Category Archives: Mathews County Comprehensive Plan

How Hole in the Wall Became Hole in the Wallet

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By Carol J. Bova

After the septic system of the former Seabreeze Restaurant failed in June 2016, the Board of Supervisors voted to postpone signing a new lease with the Hole in the Wall Waterfront Grill until repairs on the failed 1998 system were completed. Former county officials and the local health department influenced the Board of Supervisors to sign the lease in December 2016, but the septic repairs were not completed until a year later.

The county owns the .927-acre parcel which has a public boat ramp in addition to the restaurant. At less than one acre, it is too small to subdivide. Twice in 2017, in 2019, and again last year, the issue of selling surplus land, including this site, was raised and died in Board of Supervisors meetings. If the land were sold, there would be no way to guarantee the boat ramp would remain public.

As of March this year, the County has paid over $127,000 in septic pump and haul bills for Hole in the Wall Waterfront Grill. Many now recognize the Board should never have agreed to the lease until the septic system issues were resolved. Board minutes and FOIA requests eventually filled in the backstory of how former Mathews County Administrator, Mindy Conner, and former Building Official, Jamie Wilks misled the Board.

This was not the first time Conner acted against the County’s best interest. Conner and two other former county employees are involved in a lawsuit filed by Mark Eubank that went all the way to the Virginia Supreme Court. The details were in “A Malicious Prosecution” published in Bacon’s Rebellion in September 2021. The case was sent back to the lower court and is scheduled to be heard later this year.

On September 27, 2016, Wilks told the Board that the issues with the restaurant’s septic system were in the process of being resolved, and repairs would begin after an inspection in the coming week. Although the lease was still being negotiated, Wilks reported he had already given Mac Casale a permit to begin interior demolition of the former Seabreeze Restaurant. The Board voted to delay signing the lease until the septic repairs were complete.

On October 25, Wilks told the board he had received a preliminary report from the septic contractor, soil scientist and septic engineer, and he had to work with the Health Department on their recommendations. He said the Health Department already told him they would approve the repairs, and the process was “just the technicalities.” He did not inform the board that the scientists had no viable solution to return the system to normal function.

At the November board meeting, Conner said, “We have a path to getting the approval…an agreement on the scope of work they want us to do.” She urged the supervisors to go ahead and authorize her to execute the lease on their behalf because it wouldn’t take effect until the Health Department approved the septic system for use. The board gave her the authorization, and the lease was signed on December 1.

The supervisors were still not told the October inspection by the septic system experts showed the septic system was discharging into the groundwater which was at the depth of the drainfield chambers. (The drainfield is under the parking lot.) There is also no record that the board knew the local health department representative, Patricia Duttry, had written an email to Conner and Wilks on November 7 saying “Because of the shallow seasonal water table and depth of the drainlines, the design would have to meet the Regulations for Alternative Onsite Systems related to direct disposal to ground water.” She offered to support a variance from the required treatment levels which could only be granted by the State Health Commissioner.

It is a mystery why Duttry would go along with direct discharge at a waterfront location at Milford Haven which connects to the Chesapeake Bay instead of saying she would have to pull the septic system operating permit if the county could not meet the health department’s septic system standards.

On December 5, 2016, Wilks confirmed to Duttry the septic system drainlines were not damaged or blocked and asked to begin repairs immediately. He added, “We would include the missing items that were never installed.” In spite of FOIA requests, the last line of this email has never been explained: What items for the septic system had been missing from the original 1998 installation?

On December 7, Duttry told Conner and Wilks they could still use the 1998 septic permit “for 45 seats/380 gallons per day (and using a 1000 gallon Multi-flo unit for treatment to reduce biological oxygen demand and total suspended solids) so there would be no room for expansion.”

The septic contractor wrote to Conner and Wilks on January 7, 2017 and included the findings and recommendations from the October inspections and testing. The soil scientist’s report said, “The three drainlines are completely in the water table. It is amazing it has worked as long as it has….I really have no viable solution for repair.” He then discussed creating an elevated mound which would eliminate the parking lot, or consider trying to obtain a permit for direct discharge into the ground water. (Note that Duttry was already aware of this recommendation the previous month.) The soil scientist also said, “Maybe the permanent pump and haul is the best option, but this will be costly, especially during peak season.” He noted, “Health Department Regulations generally prohibit permanent pump & haul.”

This information was not shared with the supervisors, and Conner hired two companies to do work on the system, then chose one to complete all the repairs. The company submitted a report to the health department at the end of December 2017 that with the maintenance and repairs that were done, the system should return to normal function. It turned out that even more work was needed, and again in May 2018, a second report to the Health Department repeated that the system was functioning as designed.

As part of the lease, the tenant was to raise the building out of the floodplain.

HITW raised off the ground

The restaurant opened in July 2019, but a year later, Duttry told the Mathews Gloucester Gazette Journal about more problems. “The high water table is one of those problems, she said, but the issue that has been causing eruptions of effluent onto the ground has to do with the aeration and filtration systems in the engineered septic system. There seems to be an excessive buildup of fats, oils and greases in the aeration tanks, she said, and thus far no one has been able to pinpoint the cause.”

Imagine that. A buildup of fats, oils and greases in a restaurant septic system, and no one could pinpoint the cause.

Because of the sewage eruptions through potholes in the parking lot, the county arranged for pump and haul of the waste beginning in July 2019.

Casale worked with former county administrator Mindy Conner to solicit a proposal for an ozone disinfection system from NextGen Septic Solutions in Ohio to be used with the existing Multi-Flo septic system. In November 2019, Casale corresponded with Pat Duttry and David Fridley from the Virginia Health Department (VDH) on how to get approval to install the system which was not approved for use in Virginia. He was told to arrange a preliminary engineering conference to review the proposal and that final plans would need to be prepared by a Professional Engineer licensed in Virginia. A copy of the VDH reply was sent to Conner.

Almost a year later, on September 1, 2020, NextGen sent Conner their technical proposal. The Board of Supervisors wasn’t officially informed of the proposal until their September 22, 2020 meeting packet was distributed. Although the board voted “to authorize staff to move forward with the pilot program as offered by the Health Department,” the next day, Casale sent the proposal to VDH.

Ten months later, according to Board minutes, Conner told the Board on May 24, 2021, the permit fee was “between $200 and $250 for the Hole in the Wall septic repair. She noted that the proposed system would be a NextGen system.”

Four days later, May 28, 2021, without using public purchase policy and without a bid process, without a formal contract or board approval of the original invoice, Conner approved the first payment of $50,000. The invoice of $72,800 did not include shipping, site preparation, on-site installation, taxes and permit fees. The check dated July1, 2021 was voided and reissued on July 27, 2021 under the ARPA account as a capital outlay. There was no record posted to the board or public until the August 23, 2021 meeting packet.

On July 23, 2021, a week before she retired for medical reasons, Conner wrote, “Accepted by Melinda Conner 7/23/21” on a NextGen Scope of Work with no amounts shown.

On November 5, 2021, interim county administrator Sandy Wanner approved a second payment of $18,000.

The county received a third NextGen invoice dated January 28, 2022 to upgrade the system to 544 gallons per day at a cost of $128,900 with $60,900 still due, plus all the additional charges for shipping and installation.

It should be noted Duttry’s 2016 statement was that the VDH septic system permit did not allow for any expansion, and that the lease on page 8 said capital improvements were the responsibility of the tenant.

