CHAPTER 819
An Act to amend and reenact §§ 10.1-560 through
10.1-566.1, 10.1-567 through 10.1-571, 10.1-603.2, 10.1-603.2:1 through
10.1-603.4:1, 10.1-603.5 through 10.1-603.8:1, 10.1-603.11 through
10.1-603.12:4, 10.1-603.12:6, 10.1-603.12:7, 10.1-603.13, 10.1-603.14,
10.1-603.14:1, 10.1-603.15, 10.1-659, 10.1-2101, 10.1-2106, 10.1-2107,
10.1-2129, and 62.1-195.1 of the Code of Virginia; to amend the Code of
Virginia by adding sections numbered 10.1-566.2, 10.1-603.4:2, and 10.1-2104.1;
and to repeal §§ 10.1-572, 10.1-573, 10.1-603.9, 10.1-2102, and 10.1-2112
of the Code of Virginia, relating to integrating the Erosion and Sediment Control
Act, the Stormwater Management Act, and the Chesapeake Bay Preservation Act.
[S 407]
Approved April 18, 2012
Be it enacted by the General Assembly of Virginia:
1. That §§ 10.1-560 through 10.1-566.1, 10.1-567
through 10.1-571, 10.1-603.2, 10.1-603.2:1 through 10.1-603.4:1, 10.1-603.5
through 10.1-603.8:1, 10.1-603.11 through 10.1-603.12:4, 10.1-603.12:6,
10.1-603.12:7, 10.1-603.13, 10.1-603.14, 10.1-603.14:1, 10.1-603.15, 10.1-659,
10.1-2101, 10.1-2106, 10.1-2107, 10.1-2129, and 62.1-195.1 of the Code of
Virginia are amended and reenacted and that the Code of Virginia is amended by
adding sections numbered 10.1-566.2, 10.1-603.4:2, and 10.1-2104.1 as follows:
§ 10.1-560. Definitions.
As used in this article, unless the context requires a
different meaning:
"Agreement in lieu of a plan" means a contract
between the plan-approving authority and the owner that specifies conservation
measures that must be implemented in the construction of a single-family
residence; this contract may be executed by the plan-approving authority in
lieu of a formal site plan.
"Applicant" means any person submitting an erosion
and sediment control plan for approval or requesting the issuance of a permit,
when required, authorizing land-disturbing activities to commence.
"Certified inspector" means an employee or agent of
a program VESCP authority who (i) holds a certificate of
competence from the Board in the area of project inspection or (ii) is enrolled
in the Board's training program for project inspection and successfully
completes such program within one year after enrollment.
"Certified plan reviewer" means an employee or agent
of a program VESCP authority who (i) holds a certificate of
competence from the Board in the area of plan review, (ii) is enrolled in the
Board's training program for plan review and successfully completes such
program within one year after enrollment, or (iii) is licensed as a
professional engineer, architect, landscape architect, or land surveyor
pursuant to Article 1 (§ 54.1-400 et seq.) of Chapter 4 of Title 54.1,
or professional soil scientist as defined in § 54.1-2200.
"Certified program administrator" means an employee
or agent of a program VESCP authority who (i) holds a certificate
of competence from the Board in the area of program administration or (ii) is
enrolled in the Board's training program for program administration and
successfully completes such program within one year after enrollment.
"Conservation plan," "erosion and sediment
control plan," or "plan" means a document containing material
for the conservation of soil and water resources of a unit or group of units of
land. It may include appropriate maps, an appropriate soil and water plan
inventory and management information with needed interpretations, and a record
of decisions contributing to conservation treatment. The plan shall contain all
major conservation decisions to assure that the entire unit or units of land
will be so treated to achieve the conservation objectives.
"District" or "soil and water conservation district"
means a political subdivision of the Commonwealth organized in accordance with
the provisions of Article 3 (§ 10.1-506 et seq.) of this chapter.
"Erosion and sediment control plan," or
"plan," means a document containing material for the conservation of
soil and water resources of a unit or group of units of land. It may include
appropriate maps, an appropriate soil and water plan inventory and management
information with needed interpretations, and a record of decisions contributing
to conservation treatment. The plan shall contain all major conservation
decisions to ensure that the entire unit or units of land will be so treated to
achieve the conservation objectives.
"Erosion impact area" means an area of land not
associated with current land-disturbing activity but subject to persistent soil
erosion resulting in the delivery of sediment onto neighboring properties or
into state waters. This definition shall not apply to any lot or parcel of land
of 10,000 square feet or less used for residential purposes or to shorelines
where the erosion results from wave action or other coastal processes.
"Land-disturbing activity" means any man-made
change to the land change surface that may result in soil
erosion from water or wind and the movement of sediments into state waters or
onto lands in the Commonwealth, including, but not limited to, clearing,
grading, excavating, transporting and filling of land, except that the term
shall not include:
1. Minor land-disturbing activities such as home gardens and
individual home landscaping, repairs and maintenance work;
2. Individual service connections;
3. Installation, maintenance, or repair of any underground
public utility lines when such activity occurs on an existing hard surfaced
road, street or sidewalk provided the land-disturbing activity is confined to
the area of the road, street or sidewalk that is hard surfaced;
4. Septic tank lines or drainage fields unless included in an
overall plan for land-disturbing activity relating to construction of the building
to be served by the septic tank system;
5. Surface or deep mining activities authorized under a
permit issued by the Department of Mines, Minerals and Energy;
6. Exploration or drilling for oil and gas including the
well site, roads, feeder lines and off-site disposal areas Permitted
surface or deep mining operations and projects, or oil and gas operations and
projects conducted pursuant to Title 45.1;
7 6. Tilling, planting, or harvesting of
agricultural, horticultural, or forest crops, or livestock feedlot
operations;, or as additionally set forth by the Board in regulation,
including engineering operations as follows: 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; however, this exception shall not apply to harvesting of
forest crops unless the area on which harvesting occurs is reforested
artificially or naturally in accordance with the provisions of Chapter 11
(§ 10.1-1100 et seq.) of this title or is converted
to bona fide agricultural or improved pasture use as described in subsection B
of § 10.1-1163;
8 7. Repair or rebuilding of the tracks,
right-of-way, bridges, communication facilities and other related structures
and facilities of a railroad company;
9 8. Agricultural engineering operations,
including but not limited to the construction of terraces, terrace outlets,
check dams, desilting basins, dikes, ponds not required to comply with the
provisions of the Dam Safety Act, Article 2 (§ 10.1-604 et seq.) of
Chapter 6 of this title, ditches, strip cropping, lister
furrowing, contour cultivating, contour furrowing, land drainage and land
irrigation;
10 9. Disturbed land areas of less than 10,000
square feet in size or 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 Chesapeake Bay Preservation Act
(§ 10.1-2100 et seq.); however, the governing body of the program
authority may reduce this exception to a smaller area of disturbed land or
qualify the conditions under which this exception shall apply;
11 10. Installation of fence and sign posts or
telephone and electric poles and other kinds of posts or poles;
12 11. Shoreline erosion control projects on
tidal waters when all of the land disturbing land-disturbing
activities are within the regulatory authority of and approved by local
wetlands boards, the Marine Resources Commission or the United States Army
Corps of Engineers; however, any associated land that is disturbed outside of
this exempted area shall remain subject to this article and the regulations
adopted pursuant thereto; and
13 12. Emergency work to protect life, limb or
property, and emergency repairs; however, if the land-disturbing activity would
have required an approved erosion and sediment control plan, if the activity
were not an emergency, then the land area disturbed shall be shaped and stabilized
in accordance with the requirements of the plan-approving VESCP
authority.
"Local erosion and sediment control program" or
"local control program" means an outline of the various methods
employed by a program authority to regulate land-disturbing activities and
thereby minimize erosion and sedimentation in compliance with the state program
and may include such items as local ordinances, policies and guidelines,
technical materials, inspection, enforcement and evaluation.
"Natural channel design concepts" means the
utilization of engineering analysis and fluvial geomorphic processes to create,
rehabilitate, restore, or stabilize an open conveyance system for the purpose
of creating or recreating a stream that conveys its bankfull storm event within
its banks and allows larger flows to access its bankfull bench and its
floodplain.
"Owner" means the owner or owners of the freehold of
the premises or lesser estate therein, a mortgagee or vendee in possession,
assignee of rents, receiver, executor, trustee, lessee or other person, firm or
corporation in control of a property.
"Peak flow rate" means the maximum instantaneous
flow from a given storm condition at a particular location.
"Permittee" means the person to whom the local
permit authorizing land-disturbing activities is issued or the person who
certifies that the approved erosion and sediment control plan will be followed.
"Person" means any individual, partnership, firm,
association, joint venture, public or private corporation, trust, estate,
commission, board, public or private institution, utility, cooperative, county,
city, town, or other political subdivision of the Commonwealth, governmental
body, including a federal or state entity as applicable, any interstate
body, or any other legal entity.
"Plan-approving authority" means the Board, the
program authority, or a department of a program authority, responsible for
determining the adequacy of a conservation plan submitted for land-disturbing
activities on a unit or units of lands and for approving plans.
"Program authority" means a district, county,
city, or town that has adopted a soil erosion and sediment control program that
has been approved by the Board.
"Runoff volume" means the volume of water that runs
off the land development project from a prescribed storm event.
"State erosion and sediment control program" or
"state program" means the program administered by the Board pursuant
to this article, including regulations designed to minimize erosion and
sedimentation.
"State waters" means all waters on the surface and
under the ground wholly or partially within or bordering the Commonwealth or
within its jurisdiction.
"Town" means an incorporated town.
"Virginia Erosion and Sediment Control Program,"
or "VESCP," means a program approved by the Board that has been
established by a VESCP authority for the effective control of soil erosion,
sediment deposition, and nonagricultural runoff associated with a
land-disturbing activity to prevent the unreasonable degradation of properties,
stream channels, waters, and other natural resources and shall include such
items where applicable as local ordinances, rules, permit requirements, annual
standards and specifications, policies and guidelines, technical materials, and
requirements for plan review, inspection, enforcement where authorized in this
article, and evaluation consistent with the requirements of this article and
its associated regulations.
"Virginia Erosion and Sediment Control Program
authority," or "VESCP authority," means an authority approved by
the Board to operate a Virginia Erosion and Sediment Control Program. An
authority may include a state entity, including the Department; a federal
entity; a district, county, city, or town; or for linear projects subject to
annual standards and specifications, electric, natural gas and telephone
utility companies, interstate and intrastate natural gas pipeline companies,
railroad companies, or authorities created pursuant to § 15.2-5102.
"Water quality volume" means the volume equal to the
first one-half inch of runoff multiplied by the impervious surface of the land
development project.
§ 10.1-561. Virginia erosion and sediment control
program.
A. The Board shall develop a program and promulgate adopt
regulations in accordance with the Administrative Process Act (§ 2.2-4000
et seq.) for the effective control of soil erosion, sediment deposition,
and nonagricultural runoff that must be met in any control program to prevent
the unreasonable degradation of properties, stream channels, waters, and
other natural resources in accordance with the Administrative
Process Act (§ 2.2-4000 et seq.).
Stream restoration and relocation projects that incorporate natural channel
design concepts are not man-made channels and shall be exempt from any flow
rate capacity and velocity requirements for natural or man-made channels as
defined in any regulations promulgated pursuant to this section,
§ 10.1-562, or 10.1-570. Any land-disturbing activity plan
approved prior to July 1, 2014, that provides for stormwater management intended
to address that addresses any flow rate capacity and
velocity requirements for natural or man-made channels shall satisfy the flow
rate capacity and velocity requirements for natural or man-made channels if the
practices are designed to (i) detain the water quality volume and to release it
over 48 hours; (ii) detain and release over a 24-hour period the expected
rainfall resulting from the one year, 24-hour storm; and (iii) reduce the
allowable peak flow rate resulting from the 1.5, 2, and 10-year, 24-hour storms
to a level that is less than or equal to the peak flow rate from the site
assuming it was in a good forested condition, achieved through multiplication
of the forested peak flow rate by a reduction factor that is equal to the runoff
volume from the site when it was in a good forested condition divided by the
runoff volume from the site in its proposed condition, and shall be exempt from
any flow rate capacity and velocity requirements for natural or man-made
channels as defined in any regulations promulgated pursuant to § 10.1-562
or 10.1-570. For plans approved on and after July 1, 2014, the flow rate
capacity and velocity requirements of this subsection shall be satisfied by
compliance with water quantity requirements in the Stormwater Management Act
(§ 10.1-603.2 et seq.) and attendant regulations, unless such
land-disturbing activities are in accordance with 4 VAC 50-60-48 of the
Virginia Stormwater Management Program (VSMP) Permit Regulations.
The regulations shall:
1. Be based upon relevant physical and developmental
information concerning the watersheds and drainage basins of the Commonwealth,
including, but not limited to, data relating to land use, soils, hydrology,
geology, size of land area being disturbed, proximate water bodies and their
characteristics, transportation, and public facilities and services;
2. Include such survey of lands and waters as may be deemed
appropriate by the Board or required by any applicable law to identify areas,
including multijurisdictional and watershed areas, with critical erosion and
sediment problems; and
3. Contain conservation standards for various types of soils
and land uses, which shall include criteria, techniques, and methods for the
control of erosion and sediment resulting from land-disturbing activities.
B. The Board shall provide technical assistance and advice to,
and conduct and supervise educational programs for, districts and
localities that have adopted local control
programs VESCP authorities.
C. The program and regulations shall
be available for public inspection at
the Department.
D. The Board shall promulgate adopt
regulations establishing minimum standards of effectiveness of erosion and
sediment control programs, and criteria and procedures for reviewing and
evaluating the effectiveness of erosion and sediment control
programs VESCPs. In developing minimum standards for program
effectiveness, the Board shall consider information and standards on which the
regulations promulgated pursuant to subsection A of this section
are based.
E. D. The Board shall approve VESCP
authorities and shall periodically conduct a comprehensive program
compliance review and evaluation to ensure that all erosion and
sediment control programs VESCPs operating under
the jurisdiction of this article meet minimum standards of effectiveness in
controlling soil erosion, sediment deposition and nonagricultural runoff. The Board
Department shall develop a schedule for conducting periodic reviews and
evaluations of the effectiveness of erosion and sediment control
programs VESCPs unless otherwise directed by the Board. Such reviews
where applicable shall be coordinated with those being implemented in
accordance with the Stormwater Management Act (§ 10.1-603.2 et seq.) and
associated regulations and the Chesapeake Bay Preservation Act
(§ 10.1-2100 et seq.) and associated regulations. The Department may also
conduct a comprehensive or partial program compliance review and evaluation of
a VESCP at a greater frequency than the standard schedule.
F. E. The Board shall issue certificates of
competence concerning the content, application and intent of specified subject
areas of this chapter and accompanying regulations, including program
administration, plan review, and project inspection, to personnel of program
authorities and to any other persons who have completed training programs or in
other ways demonstrated adequate knowledge. The Department shall administer
education and training programs for specified subject areas of this chapter and
accompanying regulations, and is authorized to charge persons attending such
programs reasonable fees to cover the costs of administering the programs. Such
education and training programs shall also contain expanded components to
address plan review and project inspection elements of the Virginia Stormwater
Management Act and attendant regulations in accordance with
§ 10.1-603.4:2.
G. As of December 31, 2004,
any F. Department personnel conducting inspections pursuant to
this chapter shall hold a certificate of competence as provided in subsection F
E.
G. The Board may delegate to the Department any of the
powers and duties vested in it by this article except the adoption of
regulations. Delegation shall not remove the Board's authority to enforce the
provisions of this article.
§ 10.1-561.1. Certification of program personnel.
A. The minimum standards of local program VESCP
effectiveness established by the Board pursuant to subsection D C
of § 10.1-561 shall provide that within one year
following the adoption of amendments to
the local program adding the provisions
of this section, (i) a conservation an
erosion and sediment control plan shall not be approved until it is
reviewed by a certified plan reviewer; (ii) inspections of land-disturbing
activities are shall be conducted by a certified inspector; and
(iii) a local program VESCP shall contain a certified
program administrator, a certified plan reviewer, and a certified project
inspector, who may be the same person.
B. Any person who holds a certificate of competence from the
Board in the areas of plan review, project inspection, or program
administration which was attained prior to the adoption of the mandatory
certification provisions of subsection A of this section
shall be deemed to satisfy the requirements of that area of certification.
C. Professionals registered in the Commonwealth pursuant to
Article 1 (§ 54.1-400 et seq.) of Chapter 4 of Title 54.1 or a
professional soil scientist as defined in § 54.1-2200 shall be deemed to
satisfy the certification requirements for the purposes of renewals.
§ 10.1-562. Establishment of Virginia erosion and
sediment control programs.
A. Each district in the Commonwealth shall adopt and
administer an erosion and sediment control program for any area within the
district for which a county, city, or town does not have an approved erosion
and sediment control program.
To carry out its program the district shall adopt
regulations consistent with the state program. The regulations may be revised
from time to time as necessary. Before adopting or revising regulations, the
district shall give due notice and conduct a public hearing on the proposed or
revised regulations except that a public hearing shall not be required when the
district is amending its program to conform to revisions in the state program.
