Current Stormwater Management Requirements Localities Should Know Now

October 14, 2014

As of 2004, Virginia’s Stormwater Management Program involved…

Four Boards:• Board of Conservation & Recreation• Chesapeake Bay Local Assistance Board • Virginia Soil & Water Conservation Board • State Water Control Board

Three Departments:• Chesapeake Bay Local Assistance

Department• Department of Conservation & Recreation• Department of Environmental Quality

Prior State Law Requirements

Consolidated Stormwater Management Program into DCR

• VA Soil & Water Conservation Board became regulatory authority

• Called for amendments to SWM regulations

• Combined and revised technical standards for Construction General Permit coverage

• Transferred future administration of VSMP programs to local level for Chesapeake Bay localities and MS4s

• Other localities had “opt-in” provision

• Set statewide fee schedule

Effective January 29, 2005

2004 General Assembly Action

• Passed legislation (HB 1065, SB 407)

• Consolidated water quality programs with DEQ

• Changed stormwater requirements so that ALL LOCALITIES were required to have local VSMP program

NO LONGER OPT-IN

Implementation Date: July 1, 2014

2012 General Assembly Actions

New legislation (HB 1170, SB 423): Enacted March 24, 2014

• Amended Va. Code § 62.1-44.15:27

Most localities could choose whether to implement a local VSMP program

• Where localities did not “opt-in,” DEQ would operate a VSMP on behalf of the locality

Retained July 1, 2014 implementation start date

2014 General Assembly Actions

Local VSMPs & DEQ ROs

Can your locality let DEQ administer local VSMP for now and take on administration later?

YES

What is the adoption date after July 1, 2014?• Adoption date(s) to be established annually

by DEQ

Localities May Adopt VSMP Later

Can the Locality decide to return the program to DEQ?

YES

Regulations will be adopted by the SWCB to: • “establish procedures to be followed when

a locality that operates a VSMP wishes to transfer administration of the VSMP to the Department”

Localities Can Change Mind Later

Most MS4s were still required to implement VSMP program by July 1, 2014 New MS4s must implement VSMP program no later than January 1, 2015• Applies to localities designated as MS4s in

2014• DEQ will implement local VSMP program

until locality takes over

Mandatory Requirements Still in Place for MS4 Localities

Construction General Permit (GP)Coverage

GP Coverage Required where:• ≥1 Acre of Disturbed Land or• < 1 Acre if activity is on a parcel within a

“Common Plan of Development (CPD) or Sale”• Where the Total Land Disturbance = ≥ 1

acre• "Common plan of development or sale"

means a contiguous area where separate and distinct construction activities may be taking place at different times on different schedules.

1. Permitted surface or deep mining operations and projects, or oil and gas operations

2. Clearing of lands specifically for agricultural purposes and the management, tilling, planting, or harvesting of agricultural, horticultural, or forest crops, livestock feedlot operations, including the following engineering operations:• Construction of terraces, terrace outlets, check dams,

desilting basins, dikes, ponds, ditches, strip cropping, lister furrowing, contour cultivating, contour furrowing, land drainage, and land irrigation; • This exception does not apply to harvesting of forest

crops unless the area on which harvesting occurs is reforested artificially or naturally or is converted to bona fide agricultural or improved pasture use;

Construction General Permit (GP)Exemptions

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3.Single-family residences separately built and disturbing less than one acre and not part of a larger common plan of development or sale, including additions or modifications to existing single-family detached residential structures. • However, CBPA localities may regulate

these single-family residences where land disturbance exceeds 2,500 square feet;

Construction General Permit (GP)Exemptions (cont’d)

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4.Land-disturbing activities that disturb less than one acre of land area except for land-disturbing activity exceeding an area of 2,500 square feet in all areas of the jurisdictions designated as subject to the Chesapeake Bay Preservation Area Designation and Management Regulations adopted pursuant to the provisions of the CBPA or activities that are part of a larger common plan of development or sale that is one acre or greater of disturbance• The governing body of any locality that

administers a VSMP may reduce this exception to a smaller area of disturbed land or qualify the conditions under which this exception shall apply;

