CHAPTER 68
An Act to amend and reenact §§10.1-2500, 15.2-2403.3,
62.1-44.3, 62.1-44.5, 62.1-44.15, 62.1-44.15:24, 62.1-44.15:25, 62.1-44.15:27,
62.1-44.15:28, 62.1-44.15:29, 62.1-44.15:30, 62.1-44.15:31, 62.1-44.15:33,
62.1-44.15:34, 62.1-44.15:35, 62.1-44.15:37, 62.1-44.15:39, 62.1-44.15:40,
62.1-44.15:41, 62.1-44.15:46, 62.1-44.15:48 through 62.1-44.15:55,
62.1-44.15:57, 62.1-44.15:58, 62.1-44.15:60, 62.1-44.15:62 through
62.1-44.15:65, 62.1-44.15:69, 62.1-44.15:74, 62.1-44.19:22, 62.1-44.22,
62.1-44.23, 62.1-44.25, 62.1-44.26, 62.1-44.29, 62.1-44.31, and 62.1-44.32 of
the Code of Virginia; to amend the Code of Virginia by adding sections numbered
62.1-44.15:25.1, 62.1-44.15:27.1, 62.1-44.15:29.1, and 62.1-44.15:51.1; and to
repeal §§62.1-44.15:26, 62.1-44.15:32, 62.1-44.15:36, 62.1-44.15:38,
62.1-44.15:42 through 62.1-44.15:45, 62.1-44.15:47, 62.1-44.15:56,
62.1-44.15:61, and 62.1-44.15:71 of the Code of Virginia, relating to State
Water Control Law, Erosion and Sediment Control Law, and Chesapeake Bay
Preservation Act.
[S 673]
Approved February 29, 2016
Be it enacted by the General Assembly of Virginia:
1. That §§10.1-2500, 15.2-2403.3, 62.1-44.3, 62.1-44.5,
62.1-44.15, 62.1-44.15:24, 62.1-44.15:25, 62.1-44.15:27, 62.1-44.15:28,
62.1-44.15:29, 62.1-44.15:30, 62.1-44.15:31, 62.1-44.15:33, 62.1-44.15:34,
62.1-44.15:35, 62.1-44.15:37, 62.1-44.15:39, 62.1-44.15:40, 62.1-44.15:41,
62.1-44.15:46, 62.1-44.15:48 through 62.1-44.15:55, 62.1-44.15:57,
62.1-44.15:58, 62.1-44.15:60, 62.1-44.15:62 through 62.1-44.15:65,
62.1-44.15:69, 62.1-44.15:74, 62.1-44.19:22, 62.1-44.22, 62.1-44.23,
62.1-44.25, 62.1-44.26, 62.1-44.29, 62.1-44.31, and 62.1-44.32 of the Code of
Virginia are amended and reenacted and that the Code of Virginia is amended by
adding sections numbered 62.1-44.15:25.1, 62.1-44.15:27.1, 62.1-44.15:29.1, and
62.1-44.15:51.1 as follows:
§10.1-2500. Virginia Environmental Emergency Response Fund
established.
A. There is hereby established the Virginia Environmental
Emergency Response Fund, hereafter referred to as the Fund, to be used (i) for
the purpose of emergency response to environmental pollution incidents and for
the development and implementation of corrective actions for pollution
incidents, other than pollution incidents addressed through the Virginia
Underground Petroleum Storage Tank Fund, as described in §62.1-44.34:11 of the
State Water Control Law,; (ii) to conduct assessments of
potential sources of toxic contamination in accordance with the policy
developed pursuant to §62.1-44.19:10,; and (iii) to assist small
businesses for the purposes described in §10.1-1197.3.
B. The Fund shall be a nonlapsing revolving fund consisting of
grants, general funds, and other such moneys as appropriated by the General
Assembly, and moneys received by the State Treasurer for:
1. Noncompliance penalties assessed pursuant to §10.1-1311,
civil penalties assessed pursuant to subsection B of §10.1-1316, and
civil charges assessed pursuant to subsection C of §10.1-1316.
2. Civil penalties assessed pursuant to subsection C of §
10.1-1418.1, civil penalties assessed pursuant to subsections A and E of §
10.1-1455, and civil charges assessed pursuant to subsection F of §
10.1-1455.
3. Civil charges assessed pursuant to subdivision 8d
(8d) of §62.1-44.15 and civil penalties assessed pursuant to subsection
(a) of §62.1-44.32, excluding assessments made for violations of Article
2.3 (§62.1-44.15:24 et seq.), 2.4 (§62.1-44.15:51 et seq.), 2.5 (§
62.1-44.15:67 et seq.), 9 (§62.1-44.34:8 et seq.), or 10 (§
62.1-44.34:10 et seq.), of Chapter 3.1 of Title 62.1, or a
regulation, administrative or judicial order, or term or condition of approval
relating to or issued under those articles.
4. Civil penalties and civil charges assessed pursuant to §
62.1-270.
5. Civil penalties assessed pursuant to subsection A of §
62.1-252 and civil charges assessed pursuant to subsection B of §62.1-252.
6. Civil penalties assessed in conjunction with special orders
by the Director pursuant to §10.1-1186 and by the Waste Management Board
pursuant to subsection G of §10.1-1455.
§15.2-2403.3. Stormwater service districts; allocation of
revenues.
Any town located within a stormwater service district created
pursuant to this chapter shall be entitled to any revenues collected within the
town pursuant to subdivision 6 of §15.2-2403, subject to the limitations set
forth therein, so long as the town maintains its own MS4 permit issued
pursuant to § 62.1-44.15:26 municipal separate storm sewer system
(MS4) permit issued by the State Water Control Board or maintains
its own stormwater service district.
§62.1-44.3. Definitions.
Unless a different meaning is required by the context, the
following terms as used in this chapter shall have the meanings hereinafter
respectively ascribed to them:
"Beneficial use" means both instream and offstream
uses. Instream beneficial uses include, but are not limited to, the protection
of fish and wildlife resources and habitat, maintenance of waste assimilation,
recreation, navigation, and cultural and aesthetic values. The preservation of
instream flows for purposes of the protection of navigation, maintenance of
waste assimilation capacity, the protection of fish and wildlife resources and
habitat, recreation, cultural and aesthetic values is an instream beneficial
use of Virginia's waters. Offstream beneficial uses include, but are not
limited to, domestic (including public water supply), agricultural uses,
electric power generation, commercial, and industrial uses.
"Board" means the State Water Control Board.
"Certificate" means any certificate or permit
issued by the Board.
"Department" means the Department of Environmental
Quality.
"Director" means the Director of the Department of
Environmental Quality.
"Establishment" means any industrial establishment,
mill, factory, tannery, paper or pulp mill, mine, coal mine, colliery, breaker
or coal-processing operations, quarry, oil refinery, boat, vessel, and every
other industry or plant or works the operation of which produces industrial
wastes or other wastes or which may otherwise alter the physical, chemical or
biological properties of any state waters.