However, a public hearing shall be held if a district proposes or revises
regulations that are more stringent than the state program. The program and
regulations shall be available for public inspection at the principal office of
the district.
B. In areas where there is no district, a county, city, or
town shall adopt and administer an erosion and sediment control program.
C. Any county, city, or town within a district may Counties
and cities shall adopt and administer an erosion and sediment
control program a VESCP.
Any town, lying within a county which has adopted its own erosion
and sediment control program VESCP, may
adopt its own program or shall become subject to the county program. If
a town lies within the boundaries of more than one county, the town shall be
considered for the purposes of this article to be wholly within the county in
which the larger portion of the town lies. Any county, city, or town with an
erosion and sediment control program may designate its department of public
works or a similar local government department as the plan-approving authority
or may designate the district as the plan-approving authority for all or some
of the conservation plans.
B. A VESCP authority may enter into agreements or contracts
with soil and water conservation districts, adjacent localities, or other
public or private entities to assist with carrying out the provisions of this
article, including the review and determination of adequacy of erosion and
sediment control plans submitted for land-disturbing activities on a unit or
units of land as well as for monitoring, reports, inspections, and enforcement
where authorized in this article, of such land-disturbing activities.
D C. Any erosion and sediment
control program VESCP adopted by a district,
county, city, or town shall be approved by the Board if it is establishes
by ordinance requirements that are consistent with the state program
and regulations for erosion and sediment
control this article and associated regulations.
D. Each approved VESCP operated by a county, city, or town
shall include provisions for the integration of the VESCP with Virginia
stormwater management, flood insurance, flood plain management, and other
programs requiring compliance prior to authorizing a land-disturbing activity
in order to make the submission and approval of plans, issuance of permits,
payment of fees, and coordination of inspection and enforcement activities more
convenient and efficient both for the local governments and those responsible
for compliance with the programs.
E. The Board may approve a state entity, federal entity,
or, for linear projects subject to annual standards and specifications,
electric, natural gas, and telephone utility companies, interstate and
intrastate natural gas pipeline companies, railroad companies, or authorities
created pursuant to § 15.2-5102 to operate a VESCP consistent with the
requirements of this article and its associated regulations and the VESCP
authority's Department-approved annual standards and specifications. For these
programs, enforcement shall be administered by the Department and the Board
where applicable in accordance with the provisions of this article.
E F. Following completion of a compliance
review of a VESCP in accordance with subsection D of § 10.1-561, the
Department shall provide results and compliance recommendations to the Board in
the form of a corrective action agreement if deficiencies are found; otherwise,
the Board may find the program compliant. If a comprehensive or partial
program compliance review conducted by the Board Department
of a local control program VESCP indicates that the
program VESCP authority has not administered, enforced where
authorized to do so, or conducted its program VESCP in a
manner that satisfies the minimum standards of effectiveness established
pursuant to subsection D C of § 10.1-561, the Board shall notify
the program authority in writing, which
notice shall identify corrective action establish
a schedule for the VESCP authority to come into compliance. The Board shall
provide a copy of its decision to the VESCP authority that specifies the
deficiencies, actions needed to be taken, and the approved compliance schedule
required to attain the minimum standard of effectiveness and shall include an
offer to provide technical assistance to implement the corrective action. If
the program VESCP authority has not implemented the corrective
action necessary compliance actions identified by the Board
within 30 days following receipt of the notice corrective action
agreement, or such additional period as is necessary granted
to complete the implementation of the corrective action, then the Board shall
have the authority to (i) issue a special order to any locality that has
failed to enter into a corrective action agreement or, where such corrective
action agreement exists, has failed to initiate or has not made substantial and
consistent progress towards implementing an approved corrective action
agreement within the deadline established by the Board to pay VESCP,
imposing a civil penalty not to exceed $5,000 per day with the maximum
amount not to exceed $20,000 per violation for noncompliance with the state
program, to be paid into the state treasury and deposited in the Virginia
Stormwater Management Fund established by § 10.1-603.4:1 or (ii) revoke
its approval of the program. Prior to issuing a special order or revoking
its approval of any local control program, the Board shall conduct a formal
hearing pursuant to § 2.2-4020 of the Administrative Process Act. Judicial
review of any order of the Board issuing a civil penalty pursuant to this
section or revoking its approval of a local control program shall be made in
accordance with Article 5 (§ 2.2-4025 et seq.) of the VESCP.
The Administrative Process Act (§ 2.2-4000 et seq.) shall govern
the activities and proceedings of the Board and the judicial review thereof.
In lieu of issuing a special order or revoking the program,
the Board is authorized to take legal action against a VESCP to ensure
compliance.
F G. If the Board revokes its approval of a
local control program the VESCP of a county, city,
or town, and the locality is in a district, the district, upon approval of
the Board, shall adopt and administer an erosion and sediment
control program a VESCP for the locality. To carry out
its program, the district shall adopt regulations in accordance with the
Administrative Process Act (§ 2.2-4000 et seq.) consistent with this
article and associated regulations. The regulations may be revised from time to
time as necessary. The program and regulations shall be available for public
inspection at the principal office of the district.
G H. If the Board (i) revokes its approval of a local
control program VESCP of a district, or of a county, city,
or town not in a district, or (ii) finds that a local program consistent with the
state program this article and associated
regulations has not been adopted by a district or a county, city, or town which
is required to adopt and administer a local program VESCP,
the Board shall, after such hearings or consultations as it deems
appropriate with the various local interests involved, develop, adopt, and
administer an appropriate program to be carried out within such district,
county, city, or town, as applicable, by the Board find the VESCP
authority provisional, and have the Department assist with the administration
of the program until the Board finds the VESCP authority compliant with the
requirements of this article and associated regulations. Assisting with
administration includes but is not limited to the ability to review and comment
on plans to the VESCP authority, to conduct inspections with the VESCP
authority, and to conduct enforcement in accordance with this article and
associated regulations.
H. If the Board has revoked its approval of any local
control program, the program authority may request that the Board approve a
replacement program, and the Board shall approve the replacement program if it
finds that (i) the program authority is capable of administering the program in
accordance with the minimum standards of effectiveness and (ii) the replacement
program otherwise meets the requirements of the state program and regulations.
The Board shall conduct a formal hearing pursuant to § 2.2-4020 of
the Administrative Process Act on any request for approval of a replacement
program.
I. If the Board revokes its approval of a state entity,
federal entity, or, for linear projects subject to annual standards and
specifications, electric, natural gas, and telephone utility companies,
interstate and intrastate natural gas pipeline companies, railroad companies,
or authorities created pursuant to § 15.2-5102, the Board shall find the
VESCP authority provisional, and have the Department assist with the
administration of the program until the Board finds the VESCP authority
compliant with the requirements of this article and associated regulations.
Assisting with administration includes the ability to review and comment on
plans to the VESCP authority and to conduct inspections with the VESCP
authority in accordance with this article and associated regulations.
J. Any program VESCP authority which
administers an erosion and sediment control program may charge applicants a
reasonable fee to defray the cost of program administration. Such fee may be
in addition to any fee charged for administration of a Virginia stormwater
management program, although payment of fees may be consolidated in order to
provide greater convenience and efficiency for those responsible for compliance
with the programs. A program VESCP authority shall hold a
public hearing prior to enacting an ordinance establishing
a schedule of fees. The fee shall not exceed an amount commensurate with the
services rendered, taking into consideration the time, skill, and administrators'
the VESCP authority's expense involved.
J K. The governing body of any county, city,
or town, or a district board which (i) is in a
district which has adopted a local control
program, (ii) has adopted its own local
control program, (iii) is subject to a
local control program adopted by the Board,
or (iv) administers a local control program
is authorized to administer a VESCP, may adopt an ordinance or
regulation where applicable providing that violations of any regulation or
order of the Board, any provision of its program, any condition of a permit, or
any provision of this article shall be subject to a civil penalty. The civil
penalty for any one violation shall be not less than $100 nor more than $1,000.
Each day during which the violation is found to have existed shall constitute a
separate offense. In no event shall a series of specified violations arising
from the same operative set of facts result in civil penalties which exceed a
total of $10,000, except that a series of violations arising from the
commencement of land-disturbing activities without an approved plan for any
site shall not result in civil penalties which exceed a total of $10,000.
Adoption of such an ordinance providing that violations are subject to a civil
penalty shall be in lieu of criminal sanctions and shall preclude the
prosecution of such violation as a misdemeanor under subsection A of
§ 10.1-569. The penalties set out in this subsection are also available
to the Department in its enforcement actions.
§ 10.1-563. Regulated land-disturbing activities;
submission and approval of erosion and sediment control plan.
A. Except as provided in § 10.1-564 for state agency
and federal entity land-disturbing activities, no person may engage in any
land-disturbing activity until he has submitted to the district or
locality VESCP authority an erosion and sediment control plan for
the land-disturbing activity and the plan has been reviewed and approved by
the plan-approving authority. Upon the development of
an online reporting system by the Department, but no later than July 1, 2014, a
VESCP authority shall then be required to obtain evidence of state Virginia
Stormwater Management Program permit coverage where it is required prior to
providing approval to begin land disturbance. Where land-disturbing
activities involve lands under the jurisdiction of more than one local control
program VESCP, an erosion and sediment control plan may, at the option
of the applicant request of one or all of the VESCP
authorities, be submitted to the Board Department for review
and approval rather than to each jurisdiction concerned. The Department may
charge the jurisdictions requesting the review a fee sufficient to cover the
cost associated with conducting the review. A VESCP may enter into an agreement
with an adjacent VESCP regarding the administration of multi-jurisdictional
projects whereby the jurisdiction that contains the greater portion of the
project shall be responsible for all or part of the administrative procedures. Where
the land-disturbing activity results from the construction of a single-family
residence, an agreement in lieu of a plan may be substituted for an erosion and
sediment control plan if executed by the plan-approving authority.
B. The plan-approving VESCP authority shall review
conservation erosion and sediment control plans submitted to it
and grant written approval within 45 60 days of the receipt of
the plan if it determines that the plan meets the requirements of this
article and the Board's regulations and if the person responsible for
carrying out the plan certifies that he will properly perform the conservation
erosion and sediment control measures included in the plan and will conform
to shall comply with the provisions of this article. In addition,
as a prerequisite to engaging in the land-disturbing activities shown on the
approved plan, the person responsible for carrying out the plan shall provide
the name of an individual holding a certificate of competence to the program
authority, as provided by § 10.1-561, who will be in charge of and
responsible for carrying out the land-disturbing activity. However, any plan-approving
VESCP authority may waive the certificate of competence requirement for an
agreement in lieu of a plan for construction of a single family residence. If a
violation occurs during the land-disturbing activity, then the person
responsible for carrying out the agreement in lieu of a plan shall correct the
violation and provide the name of an individual holding a certificate of
competence, as provided by § 10.1-561. Failure to provide the name of an
individual holding a certificate of competence prior to engaging in
land-disturbing activities may result in revocation of the approval of the plan
and the person responsible for carrying out the plan shall be subject to the
penalties provided in this article.
When a plan is determined to be inadequate, written notice of
disapproval stating the specific reasons for disapproval shall be communicated
to the applicant within 45 days. The notice shall specify the modifications,
terms and conditions that will permit approval of the plan. If no action is
taken by the plan-approving VESCP authority within the time
specified above, the plan shall be deemed approved and the person authorized to
proceed with the proposed activity. The VESCP authority shall act on any
erosion and sediment control plan that has been previously disapproved within
45 days after the plan has been revised, resubmitted for approval, and deemed
adequate.
C. An approved plan may be changed
by the authority that approved the plan
The VESCP authority may require changes to an approved plan in the
following cases:
1. Where inspection has revealed that the plan is inadequate
to satisfy applicable regulations; or
2. Where the person responsible for carrying out the approved
plan finds that because of changed circumstances or for other reasons the
approved plan cannot be effectively carried out, and proposed amendments to the
plan, consistent with the requirements of this article and associated regulations,
are agreed to by the plan-approving VESCP authority and the
person responsible for carrying out the plan.
D. Electric, natural gas and telephone utility companies,
interstate and intrastate natural gas pipeline companies, and railroad
companies shall, and authorities created pursuant to § 15.2-5102 may, file
general erosion and sediment control standards and specifications
annually with the Board Department for review and approval. Such
standards and specifications shall be consistent with the requirements of this
article and associated regulations and the Stormwater Management Act
(§ 10.1-603.2 et seq.) and associated regulations where applicable. The
specifications shall apply to:
1. Construction, installation or maintenance of electric
transmission, natural gas and telephone utility lines and pipelines, and water
and sewer lines; and
2. Construction of the tracks, rights-of-way, bridges,
communication facilities and other related structures and facilities of the
railroad company.
The Board Department shall have 60 days in which
to approve the standards and specifications. If no action is taken by
the Board Department within 60 days, the standards and specifications
shall be deemed approved. Individual approval of separate projects within
subdivisions 1 and 2 of this subsection is not necessary
when approved specifications are followed. Projects not included in
subdivisions 1 and 2 of this subsection shall comply with
the requirements of the appropriate local erosion and sediment
control program VESCP. The Board shall have the authority
to enforce approved specifications and charge fees equal to the lower of (i)
$1,000 or (ii) an amount sufficient to cover the costs associated with standard
and specification review and approval, project inspections, and compliance.
E. Any person engaging, in more than one jurisdiction, in the
creation and operation of a wetland mitigation or stream restoration bank
or banks, which have been approved and are operated in accordance with
applicable federal and state guidance, laws, or regulations for the
establishment, use, and operation of wetlands mitigation or stream restoration
banks, pursuant to a mitigation banking instrument signed by the Department of
Environmental Quality, the Marine Resources Commission, or the U.S. Army Corps
of Engineers, may, at the option of that person, file general erosion and
sediment control standards and specifications for wetland mitigation or
stream restoration banks annually with the Board Department for
review and approval consistent with guidelines established by the Board.
The Board Department shall have 60 days in which
to approve the specifications. If no action is taken by the Board
Department within 60 days, the specifications shall be deemed approved.
Individual approval of separate projects under this subsection is not necessary
when approved specifications are implemented through a project-specific erosion
and sediment control plan. Projects not included in this subsection shall
comply with the requirements of the appropriate local erosion and sediment
control program. The Board shall have the authority to enforce approved
specifications and charge fees equal to the lower of (i) $1,000 or (ii) an
amount sufficient to cover the costs associated with standard and specification
review and approval, projection inspections, and compliance. Approval of
general erosion and sediment control specifications by the Board
Department does not relieve the owner or operator from compliance with any
other local ordinances and regulations including requirements to submit plans
and obtain permits as may be required by such ordinances and regulations.
F. In order to prevent further erosion, a local program
VESCP authority may require approval of a conservation an
erosion and sediment control plan for any land identified in the
local program by the VESCP authority as an erosion impact
area.
G. For the purposes of subsections A and B of this
section, when land-disturbing activity will be required of a contractor
performing construction work pursuant to a construction contract, the
preparation, submission and approval of an erosion and sediment control plan
shall be the responsibility of the owner.
§ 10.1-564. State agency and federal entity projects.
A. A state agency shall not undertake a project involving a
land-disturbing activity unless (i) the state agency has submitted annual standards
and specifications for its conduct of land-disturbing activities which have
been reviewed and approved by the Department as being consistent with the
state program this article and associated regulations or
(ii) the state agency has submitted a conservation an erosion
and sediment control plan for the project which has been reviewed and
approved by the Department. When a federal entity submits an erosion and sediment
control plan for a project, land disturbance shall not commence until the
Department has reviewed and approved the plan.
B. The Department shall not approve a conservation
an erosion and sediment control plan submitted by a federal or
state agency or federal entity for a project involving a land-disturbing
activity (i) in any locality which has not adopted a local program with more
stringent regulations than those of the state program or (ii) in multiple
jurisdictions with separate local programs, unless the conservation
erosion and sediment control plan is consistent with the requirements of
the state program.
C. The Department shall not approve a conservation
an erosion and sediment control plan submitted by a federal or
state agency or federal entity for a project involving a land-disturbing
activity in one locality with a local program with more stringent regulations
ordinances than those of the state program unless the conservation
erosion and sediment control plan is consistent with the requirements of
the local program. If a locality has not submitted a copy of its local program
regulations to the Department, the provisions of subsection B of this
section shall apply.
D. The Department shall have sixty 60 days in
which to comment on any standards and specifications or conservation
erosion and sediment control plan submitted to it for review, and its
comments shall be binding on the state agency and any private business hired by
the state agency.
E. As on-site changes occur, the state agency shall submit
changes in a conservation an erosion and sediment control
plan to the Department.
F. The state agency responsible for the land-disturbing
activity shall ensure compliance with the an approved plan or
specifications and the Department and Board, where applicable, shall
provide project oversight and enforcement as necessary.
G. If the state agency or federal entity has developed, and
the Department has approved, annual standards and specifications, and the state
agency or federal entity has been approved by the Board to operate a VESCP as a
VESCP authority, erosion and sediment control plan review and approval and
land-disturbing activity inspections shall be conducted by such entity. The
Department and the Board, where applicable, shall provide project oversight and
enforcement as necessary and comprehensive program compliance review and
evaluation. Such standards and specifications shall be consistent with the
requirements of this article and associated regulations and the Stormwater
Management Act (§ 10.1-603.2 et seq.) and associated regulations when
applicable.