In regard to the last point, Casale provided NextGen an inaccurate sewage usage number of 384 gallons per day (gpd). (The street number is 384, 380 gpd is the permit amount.) The NextGen proposal addressed to Casale said, “It is assumed that all of the above treatment units are working, as designed.” But they were not, and the site was on pump and haul because of effluent eruptions onto the ground. The system was certified to the health department as functioning in May 2018 before the lease began on June 1, 2018.

No new design or engineering report was submitted to VDH showing the system could meet the current standards, not the 1998 standards the restaurant permit used. But even the proposed  new upgraded system’s maximum capacity of 544 gallons a day will not resolve the problem because the restaurant water meter readings show they used more than that daily average for every day in both July and August 2022, and that does not consider melted ice and other discarded liquids.

The NextGen proposal states the air temperature requirements are 32 to 95 degrees F and the dryer unit for the ozone generator is used up to 75% relative humidity. This makes its use as an outdoor system questionable for Gwynn’s Island. The site cannot support a new drainfield that can handle the Hole in the Wall Grill’s volume of effluent, so that rules out a number of other options.

The pumping expenses are over $127,000 from July 2019 through March 8, 2023. The daily average of water meter readings generally ran between 500 and 833 gallons in the warm weather season from July 1, 2022 through September 19, 2022. Only two weeks showed an average per day at or below the permitted 380 gallons a day going to the septic system. (These averages include days when the restaurant was closed.)

Adding the pumping cost and the amounts paid to NextGen adds up to just over $195,000. Paid by taxpayers  Now, the Board of Supervisors will hold a public hearing March 28 to see what taxpayers think about spending another $307,000 to correct the problems caused by the tenants’ raising of the building and improper foundation work that created a safety issue. (See Unsafe Structure Notice including lease and structural engineeer’s report here for details.)

If the County repairs the building, the total from taxpayers would be over half a million dollars. All because former county staff did not disclose facts that would have prevented the Board from going ahead with the lease, a tenant who would not abide by the VDH permit limitations, and the failure of the former building official to properly inspect the construction involved in raising the restaurant.

No other business in the county receives a subsidy from taxpayers for their business expenses. This one shouldn’t either.

Update: At the March 28 Board meeting, the county administrator provided a Powerpoint presentation with a timeline of events and the options, along with the budget impacts. Click here for that slide show.

BYLAWS AMENDED BY BOARD ACTION AND NOT CHANGED OR CHANGED WITHOUT BOARD ACTION.

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By Carol J. Bova

Mathews County Bylaws 13.2 “… The full text of an amendment to these By-laws shall be made part of the Minutes of the Meeting at which they were adopted.”

This has not been done on a consistent basis over the past few years.

 1. 2014 Bylaws Annual Organizational Audio removed from meeting portal.
Between September 14, 2018 and September 16, 2018, the January 8, 2014 Minutes and Audio were taken offline from the Meeting Portal. The Minutes were reposted as a link in January 28, 2014 Agenda and Amended Bylaws posted September 17, 2018 under January 28 meeting documents.  https://mathewsva.granicus.com/MetaViewer.php?view_id=1&clip_id=5&meta_id=761

No copy of proposed amendments was included and the text of the amendments is not in the January 8 Minutes which are posted under January 28, 2014 Minutes. Cannot review Audio because Audio for January 8, 2014 was not reposted after being taken down in September, 2018.

2. ARTICLE 9.1 (now 8.1) Not brought forward into 2017 Bylaws as adopted in 2016. Still not in 2018 or 2019 that electronic online record of minutes is the official record for legal purposes.

Audio 50:40, ARTICLE 9. MINUTES. Mrs. Conner also requested the Board clarify what constitutes the official record and recommended the Board designate the online record as the official record for legal purposes. She noted that in doing so, it would simplify administrative processes somewhat when dealing with FOIA requests and other matters. Mr. White stated that this would be a legal designation. Mrs. Conner agreed.

MOTION: On Motion of Mr. White, seconded by Mr. Cole, the Mathews County Board of Supervisors voted 5 – 0 – 0 as follows, Ms. Casey, Mr. White, Mr. Ingram, Mr. Cole, Mr. Morrow – aye; to adopt the Bylaws of the Mathews County Board of Supervisors as presented and as amended in 8.3F, and to designate the electronic online record of the minutes as the official minutes of the Board of Supervisors for legal purposes.

3.  2018 Bylaws changed by administrator when Board voted not to amend them. Changed motion in Minutes from what was said in meeting.

January 10, 2018. Audio starts at 4:55: Chairman asks if one motion could cover approval of A, B and C on agenda, Code of Ethics, Bylaws, and Regular Meeting Schedule. Administrator said, “If you don’t want to amend anything, that would be fine.” On audio at 5:29: Supervisor Love said: “I make the motion we continue with the Bylaws and Code of Ethics as is.”

At 5:58, Administrator said she didn’t see anything that needed to be looked at. After questions and discussion, at 11:10, Supervisor Morrow seconded the motion. Motion approved 4-0-0.

But January 10, 2018 Minutes said vote was “to adopt the Mathews County Board of Supervisors Code of Ethics, Bylaws and Schedule of Meetings for calendar year 2018, as presented and attached to and made a part of these Minutes.” As presented is handwritten and underlined on online Minutes for January 10, 2018.

4. 2018 Bylaws in 6.1: Without Board action, omitted phrase that agendas are to be prepared “in consultation with the Board Chairman.”  (See motion in 3.  “to continue as is.”)

6.1. Changed to: The Annual Organizational and Regular Meetings of the Board shall have a formal Meeting Agenda prepared by the County Administrator or his designee. The County Administrator at his discretion and Board members individually may, by request to the County Administrator, place matters of business on the Agenda for discussion, information and /or action by the Board as are germane to the affairs and interests of the Board and County. Agendas for Special Meetings are optional at the discretion of the Board of Supervisors or County Administrator.

Changed from:  6.1. The Annual Organizational and Regular Meetings of the Board shall have a formal Meeting Agenda prepared by the County Administrator or his designee in consultation with the Board Chairman. The County Administrator at his discretion and Board members individually may, by request to the County Administrator, place matters of business on the Agenda for discussion, information and /or action by the Board as are germane to the affairs and interests of the Board and County. Agendas for Special Meetings are optional at the discretion of the Board of Supervisors or County Administrator.

5. 2018 Bylaws, 6.4 also changed without Board approval:

2017 Bylaws                                                                    2018 left out last line:
6.4. The Board shall take no Action of Record on            Closed Meetings and business
any matter that is not on the Meeting Agenda                  matters brought before the Board
unless a modification to the Meeting Agenda is                under Supervisors’ Reports [are]
requested at the time of Approval of the Agenda.             exempt from the the provisions                                                                                          of this paragraph.

Modification of the Meeting Agenda requires a                                                               majority vote of Board members present. Upon                                                           Approval of the Agenda, no further modifications                                                            may be made except as provided for in paragraph                                                              7.3. Closed Meetings and business matters                                                                   brought before the Board under Supervisors’                                                               Reports exempt from the provisions of this                                                                paragraph.

6. 2018 Bylaws: 7.3.F. Changed without Board action:

2017 Bylaws                                                               2018 Bylaws
A second to a primary or substitute motion is             Changed “primary or substitute” to
required in order to formally discuss and/or vote        “primary and substitute” and adds
upon the motion. Voting shall be by show of              “NOT” before required. That was
hands. The Chairman shall verbally summarize           discussed in 2017 and decision was
the vote upon conclusion of an Action of Record,       to continue to require a second as noting by individual name those Board members        the practice has been.              abstaining or voting in the minority on the Item                                                                     of Business.

