The Saga of HB 1774 — Recurrent Flooding and Flooded Roads

by Carol J. Bova

HB 1774 was written to address rural stormwater issues and amended to study stormwater management practices in rural Virginia highway ditches. Why, then, does the bill direct the Commonwealth Center for Recurrent Flooding Resiliency, a group formed to help Virginia adapt to recurrent flooding and sea-level rise, to direct the study?

The Commonwealth Center was created in 2016 to study strategies for adaptation, migration, and the prevention of recurrent flooding — deemed to be caused by global warming-induced sea-level rise — in Tidewater and Eastern Shore localities. As the adage goes, to a carpenter with a hammer every problem looks like a nail. Assigning the study to the Commonwealth Center almost guarantees that HB 1774’s stormwater concerns will be viewed through the prism of sea-level rise and recurrent flooding. And that would be counterproductive because state road and ditch flooding have no connection to sea-level rise at all.

This misdirected idea comes from Lewis “Lewie” Lawrence, executive director of the Middle Peninsula Planning District Commission (MPPDC) and the behind-the-scenes force behind HB 1774. Lawrence has doggedly insisted that Virginia Department of Transportation (VDOT) drainage failures in rural counties bordering the Chesapeake Bay, like my home county of Mathews, constitute recurrent flooding. Lawrence was instrumental in writing, and then revising, HB 1774 in close association with the Virginia Coastal Policy Center of William & Mary Law School for Del. Keith Hodges, R-Urbanna, the bill’s sponsor.

Lawrence has inserted unsupported claims attributing flooding on VDOT roads to sea-level rise in at least nine MPPDC reports since 2009. In the first of these studies, which assessed the human and ecological impacts of sea-level rise upon vulnerable locations in the Middle Peninsula, he used maps indicating that one foot of sea-level rise by 2050 would inundate large portions of Middle Peninsula counties.

Those maps don’t stand up to scrutiny. In one of those reports, the 2050 map for Mathews County reports shows 6.7 miles of VDOT roads in inundated marsh and inland areas, yet fails to show the breach in the Winter Harbor barrier beach that left marshes open to the Bay since a 1978 April nor’easter.

Official projections of recurrent flooding from sea-level rise are based on maps with flawed elevation measurements.

Official projections of recurrent flooding from sea-level rise are based on maps with flawed elevation measurements.

Why is that significant? Because the Chesapeake Bay is connected to the ocean, it reflects the ocean’s high and low tides. The rise and fall of the tides varies from one location to another depending upon the depth of the water and the shape of the coastline, among other factors. Before the nor’easter, a narrow channel at the south end restricted the flow between the Bay and Winter Harbor. The breach in the barrier beach opened the marshes at the north end of Winter Harbor to the tides of the Chesapeake Bay.

The postulated 2050 inundation shown on the map is caused by one foot of sea level rise. But in real life, the daily high tides already run 1 ½ feet to 2 ½ feet, and storm-driven tides can add one or two feet more without having the depicted impact. Nearly three decades after the nor’easter, Hurricane Isabel did cause coastal and inland flooding, but its 7.9 feet of storm surge did not produce the degree of inundation shown for one foot of hypothetical sea level rise in the MPPDC’s map.

Another publication, a September 2016 MPPDC report for the Mathews County Planning Commission, references a 2013 MPPDC study done by Draper Aden Associates (DAA), the Mathews County Rural Ditch Enhancement Study, which said:

One of the primary results of the project was the reaffirmation that poor drainage due to lack of ditch maintenance and sea level rise compounds the flooding problems and flood management solutions utilized within Mathews County.

The supposed affirmation of sea level rise impact in the DAA study was based on flawed LiDAR-derived elevation numbers and an assumed 5-inch sea-level rise in 24 years extracted from the maximum estimate in a 2010 VIMS report to the U. S. Army Corps of Engineers. That VIMS report described “a total possible sea level rise of 0.12 to 0.22 inches per year in the Mathews County area,” or 3 to 5.6 mm a year. (My book, “Drowning a County,” uses 3.5 mm a year based on the Kiptopeke tide gauge trend of 3.48 mm since Mathews has no tide gauge.)