§ 10.1-565. Approved plan required for issuance of
grading, building, or other permits; security for performance.
Agencies authorized under any other law to issue grading,
building, or other permits for activities involving land-disturbing activities regulated
under this article may not issue any such permit unless the applicant
submits with his application an approved erosion and sediment control plan and
certification that the plan will be followed and, upon the development of an
online reporting system by the Department but no later than July 1, 2014,
evidence of Virginia stormwater management state permit coverage where it is
required. Prior to issuance of any permit, the agency may also require an
applicant to submit a reasonable performance bond with surety, cash escrow,
letter of credit, any combination thereof, or such other legal arrangement
acceptable to the agency, to ensure that measures could be taken by the agency
at the applicant's expense should he fail, after proper notice, within the time
specified to initiate or maintain appropriate conservation action which may be
required of him by the approved plan as a result of his land-disturbing
activity. The amount of the bond or other security for performance shall not
exceed the total of the estimated cost to initiate and maintain appropriate
conservation action based on unit price for new public or private sector
construction in the locality and a reasonable allowance for estimated
administrative costs and inflation which shall not exceed twenty-five 25
percent of the estimated cost of the conservation action. If the agency takes
such conservation action upon such failure by the permittee, the agency may
collect from the permittee for the difference should the amount of the
reasonable cost of such action exceed the amount of the security held. Within sixty
60 days of the achievement of adequate stabilization of the
land-disturbing activity in any project or section thereof, the bond, cash
escrow, letter of credit or other legal arrangement, or the unexpended or
unobligated portion thereof, shall be refunded to the applicant or terminated
based upon the percentage of stabilization accomplished in the project or
section thereof. These requirements are in addition to all other provisions of
law relating to the issuance of such permits and are not intended to otherwise
affect the requirements for such permits.
§ 10.1-566. Monitoring, reports and inspections.
A. The plan-approving authority or, if a permit is issued
in connection with land-disturbing activities that involve the issuance of a
grading, building, or other permit, the permit-issuing VESCP
authority (i) shall provide for periodic inspections of the land-disturbing
activity and require that an individual holding a certificate of competence, as
provided by § 10.1-561, who will be in charge of and responsible for
carrying out the land-disturbing activity and (ii) may require monitoring and
reports from the person responsible for carrying out the erosion and
sediment control plan, to ensure compliance with the approved plan and to
determine whether the measures required in the plan are effective in
controlling erosion and sediment. However, any plan-approving VESCP
authority may waive the certificate of competence requirement for an agreement
in lieu of a plan for construction of a single family residence. The owner,
permittee, or person responsible for carrying out the plan shall be given
notice of the inspection. If the permit-issuing authority or
plan-approving VESCP authority, where authorized to enforce
this article, or the Department determines that there is a failure to
comply with the plan following an inspection, notice shall be served
upon the permittee or person responsible for carrying out the plan by
registered or certified mail to the address specified in the permit application
or in the plan certification, or by delivery at the site of the land-disturbing
activities to the agent or employee supervising such activities. Where the
plan-approving authority serves notice, a copy
of the notice shall also be sent
to the issuer of the permit. The
notice shall specify the measures needed to comply with the plan and shall
specify the time within which such measures shall be completed. Upon failure to
comply within the time specified, the permit may be revoked and the permittee
or person responsible for carrying out
the plan shall be deemed to be
in violation of this article and shall
be subject to the penalties VESCP
authority, where authorized to enforce this article, the Department, or the
Board may pursue enforcement as provided by § 10.1-569.
B. Notwithstanding the above provisions of this section
the following may be applied:
1. Where a county, city, or town administers the
local control program and the permit-issuing authority and the plan-approving
authority are not within the same local government department, the locality may
designate one department to inspect, monitor, report and ensure compliance. In
the event a district has been designated as the plan-approving authority for
all or some of the conservation plans, the enforcement of the program shall be
with the local government department; however, the district may inspect,
monitor and make reports for the local government department.
2. Where a district adopts the local control program and
permit-issuing authorities have been established by a locality, the district by
joint resolution with the appropriate locality may exercise the
responsibilities of the permit-issuing authorities with respect to monitoring,
reports, inspections and enforcement.
3. Where a permit-issuing authority has been established,
and such authority is not vested in an employee or officer of local government
but in the commissioner of revenue or some other person, the locality shall
exercise the responsibilities of the permit-issuing authority with respect to
monitoring, reports, inspections and enforcement unless such responsibilities
are transferred as provided for in this section subsection A, a VESCP
authority is authorized to enter into agreements or contracts with districts,
adjacent localities, or other public or private entities to assist with the
responsibilities of this article, including but not limited to the review and
determination of adequacy of erosion and sediment control plans submitted for
land-disturbing activities as well as monitoring, reports, inspections, and
enforcement where an authority is granted such powers by this article.
C. Upon receipt issuance of a sworn
complaint of an inspection report denoting a violation of
this section, § 10.1-563 or § 10.1-564 from the representative
of the program authority or the Board
responsible for ensuring program compliance,
the chief administrative officer, or his
designee, of the program authority or
the Board may, in conjunction with or subsequent to a
notice to comply as specified in subsection A above, a VESCP
authority, where authorized to enforce this article, or the Department may
issue an order requiring that all or part of the land-disturbing activities
permitted on the site be stopped until the specified corrective measures have
been taken or, if land-disturbing activities have commenced without an approved
plan as provided in § 10.1-563, requiring that all of the land-disturbing
activities be stopped until an approved plan or any required permits are
obtained. Where the alleged noncompliance is causing or is in imminent danger
of causing harmful erosion of lands or sediment deposition in waters within the
watersheds of the Commonwealth, or where the land-disturbing activities have
commenced without an approved erosion and sediment control plan or any
required permits, such an order may be issued whether or not the alleged
violator has been issued a notice to comply as specified in subsection A above.
Otherwise, such an order may be issued only after the alleged violator has
failed to comply with a notice to comply. The order shall be served in the same
manner as a notice to comply, and shall remain in effect for seven days from the
date of service pending application by the enforcing authority VESCP
authority, the Department, or alleged violator for appropriate relief to
the circuit court of the jurisdiction wherein the violation was alleged to have
occurred or other appropriate court. If the alleged violator has not
obtained an approved erosion and sediment control plan or any required
permits within seven days from the date of service of the order, the Department
or the chief administrative officer or his designee on behalf of the
VESCP authority may issue an order to the owner requiring that all
construction and other work on the site, other than corrective measures, be
stopped until an approved erosion and sediment control plan and any
required permits have been obtained. Such an order shall be served upon the
owner by registered or certified mail to the address specified in the permit
application or the land records of the locality in which the site is located.
The owner may appeal the issuance of an order to the circuit court of the
jurisdiction wherein the violation was alleged to have occurred or other
appropriate court. Any person violating or failing, neglecting, or
refusing to obey an order issued by the Department or the chief
administrative officer or his designee on behalf of the VESCP authority
may be compelled in a proceeding instituted in the circuit court of the
jurisdiction wherein the violation was alleged to have occurred or other
appropriate court to obey same and to comply therewith by injunction,
mandamus or other appropriate remedy. Upon completion and approval of
corrective action or obtaining an approved plan or any required permits, the
order shall immediately be lifted. Nothing in this section shall prevent the Department,
the Board, or the chief administrative officer or his designee on behalf
of the VESCP authority from taking any other action specified in
§ 10.1-569.
§ 10.1-566.1. Reporting.
Each locality's plan-approving VESCP
authority shall report to the Department, in a method such as an online
reporting system and on a time schedule established by the Department, a
listing of each land-disturbing activity in the locality
for which a plan has been approved by the VESCP under this article.
§ 10.1-566.2. Right of entry.
The Department, the VESCP authority, where authorized to
enforce this article, or any duly authorized agent of the Department or such
VESCP authority may, at reasonable times and under reasonable circumstances,
enter any establishment or upon any property, public or private, for the purpose
of obtaining information or conducting surveys or investigations necessary in
the enforcement of the provisions of this article.
In accordance with a performance bond with surety, cash
escrow, letter of credit, any combination thereof, or such other legal
arrangement, a VESCP authority may also enter any establishment or upon any
property, public or private, for the purpose of initiating or maintaining
appropriate actions which are required by the permit conditions associated with
a land-disturbing activity when a permittee, after proper notice, has failed to
take acceptable action within the time specified.
§ 10.1-567. Cooperation with federal and state agencies.
The districts and localities operating
their own programs, A VESCP authority and the Board
are authorized to cooperate and enter into agreements with any federal or state
agency in connection with plans the requirements for erosion and
sediment control with respect to land-disturbing activities.
§ 10.1-568. Judicial appeals.
A. Final decisions of counties, cities
or towns A final decision by a county, city, or town, when
serving as a VESCP authority under this article, shall be subject to
judicial review by the court of record
of the county or city, provided that an
appeal is filed within thirty 30 days from the date of any
written decision adversely affecting the rights, duties or privileges of the
person engaging in or proposing to engage in land-disturbing activities.
B. Final decisions of the districts shall be subject to an
administrative review by the Board, provided that an appeal is filed within
thirty days from the date of the written decision.
C. Final decisions of the Board either upon its own
action or upon the review of the action of a district, Department, or
district shall be subject to judicial review in accordance with the
provisions of the Administrative Process Act (§ 2.2-4000 et seq.).
§ 10.1-569. Penalties, injunctions and other legal
actions.
A. Violators of §§ 10.1-563, 10.1-564 or § 10.1-566
shall be guilty of a Class 1 misdemeanor.
B. If a locality has adopted an ordinance establishing a
uniform schedule of civil penalties as permitted by subsection J of § 10.1-562,
any Any person who violates has violated or failed,
neglected, or refused to obey any regulation or order of the Board, any
order, notice, or requirement of the Department or VESCP authority, any
condition of a permit, any provision of its program,
or any provision of this article or associated regulation shall, upon a
finding of an appropriate general district court, be assessed a
civil penalty. If a locality or district serving as a VESCP authority has
adopted a uniform schedule of civil penalties as permitted by subsection K of
§ 10.1-562, such assessment shall be in accordance with the schedule.
The erosion and sediment control administrator, his deputy or a certified
inspector for the locality wherein the land lies VESCP authority or the
Department may issue a summons for collection of the civil penalty and
the action may be prosecuted by the locality wherein the land lies. In any
trial for a scheduled violation, it shall be the burden of the locality or
Department to show the liability of the violator by a preponderance of the
evidence. An admission or finding of liability shall not be a criminal conviction
for any purpose. Any civil penalties assessed by a court shall be paid into the
treasury of the locality wherein the land lies, except that where the violator
is the locality itself, or its agent, or where the Department is issuing the
summons, the court shall direct the penalty to be paid into the state
treasury.
C. The appropriate permit-issuing authority,
the program VESCP authority, the Board Department,
or the owner of property which has sustained damage or which is in imminent
danger of being damaged, may apply to the circuit court in any jurisdiction
wherein the land lies or other appropriate court to enjoin a violation
or a threatened violation under §§ 10.1-563, 10.1-564 or § 10.1-566
without the necessity of showing that an adequate remedy at law does not exist;
however, an owner of property shall not apply for injunctive relief unless (i)
he has notified in writing the person who has violated the local program
VESCP, the Department, and the program VESCP
authority, that a violation of the local program VESCP has
caused, or creates a probability of causing, damage to his property, and (ii)
neither the person who has violated the local program VESCP,
the Department, nor the program VESCP authority has taken
corrective action within fifteen 15 days to eliminate the
conditions which have caused, or create the probability of causing, damage to
his property.
D. In addition to any criminal or civil penalties provided
under this chapter, any person who violates any provision of this chapter may
be liable to the program VESCP authority, or the Board
Department, as appropriate, in a civil action for damages.
E. Without limiting the remedies which may be obtained in this
section, any person violating or failing, neglecting or refusing to obey any
injunction, mandamus or other remedy obtained pursuant to this section shall be
subject, in the discretion of the court, to a civil penalty not to exceed
$2,000 for each violation. A civil action for such violation or failure may be
brought by the locality VESCP authority wherein the land lies
or the Department. Any civil penalties assessed by a court shall be paid
into the treasury of the locality wherein the land lies, except that where the
violator is the locality itself, or its agent, or other VESCP authority, or
where the penalties are assessed as the result of an enforcement action brought
by the Department, the court shall direct the penalty to be paid into the
state treasury.
F. With the consent of any person who has violated or failed,
neglected, or refused to obey any regulation or order of the Board, or
any order, notice, or requirement of the Department or VESCP authority,
any condition of a permit, or any provision of this article or
associated regulations, the Board, the Director, or plan-approving or
permit-issuing VESCP authority may provide, in an order issued by
the Board or plan-approving or permit-issuing VESCP
authority against such person, for the payment of civil charges for violations
in specific sums, not to exceed the limit specified in subsection E of this
section. Such civil charges shall be instead of any appropriate civil
penalty which could be imposed under subsection B or E.
G. Upon request of a program authority, or
the permit-issuing VESCP authority, the attorney for the
Commonwealth shall take legal action to enforce the provisions of this article.
Upon request of the Board, the Department, or the district, the Attorney
General shall take appropriate legal action on behalf of the Board, the
Department, or the district to enforce the provisions of this article.
H. Compliance with the provisions of this article shall be
prima facie evidence in any legal or equitable proceeding for damages caused by
erosion or sedimentation that all requirements of law have been met and the
complaining party must show negligence in order to recover any damages.
§ 10.1-569.1. Stop work orders by Department; civil
penalties.
A. An aggrieved owner of property sustaining pecuniary damage
resulting from a violation of an approved erosion and sediment control plan
or required permit, or from the conduct of land-disturbing activities commenced
without an approved plan or required permit, may give written notice of the
alleged violation to the program VESCP authority and to the
Director.
B. Upon receipt of the notice from the aggrieved owner and
notification to the program VESCP authority, the Director shall
conduct an investigation of the aggrieved owner's complaint.
C. If the program VESCP authority has not
responded to the alleged violation in a manner which causes the violation to
cease and abates the damage to the aggrieved owner's property within thirty
30 days following receipt of the notice from the aggrieved owner, the
aggrieved owner may request that the Director require the violator to stop the
violation and abate the damage to his property.
D. If (i) the Director's investigation of the complaint
indicates that the program VESCP authority has not responded to
the alleged violation as required by the local program VESCP,
(ii) the program VESCP authority has not responded to the alleged
violation within thirty 30 days from the date of the notice given
pursuant to subsection A of this section, and (iii) the
Director is requested by the aggrieved owner to require the violator to cease
the violation, then the Director shall give written notice to the program
VESCP authority that the Director will request the
Board to Department intends to issue an order pursuant to
subsection E of this section.
E. If the program VESCP authority has not
instituted action to stop the violation and abate the damage to the aggrieved
owner's property within ten 10 days following receipt of the
notice from the Director, the Board Department is authorized to
issue an order requiring the owner, permittee, person responsible for carrying
out an approved erosion and sediment control plan, or person conducting
the land-disturbing activities without an approved plan or required permit,
to cease all land-disturbing activities until the violation of the plan or
permit has ceased, or an approved plan and required permits are obtained, as
appropriate, and specified corrective measures have been completed. The
Department also may immediately initiate a program review of the VESCP.
F. Such orders are to be issued only after a
hearing with reasonable notice to the
affected person of the time, place and
purpose thereof in accordance with the requirements of the
Administrative Process Act (§ 2.2-4000 et seq.), and they shall become
effective upon service on the person by certified mail, return receipt
requested, sent to his address specified in the land records of the locality,
or by personal delivery by an agent of the Director. Any subsequent
identical mail or notice that is sent by the Department may be sent by regular
mail. However, if the Board Department finds that any such
violation is grossly affecting or presents an imminent and substantial danger
of causing harmful erosion of lands or sediment deposition in waters within the
watersheds of the Commonwealth, it may issue, without advance notice or
hearing, an emergency order directing such person to cease all land-disturbing
activities on the site immediately and shall provide an opportunity for a
hearing, after reasonable notice as to the time and place thereof, to such
person, to affirm, modify, amend or cancel such emergency order.
G. If a person who has been issued an order or emergency order
is not complying with the terms thereof, the Board may institute a proceeding
in the appropriate circuit court for an injunction, mandamus, or other
appropriate remedy compelling the person to comply with such order.
H. Any person violating or failing, neglecting or refusing to
obey any injunction, mandamus or other remedy obtained pursuant to subsection G
of this section shall be subject, in the discretion of the
court, to a civil penalty not to exceed $2,000 for each violation. Any civil
penalties assessed by a court shall be paid into the state treasury.
§ 10.1-570. Authorization for more stringent regulations.
A A. As part of a VESCP, a district or locality
is authorized to adopt more stringent soil erosion and sediment control
regulations or ordinances than those necessary to ensure compliance with
the Board's regulations, provided that the more stringent regulations or
ordinances are based upon factual findings of local or regional comprehensive
watershed management studies or findings developed through the implementation
of an MS4 permit or a locally adopted watershed management study and are
determined by the district or locality to be necessary to prevent any further
degradation to water resources, to address total maximum daily load
requirements, to protect exceptional state waters, or to address specific
existing water pollution including nutrient and sediment loadings, stream
channel erosion, depleted groundwater resources, or excessive localized
flooding within the watershed and that prior to adopting more stringent
regulations or ordinances, a public hearing is held after giving due notice.
