upon the continued success of voluntary easement programs in relation to prevailing real estate market conditions and the total acreage of land subjected to state purchase.

The Virginia Natural Resources Leadership Institute's (VNRLI) first class, represented by 27 leaders from around the Commonwealth, recently completed nine months of multi-disciplinary training in natural resources conflict resolution. VNRI's graduates offered their assistance to the commission in the development of a long-term plan for the future of Virginia's resources. The report included analyses and recommendations on environmental issues, such as suburban sprawl, landfills, game and wildlife, groundwater, forests, and public involvement.

Wetlands Mitigation and Condemnation (HB 2826)

Current Virginia law permits the use of condemnation proceedings as necessary for the completion and maintenance of roads and other authorized public undertakings, if the landowner is unknown, incapacitated, or does not agree upon a purchase price (§ 25-232.01). If the condemned land impacts protected wetlands, then the state or locality is required to mitigate the resulting environmental disruption by designating new protected wetlands elsewhere within the Commonwealth.

This summer the Virginia Department of Transportation (VDOT) drew publicity when its work on the Woodrow Wilson Bridge Project in Alexandria nearly led to wetlands mitigation 85 miles away in Westmoreland County, on Virginia's Northern Neck. After the owner refused to sell his property for use as a mitigation site, VDOT located replacement lands in Stafford and Fairfax Counties. House Bill 2826, considered but not passed during the 2001 Session of the General Assembly, would not affect agreed-upon transactions. It would, however, impose geographical limitations by prohibiting mitigation through the condemnation of wetlands outside of the U.S.G.S. cataloguing unit in which the wetlands loss occurs.

In explaining the intent behind the bill, Delegate Pollard offered that true mitigation can only occur if the condemned land is relatively close to the disrupted wetlands. He stated that cataloguing units are relatively large areas, citing the Rappahannock River side of the Northern Neck as an example, and that it would be reasonable to limit wetlands mitigation through condemnation to such a region. In response, commission members expressed concern that mitigation might not be possible under HB 2826 in instances where no willing seller can be found and no appropriate wetlands exist for condemnation purposes within the cataloguing unit of the disruption site.

A VDOT representative informed the commission that VDOT has never used its condemnation power for wetlands mitigation, historically relying on willing sellers instead. Between 12 and 15 percent of all VDOT projects require wetlands mitigation. In instances where VDOT has mitigated, the majority of those mitigation efforts have been directly on the project site and well within the same hydrologic unit (synonymous with cataloguing unit) of the displaced wetlands. Mitigation outside of the hydrologic unit occurs on only eight percent of all projects requiring mitigation. Furthermore, current regulatory procedures encourage mitigation on or near the project site.

Despite the fact that VDOT has never resorted to condemnation proceedings in wetlands mitigation, the department is concerned that limitations on those broad powers would result in lengthy delays on projects, since state regulatory agencies require VDOT "control" of the land as a condition precedent to the issuance of permits. Without the statewide condemnation power, which meets the agencies' control requirement, VDOT may be forced to go through various land acquisition proceedings prior to the commencement of the permit process on a project. VDOT is also concerned that a land owner of the only available mitigation site, as defined by HB 2826, could hold the department "hostage" by demanding an exorbitant price for his land.

A commission member suggested a new statute requiring the state or locality to prove that it has made a bona fide effort to locate a willing seller before it can proceed in condemning wetlands. VDOT is already subject to similar proof requirements in its condemnation cases, and Delegate Pollard suggested that such a provision should also include geographical limitations specific to wetlands mitigation.

Litter Control Laws and Programs

Staff updated the commission on current Virginia litter control laws and clean up efforts. In 1987 the Litter Control and Recycling Act established the Litter Control and Recycling Advisory Board and the Litter Control and Recycling Fund in order to control, prevent, and eliminate litter and to encourage recycling within the Commonwealth. The act provides for civil fines ranging from $50 (if no penalty is specifically provided for in the Code) up to $5,000 (for illegal disposal of solid waste). In addition to fines, the Code provides criminal penalties for littering in state parks, caves and on highways. In 2001, Virginia awarded $1.9 million in grants for litter control and education, including $100,000 for the State Litter Awareness Campaign.

Virginia's Adopt-A-Highway (AAH) program covers almost 14,000 miles of Virginia highways (one-quarter of all VDOT maintained highways) and accounts for $3 million in savings and 300,000 bags of litter clean up annually through volunteers. In addition to AAH, VDOT spends more than $7 million a year on litter clean-up utilizing state employees, outside contractors, and inmate labor.

The executive director of Clean Virginia Waterways discussed the volume and impact of litter in the Commonwealth. She emphasized the need for professional involvement in the clean up effort in addition to current volunteer programs. More funding for education, especially in rural areas not reached by mainstream media, will help raise awareness among a population largely "desensitized" to this serious issue. She cited cigarette butts and plastic beverage bottles as the most common litter polluting Virginia's waterways.

Brownfields and Economic Development

Representatives from both the Virginia Economic Development Partnership (VEDP) and the Department of Environmental Quality (DEQ) presented information on brownfields development policies and activities. Brownfields are former industrial and commercial sites that remain abandoned or unused because of real or perceived environmental contamination. Around 30 percent of these sites do not require any clean up prior to redevelopment. VEDP views brownfields development as an investment in the local community and has been active in many such projects around the Commonwealth. However, VEDP's ability to recruit businesses to redevelop brownfield sites would improve if the regulatory procedures were more efficient and if economic and liability incentives were increased.

DEQ is trying to address those concerns. Its Land Renewal Program, through a $1.14 million grant from the EPA, has provided nine developers to date with brownfield site assessment grants. Typical per-site assessments costs are between $40,000 and $50,000. Measures to provide liability protection for prospective buyers are in development. Also, DEQ is in the process of formulating a Memorandum of Agreement (MOA) with the EPA, which will establish that closure under DEQ's Voluntary Remediation Program constitutes satisfaction of EPA interests in a brownfield site. If approved, the MOA should help to streamline the regulatory process and address developers' concerns regarding liability with the EPA. The EPA Office of General Counsel should complete its review of the MOA by December.

The Honorable William T. Bolling, Chairman
Legislative Services contact: Jeffrey Gore


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