Draper Aden used 2011 Virginia Geographic Information Network LiDAR maps that show elevations of 2 feet for cultivated fields, forested areas, Route 645, and Gullwing Cove Lane — supposedly the same elevation as the marsh to the west. Yet, contrary to what one would expect from these elevations, normal high tides of two feet do not cause any movement of water from marshes and creeks into adjacent fields. Rather, fresh water floods across the roads because it is unable to flow through damaged or blocked VDOT pipes, ditches or outfall streams to nearby water bodies.

A detail from a DAA report topographical map showing 2 feet elevations near Route 645 and Gullwing Cove Lane and the same areas in Google Earth showing the presence of the marsh, forests and fields.

DAA also claims Route 609 in Onemo near an outfall to the marsh has an elevation of one foot. But anyone with any knowledge of the local geography knows that the marshes there are at least 1 ½ feet to two feet above sea level because high water marks from high tides. It stands to reason that the roads must be somewhat higher — after all, no one would build a road lower than the marsh!

Those two examples are the only affirmations of sea level rise that impacts roads in the DAA study, and neither one withstands scrutiny.

Visual Proof VDOT Road Flooding is Not Sea Level Rise

Citizens of Mathews county have gathered abundant photographic evidence showing the road flooding that occurs due to poor ditch maintenance. The photos below show just three of many documented examples.

Three Mathews County VDOT roads with flooding across the roads from blocked pipes, outfalls or ditches at 4 feet, 8, feet and 31 feet elevation.

These same roads pictured above show no signs of flooding close to the water or lower elevations, and adjacent wooded areas have not died from salt-water contamination. The cause was poor pipe and ditch maintenance, not sea level rise. Indeed, VDOT has corrected one area, is about to take care of a second, and will fix the third in 2017 under a revenue sharing arrangement with the locality.

The end of this story will play out this year. Here’s hoping the Commonwealth Center for Recurrent Flooding Resiliency doesn’t rely on past studies without fact- checking them and recognizes that LiDAR maps are fallible. Bad information can’t fix stormwater management and ditch problems in Virginia.

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28 responses to “The Saga of HB 1774 — Recurrent Flooding and Flooded Roads

  1. It’s beyond beyond belief or comprehension that public authorities who had the obligation to maintain these roadside ditches whose operation was critically necessary to the safety of Mathew’s County’s citizens, and to the preservation of their public and private property within the county, would chronically fail to keep these ditches clear. But would instead keep them stopped up and dysfunctional, causing them to overflow, thus be the direct cause of chronic flooding, instead the means to prevent it.

    No public or private authority in Virginia can be this careless or incompetent. Such gross failure of public service must be intentional.

    Why? Those responsible must answer that question. Why?

    • correction to last sentence of first paragraph.

      Why would those responsible for keeping those ditches clear instead keep them stopped up, clogged, and dysfunctional, causing them to overflow, and thus be the direct cause of chronic flooding, instead of the means to prevent it?

  2. Maybe you’re right about the maintenance failures of VDOT roadside ditches being intentional. It’s a theory worth looking into. On the other hand, I subscribe to the philosophy, “Don’t attribute to malevolence that which can be explained by incompetence.”

    The larger issue, as you know, is the proposed usurpation of authority over roadside ditches by un-elected bodies that treat roadside-ditch flooding in Chesapeake Bay localities as indistinguishable from “recurrent flooding” caused by climate change. The wrong diagnosis will bring about the wrong solution.

    • Jim – You say, “On the other hand, I subscribe to the philosophy, “Don’t attribute to malevolence that which can be explained by incompetence.”

      I subscribe to the same philosophy until convinced otherwise. So, in looking into these matters, I read G. C. Morrow’s highly detailed June 15, 2016 report on these ditches found at http://insidethecrater.com/.

      Once, having done that, I independently reached that conclusion. And for me the normal burden of prove had to shift. I invite others to look at that report. And then reach their own conclusions.

      And then explain to the citizens of Mathews County and Virginia generally how this is a case of simple incompetence by authorities who have been maintaining public roads and ditches in Virginia for more than a hundred years. To claim that defense is an insult to public officials everywhere. We have got to get beyond this idea that nobody in public office answers for the public harm they do to the people and things they are responsible to and for. There must be an end to this.

