Stuck in the mud: State finds lax oversight of erosion control

Mud clogs our streams and rivers.

In lower Blackwater Creek, orange islands of barren ooze scar a stream that once ran clear over rocks and pebbles.

In upper Ivy Creek, gritty red guck has piled several feet high in some locations — the remnants of damage from sediment pouring off Bedford County construction sites during big storms.

In the James River, a ribbon of silty orange water stretches from the mouth of Blackwater Creek in downtown Lynchburg to Percival’s Island and beyond after heavy rains.

While state and local officials can’t pinpoint the exact sources or amount of the sediment pouring into the streams, there is little question that runoff from developments large and small is a key factor.

That conclusion is backed by a review of hundreds of documents obtained through Freedom of Information Act requests, which show a near across-the-board struggle by planning departments statewide in enforcing Virginia’s standards for erosion and sediment control at construction sites.

An investigation by The News & Advance also showed that during the Lynchburg-area building boom of the mid-2000s, local departments charged with enforcing those standards were flooded with inspection requirements far outpacing their ability to carry out.

The state Department of Conservation and Recreation this summer completed a five-year review of every local program in Virginia. An analysis of that review by The News & Advance shows:

• Local erosion and sediment control programs in Lynchburg and the counties of Appomattox, Bedford, Campbell, Pittsylvania and Nelson counties all failed to meet state standards and were ordered to make major changes. Only Amherst County passed its review, which was completed in July.

• In more than 30 percent of area site inspections by state officials over a three-year period, critical erosion-control measures such as silt fences and sediment traps were not maintained. Another 30 percent were not installed correctly.

• 40 percent of local site plans in the state review failed to adequately protect waterways downstream of development projects during planning and construction. That requirement is one of the most critical state standards, according to John McCutcheon, erosion and sediment control program manager with DCR.

In many instances inspections were not done as required. If they were done, required written reports weren’t always prepared. At one point in Bedford County, three inspectors were responsible for keeping an eye on nearly 1,500 active sites.

The region ranks similarly to most other localities statewide, especially in deficiencies, McCutcheon said. Programs in Roanoke City, Fairfax County, Albemarle County and Virginia Beach were among only a handful statewide to pass their reviews.

“You can have the best plan done by the best engineers and the best thought-out erosion control,” McCutcheon said. “But if you don’t have good inspection and those measures are not installed properly and they’re not maintained, you just don’t have anything.”

This lack of oversight left developers facing little scrutiny of erosion control measures that can have far-reaching effects downstream.

Even when that oversight exists, contractors have little to fear. Some localities, like Lynchburg, have authority to fine violators and revoke bonds used by developers for building permits, but rarely do.

Inspection records show some developers and builders have violated the law by failing to comply even when inspectors order corrections.

Developers say they do the best they can with regulations that don’t always work on Central Virginia’s steep topography and highly erosive soil. They also say they don’t intentionally cause environmental damage, but it’s a side effect of development.

The Big Picture

Each rainstorm pulses excess sediment in streams across Central Virginia into the James River, where it gradually makes its way downstream and, ultimately, contributes to water quality problems in the Chesapeake Bay.

Reducing sediment and nutrient pollution in the Bay watershed is on the radar of state and federal agencies.

In May, President Barack Obama signed an executive order to clean up the bay.

Each of the six states in the bay watershed are working with the Environmental Protection Agency on a comprehensive plan to reduce sediment and nutrient loads. That plan will be released sometime next year.

In Virginia, it will affect every locality that drains into the bay.

The plan is expected to address sediment coming from construction, stormwater runoff and agriculture, which is the largest overall source.

Sediment coming from development and urban runoff is the only source that is increasing; sediment from construction sites has more than 100 times the impact on a local stream than farms.

While streams need a small and steady amount of sediment to keep ecosystems healthy, too much turns water into sandpaper that scours banks. Sediment particles also act like a magnet for pollutants such as oil and PCBs and excess nutrients like phosphorus and nitrogen.