Construction General Permit (GP)Exemptions (cont’d)

5. Discharges to a sanitary sewer or a combined sewer system;

6. Activities under a state or federal reclamation program to return an abandoned property to an agricultural or open land use;

7. Routine maintenance that is performed to maintain the original line and grade, hydraulic capacity, or original construction of the project. The paving of an existing road with a compacted or impervious surface and reestablishment of existing associated ditches and shoulders shall be deemed routine maintenance if performed in accordance with this subsection; and

Construction General Permit (GP)Exemptions (cont’d)

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8. Conducting land-disturbing activities in response to a public emergency where the related work requires immediate authorization to avoid imminent endangerment to human health or the environment. In such situations, the VSMP authority shall be advised of the disturbance within seven days of commencing the land-disturbing activity, and comply with administrative requirements required within 30 days of commencing the land-disturbing activity.

Construction General Permit (GP)Exemptions (cont’d)

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Man-Made Change to Land Surface that Potentially Changes its Runoff Characteristics • Including Clearing, Grading, or

Excavation • Excluding Exemptions Specified in the

SWM Ordinance

Definition of Land Disturbing Activity

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No Issuance of Building Permit or Land Disturbing Permit until Proof of CGP Coverage is Provided or Obtained

Importance of Construction GP Coverage

Protect Surface Water Resources from Pollution in Stormwater Runoff from Construction Activities

• During Construction• Implement Pollution Prevention and Control

Practices for Stormwater Runoff (E&S)

• Post-Construction• Implement Best Management Practices

(BMPs) that Minimize Quality & Quantity Impacts of Post-Construction Stormwater Runoff (SWM)

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Purpose of Construction General Permit (CGP)

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1.Statutory fees are paid to the locality.2.E&S Plan and a SWM Plan provided to the

locality for review and approval in accordance with local ordinance requirements.

3.Performance bond and long-term maintenance agreement(s) provided per the local ordinance requirements.

4.Once the E&S and SWM plans have been approved, and other SWPPP components are prepared, written Registration Statement submitted to locality.

Process for obtaining GP coverage when Locality is VSMP Authority

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1. Localities must check Registration Statement for compliance/completeness and submit electronically to DEQ's database.

2. DEQ's database will confirm required fields have been completed and quality control checks have been met • Will immediately send a confirmation email to the

locality. • The locality may issue the land disturbing permit

upon receipt of this email, provided fees are paid and bonds posted.

• No land disturbing activity can commence until the DEQ Construction GP coverage is received by the permittee.

Process for obtaining GP coverage when Locality is VSMP Authority

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1. SWM Plan and supporting calculations are submitted to DEQ along with the completed DEQ checklist and Registration Statement

2. Submittals required at the same time the E&S Plan is provided to the locality for review and approval.

3. After DEQ approves the SWM Plan, confirms that the E&S Plan has been approved by the locality, and receives the required fees and long-term maintenance agreement• DEQ will send a notification of permit coverage to the

Operator by email with copy to the Locality• A separate VSMP Permit will not be issued by DEQ, but

the notice of coverage is deemed to satisfy the VSMP Permit criteria.