"Excavate" or "excavation" means ditching,
dredging, or mechanized removal of earth, soil or rock.
"Industrial wastes" means liquid or other wastes
resulting from any process of industry, manufacture, trade, or business or from
the development of any natural resources.
"Land-disturbance approval" means an approval
allowing a land-disturbing activity to commence issued by (i) a Virginia
Erosion and Stormwater Management Program authority after the requirements of §
62.1-44.15:34 have been met or (ii) a Virginia Erosion and Sediment Control
Program authority after the requirements of §62.1-44.15:55 have been met.
"The law" or "this law" means the law
contained in this chapter as now existing or hereafter amended.
"Member" means a member of the Board.
"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, that is:
1. Owned or operated by a federal entity, state, city,
town, county, district, association, or other public body, created by or
pursuant to state law, having jurisdiction over disposal of sewage, industrial
wastes, stormwater, or other wastes, including a special district under state
law such as a sewer district, flood control district, drainage district or
similar entity, or a designated and approved management agency under §208 of
the federal Clean Water Act (33 U.S.C. §1251 et seq.) that discharges to
surface waters;
2. Designed or used for collecting or conveying stormwater;
3. Not a combined sewer; and
4. Not part of a publicly owned treatment works.
"Normal agricultural activities" means those
activities defined as an agricultural operation in §3.2-300 and any activity
that is conducted as part of or in furtherance of such agricultural operation
but shall not include any activity for which a permit would have been required
as of January 1, 1997, under 33 U.S.C. §1344 or any regulations promulgated
pursuant thereto.
"Normal silvicultural activities" means any
silvicultural activity as defined in §10.1-1181.1 and any activity that is
conducted as part of or in furtherance of such silvicultural activity but shall
not include any activity for which a permit would have been required as of
January 1, 1997, under 33 U.S.C. §1344 or any regulations promulgated pursuant
thereto.
"Other wastes" means decayed wood, sawdust,
shavings, bark, lime, garbage, refuse, ashes, offal, tar, oil, chemicals, and
all other substances except industrial wastes and sewage which may cause
pollution in any state waters.
"Owner" means the Commonwealth or any of its
political subdivisions, including but not limited to sanitation district
commissions and authorities and any public or private institution, corporation,
association, firm, or company organized or existing under the laws of this or
any other state or country, or any officer or agency of the United States, or
any person or group of persons acting individually or as a group that owns,
operates, charters, rents, or otherwise exercises control over or is
responsible for any actual or potential discharge of sewage, industrial wastes,
or other wastes to state waters, or any facility or operation that has the
capability to alter the physical, chemical, or biological properties of state
waters in contravention of §62.1-44.5.
"Person" means an individual, corporation,
partnership, association, governmental body, municipal corporation, or any
other legal entity.
"Policies" means policies established under
subdivisions (3a) and (3b) of §62.1-44.15.
"Pollution" means such alteration of the physical,
chemical, or biological properties of any state waters as will or is likely to
create a nuisance or render such waters (a) harmful or detrimental or injurious
to the public health, safety, or welfare or to the health of animals, fish, or
aquatic life; (b) unsuitable with reasonable treatment for use as present or
possible future sources of public water supply; or (c) unsuitable for
recreational, commercial, industrial, agricultural, or other reasonable uses,
provided that (i) an alteration of the physical, chemical, or biological
property of state waters or a discharge or deposit of sewage, industrial wastes
or other wastes to state waters by any owner which by itself is not sufficient
to cause pollution but which, in combination with such alteration of or
discharge or deposit to state waters by other owners, is sufficient to cause
pollution; (ii) the discharge of untreated sewage by any owner into state
waters; and (iii) contributing to the contravention of standards of water
quality duly established by the Board, are "pollution" for the terms
and purposes of this chapter.
"Pretreatment requirements" means any requirements
arising under the Board's pretreatment regulations including the duty to allow
or carry out inspections, entry, or monitoring activities; any rules,
regulations, or orders issued by the owner of a publicly owned treatment works;
or any reporting requirements imposed by the owner of a publicly owned
treatment works or by the regulations of the Board.
"Pretreatment standards" means any standards of
performance or other requirements imposed by regulation of the Board upon an
industrial user of a publicly owned treatment works.
"Reclaimed water" means water resulting from the
treatment of domestic, municipal, or industrial wastewater that is suitable for
a direct beneficial or controlled use that would not otherwise occur.
Specifically excluded from this definition is "gray water."
"Reclamation" means the treatment of domestic,
municipal, or industrial wastewater or sewage to produce reclaimed water for a
direct beneficial or controlled use that would not otherwise occur.
"Regulation" means a regulation issued under
subdivision (10) of §62.1-44.15 (10).
"Reuse" means the use of reclaimed water for a
direct beneficial use or a controlled use that is in accordance with the
requirements of the Board.
"Rule" means a rule adopted by the Board to regulate
the procedure of the Board pursuant to subdivision (7) of §62.1-44.15
(7).
"Ruling" means a ruling issued under subdivision
(9) of §62.1-44.15 (9).
"Sewage" means the water-carried human wastes from
residences, buildings, industrial establishments or other places together with
such industrial wastes and underground, surface, storm, or other water as may
be present.
"Sewage treatment works" or "treatment
works" means any device or system used in the storage, treatment,
disposal, or reclamation of sewage or combinations of sewage and industrial
wastes, including but not limited to pumping, power, and other equipment, and
appurtenances, and any works, including land, that are or will be (i) an
integral part of the treatment process or (ii) used for the ultimate disposal
of residues or effluent resulting from such treatment. These terms shall not
include onsite sewage systems or alternative discharging sewage systems.
"Sewerage system" means pipelines or conduits,
pumping stations, and force mains, and all other construction, devices, and
appliances appurtenant thereto, used for conducting sewage or industrial wastes
or other wastes to a point of ultimate disposal.
"Special order" means a special order issued under
subdivisions (8a), (8b), and (8c) of §62.1-44.15.
"Standards" means standards established under
subdivisions (3a) and (3b) of §62.1-44.15.
"State waters" means all water, on the surface and
under the ground, wholly or partially within or bordering the Commonwealth or
within its jurisdiction, including wetlands.
"Wetlands" means those areas that are inundated or
saturated by surface or groundwater at a frequency and duration sufficient to
support, and that under normal circumstances do support, a prevalence of
vegetation typically adapted for life in saturated soil conditions. Wetlands
generally include swamps, marshes, bogs and similar areas.
§62.1-44.5. Prohibition of waste discharges or other quality
alterations of state waters except as authorized by permit; notification
required.