More to Mathews Than Tourism — A Bit of Fishing History

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By Carol J. Bova

A recent Facebook post from Mathews fell into the “damned if you do, damned if you don’t” category. It showed an area on Lane’s Creek displaying the markers required by the Code of Virginia 4 VAC20-290-30 to safeguard boat navigation. The comment was, “Hard to imagine how views like this will become ‘tourist attractions’!!!” What the poster overlooked, is the reason for the signs–not the safety aspect, but why they are there at all. It’s for business, not recreation, and tourism is not the focus.

This signage isn’t impairing the view of the New Point Comfort Lighthouse, or interfering with the function of the Bethel Beach Nature Preserve, or preventing kayakers from launching at New Point or Put-In Creek. In spite of the County Administrator’s emphasis on tourism, and the Planning Commission’s misleading statistics in the comprehensive plan, there is more to the economy of Mathews County than visitors to our county.

Long before tourism became a national pastime, the water provided Mathews with transportation, food and income. The National Park Service describes fishing by Native Americans in the 1580s:

For the most part, the Indians caught their fish in net-like obstructions called weirs, which they placed across streams or channels in much the same way as modern pound-netters catch the seasonal runs of striped bass or shad. The weirs were made of reeds, woven or tied together, and anchored to the bottom by poles stuck into the sand. With their tops extending above the surface of the water the weirs looked very much like fences, and were arranged in varied patterns designed to catch the fish, and then impound them.

Watermen in 1904 used 242 pound nets worth $54,150 ($1.49 million in today’s dollars), 1,101 boats and 505 oyster tongs.

Pound nets are a series of nets anchored to the bottom perpendicular to shore and are set in nearshore areas. Courtesy of NOAA Fisheries.

While tourists do bring in income through retail purchases and sales tax, meals and meals tax and the lodging tax, water-related businesses bring in annual income on real estate they own, business tax on their earnings, machine and tools tax on their equipment, and business tangible personal property tax on boats and vehicles.

Times have changed since 1904, but that shouldn’t mean preventing the sight of working businesses on the water that help support the County year-round. If the crabbing and oyster industries had never declined, and those activities had remained highly visible, it wouldn’t have eliminated tourism. Businesses change to meet the times, and a change in aquaculture now isn’t going to end tourism in Mathews.

The National Watershed Boundary Dataset – Chesapeake Bay Watersheds and Virginia River Basins

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By  Carol J Bova

In 2001, the National Watershed Boundary Dataset (NWBD) became the official hydrologic unit system of the United States. Virginia made some adjustments to simplify identifying smaller watershed units. You might never need the details here, but if you do, this should help because an accurate list is not always easy to locate. A special thank you to Sam Austin and Randy McFarland of the USGS for their help.

Watershed Hydrologic Unit Code (HUC) Level, Name and Unit Size

1st Order = Region            HUC = 2 digits         Avg. 177,560 sq. miles

2nd Order = Subregion      HUC = 4 digits         Avg. 16,800 sq. miles

3rd Order = Basin              HUC = 6 digits         Avg. 10,596 sq. miles

4th Order = Subbasin         HUC = 8 digits         Avg. 703 sq. miles

5th Order = Watershed       HUC = 10 digits       40,000 – 250,000 acres

6th Order = Subwatershed   HUC = 12 digits     10,000 – 40,000 acres

The Virginia Department of Conservation and Recreation (DCR) describes River Basins as follows:  Although 3rd level units of the WBD are called “Basins,” these units are not necessarily the equivalent of river basins as described in many state programs. For instance, DCR frequently divides the commonwealth into 14 River Basins for program usage as follows: Potomac River, Rappahannock River, York River, James River, Atlantic Ocean Coastal, Chesapeake Bay Coastal, Chowan River, Albemarle Sound Coastal, Roanoke River, Yadkin River, New River, Clinch-Powell Rivers, Holston River and Big Sandy River. Except for offshore ocean claims, all of Virginia is accounted for in these basins.

Virginia developed a new four-character code for its 5th and 6th level units. The first two characters are based on the major stream name in the basin, or portion of the basin, where the unit is located. The two digits that follow are numbered in sequence by drainage flow from headwaters to mouth.

These four-character identifiers are not part of the national WBD standard. The Virginia system is called the Virginia National Watershed Boundary Dataset (VaNWBD). Originally released in 2006, the VaNWBD has been updated a number of times, and currently is referred to as version 5 (VaNWBDv5).

The Department of Conservation and Recreation (DCR) website lists the internal coding for all 5th and 6th level units of the VaNWBDv5 at http://www.dcr.virginia.gov/soil-and-water/hu. The Virginia coding for 5th and 6th level units for the Chesapeake Bay watersheds and sub-watersheds of the VaNWBDv5 from Table 4 shown below.

CHESAPEAKE BAY VIRGINIA WATERSHEDS AND SUB-WATERSHEDS
5th LEVEL UNITS (VAHU5) 6th LEVEL UNITS (VAHU6) DRAINAGE
PL-A – PL-U PL01-PL74 Potomac River, Lower
PU-A – PU-F PU01-PU22 Potomac River, Upper
PS-A – PS-T PS01-PS87 Potomac River-Shenandoah River
CB-A – CB-O CB01-CB47 Chesapeake Bay/Chesapeake Bay Coastal
AO-A – AO-H AO01-AO26 Atlantic Ocean Coastal
RA-A – RA-R RA01-RA74 Rappahannock River
YO-A – YO-S YO01-YO69 York River
JL-A – JL-L JL01-JL59 James River, Lower (Tidal)
JM-A – JM-U JM01-JM86 James River, Middle (Piedmont)
JR-A – JR-E JR01-JR22 James River- Rivanna River
JU-A – JU-T JU01-JU86 James River, Upper (Mountain)
JA-A – JA-J JA01-JA45 James River- Appomattox River
CM-A – CM-H CM01-CM32 Chowan River-Meherrin River
CU-A – CU-R CU01-CU70 Chowan River, Upper
CL-A – CL-C CL01-CL05 Chowan River, Lower
AS-A – AS-D AS01-AS20 Albemarle Sound
RU-A – RU-V RU01-RU94 Roanoke River, Upper
RD-A – RD-S RD01-RD77 Roanoke River- Dan River
RL-A – RL-G RL01-RL24 Roanoke River, Lower
YA-A – YA-B YA01-YA07 Yadkin River-Ararat River
NE-A – NE-Z NE01-NE90 New River
TH-A – TH-L TH01-TH46 Tennessee-Holston River
TC-A – TC-H TC01-TC35 Tennessee-Clinch River
TP-A – TP-D TP01-TP19 Tennessee-Powell River
BS-A – BS-H BS01-BS35 Big Sandy River

 

Consider the Source: University of Virginia Institute for Environmental Negotiation Strategy List

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The Mathews County Planning Commission is considering a list of “tools” MPPDC provided as ideas for a county whose goal is “living with the water.” The  MPPDC (Middle Peninsula Planning District) suggestions for Mathews County’s comprehensive plan revision focus more on how not to develop the county’s land resources than any future use planning. There is a heavy emphasis on urban stormwater management which doesn’t fit our rural and relatively undeveloped county.

Our rural stormwater needs are centered on getting the Virginia Department of Transportation to fix its failing state road drainage systems that are flooding private property and woodlands. To their credit,  VDOT seems to be hearing that message and is reaching out to partner with the county in working on the long-neglected problem. But there isn’t one word about VDOT’s drainage issues or the state’s responsibility in the “toolbox.”