Process for obtaining GP coverage when DEQ is VSMP Authority

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Required for SWM Facilities

• Agreement Recorded in Local Land Records

• Recorded Prior to CGP Termination

• BMPs Inspected by Owner Using Third Party Inspector or VSMP Authority

• 1 Year after Installation

and

• At least Once Every 5 Years thereafter

Long-Term BMP Maintenance Agreements

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• Third Party Inspector May Be:

• Licensed as PE, Architect, Landscape Architect, Land Surveyor

• Person Under Direction and Oversight of PE, Architect, Landscape Architect, Land Surveyor

or

• Person Who Holds Certificate of Competence from the State Water Control Board

• May not be required for SWM Facilities on Individual Residential Lots

Long-Term BMP Maintenance Agreements

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Statutory Requirements:

• Completeness Review – 15 Calendar Days

• SWM Plan Review – 60 Calendar Days • To Be Consistent with E&S

• If Second Plan Review – 45 Calendar Days

• If Deadlines Exceeded – Deemed Complete or Approved

Timelines for Review of SWM Plan by VSMP Authority

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Three Inspections of Site• Prior to Land Disturbance• At Installation of Approved SWM BMPs• At Project Completion and Termination

Additional Inspections May Be Needed if:• Problems Discovered on Site• Multiple BMPs Implemented on Site

VSMP Authority Inspections

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VSMP Authority Can Utilize:

• Notice of Violation

• Stop Work Order

• Activation of Performance Bond, if Available

• Other Actions Provided in Ordinance

Enforcement

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Where an Operator is aggrieved by DEQ there is an administrative right to a formal hearing before the State Water Control Board, and then a right of appeal to the Virginia Court of Appeals. Where the locality is a VSMP Authority, there may be a right to an administrative hearing before a local appeals board or designee. • Local hearings must be held in accordance with

existing procedures, so check local ordinances carefully.

• There is also the right to appeal to the Circuit Court, and then to the Court of Appeals.

Hearings and Appeals

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“SWPPP” is an umbrella term that requires the preparation of the following minimum documents:1. an erosion and sediment control plan ("E&S

Plan")(approved by the locality), 2. a stormwater management plan ("SWM Plan")

(approved by the VSMP authority), 3. a pollution prevention ("P2") plan for land-

disturbing activities, and 4. a description of any additional control measures

necessary to address a TMDL • a total maximum daily load of pollutants that

an impaired water body may receive under the federal Clean Water Act.

The SWPPP (Stormwater Pollution Prevention Plan)

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At minimum, P2 plans must include:• Measures to address nutrient and sediment

impairments related to construction activities• Schedules to address TMDLs (including the

Chesapeake Bay Watershed TMDL), increased operator inspections and a more aggressive stabilization schedule. • Nutrient applications must conform to manufacturer

recommendations or approved nutrient management plan.

• The SWPPP must be maintained at a central location onsite. If an onsite location is unavailable, notice of the SWPPP's location must be posted near the main entrance at the construction site.

The SWPPP (Stormwater Pollution Prevention Plan)

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• Once approved, General Permit coverage lasts for five (5) years. It terminates automatically unless coverage is reissued.

• For Operators covered under the 2009 Construction GP, DEQ is currently in the process of reissuing permit coverage

• Under the 2009 GP projects with stormwater BMPs meeting the state’s prior water quality and water quantity criteria (Part II C of the Stormwater Regulations) will continue to apply.

Obtaining coverage reissuance under the 2009 Construction GP

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To continue coverage under the former Construction GP Regulations, reissuance applications were due to DEQ by June 1, 2014. The Operator will have 60 days from the time permit coverage is issued to update the existing SWPPP. • A SWM plan meeting the prior technical criteria must

be prepared (if not previously done). • The SWM Plan does not need to be approved by the

VSMP Authority before General Permit coverage may be reissued.

• An approved E&S Plan must also be prepared• Does not need to be approved by the locality before

permit coverage can be reissued.

Obtaining coverage reissuance under the 2009 Construction GP (cont’d)

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The remaining portions of the SWPPP must still be prepared and must meet all 2014 Construction GP requirements (i.e., TMDL provisions where applicable).• Where 2009 GP coverage is reissued, “old” technical

criteria for water quality and water quantity will apply

• Lasts for an additional two permit cycles (of five (5) years each)

• So long as reissuance is obtained (under 2014 and 2019 permit cycles) • After ten (10) years, any portion of the project not

completed and still under construction will be subject to the new technical criteria of the Construction GP Regulations (as they may be amended)

Obtaining coverage reissuance under the 2009 Construction GP (cont’d)

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Grandfathered projects may be constructed in accordance with the technical criteria of existing Part II C of the Stormwater GP Regulations for one (1) additional Construction GP cycle (of 5 years). • After the expiration of the five years, any

portion of the project not under construction will be subject to the technical criteria adopted in Part II B.