A. Except in compliance with a certificate,
land-disturbance approval, or permit issued by the Board or other entity
authorized by the Board to issue a certificate, land-disturbance approval,
or permit pursuant to this chapter, it shall be unlawful for any person to:
1. Discharge into state waters sewage, industrial wastes,
other wastes, or any noxious or deleterious substances;
2. Excavate in a wetland;
3. Otherwise alter the physical, chemical, or
biological properties of state waters and make them detrimental to the public
health, or to animal or aquatic life, or to the uses of such waters for
domestic or industrial consumption, or for recreation, or for other uses; or
4. On and after October 1, 2001, conduct the following
activities in a wetland:
a. New activities to cause draining that significantly alters
or degrades existing wetland acreage or functions;
b. Filling or dumping;
c. Permanent flooding or impounding; or
d. New activities that cause significant alteration or
degradation of existing wetland acreage or functions.; or
5. Discharge stormwater into state waters from Municipal
Separate Storm Sewer Systems or land disturbing activities.
B. Any person in violation of the provisions of subsection A
who discharges or causes or allows (i) a discharge of sewage, industrial waste,
other wastes, or any noxious or deleterious substance into or upon state
waters or (ii) a discharge that may reasonably be expected to enter state
waters shall, upon learning of the discharge, promptly notify, but in no case
later than 24 hours the Board, the Director of the Department of Environmental
Quality, or the coordinator of emergency services appointed pursuant to §
44-146.19 for the political subdivision reasonably expected to be affected by
the discharge. Written notice to the Director of the Department of
Environmental Quality shall follow initial notice within the time frame
specified by the federal Clean Water Act.
§62.1-44.15. Powers and duties; civil penalties.
It shall be the duty of the Board and it shall have the
authority:
(1) [Repealed.]
(2) To study and investigate all problems concerned with the
quality of state waters and to make reports and recommendations.
(2a) To study and investigate methods, procedures, devices,
appliances, and technologies that could assist in water conservation or water
consumption reduction.
(2b) To coordinate its efforts toward water conservation with
other persons or groups, within or without the Commonwealth.
(2c) To make reports concerning, and formulate recommendations
based upon, any such water conservation studies to ensure that present and
future water needs of the citizens of the Commonwealth are met.
(3a) To establish such standards of quality and policies for
any state waters consistent with the general policy set forth in this chapter, and
to modify, amend, or cancel any such standards or policies established
and to take all appropriate steps to prevent quality alteration contrary to the
public interest or to standards or policies thus established, except that a
description of provisions of any proposed standard or policy adopted by
regulation which are more restrictive than applicable federal requirements,
together with the reason why the more restrictive provisions are needed, shall
be provided to the standing committee of each house of the General Assembly to
which matters relating to the content of the standard or policy are most
properly referable. The Board shall, from time to time, but at least once every
three years, hold public hearings pursuant to §2.2-4007.01 but, upon the request
of an affected person or upon its own motion, hold hearings pursuant to §
2.2-4009, for the purpose of reviewing the standards of quality, and, as
appropriate, adopting, modifying, or canceling such standards. Whenever the
Board considers the adoption, modification, amendment, or cancellation
of any standard, it shall give due consideration to, among other factors, the
economic and social costs and benefits which can reasonably be expected to
obtain as a consequence of the standards as adopted, modified, amended,
or cancelled. The Board shall also give due consideration to the public health
standards issued by the Virginia Department of Health with respect to issues of
public health policy and protection. If the Board does not follow the public
health standards of the Virginia Department of Health, the Board's reason for
any deviation shall be made in writing and published for any and all concerned
parties.
(3b) Except as provided in subdivision (3a), such standards
and policies are to be adopted or modified, amended, or cancelled in the
manner provided by the Administrative Process Act (§2.2-4000 et seq.).
(4) To conduct or have conducted scientific experiments,
investigations, studies, and research to discover methods for maintaining water
quality consistent with the purposes of this chapter. To this end the Board may
cooperate with any public or private agency in the conduct of such experiments,
investigations, and research and may receive in behalf of the
Commonwealth any moneys that any such agency may contribute as its share of the
cost under any such cooperative agreement. Such moneys shall be used only for
the purposes for which they are contributed and any balance remaining after the
conclusion of the experiments, investigations, studies, and research, shall be
returned to the contributors.
(5) To issue, revoke, or amend certificates and
land-disturbance approvals under prescribed conditions for: (a) the
discharge of sewage, stormwater, industrial wastes, and other
wastes into or adjacent to state waters; (b) the alteration otherwise of the
physical, chemical, or biological properties of state waters; (c)
excavation in a wetland; or (d) on and after October 1, 2001, the conduct of
the following activities in a wetland: (i) new activities to cause draining
that significantly alters or degrades existing wetland acreage or functions,
(ii) filling or dumping, (iii) permanent flooding or impounding, or (iv) new
activities that cause significant alteration or degradation of existing wetland
acreage or functions. However, to the extent allowed by federal law, any person
holding a certificate issued by the Board that is intending to upgrade the
permitted facility by installing technology, control equipment, or other
apparatus that the permittee demonstrates to the satisfaction of the Director
will result in improved energy efficiency, reduction in the amount of nutrients
discharged, and improved water quality shall not be required to obtain a new,
modified, or amended permit. The permit holder shall provide the demonstration
anticipated by this subdivision to the Department no later than 30 days prior
to commencing construction.
(5a) All certificates issued by the Board under this chapter
shall have fixed terms. The term of a Virginia Pollution Discharge Elimination
System permit shall not exceed five years. The term of a Virginia Water
Protection 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 15 years. The term of a Virginia
Pollution Abatement permit shall not exceed 10 years, except that the term of a
Virginia Pollution Abatement permit for confined animal feeding operations
shall be 10 years. The Department of Environmental Quality shall inspect all
facilities for which a Virginia Pollution Abatement permit has been issued to
ensure compliance with statutory, regulatory, and permit requirements.
Department personnel performing inspections of confined animal feeding operations
shall be certified under the voluntary nutrient management training and
certification program established in §10.1-104.2. The term of a certificate
issued by the Board shall not be extended by modification beyond the maximum
duration and the certificate shall expire at the end of the term unless an
application for a new permit has been timely filed as required by the
regulations of the Board and the Board is unable, through no fault of the
permittee, to issue a new permit before the expiration date of the previous
permit.
(5b) Any certificate or land-disturbance approval
issued by the Board under this chapter may, after notice and opportunity for a
hearing, be amended or revoked on any of the following grounds or for good
cause as may be provided by the regulations of the Board:
1. The owner has violated any regulation or order of the
Board, any condition of a certificate or land-disturbance approval, any
provision of this chapter, or any order of a court, where such violation
results in a release of harmful substances into the environment or,
poses a substantial threat of release of harmful substances into the
environment, causes unreasonable property degradation, or presents a
hazard to human health or the violation is representative of a pattern of serious
or repeated violations which, in the opinion of the Board, demonstrates the
owner's disregard for or inability to comply with applicable laws, regulations,
or requirements;
2. The owner has failed to disclose fully all relevant
material facts or has misrepresented a material fact in applying for a
certificate or land-disturbance approval, or in any other report or
document required under this law or under the regulations of the Board;
3. The activity for which the certificate or
land-disturbance approval was issued endangers human health or the
environment or causes unreasonable property degradation and can be
regulated to acceptable levels or practices by amendment or revocation
of the certificate or land-disturbance approval; or
4. There exists a material change in the basis on which the
certificate, land-disturbance approval, or permit was issued that requires
either a temporary or a permanent reduction or elimination of any discharge
or land-disturbing activity controlled by the certificate, land-disturbance
approval, or permit necessary to protect human health or the environment
or stop or prevent unreasonable degradation of property.