The MPPDC tools do include the possibility of creating special hazard districts and Imposing new taxes and stormwater fees, and of course, the pet project of Executive Director Lewie Lawrence, the creation of a Ditching Authority. This would be a regional authority that would decide how much to tax landowners for the maintenance and repair of roadside and outfall ditches that cross their land across the Middle Peninsula. This Authority would act without the counties’ involvement or control if enabling legislation is created to permit its formation.

The basic idea ignores the fact that most of the roadside ditches are within the VDOT right-of-way, and where they’re not, there are easements for them, even though some of these were covered by consent of landowners, some dating back to the late 1800s. Others are included in right-of-way deeds as granting any land necessary “to construct, improve and maintain any drain ditches or other drainage facilities that may be needed for the proper and adequate drainage of said Route.” Also ignored is the fact is the number of outfalls that are natural streams that VDOT excavated. They are still considered streams by the Commonwealth, and landowners are not responsibile for their maintenance.

The MPPDC tools offer at least 11 ways to trade away Mathews land for cash payments or tax credits now that will prevent development here in Mathews forever. Some will allow urban developers to ignore an urban area’s zoning or environmental regulations and mitigate their violations by trading their building or ongoing pollution for unspoiled Mathews land. Transfer of development rights allows the urban over-development and eliminates ours. Polluters can keep polluting and substitute credits for locking in our land from development and paying us for the privilege. This doesn’t do anything to help the Bay. We’re already doing our part to help it recover, but the urban developers can continue to impair and damage it.

Conservation easements can be a good thing, but how do they fit into the County’s future? No one is looking at the long term effects of the MPPDC efforts to gather up these easements, which it can then transfer to other nonprofits. Are they going to become income sources for allowing pollution and overdevelopment elsewhere? That’s not explained in the toolbox list. So where did some of these ideas originate? Following is the 7-page strategy list included in a 2013 report to the legislature. Some of the strategies are sound, but others are being used now as part of the MPPDC toolbox against the best interests of Mathews for the long run.

Carol J. Bova

================================================================

RECURRENT FLOODING STUDY  FOR TIDEWATER  VIRGINIA
This report identifies recurrent flooding issues throughout Tidewater
Virginia, examines predictions for future flooding issues and evaluates a
global set of adaptation strategies for reducing the impact of flood events.

Report submitted to the Virginia General Assembly
January 2013

credit for recurrent flooding

Pages 128-134.  Full document at:

http://ccrm.vims.edu/recurrent_flooding/Recurrent_Flooding_Study_web.pdf

 

Section 4.6 IEN strategy list

The following lists are presented courtesy of the University of Virginia Institute for Environmental Negotiation.

 

Local Government Tools for Addressing Sea Level Rise in Virginia

DRAFT

Planning Tools To Be Considered for Discussion at Focus Groups

Compiled by the University of Virginia Institute for Environmental Negotiation

Sources cited below

January 2012

LAND USE: Examples of tools relating to land use concerns

  1. Update the local Comprehensive Plan to:
    1. Establish the rate of estimated sea level rise and time period over which it may occur.
    2. Designate areas vulnerable to sea level rise.
    3. Site future public infrastructure and capital improvements out of harm’s way.
    4. Provide the scientific basis to justify changes in land use decision-making, including an analysis of likely sea level rise hazards (inundation, flooding, erosion), and vulnerabilities (to specific areas, populations, structures and infrastructure).
    5. Plan responses to sea level rise.1
  1. Using data gathered on potential sea level rise and predicted flooding, update existing or designate new inundation zones or flood plain areas.2
  1. Integrate vulnerability assessments and sea level rise considerations into the locality’s existing Wetlands Ordinance.3
  1. Revise local zoning and permitting ordinances to require that projected sea level rise impacts be addressed to minimize threats to life, property, and public infrastructure and ensure consistency with state and local climate change adaptation plans.4
  1. Use overlay zoning to protect shorelines and other vulnerable areas. Overlay districts could prohibit shoreline protection structures, implement shoreline setbacks, restrict 1 future development, lower non-conforming use thresholds, or raise “free board” building code requirements. Shoreline overlay districts could take the form of either:
    1. A fixed-distance zone along the shoreline that would extend across all existing shoreline zoning districts; or
    2. A variable, resource-based zone, based on a scientific inventory of existing shoreline resources. The zone would vary in distance from the water line according to the identified resources.5
  1. Designate specific thresholds of land disturbance in square footage or acres that trigger a Water Quality Inventory Assessment.6
  1. Under section 15.2-2286 of the Virginia Code, offer tax credits to landowners who agree to voluntarily “downzone” their property.7
  1. Offer Use Value Assessments for owners who preserve shoreline property as open space or Wetlands Tax Exemptions to owners who agree to preserve wetlands and riparian buffers. These strategies are authorized under Virginia Code sections 58.1-3230 and 58.1-3666, respectively.8
  1. Enter into voluntary agreements with landowners to establish “rolling easements” with boundaries that shift as the mean low sea level rises. These would allow landowners to continue with their current land uses until sea level rise actually occurs. At this time, the concept of “rolling easements” is still relatively new.9
  1. Extend Resource Protection Area and Resource Management Areas under the Chesapeake Bay Preservation Act (CBPA) ordinance. These areas can be extended if specific performance criteria that contribute to the stated goals of the CBPA (pollution reduction, erosion and sediment control, stormwater management) are established.10

NATURAL RESOURCES: Examples of tools relating to concerns

1.Prevent the erosion of storm water canals and shoreline by regularly removing trash, vegetation, sands, and other debris.11

  1. Restore prior-converted wetlands to provide storage and filtration and mitigate storm flows and nutrient loading.12
  1. Require new landscaping to incorporate flood and salt-water tolerant species and focus on creating buffers and living shorelines to reduce erosion.13
  1. Continue implementing beach replenishment and nourishment efforts.14
  1. Where possible, adopt shoreline protection policies that encourage the use of living shorelines rather than shoreline hardening.15 Where this is not feasible, protect land and buildings from erosion and flood damage using dikes, seawalls, bulkheads, and other hard structures.16
  1. Encourage shoreline property owners to implement shoreline management practices, including managing marshland and constructing stone sills, breakwater systems, revetments, and spurs.17
  1. Expand the adoption of accepted soil-conservation agricultural management practices to reduce erosion and polluted runoff.18
  1. Institute engineering strategies to mitigate saltwater intrusion into freshwater aquifers, including the construction of subsurface barriers, tide control gates, and artificially recharging aquifers.19
  1. Establish and maintain corridors of contiguous habitat along natural environmental corridors to provide for the migration and local adaptation of species to new environmental conditions.20
  1. Develop a price-based accounting system for ecosystem services.21
  1. Provide local businesses with information on the importance of maintaining the health of shorelines.22 (good voluntary approach if the case can be made “why do this”
  1. Remain aware of the effects that flood mitigation strategies, such as beach replenishment, have on wildlife.23