    • Another way to consider this issue is that persistent acts of omission to fulfill one’s responsibilities is just as telling and intentional as one’s acts of commission contrary to those responsibilities.

      Jim, as to the larger issue you mention, namely:

      “… the proposed usurpation of authority over roadside ditches by un-elected bodies that treat roadside-ditch flooding in Chesapeake Bay localities as indistinguishable from “recurrent flooding” caused by climate change. The wrong diagnosis will bring about the wrong solution.”

      Such usurpation, if it occurred as you described, may well elevate and shift (to a degree) responsibility for what has happened to these ditches higher up any applicable chain of command within state governance. And it would suggest a motive for this chronic failure of ditch maintenance as well.

      This deepens the Public’s need for public answers.

  3. Here is another way of looking at this.

    I spent many summers growing up on a creek just north of the Rappahannock River. There back then if somebody found an undercover way to flood his neighbors property just enough so it didn’t perk, well you’d be a fool if you didn’t wonder if that guy living next to you was looking for a way to buy your land cheap.

    Everybody knows this. That’s why free people won’t tolerate it. Or look away from suspicious circumstances. And if it might be your own government that is sneaking around flooding your property, well then that is real serious business.

  4. Thank you, Carol, for your dogged persistance in running down the sources of these errors, both written and personnel-wise, and rebutting them beyond debate. I’ve read the book yet learned two additional things from this discussion: (1) not to trust LiDAR data or people who apply LiDAR data blindly, particularly in locations where a vertical foot or two makes a huge difference horizontally; and (2) not to trust anyone named “Lewie” Lawrence to believe what his own eyes and live witnesses and common sense are telling him if those sources happen to contradict what he has already concluded and stated publicly. (It’s a common Washington disease these days; must be contagious.)

  5. Oh, and where is there any location in Mathews with an elevation of 31 feet? Must be outside the crater near Dutton.

    • yeah I was wondering that also – along with are there FEMA flood maps and if they are the same or different from the LIDAR data..and/or considered any more or less useful or credible?

      VDOT up our way (same VDOT district as Mathews) – on drainage issues basically says this – anything beyond their right of way is not their responsibility – and if something beyond their right-of-way is damming up water and backing it up to the road – they will contact the owner to deal with it – at their (the owners) cost.

      They’ve done this with the county itself with county drainage easements in (county approved) subdivisions beyond the VDOT right of way. Same deal with private owners of structures that back up water to VDOT rights-of-ways.

      Just FYI and as Acbar knows – even in the mountains you can have wetlands that can dam up water and back it up to a roadway.. often the result of beaver dams and such… In a National Park near me – the Park Service has been in a perennial battle with said beavers .. for years.. the beavers build and the park service tears it down.. they build again and the park service goes in and traps them and removes them. More beaves migrate upstream and re-settle and re-build …. sorta like folks battling squirrels at their bird feeders!

      😉

      • Larry: Fema maps give base Flood Elevations at a given point. They don’t give land elevation. That’s why you have to get a surveyor’s certificate of elevation for flood insurance.

        The VDOT policy is not to deal with a problem in an outfall unless it causes a problem with water in the roadway. If VDOT dug the channel, they had an easement to do it and that makes them responsible to maintain it. (Of course they haven’t kept any records of their easements in a way that they can retrieve them.) Still, if a problem in an outfall stream causes water on the road, it is VDOT’s policy to deal with it enough to get the water off the road.

        The head of the transportation division in the Office of the Attorney General said at a meeting in November that VDOT is responsible for all easements as well as roadside ditches in the right of way. The OAG has not issued a statement yet on who in the state is responsible in situations where VDOT uses a natural stream as an outfall without excavating or widening it. Is it DEQ’s office of Streams and Wetlands Protection? DCR? VDOT?

        Once they are in a channel, rainwater becomes waters of the state. Under Article XI, section 1 of the Constitution of Virginia, “…Further, it shall be the Commonwealth’s policy to protect its atmosphere, lands, and waters from pollution, impairment, or destruction, for the benefit, enjoyment, and general welfare of the people of the Commonwealth.” Impairment being the operative word.