(5c) Any certificate issued by the Board under this chapter
relating to dredging projects governed under Chapter 12 (§28.2-1200 et seq.)
or Chapter 13 (§28.2-1300 et seq.) of Title 28.2 may be conditioned upon a
demonstration of financial responsibility for the completion of compensatory
mitigation requirements. Financial responsibility may be demonstrated by a letter
of credit, a certificate of deposit, or a performance bond executed in a
form approved by the Board. If the U.S. Army Corps of Engineers requires
demonstration of financial responsibility for the completion of compensatory
mitigation required for a particular project, then the mechanism and amount
approved by the U.S. Army Corps of Engineers shall be used to meet this
requirement.
(6) To make investigations and inspections, to ensure
compliance with the conditions of any certificates, land-disturbance
approvals, standards, policies, rules, regulations, rulings, and
special orders which that it may adopt, issue, or
establish, and to furnish advice, recommendations, or instructions for
the purpose of obtaining such compliance. In recognition of §§32.1-164 and
62.1-44.18, the Board and the State Department of Health shall enter into a
memorandum of understanding establishing a common format to consolidate and
simplify inspections of sewage treatment plants and coordinate the scheduling
of the inspections. The new format shall ensure that all sewage treatment
plants are inspected at appropriate intervals in order to protect water quality
and public health and at the same time avoid any unnecessary administrative
burden on those being inspected.
(7) To adopt rules governing the procedure of the Board with
respect to: (a) hearings; (b) the filing of reports; (c) the issuance of
certificates and special orders; and (d) 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 Board may prescribe.
(8a) Except as otherwise provided in Articles 2.4 (§ 62.1-44.15:51
et seq.) and 2.5 (§ 62.1-44.15:67 et seq.) subdivision (19) and
Article 2.3 (§62.1-44.15:24 et seq.), to issue special orders to owners
(i), including owners as defined in §62.1-44.15:24, who (i)
are permitting or causing the pollution, as defined by §62.1-44.3, of state
waters or the unreasonable degradation of property to cease and desist
from such pollution or degradation, (ii) who have failed to
construct facilities in accordance with final approved plans and specifications
to construct such facilities in accordance with final approved plans and
specifications, (iii) who have violated the terms and provisions of a
certificate or land-disturbance approval issued by the Board to comply
with such terms and provisions, (iv) who have failed to comply with a
directive from the Board to comply with such directive, (v) who have
contravened duly adopted and promulgated water quality standards and policies
to cease and desist from such contravention and to comply with such water
quality standards and policies, (vi) who have violated the terms and
provisions of a pretreatment permit issued by the Board or by the owner of a
publicly owned treatment works to comply with such terms and provisions,
or (vii) who have contravened any applicable pretreatment standard or
requirement to comply with such standard or requirement; and also to issue such
orders to require any owner to comply with the provisions of this chapter and
any decision of the Board. Except as otherwise provided by a separate article,
orders issued pursuant to this subsection subdivision may include
civil penalties of up to $32,500 per violation, not to exceed $100,000 per
order. The Board may assess penalties under this subsection
subdivision if (a) the person has been issued at least two written notices
of alleged violation by the Department for the same or substantially related
violations at the same site, (b) such violations have not been resolved by
demonstration that there was no violation, by an order issued by the Board or
the Director, or by other means, (c) at least 130 days have passed since the
issuance of the first notice of alleged violation, and (d) there is a finding
that such violations have occurred after a hearing conducted in accordance with
subdivision (8b). The actual amount of any penalty assessed shall be based upon
the severity of the violations, the extent of any potential or actual
environmental harm, the compliance history of the facility or person, any
economic benefit realized from the noncompliance, and the ability of the person
to pay the penalty. The Board shall provide the person with the calculation for
the proposed penalty prior to any hearing conducted for the issuance of an
order that assesses penalties pursuant to this subsection subdivision.
The issuance of a notice of alleged violation by the Department shall not be
considered a case decision as defined in §2.2-4001. Any notice of alleged
violation shall include a description of each violation, the specific provision
of law violated, and information on the process for obtaining a final decision
or fact finding from the Department on whether or not a violation has occurred,
and nothing in this section shall preclude an owner from seeking such a
determination. Such civil penalties shall be paid into the state treasury and
deposited by the State Treasurer into the Virginia Environmental Emergency
Response Fund (§10.1-2500 et seq.), except that civil penalties assessed for
violations of Article 9 (§62.1-44.34:8 et seq.) or Article 11 (§62.1-44.34:14
et seq.) shall be paid into the Virginia Petroleum Storage Tank Fund in
accordance with §62.1-44.34:11, and except that civil penalties assessed for
violations of subdivision (19) or Article 2.3 (§62.1-44.15:24 et seq.)
shall be paid into the Stormwater Local Assistance Fund in accordance
with the provisions of § 62.1-44.15:48 62.1-44.15:29.1.
(8b) Such special orders are to be issued only after a hearing
before a hearing officer appointed by the Supreme Court in accordance with §
2.2-4020 or, if requested by the person, before a quorum of the Board with at
least 30 days' notice to the affected owners, of the time, place, and
purpose thereof, and they shall become effective not less than 15 days after
service as provided in §62.1-44.12;, provided that if the Board
finds that any such owner 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 owner 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 owner, to affirm, modify, amend, or cancel
such emergency special order. If an owner 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 §62.1-44.23, 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.
(8c) The provisions of this section notwithstanding, the Board
may proceed directly under §62.1-44.32 for any past violation or violations of
any provision of this chapter or any regulation duly promulgated hereunder.
(8d) With Except as otherwise provided in
subdivision (19), subdivision 2 of §62.1-44.15:25, or §62.1-44.15:63, with
the consent of any owner who has violated or failed, neglected, or
refused to obey any regulation or order of the Board, any condition of a
certificate, land-disturbance approval, or permit, or any provision
of this chapter, the Board may provide, in an order issued by the Board against
such person, for the payment of civil charges for past violations in specific
sums not to exceed the limit specified in subsection (a) of §62.1-44.32
(a). Such civil charges shall be instead of any appropriate civil penalty
which could be imposed under subsection (a) of §62.1-44.32 (a)
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 Environmental Emergency Response Fund (§10.1-2500 et seq.),
excluding civil charges assessed for violations of Article 9 (§62.1-44.34:8 et
seq.) or 10 (§62.1-44.34:10 et seq.) of Chapter 3.1, or a regulation, administrative
or judicial order, or term or condition of approval relating to or issued under
those articles, or civil charges assessed for violations of Article 2.3 (§
62.1-44.15:24 et seq.), or 2.5 (§62.1-44.15:67 et seq.) or a
regulation, administrative or judicial order, or term or condition of approval
relating to or issued under that article Article 2.3 or 2.5.