Much of those nutrients come from fertilizer runoff. Too much throws the balance needed for life out of whack and can cause explosive algae blooms, creating dead zones in estuaries such as the lower James River and the Bay.

When it settles in tidal areas, fine-grained sediment covers struggling aquatic grasses and other habitat areas critical to crabs, baby fish and oysters, suffocating them.

Most critically, sediment clouds water and blocks light from reaching aquatic plants. The grasses anchor the sediment so it doesn’t re-suspend in the current, but if they aren’t there, the water stays cloudy.

“It’s kind of a vicious cycle,” said Chuck Frederickson, the Lower James Riverkeeper for the James River Association. “Until we reverse that trend, we’re not going to see the grasses growing in the main stem (of the James River.)”

The lower James River has the fewest plants of all major Bay tributaries, according to Virginia Institute of Marine Sciences data.

Cloudiness is a key water quality problem throughout the Chesapeake Bay.

“Where light can penetrate, there is life. You must have clear water,” Chesapeake Bay Commission executive director Ann Swanson said to members of the Virginia House of Delegates subcommittee on the Chesapeake at an August retreat.

“I don’t care how much nitrogen and phosphorus you get out of the Bay, if you cannot control the sediment, then you cannot control the clarity of the water, then you cannot have the living resources restored.”

Enforcing the Law

Part of the struggle over the Bay’s future plays out in local planning offices, where site-by-site erosion control enforcement is key. This is time-consuming, politically charged and technical work.

As suburbs in the greater Lynchburg region sprouted rapidly over the past decade or so, erosion and sediment controls were often lax as area planning and enforcement officers were overwhelmed. Local ordinances were not stringent enough, nor were there enough people on the ground to keep up with demand.

“One of the problems is once a place gets really developed, then they may have the resources to do a good job,” said David Sligh, the James River Association’s Upper James Riverkeeper.

“But by then a lot of the damage has been done. The folks starting into a big rush of development are still very often behind knowing what’s going on and having the resources to do it and it gets ahead of them real quick.”

Local enforcement officials also say some contractors resisted following laws because they were rarely enforced until recently.

“Five years ago, you’d go onto a job and they’d have the whole thing cleared and there wouldn’t be a stitch of silt fence on there,” said Campbell County environmental manager Brian Stokes.

Bedford County’s 2007 DCR review criticized the county for having too few inspectors. The program was considered non-compliant for a year as the county made numerous changes to beef up regulations and policies.

The department has hired an additional inspector and is training the majority of its building inspection staff to do erosion and sediment control inspections, said division head Pete Dalton.

“In general there’s a lot more that needs to be done than there are people on the ground to do it, and short staffing has been one of the big problems that we’ve had,” DCR’s McCutcheon said. “One of the things that we’ve seen that we feel like is a measure of the success of our programs is we’ve seen a lot of local programs expand the staff they have working on erosion control in their localities.”

Construction fees bring in a nominal portion of erosion control program budgets. Fees range from $10 in Campbell County for a basic residential permit to $300 plus $50 per developed acre for a major site review for Lynchburg commercial projects.

“It’s dirt cheap,” Stokes said.

Campbell County issues the most stop-work orders in the region, but its ordinance does not allow erosion control violators to be fined. Since 2006, the county has taken three violators to court, with judges ruling with the county each time.

Bedford County is the only local program in the region to have fined a violator. In 2007 a developer was fined $3,000 for problems with the Sycamore Ridge Town Home project.

Lynchburg has never fined or taken a developer to court over violations. The general policy is to work with contractors before resorting to sanctions, said James Talian, a senior design engineer with Lynchburg’s community development division.

“We first work with the contractor. We try to educate the contractor,” Talian said. “We try to (be) … on his team to get this job done as opposed to becoming his enemy where we’re not somebody he has to fight.”