SAFETY AND WELFARE: Examples of tools relating to safety and welfare concerns

  1. Develop sea level rise action plans for critical local infrastructure. If existing transportation infrastructure is at risk, “develop plans to minimize risks, move infrastructure from vulnerable areas when necessary and feasible, or otherwise reduce vulnerabilities.”24
  1. Implement an early warning system for flooding that would monitor rainfall and water Levels and notify relevant government agencies and the general public in the event of an emergency.25
  1. Improve the ability of local infrastructure to efficiently handle drainage in the event of increased flooding. This could involve minimizing the construction of new impervious surfaces in flood-prone areas.26
  1. Amend existing zoning ordinances to require increased building elevations and setbacks, flood-proofing, and reduced density for new construction within flood zones.27
  1. Improve and enhance traffic rerouting and emergency evacuation protocols related to flooding events.28 (First responders love this stuff)
  1. Ensure that hospitals, evacuation refuge sites, fire and emergency rescue facilities, and key transportation routes are outside of inundation zones or are secured against projected flooding.29
  1. Redirect new infrastructure development away from low-lying neighborhoods and other at-risk areas, and elevate and armor existing critical infrastructure.30
  1. Require private sector owners of infrastructure to conduct sea level rise vulnerability assessments and develop their own sea level rise adaptation plans as a condition for permit approval.31
  1. Encourage the graduated repurposing of structures that are rendered unsuitable for their current use by sea level rise.32,33
  1. Gradually withdraw public services in flooded areas.34, 35

QUALITY OF LIFE: Examples of tools to address quality of life concerns

  1. Involve businesses in the planning process to prevent the loss of shoreline business and to mitigate the impacts of increased flooding and sea level rise.36 (could be a good voluntary strategy for public awareness.)24
  1. Establish a Transfer of Development Rights program to allow the owners of at-risk shoreline properties to sell development rights to upland landowners.37
  1. Permit the use of Onsite Density Transfers, which allow developers to subdivide lots into smaller and denser parcels if they preserve a portion of the lot as open space and cluster the subdivided parcels.38
  1. Purchase flooded property from landowners.39
  1. Organize coastal businesses and homeowners to appeal to insurance companies for affordable rates and deductibles.40
  1. Organize coastal businesses and homeowners to petition local, state, and federal politicians to address sea level rise.41
  1. Require realtors to disclose the threat of sea level rise and the responsibilities of shoreline owners to potential purchasers of shoreline properties.42
  1. Implement special taxing districts that cover the real, life-cycle costs of providing government services in high-risk flood zones, resulting in higher taxes for property-owners in those zones.43
  2. Use a financial regulatory program to discourage increasingly risky investments along the shoreline. Examples of existing programs with similar aims include:
    1. The state regulation of the property loss insurance sector to reflect higher risk from sea level rise, and
    2. Placing conditions on economic development to require the completion of a long-range vision and plan that addresses sea level rise and flood risk.44
  3. Hold a series of meetings with stakeholder groups to discuss and gauge potential sea level rise impacts to the region or locality.45
  1. Educate local elected officials on sea level rise, and the predicted impacts to the region or locality.46
  1. Present data in easily-understood terms, such as X acres will be flooded, X homes lost, and X impacts to wildlife.
  1. Extend media coverage to issues related to sea level rise to increase public awareness and to help citizens prepare for emergencies. This can include the use of social media, such as Facebook, as well as traditional media, including radio, television, and newspapers.48
  1. Increase public outreach, including press conferences, information sessions, community events, public meetings, and exhibits on sea level rise at libraries, aquariums, and museums.49
  2. Using modern technologies such as GIS mapping software, develop education programs for residents as well as students in local and regional schools.50
  1. Educate residents about the role that fertilizing, vegetation removal, and litter play in increasing flooding, erosion, and property damage.51
  1. Provide landowners with accurate data on the current and future vulnerability of their property to sea level rise as well as best managing practices for mitigating the effects of increased flooding.52
  1. Raise public awareness of areas prone to flooding through increased signage.53

OTHER TOOLS to consider

  1. Craft a “Community Resilience” policy statement emphasizing the need for science-based vulnerability assessments, adaptation planning, education and public engagement, and the development of flexible regulatory and non-regulatory strategies for addressing sea level rise.54
  2. Compile a sea level rise impact assessment. This is often a long-term, multi-phase effort. Steps can include:
    1.  Assembling an advisory workgroup.55
    2. Identifying flood zones and at-risk populations.
    3. Mapping regional and county sea level rise predictions to show impacts to existing development and natural areas; and
    4. Assessing and prioritizing economic and ecological vulnerabilities to sea level rise.

===================================

1 Georgetown Climate Center, Stemming the Tide: How Local Governments Can Manage Rising Flood Risks –
Review Draft 3 11 (May 2010), on file with author.
2 See id. at 9-10.
3 Virginia Polytechnic Institute and State University (“Virginia Tech”), Building Resilience to Change: Developing
Climate Adaptation Strategies for Virginia’s Middle Peninsula – DRAFT 16 (October 2011), on file with author.
4 L. Preston Bryant, Jr., Governor’s Commission on Climate Change, Final Report: A Climate Change Action Plan 35
(Dec. 15, 2008), on file with author.

5 Virginia Tech, supra note 2 at 13, 32, 43.
6 Id. at 16.
7 Georgetown Climate Center, supra note 1 at 18.
8 Virginia Tech, supra note 3 at 43.
9 Id. at 36, 43; see also Georgetown Climate Center, supra note 1 at 19-23.
10 Virginia Tech, supra note 1 at 43.
11 Institute for Environmental Negotiation (“IEN”), Sea Level Rise in Hampton Roads: Findings from the Virginia
Beach Listening Sessions, March 30-31, 2011, Final Report 61, available at
http://www.virginia.edu/ien/docs/Sea_Level_Rise%20final%20report%207-19.pdf.
12 Virginia Tech, supra note 3 at 27.

13 IEN, supra note 11 at 57.
14 Id. at 59, 65.
15 See Bryant, supra note 4 at 36.
16 Virginia Tech, supra note 3 at 35.
17 Id. at 42.
18 Id. at 28.
19 Id. at 13.
20 IEN, supra note 11 at 64.
21 Virginia Tech, supra note 3 at 21.
22 IEN, supra note 11 at 61.
23 Id. at 64.

24 Bryant, supra note 4 at 35; see also IEN, supra note 2 at 64-65.
25 See Virginia Tech, supra note 3 at 22.
26 IEN, supra note 11 at 57, 61.
27 Id. at 43; Georgetown Climate Center, supra note 1 at 11.
28 William A. Stiles, “A ‘Toolkit’ for Sea Level Rise Adaptation in Virginia” 4.1.3, on file with author.
29 Id.
30 Id. at 3.1.
31 Bryant, supra note 4 at 35.
32 IEN, supra note 11 at 60.
33 Bryant, supra note 4 at 35.
34 Id. at 81.
35 Bryant, supra note 4 at 35.

36 Id. at 27.
37 Georgetown Climate Center, supra note 1 at 17.
38 Virginia Tech, supra note 3 at 40.
39 IEN, supra note 11 at 81.
40 Id. at 58-59.
41 Id. at 60.
42 Id. at 63.
43 Stiles, supra note 24 at 4.1.2.
44 Id. at 4.1.4.
45 Virginia Tech, supra note 3 at 7-8.
46 Id. at 9. For specific training and funding opportunities, see id. at 44-45; see also IEN, supra note 11 at 67.
47 IEN, supra note 11 at 64.

48 Id. at 66, 68.
49 See id. at 62-63, 66-67.
50 See Virginia Tech, supra note 3 at 45.
51 IEN, supra note 11 at 63.
52 Id. at 59; Bryant, supra note 4 at 37.
53 IEN, supra note 11 at 57.
54 Virginia Tech, supra note 3 at 34.
55 IEN, supra note 11 at 57.

56 Stiles, supra note 24 at 3.1.; Virginia Tech, supra note 3 at 8.
57 See generally Stiles, supra note 24; Virginia Tech, supra note 3 at 2.
58 IEN, supra note 11 at 57.
59 See Stiles, supra note 24 at 4.1.1.
60 Id. at 3.2.