        If VDOT hadn’t impaired the natural flow because of blocked pipes and ditches, the streams in most cases (other than hurricanes or tornadoes) would have maintained themselves through the natural scouring action of the flow. (And natural sediment is a good thing! It maintains healthy marshes and lets them grow to keep pace with sea level rise. Excessive erosion from too much input too fast from diverting water from another watershed or adding too many impervious areas is another story.)

        Unless landowners do something to cause an obstruction of a stream, they have no legal responsibility to maintain its flow. Even Lewie Lawrence’s lawyer who wrote the flawed Roadside and Outfall Ditch Report agreed with that statement. So if VDOT forced a landowner to spend money on a natural stream and the landowner didn’t cause the problem, maybe they should look for advice on getting their money back.

        If a county takes a county easement, that does make them the responsible party. Anything I’ve discussed is a state road, not a county subdivison with a county easement. When the Commonwealth accepts a road into their system, it is required to have adequate drainage including adequate receiving channels in place.

        The best way to combat beavers in outfalls is not to attract them in the first place and keep the water moving smoothly. The sound of obstructed waters is the ultimate beaver calling mechanism. See G.C. Morrow’s post on InsideTheCrater.com, “Beavers Love BMPs (Big Messy Projects) that just went online today.

        • Small correction: Once it’s in a channel, rainwater becomes waters of the state.

        • Carol – thanks for the further explanation and enlightenment!

          and the point about “natural” verses “easement”.

          Once you touch it – it’s yours to maintain…

          I do seem to recall a discussion (not here) about what VDOT might have to do if they were held responsible for drainages they do not currently own – and I “think” the gist of it was that if VDOT was going to be made responsible -that they would be using eminent domain to obtain the rights-of-ways necessary to open up a drainage.

          and they were not keen to do it because of the additional costs, administrative, construction, maintenance, operation, etc – that they had no additional money to fund it unless some additional funding was forthcoming.

          A few years back, VDOT actually was abandoning roads that were on top of private dams.. and even now up our way – VDOT bumps heads with the counties over drainage inside of subdivisions which were constructed per VDOT and county specs.. VDOT specs in what would ultimately be the VDOT right-of-way when they took the road into the system but the rights-of-ways that were not VDOT ended up either in an HOA or the County – and lots of issues though not of the kind you are dealing with -more along the lines of bigger/stronger storm events than the facilities were originally designed for and they end up damaged and fingers pointing as to who pays to fix.

          Up our way – we don’t have the types of issues you have but we do have development of subdivisions on steep slopes.. and as more subdivisions are built – serious runoff problems for larger storm events that overwhelm those older spec facilities.

          Part of the problem is more frequent and stronger storm events than originally designed for – and part of is because engineering was done on a per development basis without taking into account cumulative development occurring “upstream”

          This is even more common in places like NoVa where the subdivisions are even older… some of them don’t even have any standards.. because those standards were not in place when they were built!

          In most states – 46 of them – this issue is entirely a county issue for county roads. The State DOTs deal with the state-level roads and the cou counties their roads. In many of those states subdivision roads are strictly and entirely HOA and county roads are far fewer in number than in Va or NC or Texas and those county roads not built to Federal nor even State standards not only for the road itself by drainage.

          Farm-to-market roads in Texas – though maintained by the state are built across Arroyos and routinely wipe out the crossings when storms occur and the crossings have to be re-plowed.

          you’ll see signs like this:

          • That sign is about 100 years out of date…or ought to be. 😋 Most folks forget that boats were the primary mode of travel along the rivers and bays connected to the Chesapeake Bay. Look at the Coast Guard historical map collection and the military maps of Virginia made for the Union Army. They show houses clustered on high ground near the rivers and a few connecting roads with other clusters of homes along them. One of the issues in places like Gloucester County is roads built in the 1800s (or earlier) across a flood plain. A lot more places there were built in the marsh than in Mathews. Gloucester is closer to the crater rim, so perhaps not as isolated from subsidence from aquifer compaction as Mathews is. Our worst case of building in the flood plain is our 3 block downtown, which runs from 8-10 ft on the outer ends down to 4 ft in the center, with Main St. down the middle.

