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, 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, General Assembly Actions

New legislation (HB 1170, SB 423): Enacted March 24, 2014 Amended Va. Code § :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

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

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; 13 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)

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

Man-Made Change to Land Surface that Potentially Changes its Runoff Characteristics Including Clearing, Grading, or Excavation Excluding Exemptions Specified in the SWM Ordinance 16 Definition of Land Disturbing Activity

No Issuance of Building Permit or Land Disturbing Permit until Proof of CGP Coverage is Provided or Obtained 17 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) 18 Purpose of Construction General Permit (CGP)

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. 19 Process for obtaining GP coverage when Locality is VSMP Authority

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 to the locality. The locality may issue the land disturbing permit upon receipt of this , provided fees are paid and bonds posted. No land disturbing activity can commence until the DEQ Construction GP coverage is received by the permittee. 20 Process for obtaining GP coverage when Locality is VSMP Authority

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 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. 21 Process for obtaining GP coverage when DEQ is VSMP Authority

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 22 Long-Term BMP Maintenance Agreements

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 23 Long-Term BMP Maintenance Agreements

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 24 Timelines for Review of SWM Plan by VSMP Authority

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 25 VSMP Authority Inspections

VSMP Authority Can Utilize: Notice of Violation Stop Work Order Activation of Performance Bond, if Available Other Actions Provided in Ordinance 26 Enforcement

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. 27 Hearings and Appeals

“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. 28 The SWPPP (Stormwater Pollution Prevention Plan)

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. 29 The SWPPP (Stormwater Pollution Prevention Plan)

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. 30 Obtaining coverage reissuance under the 2009 Construction GP

To continue coverage under the former Construction GP Regulations, reissuance applications were due to DEQ by June 1, 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. 31 Obtaining coverage reissuance under the 2009 Construction GP (cont’d)

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

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. 33 Grandfathering

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. 34 Grandfathering (cont’d)

To be grandfathered there cannot be GP coverage issued prior to July 1, 2014, nor land disturbance prior to July 1, A "layout" means a conceptual drawing sufficient to provide for the specified stormwater management facilities required at the time of approval. 35 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!

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 37 CGP Coverage Termination

Project Completed BMP As-Built Surveys Submitted GIS Location of BMPs Submitted Long-Term BMP Maintenance Agreement Recorded 38 CGP Coverage Termination

Submit CGP Termination Request VSMP Authority Inspects for Project Completion VSMP Authority Acts on Termination Request 39 CGP Coverage Termination

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 40 New Technical Criteria Water Quality

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 41 New Technical Criteria Water Quality

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. 42 New Technical Criteria Water 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

No Registration Statement Required No Payment of DEQ Portion of State Fee Required Agreement in Lieu of SWM Plan may be an option 46 New Rules for Single Family Detached Residential Structures

Disturbed Area (acres) Statewide Fee 28% to DEQ VSMP Authority Portion ≥ 2500 ft 2 & < 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)

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 50 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 acre What 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, (804) Jenny (804) Lee (804)