The VESCP authority shall report to the Board when more stringent stormwater
management regulations or ordinances are determined to be necessary pursuant to
this section. However, this section shall not be construed to authorize any
district or locality to impose any more stringent regulations for plan approval
or permit issuance than those specified in §§ 10.1-563 and 10.1-565.
B. Any provisions of an erosion and sediment control
program in existence before July 1, 2012, that contain more stringent
provisions than this article shall be exempt from the analysis requirements of
subsection A.
§ 10.1-571. No limitation on authority of Water Control
Board or Department of Mines, Minerals and Energy.
The provisions of this article shall not limit the powers or
duties presently exercised by the State Water Control Board under Chapter 3.1
(§ 62.1-44.2 et seq.) of Title 62.1, or the powers or duties of the
Department of Mines, Minerals and Energy as they relate to strip mine
reclamation under Chapters 16 (§ 45.1-180 et seq.), 17 (§ 45.1-198 et
seq.) and 19 (§ 45.1-226 et seq.) of Title 45.1 or oil or gas exploration
under the Virginia Oil and Gas and Oil Act
(§ 45.1-361.1 et seq.).
§ 10.1-603.2. Definitions.
As used in this article, unless the context requires a
different meaning:
"Board" means the Virginia Soil and Water
Conservation Board.
"Chesapeake Bay Preservation Act land-disturbing
activity" means a land-disturbing activity including clearing, grading, or
excavation that results in a land disturbance equal to or greater than 2,500
square feet and less than one acre in all areas of jurisdictions designated as
subject to the regulations adopted pursuant to the Chesapeake Bay Preservation
Act.
"CWA" means the federal Clean Water Act (33 USC
U.S.C. § 1251 et seq.), formerly referred to as the Federal Water Pollution
Control Act or Federal Water Pollution Control Act Amendments of 1972, Public
Law 92-500, as amended by Public Law 95-217, Public Law 95-576, Public Law
96-483, and Public Law 97-117, or any subsequent revisions thereto.
"Department" means the Department of Conservation
and Recreation.
"Director" means the Director of the Department of
Conservation and Recreation.
"Flooding" means a volume of water that is too great
to be confined within the banks or walls of the stream, water body, or
conveyance system and that overflows onto adjacent lands, thereby causing or
threatening damage.
"Land disturbance" or "land disturbing
"land-disturbing activity" means a man-made change to the land
surface that potentially changes its runoff characteristics including any
clearing, grading, or excavation associated with a construction
activity regulated pursuant to the federal
Clean Water Act, except that the term shall not
include those exemptions specified in § 10.1-603.8.
"Linear development project" means a land
development project that is linear in nature such as, but not limited to, (i)
the construction of electric and telephone utility lines, and natural gas
pipelines; (ii) construction of tracks, rights-of-way, bridges, communication
facilities and other related structures of a railroad company; and (iii)
highway construction projects.
"Local stormwater management program" or
"local program" means the various methods employed by a locality to
manage the quality and quantity of runoff resulting from land disturbing
activities and shall include such items as local ordinances, permit
requirements, policies and guidelines, technical materials, inspection,
enforcement, and evaluation consistent with this article.
"Municipal separate storm sewer" means a conveyance
or system of conveyances otherwise known as a municipal separate storm sewer
system or "MS4," including roads with drainage systems, municipal
streets, catch basins, curbs, gutters, ditches, man-made channels, or storm
drains:
1. Owned or operated by a federal, state, city, town, county,
district, association, or other public body, created by or pursuant to state
law, having jurisdiction or delegated authority for erosion and sediment
control and stormwater management, or a designated and approved management
agency under § 208 of the CWA that discharges to surface waters;
2. Designed or used for collecting or conveying stormwater;
3. That is not a combined sewer; and
4. That is not part of a publicly owned treatment works.
"Municipal Separate Storm Sewer System Management
Program" means a management program covering the duration of a state
permit for a municipal separate storm sewer system that includes a
comprehensive planning process that involves public participation and
intergovernmental coordination, to reduce the discharge of pollutants to the
maximum extent practicable, to protect water quality, and to satisfy the
appropriate water quality requirements of the CWA and regulations, and this
article and its attendant regulations, using management practices, control
techniques, and system, design, and engineering methods, and such other
provisions that are appropriate.
"Nonpoint source pollution" means pollution such
as sediment, nitrogen, phosphorus, hydrocarbons, heavy metals, and toxics
whose sources cannot be pinpointed but rather is are washed from
the land surface in a diffuse manner by stormwater runoff.
"Peak flow rate" means the maximum instantaneous
flow from a given prescribed design storm condition at a
particular location.
"Permit" or "VSMP authority permit"
means an approval to conduct a land-disturbing activity issued by the permit
issuing VSMP authority for the initiation of a land-disturbing
activity, or for stormwater discharges from
an MS4 after evidence of state VSMP general permit coverage
has been provided where applicable.
"Permit issuing authority" means the Board, the
Department, or a locality that is delegated authority by the Board to issue,
deny, revoke, terminate, or amend stormwater permits under the provisions of
this article.
"Permittee" means the person or locality
to which the permit or state permit is issued.
"Person" means an individual, corporation,
partnership, association, state, municipality, commission, or political
subdivision of a state, governmental body, including federal, state, or
local entity as applicable, any interstate body, or any other legal entity.
"Runoff volume" means the volume of water that runs
off the land development project from a prescribed storm event.
"State permit" means an approval to conduct a
land-disturbing activity issued by the Board in the form of a state stormwater
individual permit or coverage issued under a state general permit or an
approval issued by the Board for stormwater discharges from an MS4. Under these
permits, the Commonwealth imposes and enforces requirements pursuant to the
federal Clean Water Act and regulations and this article and its attendant
regulations.
"Stormwater" means precipitation that is discharged
across the land surface or through conveyances to one or more waterways and
that may include storm water runoff, snow melt runoff, and surface runoff and
drainage.
"Stormwater management plan" means a document
containing material describing methods for complying with the requirements of a
VSMP.
"Stormwater management program"
means a program established by a locality
that is consistent with the requirements
of this article and associated regulations
and guidance documents.
"Subdivision" means the same as defined in
§ 15.2-2201.
"Virginia Stormwater Management Program (VSMP)"
or "VSMP" means the Virginia program for
issuing, modifying, revoking and reissuing, terminating,
monitoring and enforcing permits, and imposing
and enforcing requirements pursuant to the
federal Clean Water Act and this article
a program approved by the Board after September 13, 2011, that has been
established by a VSMP authority to manage the quality and quantity of runoff
resulting from land-disturbing activities and shall include such items as local
ordinances, rules, permit requirements, annual standards and specifications,
policies and guidelines, technical materials, and requirements for plan review,
inspection, enforcement, where authorized in this article, and evaluation
consistent with the requirements of this article and associated regulations.
"Virginia Stormwater Management Program
authority" or "VSMP authority" means an authority approved by
the Board after September 13, 2011, to operate a Virginia Stormwater Management
Program or, until such approval is given, the Department. An authority may
include a locality; state entity, including the Department; federal entity; or,
for linear projects subject to annual standards and specifications in
accordance with subsection B of § 10.1-603.5, electric, natural gas, and
telephone utility companies, interstate and intrastate natural gas pipeline
companies, railroad companies, or authorities created pursuant to
§ 15.2-5102.
"Water quality volume" means the volume equal to the
first one-half inch of runoff multiplied by the impervious surface of the land
development project.
"Watershed" means a defined land area drained by a
river or stream, karst system, or system of connecting rivers or streams
such that all surface water within the area flows through a single outlet. In
karst areas, the karst feature to which water drains may be considered the
single outlet for the watershed.
§ 10.1-603.2:1. Powers and duties of the Virginia Soil
and Water Conservation Board.
In addition to other powers and duties conferred upon the
Board, it shall permit, regulate, and control stormwater runoff in the
Commonwealth. In accordance with the VSMP, the
The Board may issue, deny, revoke, terminate, or amend state
stormwater individual permits or coverage issued under state general
permits; adopt regulations; approve and periodically review local Virginia
stormwater management programs and management programs developed in conjunction
with a state municipal separate storm sewer permit; enforce the
provisions of this article; and otherwise act to ensure the general health,
safety and welfare of the citizens of the Commonwealth as well as protect the
quality and quantity of state waters from the potential harm of unmanaged
stormwater. The Board may:
1. Issue, deny, amend, revoke, terminate, and enforce state
permits for the control of stormwater discharges from Municipal Separate Storm
Sewer Systems and land disturbing land-disturbing
activities.
2. Delegate to the Department or to an approved
locality any of the powers and duties vested in it by this article except
the adoption and promulgation of regulations. Delegation shall not remove from
the Board authority to enforce the provisions of this article.
3. Take administrative and legal actions to ensure compliance with
the provisions of this article by permittees, any person subject to state
or VSMP authority permit requirements under this article, and those localities
entities with an approved local Virginia stormwater
management program and management programs developed in conjunction with a state
municipal separate storm sewer system permit with the provisions
of this article, including the proper enforcement
and implementation of, and continual compliance with, this article.
4. After notice and opportunity for
a hearing by the Board In accordance with
procedures of the Administrative Process Act (§ 2.2-4000 et seq.),
amend or revoke any state permit issued by the permit
issuing authority under this article on the following grounds or
for good cause as may be provided by the regulations of the Board:
a. The permittee or any Any person subject
to state permit requirements under this article has violated or
failed, neglected, or refused to obey any order or regulation of the Board,
any order, notice, or requirement of the Department, any condition of a state
permit, any provision of this article, or any order of a court, or
any order of the permit issuing authority,
where such violation results in the unreasonable degradation of properties,
water quality, stream channels, and other natural resources, or the violation
is representative of a pattern of serious or repeated violations including the
disregard for or inability to comply with applicable laws, regulations, permit
conditions, orders, rules, or requirements;
b. The permittee or any Any person subject
to state permit requirements under this article has failed to disclose
fully all relevant material facts or has misrepresented a material fact in
applying for a state permit, or in any other report or document required
under this law or under the regulations of the Board;
c. The activity for which the state permit was issued
causes unreasonable degradation of properties, water quality, stream channels,
and other natural resources; or
d. There exists a material change in the basis on which the state
permit was issued that requires either a temporary or a permanent reduction or
elimination of any discharge or land disturbing land-disturbing
activity controlled by the state permit necessary to prevent
unreasonable degradation of properties, water quality, stream channels, and
other natural resources.
5. Cause investigations and inspections, or delegate
authority to do so, to ensure compliance with any state
or VSMP authority permits, conditions, policies, rules, regulations,
rulings, and orders which it may adopt, issue, or establish and
to furnish advice, recommendations, or instructions for the purpose of
obtaining such compliance.
6. Adopt In accordance with procedures of the
Administrative Process Act (§ 2.2-4000 et seq.), adopt rules governing
the procedure of the permit issuing authority
with respect to: (i) hearings; (ii) the filing of reports;
(iii) the issuance of permits and special orders; and (iv) all other matters
relating to procedure; and to amend or cancel any rule adopted. Public notice
of every rule adopted under this section
shall be by such means as the permit
issuing authority may prescribe but must
be consistent with the Administrative Process
Act (§ 2.2-4000 et seq.).
7. Issue special orders to a permittee or
any person subject to state or VSMP authority permit requirements under
this article (i) who is permitting or causing the unreasonable degradation of
properties, water quality, stream channels, and other natural resources to
cease and desist from such activities, (ii) who has failed to construct
facilities in accordance with final approved plans and specifications to
construct such facilities, (iii) who has violated the terms and provisions of a
state or VSMP authority permit issued by the permit issuing
authority Board or VSMP authority; to comply with the provisions
of the state or VSMP authority permit, this article and any decision of
the permit issuing VSMP authority, the Department, or the
Board, or (iv) who has violated the terms of an order issued by the court, the permit
issuing VSMP authority, the Department, or the Board: to comply
with the terms of such order, and also to issue orders to require any permittee
or any person subject to state or VSMP authority permit
requirements under this article to comply with the provisions of this article
and any decision of the Board.
Such special orders are to be issued only after a
hearing with at least 30 days' notice
to the affected permittee or any person
subject to permit requirements under this
article, of the time, place, and purpose
thereof in accordance with the procedures of the Administrative
Process Act (§ 2.2-4000 et seq.), and they shall become effective not
less than 15 days after the date of mailing by certified mail of the notice to
the last known address of the permittee or any person
subject to state or VSMP authority permit requirements under this
article; provided that if the Board finds that any such permittee or
any person subject to state or VSMP authority permit requirements
under this article is grossly affecting or presents an imminent and substantial
danger to (i) the public health, safety or welfare, or the health of animals,
fish or aquatic life; (ii) a public water supply; or (iii) recreational,
commercial, industrial, agricultural or other reasonable uses, it may issue,
without advance notice or hearing, an emergency special order directing the
permittee or any person subject to state or VSMP authority
permit requirements under this article to cease such pollution or discharge
immediately, and shall provide an opportunity for a hearing, after reasonable
notice as to the time and place thereof to the permittee or
any person subject to state or VSMP authority permit requirements under
this article, to affirm, modify, amend, or cancel such emergency special order.
If the permittee or any person subject to state or VSMP
authority permit requirements under this article who has been issued such a
special order or an emergency special order is not complying with the terms
thereof, the Board may proceed in accordance with § 10.1-603.14, and where
the order is based on a finding of an imminent and substantial danger, the
court shall issue an injunction compelling compliance with the emergency
special order pending a hearing by the Board. If an emergency special order requires
cessation of a discharge, the Board shall provide an
opportunity for a hearing within 48 hours
of the issuance of the injunction the
recipient of the order may appeal its issuance to the circuit court of the
jurisdiction wherein the discharge was alleged to have occurred.
The provisions of this section notwithstanding, the Board may
proceed directly under § 10.1-603.14 for any past violation or violations
of any provision of this article or any regulation duly adopted hereunder.
With the consent of any permittee or any
person subject to state or VSMP authority permit requirements under this
article who has violated or failed, neglected, or refused to obey any
regulation or order of the Board, any order, notice, or requirement of the
Department or VSMP authority, any condition of a state or VSMP authority
permit or any provision of this article, the Board may provide, in an order
issued by the Board against such person, for the payment of civil charges for
violations in specific sums not to exceed the limit specified in subsection A
of § 10.1-603.14. Such civil charges shall be collected in lieu of any
appropriate civil penalty that could be imposed pursuant to subsection A of
§ 10.1-603.14 and shall not be subject to the provisions of § 2.2-514.
Such civil charges shall be paid into the state treasury and deposited by the
State Treasurer into the Virginia Stormwater Management Fund established
pursuant to § 10.1-603.4:1.
§ 10.1-603.2:2. State permits.
A. It shall be is unlawful to cause a
stormwater discharge from an MS4 or a land disturbing land-disturbing
activity except in compliance with a state permit issued by
a permit issuing authority where required.
B. All state permits issued by the permit issuing
authority Board under this article shall have fixed terms. The
term of a state permit shall be based upon the projected duration of the
project, the length of any required monitoring, or other project operations or
permit conditions; however, the term shall not exceed five years. The term of a
permit issued by the permit issuing authority Board
shall not be extended by modification beyond the maximum duration and the
permit shall expire at the end of the term unless an application for
a new permit has been filed in
a timely manner as required by the
regulations of the Board, and the permit
issuing authority is unable, through no
fault of the permittee, to issue a
new permit before the expiration date
of the previous permit it is administratively
continued in accordance with Board regulations.
C. State individual construction permits shall be
administered by the Department.
§ 10.1-603.3. Establishment of Virginia stormwater
management programs.
A. Any locality located within Tidewater Virginia
as defined by the Chesapeake Bay Preservation
Act (§ 10.1-2100 et seq.), or any
locality that is partially or wholly designated
as required to obtain coverage under an
MS4 permit under the provisions of the
federal Clean Water Act, excluding towns, unless
such town operates a regulated MS4, shall be required to adopt a local
stormwater management program VSMP for land disturbing
land-disturbing activities consistent with the provisions of this
article according to a schedule set by the Board. Such schedule shall require
adoption no sooner than 15 months and not more than 21 months following the
effective date of the regulation that establishes local program criteria and
delegation procedures, unless the Board deems that the Department's review of
the local program VSMP warrants an extension up to an
additional 12 months, provided the locality has made substantive progress. A
locality may adopt a local stormwater
management program at an earlier date
with the consent of the Board Localities
subject to this subsection are authorized to coordinate plan review and
inspections with other entities in accordance with subsection H.
B. Any locality not specified in
subsection A may elect to adopt and
administer a local stormwater management program
for land disturbing activities pursuant to
this article. Any town lying within a county, which has
adopted a VSMP in accordance with subsection A, may adopt its own program or
shall become subject to the county program. If a town lies within the
boundaries of more than one county, the town shall be considered to be wholly
within the county in which the larger portion of the town lies. Such localities Towns
shall inform the Board and the Department of their initial intention to
seek delegation for the stormwater management program for land disturbing permits
within six months following the effective date of the regulation that establishes
local program criteria and delegation procedures decision according to a
schedule established by the Department. Thereafter, the Department shall
provide an annual schedule by which localities towns can submit
applications for delegation to adopt a VSMP.