            Easements are legal contracts, not accidental cases of you touch it, it’s yours. You break it (obstruct it), then it’s a you-fix-it situation. It’s not an issue of what VDOT doesn’t own, it’s two issues: what they DO own (or contracted to maintain through an easement) and what they damaged by misuse in preventing proper flow over many years–and then what part of the Commonwealth gets to fix it.

            VDOT is still discontinuing maintenance on roads over dams. (They can discontinue maintenance under some circumstances, but only the county can abandon a road as a public road, and only under certain conditions.)

            We’re not dealing with other states, or county roads or private subdivision roads. We’re dealing with our state road realities in Virginia. We took a different path, and there’s no easy way to turn back the clock on a 5+ Billion dollar a year operation.

            Can you imagine the upheaval should Virginia opt to put a moratorium on all road-building until they brought the existing system into good condition? But as impossible an idea as that is, it would force more intelligent solutions using common sense approaches, that horrors, don’t cost as much.

            Do our universities teach engineers how to do sensible road construction? Do they deal with maintenance at all? Too low-brow, perhaps? Everything seems to be over-engineered and rarely functions as intended.

            Stormwater solutions are computer designed with no test sites before mandates. Obsolete state watershed maps and statements are all over the internet…and being taught in Earth Science classes in the lower grades.

            LiDAR can’t return accurate numbers in salt-marshes, so a smoothing process fills in the gaps, eliminating most contours. Ditto for dense forest canopies, which heaven forbid, have gaps in the canopy with rain puddles on the forest floor from bad drainage or uncharted intermittent streams. They’ll get measured as sea level or thereabouts and averaged into the elevations.

            The coastal areas of Virginia have always been subject to strong storms, and drainage designs are supposed to accommodate that. It shouldn’t matter if the storms are more frequent–if the drainage works! And I think the last estimate I saw from the Governor’s Climate Change committee or some such group, was for a 3% increase. Even if it’s 11% from a 2008 report, it should be within the capacity, if the pipes were properly designed and if adequate receiving channels were provided.

    • Acbar: Mathews County is one of the few places in the world entirely inside an impact crater. Cobbs Creek goes to 35 ft. elevation. Take a look next time you go over the Twiggs Ferry Rd. bridge. The outfalls are streams that wind around to ravines that connect to the Piankatank.

  6. Carol – are you familiar with this map?
    do you have an opinion/view?

    • Larry, Yes, I recognize it as the VDEM 2008 Storm Surge Map. (I don’t know what the red, gold, yellow, and blue legend under the map is about.) But if you notice, it does not show the 1978 breach in the Winter Harbor Beach. It shows Rigby Island as intact ( that’s a barrier island which is almost totally gone now.) So it’s at least 39 years out of step with reality. Although it’s interesting to see the red Category One surge areas in the map don’t go as far inland as the MPPDC 1-foot sea level rise map did.

      • This comment, along with much of this entire conversation, highlights an extremely important point, namely:

        Our technology, although often very flawed, and most always very limited, is nevertheless being deployed as if it possessed neither limitation nor flaw. Thus our technology, so relied upon, screws up much of our world, reeking much harm as it is applied with near religious zeal.

        Along the way of those applications of flawed or limited technologies, one of the harms, beyond what they do to our earth and the places we live, is that such flawed applications swipe out the practical skills and wisdom that people need for getting things done right in this world.

        Hence an entire generation can quickly and easily lose altogether its competence to do most anything right. And at the same time, the flawed technology keeps rolling on as if out of control. Thus such technologies falsely arm that incompetent generation with the illusion that they, unlike any generation gone before, are infallible and omnipotent.

        And, at the same time, these flawed technologies arm bad actors with the means – the false gods and flawed tools – to do great harm in this world.

        For the truth is most always different from what so called “smart people” playing with new tools imagine about themselves and their world at that instant in time. Why?

        Our senses as humans walking this earth are far more powerful, subtle, supple and adept at solving real world problems than high tech machines.

        A farmer ditching and plowing his fields to earn a learn a living knows far more about his world that a professor sitting in his lab or study knows, or will ever know.