The amendments to this section adopted by the 1976 Session of
the General Assembly shall not be construed as limiting or expanding any cause
of action or any other remedy possessed by the Board prior to the effective
date of said amendments.
(8e) The Board shall develop and provide an opportunity for
public comment on guidelines and procedures that contain specific criteria for
calculating the appropriate penalty for each violation based upon the severity
of the violations, the extent of any potential or actual environmental harm,
the compliance history of the facility or person, any economic benefit realized
from the noncompliance, and the ability of the person to pay the penalty.
(8f) Before issuing a special order under subdivision (8a) or
by consent under (8d), with or without an assessment of a civil penalty, to an
owner of a sewerage system requiring corrective action to prevent or minimize
overflows of sewage from such system, the Board shall provide public notice of
and reasonable opportunity to comment on the proposed order. Any such order
under subdivision (8d) may impose civil penalties in amounts up to the maximum
amount authorized in §309(g) of the Clean Water Act. Any person who comments
on the proposed order shall be given notice of any hearing to be held on the
terms of the order. In any hearing held, such person shall have a reasonable
opportunity to be heard and to present evidence. If no hearing is held before
issuance of an order under subdivision (8d), any person who commented on the
proposed order may file a petition, within 30 days after the issuance of such
order, requesting the Board to set aside such order and provide a formal
hearing thereon. If the evidence presented by the petitioner in support of the
petition is material and was not considered in the issuance of the order, the
Board shall immediately set aside the order, provide a formal hearing, and make
such petitioner a party. If the Board denies the petition, the Board shall
provide notice to the petitioner and make available to the public the reasons
for such denial, and the petitioner shall have the right to judicial review of
such decision under §62.1-44.29 if he meets the requirements thereof.
(9) To make such rulings under §§62.1-44.16, 62.1-44.17, and
62.1-44.19 as may be required upon requests or applications to the Board, the
owner or owners affected to be notified by certified mail as soon as
practicable after the Board makes them and such rulings to become effective
upon such notification.
(10) To adopt such regulations as it deems necessary to
enforce the general soil erosion control and stormwater management program
and water quality management program of the Board in all or part of the
Commonwealth, except that a description of provisions of any proposed
regulation which are more restrictive than applicable federal requirements,
together with the reason why the more restrictive provisions are needed, shall
be provided to the standing committee of each house of the General Assembly to
which matters relating to the content of the regulation are most properly
referable.
(11) To investigate any large-scale killing of fish.
(a) Whenever the Board shall determine that any owner, whether
or not he shall have been issued a certificate for discharge of waste, has
discharged sewage, industrial waste, or other waste into state waters in such
quantity, concentration, or manner that fish are killed as a result
thereof, it may effect such settlement with the owner as will cover the costs
incurred by the Board and by the Department of Game and Inland Fisheries in
investigating such killing of fish, plus the replacement value of the fish
destroyed, or as it deems proper, and if no such settlement is reached within a
reasonable time, the Board shall authorize its executive secretary to bring a
civil action in the name of the Board to recover from the owner such costs and
value, plus any court or other legal costs incurred in connection with such
action.
(b) If the owner is a political subdivision of the
Commonwealth, the action may be brought in any circuit court within the
territory embraced by such political subdivision. If the owner is an
establishment, as defined in this chapter, the action shall be brought in the
circuit court of the city or the circuit court of the county in which such
establishment is located. If the owner is an individual or group of
individuals, the action shall be brought in the circuit court of the city or
circuit court of the county in which such person or any of them reside.
(c) For the purposes of this subsection the State Water
Control Board shall be deemed the owner of the fish killed and the proceedings
shall be as though the State Water Control Board were the owner of the fish.
The fact that the owner has or held a certificate issued under this chapter
shall not be raised as a defense in bar to any such action.
(d) The proceeds of any recovery had under this subsection
shall, when received by the Board, be applied, first, to reimburse the Board
for any expenses incurred in investigating such killing of fish. The balance
shall be paid to the Board of Game and Inland Fisheries to be used for the
fisheries' management practices as in its judgment will best restore or replace
the fisheries' values lost as a result of such discharge of waste, including,
where appropriate, replacement of the fish killed with game fish or other
appropriate species. Any such funds received are hereby appropriated for that
purpose.
(e) Nothing in this subsection shall be construed in any way
to limit or prevent any other action which is now authorized by law by the
Board against any owner.
(f) Notwithstanding the foregoing, the provisions of this
subsection shall not apply to any owner who adds or applies any chemicals or
other substances that are recommended or approved by the State Department of
Health to state waters in the course of processing or treating such waters for
public water supply purposes, except where negligence is shown.
(12) To administer programs of financial assistance for
planning, construction, operation, and maintenance of water quality control
facilities for political subdivisions in the Commonwealth.
(13) To establish policies and programs for effective
area-wide or basin-wide water quality control and management. The Board may
develop comprehensive pollution abatement and water quality control plans on an
area-wide or basin-wide basis. In conjunction with this, the Board, when
considering proposals for waste treatment facilities, is to consider the
feasibility of combined or joint treatment facilities and is to ensure that the
approval of waste treatment facilities is in accordance with the water quality
management and pollution control plan in the watershed or basin as a whole. In
making such determinations, the Board is to seek the advice of local, regional,
or state planning authorities.
(14) To establish requirements for the treatment of sewage,
industrial wastes, and other wastes that are consistent with the
purposes of this chapter; however, no treatment shall be less than secondary or
its equivalent, unless the owner can demonstrate that a lesser degree of
treatment is consistent with the purposes of this chapter.
(15) To promote and establish requirements for the reclamation
and reuse of wastewater that are protective of state waters and public health
as an alternative to directly discharging pollutants into waters of the state.
The requirements shall address various potential categories of reuse and may
include general permits and provide for greater flexibility and less stringent
requirements commensurate with the quality of the reclaimed water and its
intended use. The requirements shall be developed in consultation with the
Department of Health and other appropriate state agencies. This authority shall
not be construed as conferring upon the Board any power or duty duplicative of
those of the State Board of Health.
(16) To establish and implement policies and programs to
protect and enhance the Commonwealth's wetland resources. Regulatory programs
shall be designed to achieve no net loss of existing wetland acreage and
functions. Voluntary and incentive-based programs shall be developed to achieve
a net resource gain in acreage and functions of wetlands. The Board shall seek
and obtain advice and guidance from the Virginia Institute of Marine Science in
implementing these policies and programs.