C. In the absence of the delegation
of a stormwater management program to
a locality, the Department will administer
the responsibilities of this article within
the given jurisdiction in accordance with
an adoption and implementation schedule set
by the Board In support of VSMP authorities, the
Department shall:
1. Provide assistance grants to localities not currently
operating a local stormwater management program to help the localities to
establish their VSMP.
2. Provide technical assistance and training.
3. Provide qualified services in specified geographic areas
to a VSMP to assist localities in the administration of components of their
programs. The Department shall actively assist localities in the establishment
of their programs and in the selection of a contractor or other entity that may
provide support to the locality or regional support to several localities.
D. The Department shall develop a model ordinance for
establishing a local stormwater management program VSMP
consistent with this article and its associated regulations, including the
Virginia Stormwater Management Program (VSMP) General Permit for Discharges of
Stormwater from Construction Activities.
E. Each locality that is required to or
that elects to adopt and administer administers
an approved local stormwater management program VSMP
shall, by ordinance, establish a local stormwater management
program VSMP that may shall be administered in
conjunction with a local MS4 program and a local erosion and sediment control
program where applicable, and which shall include, but is not
limited to, the following:
1. Consistency with regulations adopted in accordance with
provisions of this article;
2. Provisions for long-term responsibility for and maintenance
of stormwater management control devices and other techniques specified to
manage the quality and quantity of runoff; and
3. Provisions for the integration of locally adopted
stormwater management programs the VSMP with local
erosion and sediment control, flood insurance, flood plain management, and
other programs requiring compliance prior to authorizing construction in order
to make the submission and approval of plans, issuance of permits, payment of
fees, and coordination of inspection and enforcement activities more convenient
and efficient both for the local governments and those responsible for
compliance with the programs.
F. The Board may approve a state entity, including the
Department, federal entity, or, for linear projects subject to annual standards
and specifications, electric, natural gas and telephone utility companies,
interstate and intrastate natural gas pipeline companies, railroad companies,
or authorities created pursuant to § 15.2-5102 to operate a Virginia Stormwater
Management Program consistent with the requirements of this article and its
associated regulations and the VSMP authority's Department-approved annual
standards and specifications. For these programs, enforcement shall be
administered by the Department and the Board where applicable in accordance
with the provisions of this article.
G. The Board shall delegate a local stormwater management
program to a locality approve a VSMP when it deems a program
consistent with this article and associated regulations, including the
Virginia Stormwater Management Program (VSMP) General Permit for Discharges of
Stormwater from Construction Activities.
G. Delegated localities H. A VSMP authority may
enter into agreements or contracts with soil and water conservation districts,
adjacent localities, or other public or private entities to carry out or
assist with the responsibilities of this article.
H. I. Localities that adopt a local stormwater
management program shall have the authority to issue a consolidated
stormwater management and erosion and sediment control permit that is
consistent with the provisions of the Erosion and Sediment Control Law
(§ 10.1-560 et seq.). When available in accordance with subsection J,
such permit, where applicable, shall also include a copy of or reference to
state VSMP permit coverage authorization to discharge.
J. Upon the development of an online reporting system by
the Department, but no later than July 1, 2014, a VSMP authority shall then be
required to obtain evidence of state VSMP permit coverage where it is required
prior to providing approval to begin land disturbance.
I. K. Any local stormwater management program
VSMP adopted pursuant to and consistent with this article shall be
considered to meet the stormwater management requirements under the Chesapeake
Bay Preservation Act (§ 10.1-2100 et seq.) and attendant regulations,
and effective July 1, 2014, shall not be subject to local program review under
the stormwater management provisions of the Chesapeake Bay Preservation Act.
L. All VSMP authorities shall comply with the provisions of
this article and the stormwater management provisions of the Erosion and
Sediment Control Law (§ 10.1-560 et seq.), and related regulations. The
VSMP authority responsible for regulating the land-disturbing activity shall
require compliance with the issued permit, permit conditions, and plan
specifications.
M. VSMPs adopted in accordance with this section shall
become effective July 1, 2014, unless otherwise specified by the Board.
§ 10.1-603.4. Development of regulations.
A. The Board is authorized to adopt regulations that
specify minimum technical criteria and administrative procedures for stormwater
management programs in Virginia Virginia
Stormwater Management Programs. The regulations shall:
1. Establish standards and procedures for delegating
the authority for administering a stormwater management
program to localities VSMP;
2. Establish minimum design criteria for measures to control
nonpoint source pollution and localized flooding, and incorporate the
stormwater management regulations adopted pursuant to the Virginia Erosion and
Sediment Control Law (§ 10.1-560 et seq.), as they relate to the
prevention of stream channel erosion. These criteria shall be periodically
modified as required in order to reflect current engineering methods;
3. Require the provision of long-term responsibility for and
maintenance of stormwater management control devices and other techniques
specified to manage the quality and quantity of runoff;
4. Require as a minimum the inclusion in local programs
VSMPs of certain administrative procedures which include, but are not
limited to, specifying the time period within which a local government
that has adopted a stormwater management
program must VSMP authority shall grant permit land-disturbing
activity approval, the conditions and processes under which approval
shall be granted, the procedures for communicating disapproval, the conditions
under which an approved permit approval may be changed,
and requirements for inspection of approved projects;
5. Establish by regulations, with the concurrence of
the Director, a statewide permit fee schedule for stormwater management
to cover all costs associated with the implementation of a VSMP related
to land disturbing land-disturbing activities of one acre
or greater. Such fee attributes include the costs associated with plan
review, VSMP registration statement review, permit issuance, state-coverage
verification, inspections, reporting, and compliance activities associated with
the land-disturbing activities as well as program oversight costs. The fee
schedule shall also include a provision for a reduced fee for land disturbing
land-disturbing activities between 2,500 square feet and up to 1 acre in
Chesapeake Bay Preservation Act (§ 10.1-2100 et seq.) localities. The regulations
fee schedule shall be governed by the following:
a. The revenue generated from the statewide stormwater permit
fee shall be collected utilizing, where practicable, an online payment
system, and the Department's portion shall be remitted to the State
Treasurer for deposit in the Virginia Stormwater Management Fund established
pursuant to § 10.1-603.4:1. However, whenever the Board has delegated
a stormwater management program to a locality
or is required to do so under this
article approved a VSMP, no more than 30 percent of the total
revenue generated by the statewide stormwater permit fees collected within
the locality shall be remitted to the State Treasurer, for
deposit in the Virginia Stormwater Management Fund, with the balance going
to the VSMP authority.
b. Fees collected pursuant to this section shall be in
addition to any general fund appropriation made to the Department or other
supporting revenue from a VSMP; however, the fees shall be set at a level
sufficient for the Department and the VSMP to fully carry out its
their responsibilities under this article; and its attendant
regulations and local ordinances or standards and specifications where
applicable. When establishing a VSMP, the VSMP authority shall assess the
statewide fee schedule and shall have the authority to reduce or increase such
fees, and to consolidate such fees with other program-related charges, but in
no case shall such fee changes affect the amount established in the regulations
as available to the Department for program oversight responsibilities pursuant
to subdivision 5 a. A VSMP's portion of the fees shall be used solely to carry
out the VSMP's responsibilities under this article and its attendant
regulations, ordinances, or annual standards and specifications.
c. Until July 1, 2014, the fee for coverage under the
General Permit for Discharges of Stormwater from Construction Activities issued
by the Board, or where the Board has issued an individual permit or coverage
under the General Permit for Discharges of Stormwater from Construction
Activities for an entity for which it has approved annual standards and
specifications, shall be $750 for each large construction activity with sites
or common plans of development equal to or greater than five acres and $450 for
each small construction activity with sites or common plans of development
equal to or greater than one acre and less than five acres. On and after July
1, 2014, such fees shall only apply where coverage has been issued under the
Board's General Permit for Discharges of Stormwater from Construction
Activities to a state agency or federal entity for which it has approved annual
standards and specifications. After establishment, such fees may be modified in
the future through regulatory actions.
d. Until July 1, 2014, the Department is authorized to
assess a $125 reinspection fee for each visit to a project site that was
necessary to check on the status of project site items noted to be in
noncompliance and documented as such on a prior project inspection.
e. When any fees are collected pursuant to this section by
credit cards, business transaction costs associated with processing such
payments may be additionally assessed.
6. Establish statewide standards for stormwater management
from land disturbing land-disturbing activities of one
acre or greater, except as specified otherwise within this article, and allow
for the consolidation in the permit of a comprehensive approach to addressing
stormwater management and erosion and sediment control, consistent with the
provisions of the Erosion and Sediment Control Law (§ 10.1-560 et seq.)
and this article. However, such standards shall also apply to land disturbing
land-disturbing activity exceeding an area of 2500 square feet in all
areas of the jurisdictions designated as subject to the Chesapeake Bay
Preservation Area Designation and Management Regulations (9 VAC 10-20 et
seq.) adopted pursuant to the Chesapeake Bay Preservation Act
(§ 10.1-2100 et seq.);
7. Require that stormwater management programs
VSMPs maintain after-development runoff rate of flow and characteristics
that replicate, as nearly as practicable, the existing predevelopment runoff
characteristics and site hydrology, or improve upon the contributing share of
the existing predevelopment runoff characteristics and site hydrology if stream
channel erosion or localized flooding is an existing predevelopment condition. Any
Except where more stringent requirements are necessary to address total
maximum daily load requirements or to protect exceptional state waters, any
land-disturbing activity that provides for stormwater management shall satisfy
the conditions of this subsection if the practices are designed to (i) detain
the water quality volume and to release it over 48 hours; (ii) detain and
release over a 24-hour period the expected rainfall resulting from the one
year, 24-hour storm; and (iii) reduce the allowable peak flow rate resulting
from the 1.5, 2, and 10-year, 24-hour storms to a level that is less than or
equal to the peak flow rate from the site assuming it was in a good forested
condition, achieved through multiplication of the forested peak flow rate by a
reduction factor that is equal to the runoff volume from the site when it was
in a good forested condition divided by the runoff volume from the site in its
proposed condition, and shall be exempt from any flow rate capacity and
velocity requirements for natural or man-made channels as defined in any
regulations promulgated pursuant to this section, or any ordinances adopted
pursuant to § 10.1-603.3 or 10.1-603.7;
8. Encourage low impact development designs, regional and
watershed approaches, and nonstructural means for controlling stormwater;
9. Promote the reclamation and reuse of stormwater for uses
other than potable water in order to protect state waters and the public health
and to minimize the direct discharge of pollutants into state waters;
10. Establish, with the concurrence of the Director, a
statewide permit fee schedule for stormwater management related to municipal
separate storm sewer system permits; and
11. Provide for the evaluation and potential inclusion of
emerging or innovative stormwater control technologies that may prove effective
in reducing nonpoint source pollution.
B. In accordance with the Administrative Process Act
(§ 2.2-4000 et seq.), the Board may integrate and consolidate components
of the Erosion and Sediment Control Regulations (4 VAC 50-30) and the
Chesapeake Bay Preservation Area Designation and Management Regulations (9 VAC
10-20) with the Virginia Stormwater Management Program (VSMP) Permit
Regulations (4 VAC 50-60) or repeal components so that these programs may be
implemented in a consolidated manner that provides greater consistency,
understanding, and efficiency for those regulated by and administering a VSMP.
§ 10.1-603.4:1. Virginia Stormwater Management Fund
established.
There is hereby created in the state treasury a special
nonreverting fund to be known as the Virginia Stormwater Management Fund, hereafter
referred to as "the Fund." The Fund shall be established on the books
of the Comptroller. All moneys collected by the Department pursuant to §§ 10.1-603.4,
10.1-603.12, and 10.1-2104.1 shall be paid into the state treasury and
credited to the Fund. Interest earned on moneys in the Fund shall remain in the
Fund and be credited to it. Any moneys remaining in the Fund, including
interest thereon, at the end of each fiscal year shall not revert to the
general fund but shall remain in the Fund. Moneys in the Fund shall be used
solely for the purposes of carrying out the Department's responsibilities under
this article. Expenditures and disbursements from the Fund shall be made by the
State Treasurer on warrants issued by the Comptroller upon written request
signed by the Director.
An accounting of moneys received by and distributed from the
Fund shall be kept by the State Comptroller.
§ 10.1-603.4:2. Education and training programs.
A. The Board shall issue certificates of competence
concerning the content and application of specified subject areas of this
article and accompanying regulations, including program administration, plan
review, and project inspection, to personnel of VSMP authorities and to any
other persons who have completed training programs or in other ways
demonstrated adequate knowledge to the satisfaction of the Board. As part of
education and training programs authorized pursuant to subsection E of
§ 10.1-561, the Department shall develop or certify expanded components to
address program administration, plan review, and project inspection elements of
the Stormwater Management Act (§ 10.1-603.2 et seq.) and attendant
regulations. Reasonable fees to cover the costs of these additional components
may be charged.
B. Effective July 1, 2014, personnel of VSMP authorities
reviewing plans or conducting inspections pursuant to this chapter shall hold a
certificate of competence as provided in subsection A. Professionals registered
in the Commonwealth pursuant to Article 1 (§ 54.1-400 et seq.) of Chapter
4 of Title 54.1 shall be deemed to have met the provisions of this section for
the purposes of renewals.
§ 10.1-603.5. Annual standards and specifications for
state agencies, federal entities, and other specified entities.
A. A state agency may not undertake
any land clearing, soil movement, or construction
activity involving soil movement or land
disturbance unless the agency has submitted
a permit application for the land-disturbing
activity and the application has been
reviewed and approved and a stormwater
permit issued by the Department. State agencies
entities, including the Department and the Department of Transportation, and
for linear projects set out in subsection B, electric, natural gas, and
telephone utility companies, interstate and intrastate natural gas pipeline
companies, and railroad companies shall, and federal entities and authorities
created pursuant to § 15.2-5102 may, annually submit a
single permit application containing stormwater management
set of standards and specifications for all land disturbing
Department approval that describes how land-disturbing activities shall
be conducted under. Such standards and specifications
shall be consistent with the requirements of this article and associated
regulations, including the General Virginia Stormwater Management Program
(VSMP) Permit for Discharges of Stormwater from Construction Activities (4 VAC
50-60-1100 et seq.), and the Erosion and Sediment Control Law (§ 10.1-560
et seq.) and associated regulations. Each project constructed in accordance
with the requirements of this chapter, its attendant regulations, and where
required standards and specifications shall obtain coverage issued under the
state general permit prior to land disturbance. State agency stormwater
management The standards and specifications shall include,
but are not limited to:
1. Technical criteria to meet the requirements of this article
and regulations developed under this article;
2. Provisions for the long-term responsibility and maintenance
of stormwater management control devices and other techniques specified to
manage the quantity and quality of runoff;
3. Provisions for erosion and sediment control and stormwater
management program administration, plan design, review and approval, and
construction inspection and enforcement;
4. Provisions for ensuring that responsible personnel and
contractors obtain certifications or qualifications for erosion and sediment
control and stormwater management comparable to those required for local
government;
5. Implementation of a project tracking and notification
system to the Department of all land disturbing land-disturbing
activities covered under this article; and
6. Requirements for documenting on-site changes as they occur
to ensure compliance with the requirements of the article.
B. All state agencies shall comply with the provisions of
this article and the stormwater management provisions of the Erosion and
Sediment Control Law (§ 10.1-560 et seq.), and related regulations.
The state agency responsible for the land-disturbing activity shall ensure
compliance with the issued permit, permit conditions, and plan specifications.
Linear projects subject to annual standards and specifications include:
1. Construction, installation, or maintenance of electric
transmission, natural gas, and telephone utility lines and pipelines, and water
and sewer lines; and
2. Construction of the tracks, rights-of-way, bridges,
communication facilities, and other related structures and facilities of a
railroad company.
Linear projects not included in subdivisions 1 and 2 shall
comply with the requirements of the local or state VSMP in the locality within
which the project is located.
C. The Department shall perform random site inspections
or inspections in response to a complaint to assure compliance with this
article, the Erosion and Sediment Control Law, and regulations adopted
thereunder. The Department may take enforcement actions in accordance with
this chapter and related regulations.
C. The Department shall have 30 days in which to review the
permit application and to issue its permit decision, which shall be binding on
the state agency or the private business hired by the state agency.
As on-site changes occur, the state agency shall submit
changes in the permit application to the Department.
D. The Department may shall assess an
administrative charge to cover a portion of the costs of
services rendered associated with its responsibilities pursuant to this
section.
§ 10.1-603.6. Duties of the Department.
A. The Department shall provide technical assistance,
training, research, and coordination in stormwater management technology to the
local governments VSMP authorities consistent with the
purposes of this article.
B. The Department is authorized to review the permit application
stormwater management plan for any project with real or potential
interjurisdictional impacts upon the request of one or all of the
involved localities to determine that the plan is consistent with the
provisions of this article. Any such review shall be completed and a report
submitted to each locality involved within 90 days of such request being
accepted. The Department may charge a fee of the requesting locality to
cover its costs for providing such services.