        I am reminded of the recent meta-data analysis of historic facts done by a big time history professor at UVA who claimed to have figured out who were our presidents that were most prone to take risks. He and his peers at UVA were so blinded by the hubris of their misplaced genius that their findings were published as the cover story in UVA’s Virginia Magazine a couple of years back. Of course their conclusions were totally wrong.

        The many reasons for the grotesquely wrong result were too prevalent and deep for comment here. But they started with the fact that the professor had no idea what risk was. Nor they he have the competence to know how competent people deal with risk. Such competence was beyond the realm of the Professors cocoon life up in his iv The professor, like all of use, could know, respect or appreciate what he had never experienced.

        Hence our modern world, with all its fancy but limited tools, is opening up a huge and dangerous gaps in people’s competence. Fools now can rush in to play games where even angels fear to tread.

        People everywhere who live in the real world now need to reign in the fools, do it for their own good, and the good of fools too. This is one of great needs and calling for survival in our modern times. It is not outdated now, and it never has been, this great need to protect oneself from the onrush of a bad future. In fact, the need it the reverse of outdated – the most modern and honorable and noble task imaginable. And the only way we will survive as a culture unlike most all that have gone before. My hats off to what is going on now down in Mathews County.

        • Correction to para third from bottom.

          “Such competence was beyond the realm of the professor’s cocoon life up in his Ivory Tower. The professor, like all of us, could NOT know, respect or appreciate what he had never experienced in his own life – real risk.

  7. Carol – it could well be an older map… I dunno…

    I was under the impression – perhaps a wrong one – that FEMA maps are the “right” ones… that insurance companies used was not aware that there are “other” maps and they differ from the FEMA maps.

    My knowledge to this point is cursory so this is an opportunity to find out more from folks (you) who are directly experiencing the issue – perhaps not unlike what will happen to many on the Virginia coast(s).

    As recounting – we also are seeing changes in storm runoff – but in a different way… more about the erosion and scouring, undermining of existing drainages… manmade and natural – and how VDOT is dealing with it.

  8. Let’s boil down this story to its essence: State policy is being driven by flawed maps.

    • . . . . and by flawed administrative procedures carried out by mindless, heedless, reckless bureaucrats.

    • I disagree profoundly. You would be right if we lived in a near perfect world. But we do not live in anything close to a near perfect world. We live in a fallen one. So flawed maps are the tactics, either intentional, subliminal or unconscious, but not the main drivers of what is going on here.

      The main drivers here are as old and as common as the seven deadly sins.

      1. The quest for ever more grant money,
      2. The quest for ever more political and bureaucratic power.
      3. The quest for ever more unnecessarily expensive and impractical solutions to straightforward problems so as to feed at the trough of public funds.
      4. The gross misuse of technologies for purposes 1 through 3 above.
      5. The manipulation by the few of some other peoples ideological yearning for purity, for purposes 1 though 3 above.

      Plus each particular circumstance here has its own particular cluster of drivers.

      • My reply was directed to Jim. I agree with Acbars comment.

      • Let me amend my statement. What Carol has demonstrated is that state policy is being driven by flawed maps.

        What you (and Acbar) suspect — that bureaucratic imperatives may be at work here — may indeed be true. It is a reasonable hypothesis to pursue. But Carol has not yet proven it to be so.

        I would encourage her to continue digging. I think there is more to uncover on this story.

        • You are so right, Jim. There is much more to be said. Maps alone didn’t influence a state delegate to introduce a bill based on biased information–there are other people and motives involved as Reed points out. More coming your way soon.

    • still confused here. What maps are “flawed”? Is it the FEMA flood maps or is the State using other maps? What are the facts here?

      But perhaps a bigger issue also. What will VDOT do – if rising sea level actually does undermine some existing roads?

      Will they abandon them? What would happen to places that had some elevation but surrounded by water?

      but the maps first. What maps? FEMA Flood maps?

  9. and here is the “official” VDOT policy on drainage…

    http://www.virginiadot.org/info/drainage_on_virginia's_roads.asp

    has a 2015 date on it… dunno if it’s been updated since.

  10. Larry, read the posts again for what the problems are. Forget the ifs for the moment, deal with the facts that were presented.

    VDOT policy is set in the official positions of the Commonwealth Transportation Board and what’s in the Code of Virginia. Practice doesn’t always match, including what VDOT says online.

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