Another VDOT Drainage Project Engineered to Fail

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By G. C. Morrow

After reviewing VDOT’s current Mathews Courthouse drainage project (VDOT #87865), I decided to look at previous projects to see if I could find a pattern in their failures. It is extremely hard to conceive that these projects with their half million plus engineering budgets fail so miserably at their purpose. At first glance, it appears that the engineers are attempting to move their drainage conveyances to more accessible locations, but even the greenest of engineers should know better than to try to drain water uphill.

Case in point is the Wards Corner Project at Routes 14 and 198 (VDOT# 56940). VDOT has two outfalls just north of Wards Corner on Rt. 198 that are so neglected they can only be found by locating the endwalls and large pipes. South of Wards Corner, there are 3 outfalls much lower in elevation than the one at Wards Corner, and they are necessary to handle several hundred acres of stream flow, as well as roadside drainage. All roadside ditches in this vicinity are so poorly maintained that the flow lines are almost completely lost, and many large pipes are obscured in the right-of-way.

Wards Corner, July 21, 2012 Photo: C. J. Bova

Wards Corner, July 21, 2012 Photo: C. J. Bova

The Mathews High School football field and the Mathews County Park on 198 have been flooded several times since the Wards Corner Project completion. On one occasion, I photographed a 200′ wide river on our football field and park. At the same time, the pipes at Wards Corner were less than half full because water still goes downhill, and the high school is downhill from Wards Corner.

High school football field Aprl 15, 2014 Photo: GC Morrow

High school football field Aprl 15, 2014                                                               Photo: GC Morrow

This $1.618 million project was a gross waste of resources and will cause perpetual flooding of downstream locations and personal property from roads that still need proper and adequate conveyance of storm water and stream flow. VDOT could have invested a much smaller amount to restore the outfall to Stutts Creek behind the high school, and clear or even replace the pipes in the VDOT easement along the football field, and convey the water from Route 198 and not let it flood the school and park properties. (See State Highway Plat Book 3, pg. 211, 0014 057 305.)

An earlier project on East River Road, Route 660 (VDOT #61013) $1.334 million, did not address Route 14 drainage between Route 660 at Foster and Route 617 at North. The roadside ditches less than .25 mile west of Foster are flooded most of the time. The 1965 USGS topographic map shows that three uphill streams that should cross Route 14 are channelized to roadside ditches in the VDOT right-of-way. The adjacent properties are now flooded along the roadside ditch. No matter how well a project is engineered and designed, if necessary adjacent conveyances are not maintained, any project can negatively impact the already neglected system.

The Mathews Courthouse Route 14 Drainage Improvement Project (#87865) is another case of a poorly engineered and designed package. The engineers relied on computer-generated maps without ground verification to identify the drainage areas. The 2011 USGS topo included historical drainage ditches which no longer function, and in some cases, no longer exist. That 2011 map also labeled a ditch north of the Hyco Subdivision as Put In Creek. First, it’s barely identifiable today, and second, it’s a created drainage ditch, not Put In Creek, and third, it is downhill from the planned location of the four new pipes crossing 198 to Put In Creek.

VDOT Route 14 Drainage Improvement Plan Map pg. 10

VDOT Route 14 Drainage Improvement Plan Map pg. 10

Most of the drainage areas in the plan are overstated because the natural drainage pattern for them would be to the Morris Creek watershed, not to the Put In Creek/East River watershed. The boundary between the Morris Creek and Put In Creek watersheds is incorrect on both national and state maps. The 198 connection to the Put In Creek ditch could be adequate to carry water from the road, but not any of the Morris Creek watershed.

If the original ditches were functioning properly, the water from the Hyco Subdivision and adjacent land would go to Morris Creek by two routes.

Ditch 1. runs parallel to Route 198 north to Critter Lane where it can enter Morris Creek, but the ditch is constrained by a collapsed 15″ pipe.

Ditch 2 is to the east of Hyco Subdivision where VDOT has an 800’ outfall. (198-4957-02, sheet 5) The deeded 800’ outfall follows the proper contour northward to Morris Creek. This conveyance has a dimension of approximately 12′ wide and 7′ deep at the tree line, then it tapers down to 2′ wide 2′ deep approximately 300′ from the roadside. The landowners adjacent to this failed ditch have documented many complaints about standing water on their property to VDOT without response.

The plan also shows water being directed to Put In Creek from the Liberty Square Courthouse to Church Street through a ditch system which failed a long time ago. The plan does not address restoring it.

More than 100 acres of water from part of Glebe Road, the rest of the Liberty Square Courthouse, the Cricket Hill Apartments, and Bank of America crosses under Route 198 to the east to an outfall at 10601 Buckley Hall Road. This is part of the same Ditch 1 listed under Hyco Subdivision which goes to Critter Lane and Morris Creek.

Both Ditch 1 and Ditch 2 have partly failed and have created several acres of flooded upland, now being called nontidal wetlands.

Like the situation with Hyco Subdivision, the water from the land behind Food Lion should drain to Morris Creek, not Put In Creek. Because the original ditches that conveyed the water to Morris Creek no longer function, water leaves the Food Lion parking lot via a 48” pipe near the Chinese restaurant then funnels east into the woods behind the Food Lion. When rain exceeds 1″ an hour for 3 or 4 hours, the woods store water until the ground is saturated. The water then converts to a 70-acre sheet flow, where every drop falling on this land has to go uphill to Food Lion, and then to Faulkner and Son. This conveys torrents of water to Main Street and continues to run for days.

When I approached the lead engineer at the public design hearing, he was rather arrogant and abrasive, and stressed his job was to drain the 70 acres. The map he provided showing the lands to be drained showed no houses, no businesses, no roads, and that the drainage area was definitely downhill from Food Lion.

The median storm water level already overtops the Put In Creek ditch and adjacent property located behind Faulkner and Son. I could say much more, and I have spoken to Jim Brent, P.E., Sean Trapani, former Saluda R.A., Delegate Keith Hodges, Planning and Zoning Director John Shaw, and several engineers at the public design hearing. But there has been no change in the project except to increase the cost.

The unanswered questions are:

  1. Why hasn’t VDOT explored the possibility that the two existing pipes across Buckley Hall Road, including the one destroyed by utility pole placement years ago, might be adequate in conjunction with system maintenance and restoration?
  1. The new Westville Community project shows water discharge at 7.75 ft. elevation into the VDOT pipe system which shows a 5.42 ft. elevation at its discharge point (per VDOT plans). Will this 13 acres of additional storm water flow uphill to Hyco Corner? Or will it further damage the properties downhill to the east of the Westville Community project?
  1. Why hasn’t VDOT realized any additional water collected at Buckley Hall Road will exceed the capacity of the feeble ditch between Hyco Corner and Church Street (Route 611) at the Firehouse?
  1. Two 4’ x 7’ box culverts are 2.91 times larger than the two 42” pipes now at Church Street. They are intended to let more water out, but will definitely let more water in as well.

    Put In Creek at Church Street 42" pipe two hours before predicted low tide of .28 ft Photo: CJ Bova

    Put In Creek at Church Street 42″ pipe two hours before predicted low tide of .28 ft      

  1. Did anyone with tidal engineering or analysis experience review the plans that use a high tide water surface elevation of 0.31 feet when high tides range from 1.8 to over 3 feet?

    Put In Creek after 2.9 ft high tide Photo: CJ Bova

    Put In Creek after 2.9 ft high tide Photo: CJ Bova

I hope that someone at VDOT will ground verify and redesign this poorly conceived project that will definitely increase the probability and severity of flooding–both tidal and non-tidal.