C. The Department shall be responsible for the implementation
of this article.
§ 10.1-603.7. Authorization for more stringent
ordinances.
A. Localities are authorized to adopt more stringent
stormwater management ordinances than those necessary to ensure compliance with
the Board's minimum regulations, provided that the more stringent ordinances
are based upon factual findings of local or regional comprehensive watershed
management studies or findings developed through the implementation of a MS4
permit or a locally adopted watershed management study and are determined by
the locality to be necessary to prevent any further degradation to water
resources, to address TMDL requirements, to protect exceptional state
waters, or to address specific existing water pollution including nutrient
and sediment loadings, stream channel erosion, depleted groundwater resources,
or excessive localized flooding within the watershed and that prior to adopting
more stringent ordinances a public hearing is held after giving due notice.
Localities shall report to the Board when more stringent stormwater management
ordinances are determined to be necessary pursuant to this section.
B. Any provisions of a local stormwater management
program in existence before January 1, 2005, that contains more stringent
provisions than this article shall be exempt from the analysis
requirements of subsection A. However, such provisions shall be reported to
the Board as part of the locality's VSMP approval package.
§ 10.1-603.8. Regulated activities; submission and
approval of a permit application; security for performance; exemptions.
A. A person shall not develop any land for
residential, commercial, industrial, or institutional
use conduct any land-disturbing activity until he has submitted a
permit application to the permit issuing authority the
VSMP authority that includes a state VSMP permit registration statement and,
after July 1, 2014, a stormwater management plan, and has obtained a
permit VSMP authority approval to begin land disturbance. Upon the
development of an online reporting system by the Department, but no later than
July 1, 2014, a VSMP authority shall be required to obtain evidence of VSMP
permit coverage where it is required prior to providing approval to begin land
disturbance. The permit issuing VSMP authority shall
act on any permit application within 60 days after it has been determined by
the permit issuing VSMP authority to be a complete
application. The permit issuing VSMP authority may either
issue the permit or deny the permit project
approval or denial and shall provide written rationale for the denial. The permit
issuing VSMP authority shall act on any permit application that
has been previously disapproved within 45 days after the application has been
revised, resubmitted for approval, and deemed complete. Prior to issuance of
any permit approval, the permit issuing VSMP
authority may also require an applicant, excluding those regulated
under § 10.1-603.5 state and federal entities,
to submit a reasonable performance bond with surety, cash escrow, letter of credit,
any combination thereof, or such other legal arrangement acceptable to the permit
issuing VSMP authority, to ensure that measures could be taken by
the permit issuing VSMP authority at the applicant's
expense should he fail, after proper notice, within the time specified to
initiate or maintain appropriate actions which may be required of him by the
permit conditions as a result of his land disturbing land-disturbing
activity. If the permit issuing VSMP authority takes such
action upon such failure by the applicant, the permit issuing VSMP
authority may collect from the applicant for the difference should the amount
of the reasonable cost of such action exceed the amount of the security held.
Within 60 days of the completion of the requirements of the permit conditions,
such bond, cash escrow, letter of credit or other legal arrangement, or the
unexpended or unobligated portion thereof, shall be refunded to the applicant
or terminated. These requirements are in addition to all other provisions of
law relating to the issuance of permits and are not intended to otherwise
affect the requirements for such permits.
B. A Chesapeake Bay Preservation Act Land-Disturbing
Activity shall be subject to coverage under the Virginia Stormwater Management
Program (VSMP) General Permit for Discharges of Stormwater from Construction
Activities until July 1, 2014, at which time it shall no longer be considered a
small construction activity but shall be then regulated under the requirements
of this article by a VSMP authority.
C. Notwithstanding any other provisions of this
article, the following activities are exempt, unless otherwise required by
federal law:
1. Permitted surface or deep mining operations and projects,
or oil and gas operations and projects conducted under the provisions of Title
45.1;
2. Clearing of lands specifically for agricultural purposes
and the management, tilling, planting, or harvesting of agricultural,
horticultural, or forest crops, livestock feedlot operations, or as
additionally set forth by the Board in regulations, including engineering
operations as follows: 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;
however, this exception shall not apply to harvesting of forest crops unless
the area on which harvesting occurs is reforested artificially or naturally in
accordance with the provisions of Chapter 11 (§ 10.1-1100 et seq.) or is
converted to bona fide agricultural or improved pasture use as described in
subsection B of § 10.1-1163;
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, localities subject to the Chesapeake Bay
Preservation Act (§ 10.1-2100 et seq.) may regulate these single family
residences where land disturbance exceeds 2,500 square feet;
4. Land disturbing Land-disturbing
activities that disturb less than one acre of land area except for land disturbing
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 (9 VAC 10-20 et
seq.) adopted pursuant to the Chesapeake Bay Preservation Act
(§ 10.1-2100 et seq.) or activities that are part of a larger common plan
of development or sale that is one acre or greater of disturbance; however, the
governing body of a any locality which has adopted
a stormwater management program 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;
5. Linear development projects, provided
that (i) less than one acre of
land will be disturbed per outfall or
watershed, (ii) there will be insignificant
increases in peak flow rates, and (iii)
there are no existing or anticipated flooding
or erosion problems downstream of the
discharge point;
6. Discharges to a sanitary sewer or a combined sewer
system;
7 6. Activities under a State or federal
reclamation program to return an abandoned property to an agricultural or open
land use; and
8 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
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 compliance with the administrative
requirements of subsection A is required within 30 days of commencing the
land-disturbing activity.
C. Electric, natural gas, and communication utility
companies, interstate and intrastate natural gas pipeline companies, and
railroad companies may not undertake any land clearing, soil movement, or
construction activity involving soil movement or land disturbance one acre or
greater unless the company has submitted a permit application for the
land-disturbing activity and the application has been reviewed and approved and
a stormwater permit issued by the Board. Companies may submit a single permit
application containing stormwater management standards and specifications for
all land disturbing activities conducted under the requirements of this article.
§ 10.1-603.8:1. Stormwater nonpoint nutrient offsets.
A. As used in this section:
"Nonpoint nutrient offset" means nutrient reductions
certified as nonpoint nutrient offsets under the Chesapeake Bay Watershed
Nutrient Exchange Program (§ 62.1-44.19:12 et seq.).
"Permit issuing authority" has the same meaning
as in § 10.1-603.2 and includes any locality that has adopted a
local stormwater management program.
"Tributary" has the same meaning as in
§ 62.1-44.19:13.
"Virginia Stormwater Management Program
Authority" or "VSMP authority" has the same meaning as in
§ 10.1-603.2 and includes, until July 1, 2014, any locality that has
adopted a local stormwater management program.
B. Permit issuing authorities are A
VSMP authority is authorized to allow compliance with stormwater nonpoint
nutrient runoff water quality criteria established pursuant to
§ 10.1-603.4, in whole or in part, through the use of the permittee's
applicant's acquisition of nonpoint nutrient offsets in the same
tributary.
C. No permit issuing VSMP authority shall
allow the use of nonpoint nutrient offsets to address water quantity control
requirements. No permit issuing VSMP authority shall allow
the use of nonpoint nutrient offsets or other off-site options in contravention
of local water quality-based limitations: (i) consistent with determinations
made pursuant to subsection B of § 62.1-44.19:7, (ii) contained in a
municipal separate storm sewer system (MS4) program plan approved accepted
by the Department, or (iii) as otherwise may be established or approved by the
Board.
D. A permit issuing VSMP authority shall allow
off-site options in accordance with subsection I when:
1. The state permit applicant demonstrates to the
satisfaction of the permit issuing VSMP authority that (i)
alternative site designs have been considered that may accommodate on-site best
management practices, (ii) on-site best management practices have been
considered in alternative site designs to the maximum extent practicable, (iii)
appropriate on-site best management practices will be implemented, and (iv)
full compliance with postdevelopment nonpoint nutrient runoff compliance
requirements cannot practicably be met on site. For purposes of this
subdivision, if an applicant demonstrates on-site control of at least 75
percent of the required phosphorous nutrient reductions, the applicant shall be
deemed to have met the requirements of clauses (i) through (iv);
2. Less than five acres of land will be disturbed; or
3. The postconstruction phosphorous control requirement is
less than 10 pounds per year.
E. Documentation of the permittee's applicant's
acquisition of nonpoint nutrient offsets shall be provided to the permit
issuing VSMP authority and the Department in a
certification from an offset broker documenting the number of phosphorus
nonpoint nutrient offsets acquired and the associated ratio of nitrogen
nonpoint nutrient offsets at the offset generating facility. The offset broker
shall pay the permit issuing VSMP authority a water
quality enhancement fee equal to six percent of the amount paid by the permittee
applicant for the nonpoint nutrient offsets. If a locality is not the permit
issuing VSMP authority, such fee shall be deposited into the
Virginia Stormwater Management Fund established by § 10.1-603.4:1. If the permit
issuing VSMP authority is a locality, such fees shall be used
solely in the locality where the associated stormwater permit applies for
inspection and maintenance of stormwater best management practices, stormwater
educational programs, or programs designed to protect or improve local water
quality.
F. Nonpoint nutrient offsets used pursuant to subsection B
shall be generated in the same or adjacent eight digit hydrologic unit code as
defined by the United States Geological Survey as the permitted site. Nonpoint
nutrient offsets outside the same or adjacent eight digit hydrologic unit code
may only be used if it is determined by the permit issuing VSMP
authority that no nonpoint nutrient offsets are available within the same or
adjacent eight digit hydrologic unit code when the permit issuing
VSMP authority accepts the final site design. In such cases, and subject
to other limitations imposed in this section, nonpoint nutrient offsets
generated within the same tributary may be used. In no case shall nonpoint
nutrient offsets from another tributary be used.
G. For that portion of a site's compliance with stormwater
nonpoint nutrient runoff water quality criteria being obtained through nonpoint
nutrient offsets, a permit issuing VSMP authority shall
(i) use a 1:1 ratio of the nonpoint nutrient offsets to the site's remaining
postdevelopment nonpoint nutrient runoff compliance requirement and (ii) assure
that the nonpoint nutrient offsets are secured in perpetuity.
H. No permit issuing VSMP authority may
grant an exception to, or waiver of, postdevelopment nonpoint nutrient runoff
compliance requirements unless off-site options have been considered and found
not available.
I. The permit issuing VSMP authority shall
require that nonpoint nutrient offsets and other off-site options approved by
the Department or applicable state board, including locality pollutant loading
pro rata share programs established pursuant to § 15.2-2243, achieve the
necessary nutrient reductions prior to the commencement of the permittee's
applicant's land-disturbing activity. A pollutant loading pro rata share
program established by a locality pursuant to § 15.2-2243 and approved by
the Department or applicable state board prior to January 1, 2011, including
those that may achieve nutrient reductions after the commencement of the
land-disturbing activity, may continue to operate in the approved manner for a
transition period ending June 30 July 1, 2014. The permittee
applicant shall have the right to select between the use of nonpoint
nutrient offsets or other off-site options, except during the transition period
in those localities to which the transition period applies. The locality may
use funds collected for nutrient reductions pursuant to a locality pollutant
loading pro rata share program under § 15.2-2243 for nutrient reductions
in the same tributary within the same locality as the land-disturbing activity
or for the acquisition of nonpoint nutrient offsets. In the case of a phased
project, the permittee applicant may acquire or achieve the off-site
nutrient reductions prior to the commencement of each phase of the
land-disturbing activity in an amount sufficient for each such phase.
J. The Board may establish by regulation a stormwater nutrient
program for portions of the Commonwealth that do not drain into the Chesapeake
Bay.
K. Nutrient reductions obtained through nonpoint nutrient
offsets shall be credited toward compliance with any nutrient allocation
assigned to a municipal separate storm sewer system in a Virginia Stormwater
Management Program Permit or Total Maximum Daily Load applicable to the
location where the activity for which the nonpoint nutrient offsets are used
takes place. If the activity for which the nonpoint nutrient offsets are used
does not discharge to a municipal separate storm sewer system, the nutrient
reductions shall be credited toward compliance with the applicable nutrient
allocation.
L. A permit issuing VSMP authority shall
allow the full or partial substitution of nonpoint nutrient offsets for
existing on-site nutrient controls when (i) the nonpoint nutrient offsets will
compensate for 10 or fewer pounds of the annual phosphorous requirement
associated with the original land-disturbing activity or (ii) existing on-site
controls are not functioning as anticipated after reasonable attempts to comply
with applicable maintenance agreements or requirements and the use of nonpoint
nutrient offsets will account for the deficiency. The party responsible for
maintenance shall be released from maintenance obligations related to the
on-site phosphorous controls for which the nonpoint nutrient offsets are
substituted.
M. To the extent available, with the consent of the permittee
applicant, the permit issuing VSMP authority may
include the use of nonpoint nutrient offsets or other off-site measures in
resolving enforcement actions to compensate for (i) nutrient control
deficiencies occurring during the period of noncompliance and (ii) permanent
nutrient control deficiencies.
N. This section shall not be construed as limiting the
authority established under § 15.2-2243; however, under any pollutant
loading pro rata share program established thereunder, the subdivider or
developer shall be given appropriate credit for nutrient reductions achieved
through nonpoint nutrient offsets or other off-site options.
O. In order to properly account for allowed nonpoint
nutrient off-site reductions, an applicant shall report to the Department, in
accordance with Department procedures, information regarding all off-site
reductions that have been authorized to meet stormwater postdevelopment
nonpoint nutrient runoff compliance requirements.
§ 10.1-603.11. Monitoring, reports, investigations,
inspections, and stop work orders.
A. The permit issuing VSMP authority (i)
shall provide for periodic inspections of the installation of stormwater
management measures (ii) may require monitoring and reports from the person
responsible for meeting the permit conditions to ensure compliance with the
permit and to determine whether the measures required in the permit provide
effective stormwater management, and (iii) conduct such investigations and
perform such other actions as are necessary to carry out the provisions of this
article. If the permit issuing VSMP authority, where
authorized to enforce this article, or the Department determines that there
is a failure to comply with the permit conditions, notice shall be served upon
the permittee or person responsible for carrying out the permit conditions by
registered or certified mail to the address specified in the permit
application, or by delivery at the site of the development activities to the
agent or employee supervising such activities. The notice shall specify the
measures needed to comply with the permit conditions and shall specify the time
within which such measures shall be completed. Upon failure to comply within
the time specified, a stop work order may be issued in accordance with
subsection B by the VSMP authority, where authorized to enforce this article,
or by the Department, or the permit may be revoked by the permit issuing
VSMP authority, or the state permit may be revoked by the
Board and the permittee or person responsible
for carrying out the permit conditions
shall be deemed to be in violation
of this article and upon conviction shall
be subject to the penalties provided by.
The Board or the VSMP authority, where authorized to enforce this article, may
pursue enforcement in accordance with § 10.1-603.14.
B. Notwithstanding subsection A of this section, the
following may be applied:
1. Where a county, city, or town administers the local
control program and the permit issuing authority are not within the same local
government department, the locality may designate one department to inspect,
monitor, report, and ensure compliance.
2. Where a permit issuing authority has been established,
and such authority is not vested in an employee or officer of local government
but in the commissioner of revenue or some other person, the locality shall
exercise the responsibilities of the permit issuing authority with respect to
monitoring, reports, inspections, and enforcement unless such responsibilities
are transferred as provided for in this section If a permittee fails to
comply with a notice issued in accordance with subsection A within the time
specified, the VSMP authority, where authorized to enforce this article, or the
Department may issue an order requiring the owner, permittee, person
responsible for carrying out an approved plan, or the person conducting the
land-disturbing activities without an approved plan or required permit to cease
all land-disturbing activities until the violation of the permit has ceased, or
an approved plan and required permits are obtained, and specified corrective
measures have been completed.
Such orders shall be issued in accordance with (i) local
procedures if issued by a locality serving as a VSMP authority or (ii) the
requirements of the Administrative Process Act (§ 2.2-4000 et seq.) if
issued by the Department. Such orders shall become effective upon service on
the person by certified mail, return receipt requested, sent to his address
specified in the land records of the locality, or by personal delivery by an
agent of the VSMP authority or Department. However, if the VSMP authority or
the Department finds that any such violation is grossly affecting or presents
an imminent and substantial danger of causing harmful erosion of lands or
sediment deposition in waters within the watersheds of the Commonwealth or
otherwise substantially impacting water quality, it may issue, without advance
notice or hearing, an emergency order directing such person to cease
immediately all land-disturbing activities on the site and shall provide an
opportunity for a hearing, after reasonable notice as to the time and place
thereof, to such person, to affirm, modify, amend, or cancel such emergency
order.
If a person who has been issued an order is not complying
with the terms thereof, the VSMP authority or the Department may institute a
proceeding in accordance with § 10.1-603.12:4.
§ 10.1-603.12. Department to review VSMPs.
A. The Department shall develop and implement a review and
evaluation schedule so that the effectiveness of each local government's
and state agency's stormwater management program
VSMP authority, Municipal Separate Storm Sewer System Management
Program, and other MS4 permit requirements is evaluated no less than every five
years. The review shall include an assessment of the extent to which the
program has reduced nonpoint source pollution and mitigated the detrimental
effects of localized flooding. Such reviews shall be coordinated with those
being implemented in accordance with the Erosion and Sediment Control Law
(§ 10.1-560 et seq.) and associated regulations and, where applicable, the
Chesapeake Bay Preservation Act (§ 10.1-2100 et seq.) and associated
regulations.