(17) To establish additional procedures for obtaining a
Virginia Water Protection Permit pursuant to §§62.1-44.15:20 and 62.1-44.15:22
for a proposed water withdrawal involving the transfer of water resources
between major river basins within the Commonwealth that may impact water basins
in another state. Such additional procedures shall not apply to any water
withdrawal in existence as of July 1, 2012, except where the expansion of such
withdrawal requires a permit under §§62.1-44.15:20 and 62.1-44.15:22, in which
event such additional procedures may apply to the extent of the expanded
withdrawal only. The applicant shall provide as part of the application (i) an
analysis of alternatives to such a transfer, (ii) a comprehensive analysis of
the impacts that would occur in the source and receiving basins, (iii) a
description of measures to mitigate any adverse impacts that may arise, (iv) a
description of how notice shall be provided to interested parties, and (v) any
other requirements that the Board may adopt that are consistent with the
provisions of this section and §§62.1-44.15:20 and 62.1-44.15:22 or regulations
adopted thereunder. This subdivision shall not be construed as limiting or
expanding the Board's authority under §§62.1-44.15:20 and 62.1-44.15:22 to
issue permits and impose conditions or limitations on the permitted activity.
(18) To be the lead agency for the Commonwealth's nonpoint
source pollution management program, including coordination of the nonpoint
source control elements of programs developed pursuant to certain state and
federal laws, including §319 of the federal Clean Water Act and §6217 of the
federal Coastal Zone Management Act. Further responsibilities include the
adoption of regulations necessary to implement a nonpoint source pollution
management program in the Commonwealth, the distribution of assigned funds, the
identification and establishment of priorities to address nonpoint source
related water quality problems, the administration of the Statewide Nonpoint
Source Advisory Committee, and the development of a program for the prevention
and control of soil erosion, sediment deposition, and nonagricultural runoff to
conserve Virginia's natural resources.
(19) To review for compliance with the provisions of this
chapter the Virginia Erosion and Stormwater Management Programs adopted by
localities pursuant to §62.1-44.15:27, the Virginia Erosion and Sediment
Control Programs adopted by localities pursuant to subdivision B 3 of §
62.1-44.15:27, and the programs adopted by localities pursuant to the
Chesapeake Bay Preservation Act (§62.1-44.15:67 et seq.). The Board shall develop
and implement a schedule for conducting such program reviews as often as
necessary but at least once every five years. Following the completion of a
compliance review in which deficiencies are found, the Board shall establish a
schedule for the locality to follow in correcting the deficiencies and bringing
its program into compliance. If the locality fails to bring its program into
compliance in accordance with the compliance schedule, then the Board is
authorized to (i) issue a special order to any locality imposing a civil
penalty not to exceed $5,000 per violation with the maximum amount not to
exceed $50,000 per order for noncompliance with the state program, to be paid
into the state treasury and deposited in the Stormwater Local Assistance Fund established
in §62.1-44.15:29.1 or (ii) with the consent of the locality, provide in an
order issued against the locality for the payment of civil charges for
violations in lieu of civil penalties, in specific sums not to exceed the limit
stated in this subdivision. Such civil charges shall be in lieu of any
appropriate civil penalty that could be imposed under subsection (a) of §
62.1-44.32 and shall not be subject to the provisions of §2.2-514. The Board
shall not delegate to the Department its authority to issue special orders
pursuant to clause (i). In lieu of issuing an order, the Board is authorized to
take legal action against a locality pursuant to §62.1-44.23 to ensure
compliance.
Article 2.3.
Virginia Erosion and Stormwater Management Act
(VESMA).
§62.1-44.15:24. Definitions.
As used in this article, unless the context requires a
different meaning:
"Agreement in lieu of a stormwater management
plan" means a contract between the VESMP authority or the Board acting
as a VSMP authority and the owner or permittee that specifies methods that
shall be implemented to comply with the requirements of a VSMP this
article for the construction of a single-family residence
detached residential structure; such contract may be executed by the
VSMP VESMP authority in lieu of a soil erosion control and
stormwater management plan or by the Board acting as a VSMP authority in
lieu of a stormwater management plan.
"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
provisions of this chapter.
"Applicant" means any person submitting a soil
erosion control and stormwater management plan to a VESMP authority, or a
stormwater management plan to the Board when it is serving as a VSMP authority,
for approval in order to obtain authorization to commence a land-disturbing
activity.
"CWA" means the federal Clean Water Act (33 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, P.L. 92-500, as
amended by P.L. 95-217, P.L. 95-576, P.L. 96-483, and P.L. 97-117, or any
subsequent revisions thereto.
"Department" means the Department of Environmental
Quality.
"Director" means the Director of the Department of
Environmental Quality.
"Erosion impact area" means an area of land that
is not associated with a current land-disturbing activity but is 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
any shoreline where the erosion results from wave action or other coastal
processes.
"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
activity" means a man-made change to the land surface that potentially
changes may result in soil erosion or has the potential to change
its runoff characteristics, including construction activity such as
the clearing, grading, or excavation, except that the term shall not
include those exemptions specified in § 62.1-44.15:34 excavating,
or filling of land.
"Land-disturbance approval" means the same as
that term is defined in §62.1-44.3.
"Municipal separate storm sewer" or
"MS4" 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
the same as that term is defined in §62.1-44.3.
"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.
"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.
"Nonpoint source pollution" means pollution such as
sediment, nitrogen, phosphorus, hydrocarbons, heavy metals, and toxics whose
sources cannot be pinpointed but rather are washed from the land surface in a
diffuse manner by stormwater runoff.
"Owner" means the same as that term is defined in
§62.1-44.3. For a regulated land-disturbing activity that does not require a
permit, "owner" also means the owner or owners of the freehold of the
premises or lesser estate therein, 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 prescribed design storm at a particular location.
"Permit" or "VSMP authority permit"
means an approval to conduct a land-disturbing activity issued by the VSMP
authority for the initiation of a land-disturbing activity after evidence of
state VSMP general permit coverage has been provided where applicable a
Virginia Pollutant Discharge Elimination System (VPDES) permit issued by the
Board pursuant to §62.1-44.15 for stormwater discharges from a land-disturbing
activity or MS4.
"Permittee" means the person to which whom
the permit or state permit is issued.
"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.
"Soil erosion" means the movement of soil by wind
or water into state waters or onto lands in the Commonwealth.
"Soil Erosion Control and Stormwater Management
plan" or "plan" means a document describing methods for
controlling soil erosion and managing stormwater in accordance with the
requirements adopted pursuant to this article.
"Stormwater," for the purposes of this
article, means precipitation that is discharged across the land surface or
through conveyances to one or more waterways and that may include stormwater
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.
"Subdivision" means the same as that term is
defined in §15.2-2201.