Notice how the original outfalls traveled great distances to avoid any close tidal contact. This is another no-brainer that can’t be taught. We expect more from over $945,000 than bad, poorly directed engineering.

 

G.C. Morrow’s family‘s roots in Mathews go back to 1725. He’s worked in, traveled through, or explored most all of the county. He is co-founder of the Ditches of Mathews County Project which has worked to raise awareness of the problems and offer solutions to VDOT’s drainage issues that are affecting Mathews County.

He’s worked and fought with many state and federal agencies for the environmental well-being of Mathews and was one of the citizens on the county’s Ditch Enhancement project Committee who tried to provide local knowledge to the engineers. As Business Group Chair on the Piankatank TMDL Steering Committee to improve water quality, he fought for truth in reports and provided more accurate information than the state’s computer-generated numbers for wildlife, livestock and pet populations. In January 2016, G.C. began his first term on the Mathews County Board of Supervisors. This open letter is a personal statement of his views based on his experience and knowledge of Mathews County.

 

Comments and Concerns Sent to US Army Corps of Engineers

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Date:  December 22, 2015

To:      Keith R. Goodwin, keith.r.goodwin@usace.army.mil
CC:      Joe Schumacher, Congressman Wittman’s office
Mathews County Supervisors
RE:      NAO-201501451 Chesapeake Bay Wetland Mitigation Bank

The prospectus for the referenced mitigation bank fails to adequately address issues of public health and safety, potential East River water quality impacts, and conflicts with the Mathews County Comprehensive Plan. A number of responses to the Virginia Off-Site Mitigation Location Guidelines Checklist are factually inaccurate. Contrary to the responses, the riparian areas of the East River are on adjacent properties except for a small fringe of the RMA in the southeastern corner of the site, and a residence is currently under construction on a parcel adjacent to the site. While the risk of lead contamination of the groundwater which connects to the Yorktown-Eastover aquifer, the primary and generally only source of drinking water for Mathews County, is of the utmost concern, consideration of the impacts of reduced water flow to the East River is important to the health of the river and the Chesapeake Bay. The other issues raised here need to be considered as well.
Thank you,
Carol J. Bova

Concern about Lead Contamination of Groundwater and Aquifer

The initial lead remediation plan for the proposed mitigation site on Route 14 will stop unless a subsequent random soil test is higher than 400 ppm, which is equal to 400,000 ppb. The EPA action level for lead in drinking water is 0.15 mg/liter, which equates to 15 parts per billion, yet the remediation plan does not address the possibility of lead leaching into groundwater during the five years of shooting range activity which uses approximately 2,188 pounds of lead shot annually. No water testing is included in the prospectus or lead remediation plan even though the Yorktown-Eastover, the primary aquifer for domestic wells, is 7 feet below the surface of the ground as recorded in the USGS borehole about 1.5 miles southwesterly on Route 14 from the site, and the aquifer is in contact with groundwater in many places.

“The Yorktown-Eastover aquifer and the eastern part of the surficial aquifer are closely associated…and jointly compose a shallow, generally semiconfined groundwater system that is hydraulically separated from the deeper system.” (USGS Professional Paper 1713, Abstract. http://pubs.usgs.gov/pp/2006/1731/pp1731_download.htm)

The National Wetlands Inventory shows 6.28 acres of land designated as temporarily flooded overlaying part of the shooting range fallout zone. This is not shown on the prospectus site map. Even if that area is no longer flooded, the remediation plan does not follow the Technical/Regulatory Guidelines of the Interstate Technology and Regulatory Council regarding runoff. (See page 6–NWI map detail with 5 areas marked where precipitation runoff crossed Honey Pod Lane to the East River in December 2015.)

“Nearby surface waters or wetlands that could be receiving runoff from the areas of the ranges where shot or bullets are deposited should also be noted, and the sampling and analytical plan should investigate this possibility.”                               (http://www.itrcweb.org/GuidanceDocuments/SMART-1.pdf)

Annual rainfall for this area is about 45 inches. The U.S. Army’s report, “Prevention of Lead Migration and Erosion from Small Arms Ranges” discusses effects of saturated soil on corrosion and lead migration with shallow depth to groundwater not addressed in the prospectus.

“Rainfall also influences the solubility of lead. The more rainfall, the greater the likelihood the soil will become saturated, increasing the time the round stays in contact with the rainwater. The longer the round stays in contact with moisture, the faster it will corrode. Acid rain accelerates the corrosion process.

“The risk of lead migration to groundwater becomes greater when the corrosion rate is high and depth to groundwater is shallow (less than 10 feet). Basically, the closer the groundwater is to the surface, the greater the chances of contamination.”  (http://www.aec.army.mil/Portals/3/range/leadmigration.pdf)

According to EPA’s Best Management Practices for shooting range operation, sandy soils, high annual rainfall, and a water body downslope of the range increase the risk of lead migration and contamination. (http://www3.epa.gov/region02/waste/leadshot/epa_bmp.pdf)

Runoff from the proposed site was observed in five locations crossing Honey Pod Lane from west of the site in December 2015 after a moderate amount of rainfall. (See page 6.)

The remediation plan for lead in the soil will not start until 2018 while lead could be leaching into the groundwater or be in runoff to the East River in the five years before then.

Negative Impact of Berms and Blocking Drainage on East River Water Quality

Although the environmental specialist for the sponsor told the Mathews Board of Supervisors on December 15 there would be the same three discharge sites, he also said there will actually be less water coming off the site because of planting trees. “We’re decreasing the flow off the site.” The prospectus describes the plan to raise the site’s groundwater level by blocking the existing drainage channels on the property and building berms which would seem to indicate less water will reach the river from those changes as well.

The East River has two Category 5 impairments on the state’s 2014 303D(1) report which can be worsened by reduced water flow: pH exceedance in 8 of 12 months and low dissolved oxygen. The East River TMDL review is not scheduled until 2024, so any worsening of impairments will impact the Chesapeake Bay water quality at least until that time.

Inaccurate Statement about Fallsington Soil

The prospectus states, “…most of the surrounding property has Fallsington Soils, which are not suitable for drainfields.” This is not an accurate statement because suitability is site-dependent. Fallsington soil is present in much of the County and can be suitable for septic systems. The “User Notes for National Wetlands Inventory Maps of Eastern Virginia” lists the Fallsington Soil Series with an asterisk: “Requires site evaluation to determine whether soil is wetland.” The presence of five homes adjacent to the proposed site and one under construction would also confirm this fact.

A follow up review for the Piankatank/Gwynn’s Island/Milford Haven TMDL IP was made in August 2015 for septic system deficiencies, repairs and replacements in Mathews County, including the East River watershed (Shellfish Growing Area 41), surveyed by the Virginia Health Department, Division of Shellfish Sanitation. Growing Area 41 has 983 homes, and there were 14 septic system repairs over a three-year period (2013-2015), a rate of 1.42 percent and 6 replacements, a rate of 0.61 percent, well below the failure rate used in the Piankatank TMDL Water Quality Improvement Plan.

Although the environmental specialist said at the December 15 meeting there would be no impact on adjacent homeowners from surface flow, neither he nor the prospectus discussed the sub-surface effect on downslope drainfields of raising the water table on the mitigation site which is at a higher elevation. No statements were made as to current depth of groundwater on the mitigation site or adjacent properties.

Comments on Sponsor’s Answers to Off-Site Mitigation Guidelines Checklist

B1. Wetland Restoration: Yes
B2. Stream Restoration: No.

It is questionable whether this is a wetland restoration.