B. Following completion of a compliance review of a VSMP,
the Department shall provide results and compliance recommendations to the
Board in the form of a corrective action agreement if deficiencies are found;
otherwise, the Board may find the program compliant. If, after such a
review and evaluation, a local government VSMP is found to
have a program that does not comply with the provisions of this article or
regulations adopted thereunder, the Board may issue an
order requiring that necessary corrective action
be taken within a reasonably prescribed
time shall establish a schedule for the VSMP authority to come into
compliance. The Board shall provide a copy of its decision to the VSMP authority
that specifies the deficiencies, actions needed to be taken, and the approved
compliance schedule. If the local government VSMP has
not implemented the corrective action necessary compliance
actions identified by the Board within 30 days following receipt of the notice
corrective action agreement, or such additional period as is necessary
granted to complete the implementation of the corrective action, then
the Board shall take administrative and legal actions
to ensure compliance with the provisions
of this article. If the program is
delegated to the locality by the Board,
the Board may revoke such delegation and
have the Department administer the program
have the authority to (i) issue a special order to any VSMP imposing a civil
penalty not to exceed $5,000 per day with the maximum amount not to exceed
$20,000 per violation for noncompliance with the requirements of this article
and its regulations, to be paid into the state treasury and deposited in the
Virginia Stormwater Management Fund established by § 10.1-603.4:1 or (ii)
revoke its approval of the VSMP. The Administrative Process Act
(§ 2.2-4000 et seq.) shall govern the activities and proceedings of the
Board under this article and the judicial review thereof.
If the Board revokes its approval of a VSMP, the Board
shall find the VSMP authority provisional, and shall have the Department assist
with the administration of the program until the VSMP authority is deemed
compliant with the requirements of this article and associated regulations.
Assisting with administration includes the ability to review and comment on
plans to the VSMP authority, to conduct inspections with the VSMP authority,
and to conduct enforcement in accordance with this article and associated
regulations.
In lieu of issuing a special order or revoking the program,
the Board may take legal action against a VSMP pursuant to § 10.1-603.14
to ensure compliance.
§ 10.1-603.12:1. Right of entry.
The Department, the permit issuing VSMP
authority, where authorized to enforce this article, any duly authorized
agent of the Department or permit issuing VSMP authority,
or any locality that is the operator of a regulated municipal separate storm
sewer system may, at reasonable times and under reasonable circumstances, enter
any establishment or upon any property, public or private, for the purpose of
obtaining information or conducting surveys or investigations necessary in the
enforcement of the provisions of this article. For operators of municipal
separate storm sewer systems, this authority shall apply only to those
properties from which a discharge enters their municipal separate storm sewer
systems.
In accordance with a performance bond with surety, cash
escrow, letter of credit, any combination thereof, or such other legal
arrangement, a VSMP authority may also enter any establishment or upon any
property, public or private, for the purpose of initiating or maintaining
appropriate actions which are required by the permit conditions associated with
a land-disturbing activity when a permittee, after proper notice, has failed to
take acceptable action within the time specified.
§ 10.1-603.12:2. Information to be furnished.
The Board, the Department, or the permit issuing
VSMP authority, where authorized to enforce this article,
may require every permit applicant or, permittee, or any
person subject to state permit requirements under this article to furnish
when requested such application materials, plans, specifications, and other
pertinent information as may be necessary to determine the effect of his
discharge on the quality of state waters, or such other information as may be
necessary to accomplish the purposes of this article. Any personal information
shall not be disclosed except to an appropriate official of the Board,
Department, US EPA, or permit issuing VSMP authority or as
may be authorized pursuant to the Virginia Freedom of Information Act
(§ 2.2-3700 et seq.). However, disclosure of records of the Department,
the Board, or the permit issuing VSMP authority relating
to (i) active federal environmental enforcement actions that are considered
confidential under federal law, (ii) enforcement strategies, including proposed
sanctions for enforcement actions, and (iii) any secret formulae, secret
processes, or secret methods other than effluent data used by any permitee
permittee or under that permitee's permittee's direction
is prohibited. Upon request, such enforcement records shall be disclosed after
a proposed sanction resulting from the investigation has been determined by the
Department, the Board, or the permit issuing VSMP
authority. This section shall not be construed to prohibit the disclosure of
records related to inspection reports, notices of violation, and documents
detailing the nature of any land disturbing land-disturbing
activity that may have occurred, or similar documents.
§ 10.1-603.12:3. Private rights; liability.
A. Whenever a common interest community cedes responsibility
for the maintenance, repair, and replacement of a stormwater management
facility on its real property to the Commonwealth or political subdivision
thereof, such common interest community shall be immune from civil liability in
relation to such stormwater management facility. In order for the immunity
established by this subsection to apply, (i) the common interest community must
cede such responsibility by contract or other instrument executed by both
parties and (ii) the Commonwealth or the governing body of the political
subdivision shall have accepted the responsibility ceded by the common interest
community in writing or by resolution. As used in this section, maintenance,
repair, and replacement shall include, without limitation, cleaning of the
facility, maintenance of adjacent grounds which are part of the facility,
maintenance and replacement of fencing where the facility is fenced, and
posting of signage indicating the identity of the governmental entity which
maintains the facility. Acceptance or approval of an easement, subdivision
plat, site plan, or other plan of development shall not constitute the
acceptance by the Commonwealth or the governing body of the political
subdivision required to satisfy subdivision (ii). The immunity granted by this
section shall not apply to actions or omissions by the common interest
community constituting intentional or willful misconduct or gross negligence.
For the purposes of this section, "common interest community" means
the same as that term is defined in § 55-528.
B. Except as provided in subsection A, the fact that any
permittee holds or has held a permit or state permit issued under this
article shall not constitute a defense in any civil action involving private
rights.
§ 10.1-603.12:4. Enforcement by injunction, etc.
A. It shall be is unlawful for any
person to fail to comply with any stop work order, emergency order issued in
accordance with § 10.1-603.11, or a special order or emergency special
order issued in accordance with § 10.1-603.2:1 that has become
final under the provisions of this article. Any person violating or failing,
neglecting, or refusing to obey any rule, regulation, ordinance, approved
standard and specification, order, or any permit condition issued by the
Board, Department, or permit issuing VSMP authority as
authorized to do such, or any provisions of this article may be compelled in a
proceeding instituted in any appropriate court by the Board, Department, or permit
issuing VSMP authority where authorized to enforce this
article to obey same and to comply therewith by injunction, mandamus,
or other appropriate remedy.
B. Any person violating or failing, neglecting, or refusing
to obey any injunction, mandamus, or other remedy obtained pursuant to this
section shall be subject, in the discretion of the court, to a civil penalty in
accordance with the provisions of § 10.1-603.14.
§ 10.1-603.12:6. Right to hearing.
Any permit applicant or, permittee, or person
subject to state permit requirements under this article aggrieved by any
action of the permit issuing VSMP authority,
Department, or Board taken without a formal hearing, or by inaction of the permit
issuing VSMP authority, Department, or Board, may demand
in writing a formal hearing by the Board or locality VSMP authority
causing such permit applicant's or permittee's
grievance, provided a petition requesting such hearing is filed with the Board
or the locality VSMP authority within 30 days after notice of
such action.
§ 10.1-603.12:7. Hearings.
A. The hearings held under this article pertaining to the
responsibilities or actions of the Board may be conducted by the Board itself
at a regular or special meeting of the Board, or by at least one member of the
Board designated by the chairman to conduct such hearings on behalf of the
Board at any other time and place authorized by the Board.
B. A verbatim record of the proceedings of such hearings shall
be taken and filed with the Board. Depositions may be taken and read as in
actions at law.
C. The Board shall have power to issue subpoenas and subpoenas
duces tecum, and at the request of any party shall issue such subpoenas. The
failure of a witness without legal excuse to appear or to testify or to produce
documents shall be acted upon by the Board in the manner prescribed in
§ 2.2-4022. Witnesses who are subpoenaed shall receive the same fees and
reimbursement for mileage as in civil actions.
D. Localities VSMP authorities holding hearings
under this article shall do so in a manner consistent with this section.
§ 10.1-603.13. Appeals.
Any permittee or party aggrieved by a state permit or
enforcement decision of the permit issuing authority Department
or Board, or any person who has participated, in person or by submittal of
written comments, in the public comment process related to a final decision of
the permit issuing authority Department or Board
under this article, whether such decision is affirmative or negative, is
entitled to judicial review thereof in accordance with the provisions of the
Administrative Process Act (§ 2.2-4000 et seq.) if such person meets the
standard for obtaining judicial review of a case or controversy pursuant to
Article III of the United States Constitution. A person shall be deemed to meet
such standard if (i) such person has suffered an actual or imminent injury that
is an invasion of a legally protected interest and that is concrete and particularized;
(ii) such injury is fairly traceable to the decision of the permit issuing
authority Department or the Board and not the result of the
independent action of some third party not before the court; and (iii) such
injury will likely be redressed by a favorable decision by the court.
The provisions of § 2.2-4030 the
Administrative Process Act (§ 2.2-4000 et seq.) shall not apply to
decisions rendered by localities but appeals shall be conducted in
accordance with local appeal procedures.
§ 10.1-603.14. Penalties, injunctions, and other legal
actions.
A. Any person who violates any provision of this article, or
of any regulations or, ordinances, or standards and
specifications adopted or approved hereunder, including those
adopted pursuant to the conditions of an MS4 permit or who fails, neglects,
or refuses to comply with any order of the permit issuing a
VSMP authority authorized to enforce this article, the Department,
Board, or court, issued as herein provided, shall be subject to a civil penalty
not to exceed $32,500 for each violation within the discretion of the court.
Each day of violation of each requirement shall constitute a separate offense.
The Board shall adopt a regulation establishing a schedule of civil penalties
to be utilized by the permit issuing VSMP authority in
enforcing the provisions of this article. The Board, Department, or permit
issuing VSMP authority for the locality wherein
the land lies may issue a summons for collection of the
civil penalty and the action may be prosecuted in the appropriate circuit
court. Any civil penalties assessed by a court as a result of a summons issued
by a locality as an approved VSMP authority shall be paid into the
treasury of the locality wherein the land lies, except where the violator is the
locality itself, or its agent. When the penalties are assessed by the court as
a result of a summons issued by the Board or Department, or where the violator
is the locality itself, or its agent, the court shall direct the penalty to be
paid into the state treasury and deposited by the State Treasurer into the
Virginia Stormwater Management Fund established pursuant to
§ 10.1-603.4:1. Such civil penalties paid into the treasury of the
locality in which the violation occurred are to be used for the purpose of
minimizing, preventing, managing, or mitigating pollution of the waters of the
locality and abating environmental pollution therein in such manner as the
court may, by order, direct.
B. Any person who willfully or negligently violates any
provision of this article, any regulation or order of the Board, order of the
permit issuing a VSMP authority authorized to enforce
this article or the Department, ordinance of any locality approved as a
VSMP authority, any condition of a permit or state permit, or any
order of a court shall be guilty of a misdemeanor punishable by confinement in
jail for not more than 12 months and a fine of not less than $2,500 nor more
than $32,500, either or both. Any person who knowingly violates any provision
of this article, any regulation or order of the Board, order of the permit
issuing VSMP authority or the Department, ordinance of any
locality approved as a VSMP authority, any condition of a permit or
state permit, or any order of a court issued as herein provided, or who knowingly
makes any false statement in any form required to be submitted under this
article or knowingly renders inaccurate any monitoring device or method
required to be maintained under this article, shall be guilty of a felony
punishable by a term of imprisonment of not less than one year nor more than
three years, or in the discretion of the jury or the court trying the case
without a jury, confinement in jail for not more than 12 months and a fine of
not less than $5,000 nor more than $50,000 for each violation. Any defendant
that is not an individual shall, upon conviction of a violation under this
subsection, be sentenced to pay a fine of not less than $10,000. Each day of
violation of each requirement shall constitute a separate offense.
C. Any person who knowingly violates any provision of this
article, and who knows at that time that he thereby places another person in
imminent danger of death or serious bodily harm, shall, upon conviction, be
guilty of a felony punishable by a term of imprisonment of not less than two
years nor more than 15 years and a fine of not more than $250,000, either or
both. A defendant that is not an individual shall, upon conviction of a
violation under this subsection, be sentenced to pay a fine not exceeding the
greater of $1 million or an amount that is three times the economic benefit
realized by the defendant as a result of the offense. The maximum penalty shall
be doubled with respect to both fine and imprisonment for any subsequent
conviction of the same person under this subsection.
D. Violation of any provision of this article may also include
the following sanctions:
1. The Board, Department, or the permit issuing VSMP
authority, where authorized to enforce this article, may apply to the circuit
appropriate court in any jurisdiction wherein the land lies to enjoin a
violation or a threatened violation of the provisions of this article or of the
local ordinance without the necessity of showing that an adequate remedy at law
does not exist.
2. With the consent of any person who has violated or failed,
neglected or refused to obey any ordinance, any condition of a permit or
state permit, any regulation or order of the Board, any order of the permit
issuing VSMP authority or the Department, or any provision of
this article, the Board, Department, or permit issuing VSMP
authority may provide, in an order issued against such person, for the payment
of civil charges for violations in specific sums, not to exceed the limit
specified in this section. Such civil charges shall be instead of any
appropriate civil penalty that could be imposed under this section. Any civil
charges collected shall be paid to the locality or state treasury pursuant to
subsection A.
§ 10.1-603.14:1. Enforcement authority of MS4 localities.
A. Any locality may Localities shall
adopt a stormwater ordinance pursuant to the conditions of a MS4 permit and
that is consistent with this article and its associated regulations and that
contains provisions including the Virginia Stormwater Management Program (VSMP)
General Permit for Discharges of Stormwater from Construction Activities and
shall include additional provisions as required to comply with a state MS4
permit. Such locality may utilize the civil penalty provisions in
subsection A of § 10.1-603.14, the injunctive authority as provided for in
subdivision D 1 of § 10.1-603.14, and the civil charges as authorized in
subdivision D 2 of § 10.1-603.14, to enforce the ordinance. At the request
of another MS4, the locality may apply the penalties provided for in this
section to direct or indirect discharges to any MS4 located within its
jurisdiction.
B. Any person who willfully and knowingly violates any
provision of such an ordinance is guilty of a Class 1 misdemeanor.
C. The local ordinance authorized by this section shall remain
in full force and effect until the locality has been delegated the
authority to administer a local stormwater
management program, whereupon the locality shall
adopt an ordinance that is consistent
with Article 1.1 (§ 10.1-603.1 et
seq.) of Chapter 6 of this title
approved as a VSMP authority.
§ 10.1-603.15. Cooperation with federal and state
agencies.
Localities operating their own programs
A VSMP authority and the Department are authorized to cooperate and
enter into agreements with any federal or state agency in connection with permits
the requirements for land disturbing land-disturbing
activities for stormwater management.
§ 10.1-659. Flood protection programs; coordination.
The provisions of this chapter shall be coordinated with
federal, state and local flood prevention and water quality programs to
minimize loss of life, property damage and negative impacts on the environment.
This program coordination shall include but not be limited to the following:
flood prevention, flood plain management, small watershed protection, dam
safety, soil conservation, stormwater management and erosion and sediment
control programs of the Department of Conservation and Recreation; the
construction activities of the Department of Transportation which result in
hydrologic modification of rivers, streams and flood plains; the water quality
and other water management programs of the State Water Control Board; forested
watershed management programs of the Department of Forestry; the statewide building
code and other land use control programs of the Department of Housing and
Community Development; local planning assistance programs
of the Council on the Environment;
the habitat management programs of the Virginia Marine Resources Commission;
the hazard mitigation planning and disaster response programs of the Department
of Emergency Management; the fish habitat protection programs of the Department
of Game and Inland Fisheries; the mineral extraction regulatory program of the
Department of Mines, Minerals and Energy; the flood plain restrictions of the
Department of Waste Management; the Chesapeake Bay Preservation Area criteria
and local government assistance programs of the Chesapeake Bay Local
Assistance Board Virginia Soil and Water Conservation Board.
The Department shall also coordinate and cooperate with localities in rendering
assistance to such localities in their efforts to comply with the planning,
subdivision of land and zoning provisions of Chapter 22 (§ 15.2-2200 et
seq.) of Title 15.2. The Department shall cooperate with other public and
private agencies having flood plain management programs, and shall coordinate
its responsibilities under this article and any other law. These activities
shall constitute the Commonwealth's flood prevention and protection program.
§ 10.1-2101. Definitions.
For the purposes of this chapter, the following words shall
have the meanings respectively ascribed to them:
"Board" means Chesapeake Bay Local
Assistance Board Virginia Soil and Water Conservation Board.
"Chesapeake Bay Preservation Area" means an area
delineated by a local government in accordance with criteria established
pursuant to § 10.1-2107.