Grandfathering

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In order to be "Grandfathered" there must be:• a proffered plan of development, or a preliminary

or final subdivision plat, or a preliminary or final site plan, or any document determined by the locality to be equivalent thereto that:• was approved by the locality prior to July 1, 2012,• provided a "layout" • met the Part II C technical criteria of the

Construction GP Regulations, and• had not been subsequently modified or amended

in a manner resulting in an increase in the amount of phosphorus leaving each point of discharge, and such that there is no increase in the volume or rate of runoff.

Grandfathering (cont’d)

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To be grandfathered there cannot be GP coverage issued prior to July 1, 2014, nor land disturbance prior to July 1, 2014.

• A "layout" means a conceptual drawing sufficient to provide for the specified stormwater management facilities required at the time of approval.

Grandfathering (cont’d)

MS-19 has been revised and now refers to SWM Part II B Water Quantity requirements

May impact SWM Plan approval for • Grandfathered projects and • Projects re-issued coverage under 2009

Construction General Permit

Important Change to E&S Regulations!

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CGP Coverage Should Be Terminated upon Project Completion

If Not Terminated:

• Coverage Continues Until 6/30/2019

• Maintenance Fees Paid on Anniversary Date of CGP Coverage

CGP Coverage Termination

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Project Completed

• BMP As-Built Surveys Submitted

• GIS Location of BMPs Submitted

• Long-Term BMP Maintenance Agreement Recorded

CGP Coverage Termination

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Submit CGP Termination Request

• VSMP Authority Inspects for Project Completion

• VSMP Authority Acts on Termination Request

CGP Coverage Termination

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Intent is to protect surface waters post- construction

The following criteria is now applied for Total Phosphorus (TP):

For New Development:• TP Less than or Equal to 0.41 lbs/acre/yr• Does NOT apply to Projects with 2009 CGP

Coverage or Grandfathered Projects

New Technical CriteriaWater Quality

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For Re-Development (with No Increase in Impervious Area):

• Less than 1 acre = 10% Reduction TP • (Common Plan of Development)

• One acre or more = 20% Reduction TP

For Re-Development (with Increase in Impervious Area):

• Must Meet TP for New Development• (0.41 lbs/acre/yr) for Increased Impervious Area

New Technical CriteriaWater Quality

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The TP load must be calculated using the "Virginia Runoff Reduction Method Spreadsheet”.

• The Virginia Runoff Reduction Method Spreadsheet is a compliance tool, not a design tool.

• The Spreadsheet calculates TP and stormwater runoff volume reductions required to meet the technical criteria.

Where the prior SWM Regulations addressed the TP load from impervious areas only, the new TP load must be applied to the entire site.

• This means that the TP loads associated with turf, trees, open area and impervious area must be included in the Spreadsheet calculations.

New Technical CriteriaWater Quality

Water Quality: Offsite Compliance Options for TP-Reductions

Offsite Compliance Allowed if One of Following Is Met:

• Land-Disturbance < 5 Acres• Post-Construction TP-Load < 10lbs/yr• TP-Reduction Onsite ≥75%

If TP-Reduction Onsite < 75%• Operator Must Prove Why Can’t Achieve More TP-

Reduction to Satisfaction of the VSMP Authority

Water Quality: Offsite Compliance Options (Continued)

Offsite Compliance Options Allowed to Meet TP-Reductions:

• Offsite Controls in a Comprehensive Watershed Management Plan within Same Local Watershed