"Virginia Erosion and Sediment Control Program"
or "VESCP" means a program approved by the Board that is established
by a VESCP authority pursuant to Article 2.4 (§62.1-44.15:51 et seq.) 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. The VESCP shall include, where applicable, such items as local
ordinances, rules, policies and guidelines, technical materials, and
requirements for plan review, inspection, and evaluation consistent with the
requirements of Article 2.4 (§62.1-44.15:51 et seq.).
"Virginia Erosion and Sediment Control Program
authority" or "VESCP authority" means a locality that is
approved by the Board to operate a Virginia Erosion and Sediment Control
Program in accordance with Article 2.4 (§62.1-44.15:51 et seq.). Only a
locality for which the Department administered a Virginia Stormwater Management
Program as of July 1, 2017, is authorized to choose to operate a VESCP pursuant
to Article 2.4 (§62.1-44.15:51 et seq.).
"Virginia Erosion and Stormwater Management
Program" or "VESMP" means a program established by a VESMP
authority for the effective control of soil erosion and sediment deposition and
the management of the quality and quantity of runoff resulting from
land-disturbing activities to prevent the unreasonable degradation of
properties, stream channels, waters, and other natural resources. The program
shall include such items as local ordinances, rules, requirements for permits
and land-disturbance approvals, policies and guidelines, technical materials,
and requirements for plan review, inspection, and enforcement consistent with
the requirements of this article.
"Virginia Erosion and Stormwater Management Program
authority" or "VESMP authority" means the Board or a locality
approved by the Board to operate a Virginia Erosion and Stormwater Management
Program. For state agency or federal entity land-disturbing activities and
land-disturbing activities subject to approved standards and specifications,
the Board shall serve as the VESMP authority.
"Virginia Stormwater Management Program" or
"VSMP" means a program approved by the Soil and Water Conservation
Board after September 13, 2011, and until June 30, 2013, or the State Water
Control Board on and after June 30, 2013, that has been established by a
VSMP authority the Board pursuant to §62.1-44.15:27.1 on behalf of a
locality on or after July 1, 2014, to manage the quality and quantity of
runoff resulting from any 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 activity that (i) disturbs one acre or more of
land or (ii) disturbs less than one acre of land and is part of a larger common
plan of development or sale that results in one acre or more of land
disturbance.
"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 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 § 62.1-44.15:31,
electric, natural gas, and telephone utility companies, interstate and
intrastate natural gas pipeline companies, railroad companies, or authorities
created pursuant to § 15.2-5102 when administering a VSMP on
behalf of a locality that, pursuant to subdivision B 3 of §62.1-44.15:27, has
chosen not to adopt and administer a VESMP.
"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 technical criteria" means standards set
forth in regulations adopted pursuant to this article that establish minimum
design criteria for measures to control nonpoint source pollution.
"Water quantity technical criteria" means standards set
forth in regulations adopted pursuant to this article that establish minimum
design criteria for measures to control localized flooding and stream channel
erosion.
"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.
§62.1-44.15:25. Further powers and duties of the State Water
Control Board.
In addition to other powers and duties conferred upon the
Board by this chapter, it shall permit, regulate, and control soil
erosion and stormwater runoff in the Commonwealth. 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 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 and may
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
and soil erosion. It shall be the duty of the Board and it shall have the
authority to:
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 activities.
2. Take administrative and legal actions to ensure
compliance with the provisions of this article by any person subject to state
or VSMP authority permit requirements under this article, and those entities
with an approved Virginia Stormwater Management Program and management programs
developed in conjunction with a state municipal separate storm sewer system
permit, including the proper enforcement and implementation of, and continual
compliance with, this article.
3. In accordance with procedures of the Administrative
Process Act (§ 2.2-4000 et seq.), amend or revoke any state permit
issued under this article on the following grounds or for good cause as may be
provided by the regulations of the Board:
a. 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, 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. 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 activity
controlled by the state permit necessary to prevent unreasonable degradation of
properties, water quality, stream channels, and other natural resources.
4. Cause investigations and inspections 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.
5. In accordance with procedures of the Administrative
Process Act (§ 2.2-4000 et seq.), adopt rules governing (i) hearings,
(ii) the filing of reports, (iii) the issuance of permits and special orders,
and (iv) all other matters relating to procedure, and amend or cancel any rule
adopted.
6. Issue special orders to 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
Board or VSMP authority to comply with the provisions of the state or VSMP
authority permit, this article, and any decision of the VSMP authority, the
Department, or the Board; or (iv) who has violated the terms of an order issued
by the court, the VSMP authority, the Department, or the Board to comply with
the terms of such order, and also to issue orders to require 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 in accordance with the
procedures of the Administrative Process Act (§ 2.2-4000 et seq.) and
shall become effective not less than 15 days after the date of mailing with
confirmation of delivery of the notice to the last known address of any person
subject to state or VSMP authority permit requirements under this article,
provided that if the Board finds that any such 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 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 any person subject to state or VSMP
authority permit requirements under this article, to affirm, modify, amend, or
cancel such emergency special order. If 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 § 62.1-44.15:48, 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 recipient of the order may appeal its
issuance to the circuit court of the jurisdiction wherein the discharge was alleged
to have occurred special orders pursuant to subdivision (8a) or (8b) of
§62.1-44.15 to any owner subject to requirements under this article, except
that for any land-disturbing activity that disturbs an area measuring not less
than 10,000 square feet but less than one acre in an area of a locality that is
not designated as a Chesapeake Bay Preservation Area pursuant to the Chesapeake
Bay Preservation Act (§62.1-44.15:67 et seq.) and that is not part of a larger
common plan of development or sale that disturbs one acre or more of land, such
special orders may include civil penalties of up to $5,000 per violation, not
to exceed $50,000 per order. Such civil penalties shall be paid into the state
treasury and deposited by the State Treasurer into the Stormwater Local Assistance
Fund established pursuant to §62.1-44.15:29.1.
The provisions of this section notwithstanding, the Board may
proceed directly under §62.1-44.15:48 or Article 5 (§62.1-44.20 et seq.)
for any past violation or violations of any provision of this article or any
regulation duly adopted hereunder.
2. With the consent of any person owner
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 pursuant to subdivision (8d) of §62.1-44.15 against
such person owner, for the payment of civil charges for
violations in specific sums. Such sums shall not to exceed the
limit specified in subsection A subdivision A 1 or B 1, as
applicable, of §62.1-44.15:48. Such civil charges shall be collected in
lieu of any appropriate civil penalty that could be imposed pursuant to
subsection A of §62.1-44.15:48 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 Local Assistance Fund established pursuant to §
62.1-44.15:29 62.1-44.15:29.1.
§62.1-44.15:25.1. Additional local authority.
Any locality serving as a VESMP authority shall have the
authority to:
1. Issue orders in accordance with the procedures of
subdivision 10 a of §15.2-2122 to any owner subject to the requirements of
this article. Such orders may include civil penalties in specific sums not to
exceed the limit specified in subdivision A 2 or B 2, as applicable, of §
62.1-44.15:48, and such civil penalties shall be paid into the treasury of the
locality in accordance with subdivision A 2 of §62.1-44.15:48. The provisions
of this section notwithstanding, the locality may proceed directly under §
62.1-44.15:48 for any past violation or violations of any provision of this
article or any ordinance duly adopted hereunder.