"Criteria" means criteria developed by the Board
pursuant to § 10.1-2107 of this chapter for the purpose
of determining the ecological and geographic extent of Chesapeake Bay
Preservation Areas and for use by local governments in permitting, denying, or
modifying requests to rezone, subdivide, or to use and develop land in
Chesapeake Bay Preservation Areas.
"Department" means the Department of Conservation
and Recreation.
"Director" means the Director of the Department of
Conservation and Recreation.
"Person" means any corporation, association, or
partnership, one or more individuals, or any unit of government or agency
thereof.
"Secretary" means the Secretary of Natural
Resources.
"State waters" means all waters, on the surface or
under the ground, wholly or partially within or bordering the Commonwealth or
within its jurisdiction.
"Tidewater Virginia" means the following
jurisdictions:
The Counties of Accomack, Arlington, Caroline, Charles City,
Chesterfield, Essex, Fairfax, Gloucester, Hanover, Henrico, Isle of Wight,
James City, King George, King and Queen, King William, Lancaster, Mathews,
Middlesex, New Kent, Northampton, Northumberland, Prince George, Prince
William, Richmond, Spotsylvania, Stafford, Surry, Westmoreland, and York, and
the Cities of Alexandria, Chesapeake, Colonial Heights, Fairfax, Falls Church,
Fredericksburg, Hampton, Hopewell, Newport News, Norfolk, Petersburg, Poquoson,
Portsmouth, Richmond, Suffolk, Virginia Beach, and Williamsburg.
§ 10.1-2104.1. Program compliance.
Program compliance reviews conducted in accordance with
§ 10.1-2103 and the regulations associated with this article shall be
coordinated where applicable with those being implemented in accordance with
the Erosion and Sediment Control Law (§ 10.1-560 et seq.) and associated
regulations and the Stormwater Management Control Act (§ 10.1-603.2 et
seq.) and associated regulations. The Department may also conduct a
comprehensive or partial program compliance review and evaluation of a local
government program more frequently than the standard schedule.
Following completion of a compliance review of a local
government program, the Department shall provide results and compliance
recommendations to the Board in the form of a corrective action agreement
should deficiencies be found; otherwise, the Board may find the program
compliant. When deficiencies are found, the Board will establish a schedule for
the local government to come into compliance. The Board shall provide a copy of
its decision to the local government that specifies the deficiencies, actions
needed to be taken, and the approved compliance schedule. If the local
government has not implemented the necessary compliance actions identified by
the Board within 30 days following receipt of the corrective action agreement,
or such additional period as is granted to complete the implementation of the
compliance actions, then the Board shall have the authority to issue a special
order to any local government imposing a civil penalty not to exceed $5,000 per
day with the maximum amount not to exceed $20,000 per violation for
noncompliance with the state program, to be paid into the state treasury and
deposited in the Virginia Stormwater Management Fund established by
§ 10.1-603.4:1.
The Administrative Process Act (§ 2.2-4000 et seq.)
shall govern the activities and proceedings of the Board under this article and
the judicial review thereof.
In lieu of issuing a special order, the Board is also
authorized to take legal action against a local government to ensure
compliance.
§ 10.1-2106. Powers and duties of Director.
A. In addition to the other responsibilities set forth herein,
the Director shall carry out management and supervisory responsibilities in
accordance with the regulations and policies of the Board. In no event shall
the Director have the authority to promulgate any final adopt
regulations.
B. The Director shall be vested with all the authority of the
Board related to this article, including the authority granted by
§ 10.1-2104, when it is not in session, subject to such regulations as may
be prescribed by the Board.
§ 10.1-2107. Board to develop criteria.
A. In order to implement the provisions of this chapter and to
assist counties, cities and towns in regulating the use and development of land
and in protecting the quality of state waters, the Board shall promulgate
regulations which establish criteria for use by local governments to determine
the ecological and geographic extent of Chesapeake Bay Preservation Areas. The
Board shall also promulgate regulations which establish criteria for use by
local governments in granting, denying, or modifying requests to rezone,
subdivide, or to use and develop land in these areas.
B. In developing and amending the criteria, the Board shall
consider all factors relevant to the protection of water quality from
significant degradation as a result of the use and development of land. The
criteria shall incorporate measures such as performance standards, best
management practices, and various planning and zoning concepts to protect the
quality of state waters while allowing use and development of land consistent
with the provisions of this chapter. The criteria adopted by the Board,
operating in conjunction with other state water quality programs, shall
encourage and promote: (i) protection of existing high quality state waters and
restoration of all other state waters to a condition or quality that will
permit all reasonable public uses and will support the propagation and growth
of all aquatic life, including game fish, which might reasonably be expected to
inhabit them; (ii) safeguarding the clean waters of the Commonwealth from
pollution; (iii) prevention of any increase in pollution; (iv) reduction of
existing pollution; and (v) promotion of water resource conservation in order
to provide for the health, safety and welfare of the present and future
citizens of the Commonwealth.
C. Prior to the development or amendment of criteria, the
Board shall give due consideration to, among other things, the economic and
social costs and benefits which can reasonably be expected to obtain as a
result of the adoption or amendment of the criteria.
D. In developing such criteria the Board may consult with and
obtain the comments of any federal, state, regional, or local agency that has
jurisdiction by law or special expertise with respect to the use and
development of land or the protection of water. The Board shall give due
consideration to the comments submitted by such federal, state, regional, or
local agencies.
E. Criteria shall be adopted by
July 1, 1989 Effective July 1, 2014, requirements
promulgated under this article directly related to compliance with the Erosion
and Sediment Control Law (§ 10.1-560 et seq.) and the Stormwater
Management Act (§ 10.1-603.2 et seq.) and regulated under the authority of
those laws shall cease to have effect.
§ 10.1-2129. Agency coordination; conditions of grants.
A. If, in any fiscal year beginning on or after July 1, 2005,
there are appropriations to the Fund in addition to those made pursuant to
subsection A of § 10.1-2128, the Secretary of Natural Resources shall
distribute those moneys in the Fund provided from the 10 percent of the annual
general fund revenue collections that are in excess of the official estimates
in the general appropriation act, and the 10 percent of any unrestricted and
uncommitted general fund balance at the close of each fiscal year whose
reappropriation is not required in the general appropriation act, as follows:
1. Seventy percent of the moneys shall be distributed to the
Department of Conservation and Recreation and shall be administered by it for
the sole purpose of implementing projects or best management practices that
reduce nitrogen and phosphorus nonpoint source pollution, with a priority given
to agricultural best management practices. In no single year shall more than 60
percent of the moneys be used for projects or practices exclusively within the
Chesapeake Bay watershed; and
2. Thirty percent of the moneys shall be distributed to the
Department of Environmental Quality, which shall use such moneys for making
grants for the sole purpose of designing and installing nutrient removal
technologies for publicly owned treatment works designated as significant
dischargers or eligible nonsignificant dischargers. The moneys shall also be
available for grants when the design and installation of nutrient removal technology
utilizes the Public-Private Education Facilities and Infrastructure Act
(§ 56-575.1 et seq.).
3. Except as otherwise provided in the Appropriation Act, in
any fiscal year when moneys are not appropriated to the Fund in addition to
those specified in subsection A of § 10.1-2128, or when moneys
appropriated to the Fund in addition to those specified in subsection A of
§ 10.1-2128 are less than 40 percent of those specified in subsection A of
§ 10.1-2128, the Secretary of Natural Resources, in consultation with the
Secretary of Agriculture and Forestry, the State Forester, the Commissioner of
Agriculture and Consumer Services, and the Directors of the Departments of
Environmental Quality and Conservation and Recreation, and with the advice and
guidance of the Board of Conservation and Recreation, the Virginia Soil and
Water Conservation Board, and the State Water Control Board, and
the Chesapeake Bay Local Assistance Board,
and following a public comment period of at least 30 days and a public hearing,
shall allocate those moneys deposited in the Fund, but excluding any moneys
deposited into the Virginia Natural Resources Commitment Fund established
pursuant to § 10.1-2128.1, between point and nonpoint sources, both of
which shall receive moneys in each such year.
B. 1. Except as may otherwise be specified in the general
appropriation act, the Secretary of Natural Resources, in consultation with the
Secretary of Agriculture and Forestry, the State Forester, the Commissioner of
Agriculture and Consumer Services, the State Health Commissioner, and the
Directors of the Departments of Environmental Quality and Conservation and
Recreation, and with the advice and guidance of the Board of Conservation and
Recreation, the Virginia Soil and Water Conservation Board, and the
State Water Control Board, and the Chesapeake Bay
Local Assistance Board, shall develop written guidelines
that (i) specify eligibility requirements; (ii) govern the application for and
the distribution and conditions of Water Quality Improvement Grants; (iii) list
criteria for prioritizing funding requests; and (iv) define criteria and
financial incentives for water reuse.
2. In developing the guidelines the Secretary shall evaluate
and consider, in addition to such other factors as may be appropriate to most
effectively restore, protect and improve the quality of state waters: (i)
specific practices and programs proposed in any tributary strategy plan, and
the associated effectiveness and cost per pound of nutrients removed; (ii)
water quality impairment or degradation caused by different types of nutrients
released in different locations from different sources; and (iii) environmental
benchmarks and indicators for achieving improved water quality. The process for
development of guidelines pursuant to this subsection shall, at a minimum,
include (a) use of an advisory committee composed of interested parties; (b) a
60-day public comment period on draft guidelines; (c) written responses to all
comments received; and (d) notice of the availability of draft guidelines and
final guidelines to all who request such notice.
3. In addition to those the Secretary deems advisable to most
effectively restore, protect and improve the quality of state waters, the
criteria for prioritizing funding requests shall include: (i) the pounds of
total nitrogen and the pounds of total phosphorus reduced by the project; (ii)
whether the location of the water quality restoration, protection or
improvement project or program is within a watershed or subwatershed with documented
water nutrient loading problems or adopted nutrient reduction goals; (iii)
documented water quality impairment; and (iv) the availability of other funding
mechanisms. Notwithstanding the provisions of subsection E of § 10.1-2131,
the Director of the Department of Environmental Quality may approve a local
government point source grant application request for any single project that
exceeds the authorized grant amount outlined in subsection E of
§ 10.1-2131. Whenever a local government applies for a grant that exceeds
the authorized grant amount outlined in this chapter or when there is no stated
limitation on the amount of the grant for which an application is made, the
Directors and the Secretary shall consider the comparative revenue capacity,
revenue efforts and fiscal stress as reported by the Commission on Local
Government. The development or implementation of cooperative programs developed
pursuant to subsection B of § 10.1-2127 shall be given a high priority in
the distribution of Virginia Water Quality Improvement Grants from the moneys
allocated to nonpoint source pollution.
§ 62.1-195.1. Chesapeake Bay; drilling for oil or gas
prohibited.
A. Notwithstanding any other law, a person shall not drill for
oil or gas in the waters of the Chesapeake Bay or any of its tributaries. In
Tidewater Virginia, as defined in § 10.1-2101, a person shall not drill
for oil or gas in, whichever is the greater distance, as measured landward of
the shoreline:
1. Those Chesapeake Bay Preservation Areas, as defined in
§ 10.1-2101, which a local government designates as "Resource
Protection Areas" and incorporates into its local comprehensive plan.
"Resource Protection Areas" shall be defined according to the
criteria developed by the Chesapeake Bay Local Assistance
Board Virginia Soil and Water Conservation Board pursuant to
§ 10.1-2107; or
2. Five hundred feet from the shoreline of the waters of the
Chesapeake Bay or any of its tributaries.
B. In the event that any person desires to drill for oil or
gas in any area of Tidewater Virginia where drilling is not prohibited by the
provisions of subsection A of this section, he shall
submit to the Department of Mines, Minerals and Energy as part of his
application for permit to drill an environmental impact assessment. The environmental
impact assessment shall include:
1. The probabilities and consequences of accidental discharge
of oil or gas into the environment during drilling, production, and
transportation on:
a. Finfish, shellfish, and other marine or freshwater organisms;
b. Birds and other wildlife that use the air and water
resources;
c. Air and water quality; and
d. Land and water resources;
2. Recommendations for minimizing any adverse economic,
fiscal, or environmental impacts; and
3. An examination of the secondary environmental effects of
induced economic development due to the drilling and production.
C. Upon receipt of an environmental impact assessment, the
Department of Mines, Minerals and Energy shall notify the Department of
Environmental Quality to coordinate a review of the environmental impact
assessment. The Department of Environmental Quality shall:
1. Publish in the Virginia Register of Regulations a notice
sufficient to identify the environmental impact assessment and providing an
opportunity for public review of and comment on the assessment. The period for
public review and comment shall not be less than thirty 30 days
from the date of publication;
2. Submit the environmental impact assessment to all
appropriate state agencies to review the assessment and submit their comments
to the Department of Environmental Quality; and
3. Based upon the review by all appropriate state agencies and
the public comments received, submit findings and recommendations to the
Department of Mines, Minerals and Energy, within ninety 90 days
after notification and receipt of the environmental impact assessment from the
Department.
D. The Department of Mines, Minerals and Energy may not grant
a permit under § 45.1-361.29 until it has considered the findings and recommendations
of the Department of Environmental Quality.
E. The Department of Environmental Quality shall, in
conjunction with other state agencies and in conformance with the
Administrative Process Act (§ 2.2-4000 et seq.), develop criteria and
procedures to assure the orderly preparation and evaluation of environmental
impact assessments required by this section.
F. A person may drill an exploratory well or a gas well in any
area of Tidewater Virginia where drilling is not prohibited by the provisions
of subsection A of this section only if:
1. For directional drilling, the person has the permission of
the owners of all lands to be directionally drilled into;
2. The person files an oil discharge contingency plan and
proof of financial responsibility to implement the plan, both of which have
been filed with and approved by the State Water Control Board. For purposes of
this section, the oil discharge contingency plan shall comply with the
requirements set forth in § 62.1-44.34:15. The Board's regulations
governing the amount of any financial responsibility required shall take into
account the type of operation, location of the well, the risk of discharge or
accidental release, the potential damage or injury to state waters or sensitive
natural resource features or the impairment of their beneficial use that may
result from discharge or release, the potential cost of containment and
cleanup, and the nature and degree of injury or interference with general
health, welfare and property that may result from discharge or accidental
release;
3. All land-disturbing activities resulting from the
construction and operation of the permanent facilities necessary to implement
the contingency plan and the area within the berm will be located outside of
those areas described in subsection A of this section;
4. The drilling site is stabilized with boards or gravel or
other materials which will result in minimal amounts of runoff;
5. Persons certified in blowout prevention are present at all
times during drilling;
6. Conductor pipe is set as necessary from the surface;
7. Casing is set and pressure grouted from the surface to a
point at least 2500 feet below the surface or 300 feet below the deepest known
ground water, as defined in § 62.1-255, for a beneficial use, as defined
in § 62.1-10, whichever is deeper;
8. Freshwater-based drilling mud is used during drilling;
9. There is no onsite disposal of drilling muds, produced
contaminated fluids, waste contaminated fluids or other contaminated fluids;
10. Multiple blow-out preventers are employed; and
11. The person complies with all requirements of Chapter 22.1
(§ 45.1-361.1 et seq.) of Title 45.1 and regulations promulgated
thereunder.
G. The provisions of subsection A and subdivisions F 1
and 4 through 9 of subsection F of this section
shall be enforced consistent with the requirements of Chapter 22.1
(§ 45.1-361.1 et seq.) of Title 45.1.
H. In the event that exploration activities in Tidewater
Virginia result in a finding by the Director of the Department of Mines,
Minerals and Energy that production of commercially recoverable quantities of
oil is likely and imminent, the Director of the Department of Mines, Minerals
and Energy shall notify the Secretary of Commerce and Trade and the Secretary
of Natural Resources. At that time, the Secretaries shall develop a joint
report to the Governor and the General Assembly assessing the environmental
risks and safeguards; transportation issues; state-of-the-art oil production
well technology; economic impacts; regulatory initiatives; operational
standards; and other matters related to the production of oil in the region. No
permits for oil production wells shall be issued until (i) the Governor has had
an opportunity to review the report and make recommendations, in the public
interest, for legislative and regulatory changes, (ii) the General Assembly,
during the next upcoming regular session, has acted on the Governor's
recommendations or on its own initiatives, and (iii) any resulting legislation
has become effective. The report by the Secretaries and the Governor's
recommendations shall be completed within eighteen 18 months of
the findings of the Director of the Department of Mines, Minerals and Energy.
2. That §§ 10.1-572, 10.1-573, 10.1-603.9,
10.1-2102, and 10.1-2112 of the Code of Virginia are repealed.
3. That the Chesapeake Bay Preservation Area
Designation and Management Regulations (9 VAC 10-20) shall be transferred from
the Chesapeake Bay Local Assistance Board to the Virginia Soil and Water
Conservation Board on July 1, 2012, and the Virginia Soil and Water
Conservation Board may amend, modify, or delete provisions in these regulations
in order to implement this Act. Current regulations that are in effect shall
remain in full force and effect until altered, amended, or rescinded by the
Virginia Soil and Water Conservation Board.
4. That any program determinations of, or enforcement
actions initiated by, the Chesapeake Bay Local Assistance Board shall be
assumed by the Virginia Soil and Water Conservation Board and shall remain in
effect until altered, amended, or rescinded by the Virginia Soil and Water
Conservation Board.
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