• Locality Pollutant Pro Rata Share Program

• Nonpoint Nutrient Offset Program

• Offsite Options Approved by State Agency or State Board

• Offsite SWM BMPs on Operator-Owned Property in Same or Upstream HUC

Water Quantity Criteria of SWM Plan

Downstream properties to be protected after construction completed through the following criteria:

• Channel Protection

• Natural

• Manmade

• Restored

• Flood Protection

• No existing flooding

• Existing flooding

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• No Registration Statement Required

• No Payment of DEQ Portion of State Fee Required

• Agreement in Lieu of SWM Plan may be an option

New Rules for Single Family Detached Residential Structures

Disturbed Area (acres)

Statewide Fee 28% to DEQ

VSMP Authority Portion

≥ 2500 ft2 & < 1 (CBPA) $290 $0 $290

< 1 (common plan) $290 $81 or $0 $209 ≥ 1 & < 5 (single family) $290 $0 $209

≥ 1 & < 5 $2,700 $756 $1,944 ≥ 5 & < 10 $3,400 $952 or $0 $2,448 ≥ 10 & < 50 $4,500 $1,260 or $0 $3,240 ≥ 50 & < 100 $6,100 $1,708 or $0 $4,392 ≥ 100 $9,600 $2,688 or $0 $6,912

New Fees for Single Family Detached Residential Structures

Agreement in Lieu of a SWM Plan• Means “a contract between the VSMP authority and

the owner or permittee that specifies methods that shall be implemented to comply with the requirements of a VSMP for the construction of a single-family residence; such contract may be executed by the VSMP authority in lieu of a stormwater management plan”

Still subject to remaining VSMP requirements • Required to have General Permit coverage (“Notice

Coverage”)• Must meet technical criteria (Runoff Reduction

Method)• Technical criteria and Pollution Prevention Plan (PPP)

will still need to be addressed

New Rules for Single Family Detached Residential Structures

Common Plan of Development (CPD)• Current Guidance• Single family dwelling in CPD platted

before July 1, 2004, considered separate land-disturbing activities

• If land disturbance < one acre, GP coverage is not required.

• If land disturbance is greater than or equal to one acre• A SWM Plan or Agreement in Lieu of a

Plan is required unless• There is a SWM Plan implemented for

the larger plan that provides control measures encompassing the proposed residence.

New Rules for Single Family Detached Residential Structures (cont’d)

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• Post July 1, 2004• Single family dwellings (in CPD), regardless of

area of land disturbance must have: • A SWM Plan or Agreement in Lieu of a Plan or• A SWM Plan implemented for the larger plan that

provides control measures encompassing the proposed residence.

• New regulatory requirement• Developers required to implement comprehensive

SWM Plans after July 2014• So individual lot SWM plans and Agreements in

lieu may not be necessary

New Rules for Single Family Detached Residential Structures (cont’d)

Chesapeake Bay Preservation Act Localities • Must adopt requirements for Chesapeake Bay

Land Disturbing Activities • ≥ 2,500 sq ft < 1 acre

• May opt-in for ≥ 1 acreWhat is the extent of regulation required?• Technical criteria (water quality, water quantity,

Runoff Reduction Method)• Administration (plan reviews, inspections,

enforcement)• Long term maintenance agreements

Mandatory Requirements for CBPA Localities even where Opted-Out

• All Localities must provide general notice to applicants of state General Permit coverage requirement

• Must submit monthly report to DEQ for land disturbance > 1 acre

• Must require compliance with the stormwater flow rate capacity and velocity requirements set forth in the SWM Act

• Addresses Water Quantity (channel protection and

flooding)

Some Mandatory Requirements Remain in Place for All Localities

Questions?Ann Neil Cosby, Esq.

ANCosby@SandsAnderson.com(804) 783-7225

Jenny Johnson JJohnson@JoyceEngineering.com(804) 355-4520

Lee Hill LHill@JoyceEngineering.com (804) 355-4520