  • “Most of the marshes along the North and East Rivers are fringing marshes along the adjacent uplands…” (Mathews County Shoreline Management Plan, Virginia Institute of Marine Science, Shoreline Studies Program, March 2010.)

There are no marshes on the site which would indicate the site was historically uplands.

Mathews County is a watershed discharge zone for the Chesapeake Bay through its streams, creeks and rivers. Ephemeral streams flow only after rains fall and are rarely indicated on maps. Mining of sand on the site in the 1930’s and farming prior to and after that time would have disrupted the natural ephemeral streams that would have conducted water to the East River, leading to the establishment of drainage ditches on the site.

  • Spot elevations from the National Map show most of the property is about 12 feet in elevation, with one measurement of 14 ft midway down the eastern boundary ditch which runs from state Route 14 to the East River. The site is higher than 2/3s of West Mathews according to the Comprehensive Plan, and it is in Zone X outside the 500-year floodplain. See page 7 for FEMA Flood Hazard Map.

B3. Sponsor states the site is contiguous or connected to other aquatic areas.

  • There is no description of this connection in the prospectus beyond the image of the drainage ditch on the east property line. There is no acknowledgement of the existence of the historically present intermittent stream. See pages 8-9 for adjacent properties between the site and East River.

B4. Sponsor states no existing or proposed development upslope/adjacent to the project.

  • A residence is currently under construction immediately to the west of the project at 166 Honey Pod Lane.

B4. Sponsor also states no areas are identified for future development in the Comprehensive Plan upslope and adjacent to the proposed mitigation site.

  • The Comprehensive Plan designates the upslope northern property border as part of a 300-foot wide Corridor Overlay District along Route 14 and for Waterfront Residential along the west and south borders. See page 10.

B5. Sponsor claims riparian buffer protection greater than state and local requirements.

  • The only riparian buffer may be in a small area within the RMA on the southeastern edge of the property. Any other buffers would be on adjacent properties. See page 11, Comprehensive Plan Chesapeake Bay Protection Areas map. If tree seedlings are able to take hold when planted, it would be a number of years before they can take up any significant amount of water.

B7. Sponsor claims the site is consistent with local planning requirements.

  • In fact, there are no zoning ordinance statements that apply except Section 15.8 which prohibits land use that creates “…noxious, or otherwise objectionable conditions which could adversely affect the surrounding areas or adjoining premises.” Freshwater wetlands without environmental conditions that allow wet/dry cycles to keep soil oxygenated produce methane and can produce hydrogen sulfide. The environmental specialist James Hudson told the Board of Supervisors on December 15 there would be standing water above the surface in the winter wet season.
  • The following excerpt from class notes from the University of Arizona’s College of Agriculture and Life Sciences describes wetlands methane production.

Nutrient cycling in wetlands:

“The diffusion of oxygen in saturated soils is 10,000 times slower than in unsaturated soils. A saturated soil will become anaerobic in a matter of hours (matter of days at most) depending on 1) temperate; 2) the amount of organic matter; 3) the initial microbial community and 4) the amount of reducing compounds present (example: ferrous iron)….Methanogenic [methane-producing] organisms work in the anaerobic zone to convert dissolved organic carbon into methane…..The production of methane is much more common in freshwater systems.”                                                     (http://cals.arizona.edu/azaqua/aquaplants/classnotes/NutrientCycling.pdf)

B8. Sponsor states order of stream on site is not applicable.

  • An intermittent first-order stream is clearly shown running to the south through the shooting range fallout zone on USGS 1948, 1965, and 2013 topographic maps, the National Map, and Mathews County Tax Map 20. It may have been damaged or disrupted by the previous clear-cut logging and the establishment of the shooting range. The temporarily flooded area shown on the National Wetlands Inventory may be evidence of this intermittent stream. (See National Wetlands INventory detail, Mathews County Tax map composite, and National Map Hydro-Imagery detail.)

C1. Sponsor states the site creates/contributes to a corridor linking large aquatic systems.

  • The property is separated from the East River by 93 acres in 12 adjacent parcels of land. See List of Properties and Tax Map Composite.

C5. Sponsor states the site will contribute to improved water quality for identified/ designated impaired waters described as “shellfish/not supporting.”

  • In spite of previous improper farming practices referred to in the prospectus as contributing sediment and nutrients to the East River, the Virginia Department of Environmental Quality reports no East River nutrient or sediment impairments.
  • The shellfish impairment is for E. coli. Reducing flow of precipitation runoff to the East River will not reduce E. coli levels in the river.

C8. Sponsor states the proposed site is “at the top of the watershed.”

  • The site is at least 1 mile south of the ridge separating the East River Watershed HUC12-020801020405 from the Lower Piankatank River Watershed HUC12-020801020403. Virginia Department of Transportation project plans for Route 14, 14-667C, sheet 7, show two notations of 600 and 675 acres of drainage being carried across the road from the northwest to the East River just west of the proposed mitigation site. See National Map watershed boundary detail below.

    Watershed Boundaries in purple from National Map. (Color enhanced for better visibility.)

    Watershed Boundaries in purple from National Map. (Color enhanced for better visibility.)

Yellow arrows placed on National Wetlands Inventory map show runoff channels crossing Honey Pod Lane from proposed site.

Yellow arrows placed on National Wetlands Inventory map show runoff channels crossing Honey Pod Lane from proposed site.

FEMA Flood Hazard Map Layer showing proposed site is in Zone X.

FEMA Flood Hazard Map Layer showing proposed site is in Zone X.

Properties Between Proposed Site (tax map 20-A-1) and East River (see Tax Map below list)

Adjacent waterfront properties with residences:
19-A-98   29.40 acres   166 Honey Pod Lane (Norton) (Under construction.)
19-A-99A   5.06 acres   366 Honey Pod Lane   (Hurst)
19-A-99   27.37 acres   524 Honey Pod Lane   (Walsh)
20-A-1A     6.93 acres   620 Honey Pod Lane   (Hudgins)
20-A-1B     5.35 acres   652 Honey Pod Lane   (Hurst)

Adjacent non-waterfront with residence:
20-A-5 1.24 acres   755 Honey Pod Lane (Jenkins)

Adjacent non-waterfront properties with no residences:
20-A-1D 0.07 acres (Walsh)
20-A-3     2.03 acres (Ingram, C.)
20-A-4     0.71 acres (Jenkins)

Parcels between adjacent properties and East River
20-A-1C (Waterfront with residence) 4.00 acres 674 Honey Pod Lane (Owens)
20-A-6 (Non-waterfront, no residence) 1.01 acre (Ingram, C.)
20-A-7 (Waterfront, no residence) 10.06 acres (Ingram, A.)

Total 93.23 acres between site and river.

Adjacent to eastern property border
20-A-2   54.30 acres (Gayle) Along eastern ditch.

Composite of Mathews County tax maps 15, 19 and 20 to show proposed site and adjacent properties.

Composite of Mathews County tax maps 15, 19 and 20 to show proposed site and adjacent properties. Intermittent stream is solid light line between Honey Pod Lane and double-circle A.

Comprehensive Plan map showing West Mathews Future Land Use.

Comprehensive Plan map showing West Mathews Future Land Use.

Mathews County Comprehensive Plan showing West Mathews Chesapeake Bay Protection Areas. RMA on proposed site circled in red.

Mathews County Comprehensive Plan showing West Mathews Chesapeake Bay Protection Areas. RMA on proposed site circled in red.

National Map Hydrography view showing intermittent stream on proposed site and East River.

National Map Hydrography view showing intermittent stream on proposed site and East River.