2. Issue consent orders with the consent of any person who
has violated or failed, neglected, or refused to obey any ordinance adopted
pursuant to the provisions of this article, any condition of a locality's
land-disturbance approval, or any order of a locality serving as a VESMP
authority. Such consent order may provide for the payment of civil charges not
to exceed the limits specified in subdivision A 2 or B 2, as applicable, of §
62.1-44.15:48. Such civil charges shall be in lieu of any appropriate civil
penalty that could be imposed under this article. Any civil charges collected
shall be paid to the treasury of the locality in accordance with subdivision A
2 of §62.1-44.15:48.
§62.1-44.15:27. Virginia Programs for Erosion Control and
Stormwater Management.
A. Any locality that operates a regulated MS4 or that
notifies the Department of its decision to participate in the establishment of
a VSMP administers a Virginia Stormwater Management Program (VSMP) as of
July 1, 2017, shall be required to adopt a VSMP for land-disturbing
activities and administer a VESMP consistent with the provisions of
this article according to a schedule set by the Department. Such schedule
shall require implementation no later than July 1, 2014. Thereafter, the
Department shall provide an annual schedule by which localities can submit
applications to implement a VSMP. Localities subject to this subsection are
authorized to coordinate plan review and inspections with other entities in
accordance with subsection H. The Department shall operate a VSMP on behalf of
any that regulates any land-disturbing activity that (i) disturbs 10,000
square feet or more or (ii) disturbs 2,500 square feet or more in an area of a
locality designated as a Chesapeake Bay Preservation Area pursuant to the
Chesapeake Bay Preservation Act (§62.1-44.15:67 et seq.). The VESMP shall be
adopted according to a process established by the Department.
B. Any locality that does not operate a regulated MS4
and that does not for which the Department administers a VSMP as of
July 1, 2017, shall choose one of the following options and shall notify
the Department, of its choice according to a schedule set
process established by the Department, of its decision to participate in
the establishment of a VSMP. A locality that decides not to establish a VSMP
shall still comply:
1. Adopt and administer a VESMP consistent with the
requirements set forth in provisions of this article and
attendant regulations as required to satisfy the stormwater flow rate capacity
and velocity requirements set forth in the Erosion and Sediment Control Law (§
62.1-44.15:51 et seq.). A locality that is subject to the provisions of
that regulates any land-disturbing activity that (i) disturbs 10,000 square
feet or more or (ii) disturbs 2,500 square feet or more in an area of a
locality designated as a Chesapeake Bay Preservation Area pursuant to the
Chesapeake Bay Preservation Act (§62.1-44.15:67 et seq.);
2. Adopt and administer a VESMP consistent with the
provisions of this article that regulates any land-disturbing activity that (i)
disturbs 10,000 square feet or more or (ii) disturbs 2,500 square feet or more
in an area of a locality designated as a Chesapeake Bay Preservation Area
pursuant to the Chesapeake Bay Preservation Act (§62.1-44.15:67 et seq.),
except that the Department shall provide the locality with review of the plan
required by §62.1-44.15:34 and provide a recommendation to the locality on the
plan's compliance with the water quality and water quantity technical criteria;
or
3. Adopt and administer a VESCP pursuant to Article 2.4 (§
62.1-44.15:51 et seq.) that regulates any land-disturbing activity that (i)
disturbs 10,000 square feet or more or (ii) disturbs 2,500 square feet or more
in an area of a locality designated as a Chesapeake Bay Preservation Area
pursuant to the Chesapeake Bay Preservation Act (§62.1-44.15:67 et seq.). For
such a land-disturbing activity in a Chesapeake Bay Preservation Area, the
VESCP authority also shall adopt requirements set forth in this article and
attendant regulations as required to regulate Chesapeake Bay Preservation
Act land-disturbing those activities in accordance with §
§§ 62.1-44.15:28 and 62.1-44.15:34.
Notwithstanding any other provision of this subsection, any
county that operates an MS4 that became a regulated MS4 on or after January 1,
2014 may elect, on a schedule set by the Department, to defer the
implementation of the county's VSMP until no later than January 1, 2015. During
this deferral period, when such county thus lacks the legal authority to
operate a VSMP, the Department shall operate a VSMP on behalf of the county and
address post-construction stormwater runoff and the required design criteria
for stormwater runoff controls. Any such county electing to defer the
establishment of its VSMP shall still comply with the requirements set forth in
this article and attendant regulations as required to satisfy the stormwater
flow rate capacity and velocity requirements set forth in the Erosion and
Sediment Control Law (§ 62.1-44.15:51 et seq.).
B. The Board shall administer a VSMP on behalf of
each VESCP authority for any land-disturbing activity that (a) disturbs one
acre or more of land or (b) disturbs less than one acre of land and is part of
a larger common plan of development or sale that results in one acre or greater
of land disturbance.
C. Any town that is required to or elects to adopt and
administer a VESMP or VESCP, as applicable, may choose one of the following
options and shall notify the Department of its choice according to a process
established by the Department:
1. Any town, including a town that operates a regulated
MS4, lying within a county that has adopted a VSMP in accordance with
subsection A may decide, but shall not be required, may enter into an
agreement with the county to become subject to the county's VSMP. Any
VESMP. If a town lying lies within a the boundaries
of more than one county, it may enter into an agreement with any of
those counties that operates an MS4 that became a regulated MS4 on or
after January 1, 2014 may elect a VESMP.
2. Any town that chooses not to adopt and administer a
VESMP pursuant to subdivision B 3 and that lies within a county may enter into
an agreement with the county to become subject to the county's VSMP
according to the deferred schedule established in subsection A. During the
county's deferral period, the Department shall operate a VSMP on behalf of the
town and address post-construction stormwater runoff and the required design
criteria for stormwater runoff controls for the town as provided in subsection
A VESMP or VESCP, as applicable. 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. Towns
shall inform the Department of their decision according to a schedule
established by the Department. Thereafter, the Department shall provide an
annual schedule by which towns can submit applications to adopt a VSMP
it may enter into an agreement with any of those counties.
C. 3. Any town that is subject to the provisions of
the Chesapeake Bay Preservation Act (§62.1-44.15:67 et seq.) may enter into an
agreement with a county pursuant to subdivision C 1 or 2 only if the county
administers a VESMP for land-disturbing activities that disturb 2,500 square
feet or more.
D. Any locality that chooses not to implement a VESMP
pursuant to subdivision B 3 may notify the Department at any time that it has
chosen to implement a VESMP pursuant to subdivision B 1 or 2. Any locality that
chooses to implement a VESMP pursuant to subdivision B 2 may notify the
Department at any time that it has chosen to implement a VESMP pursuant to subdivision
B 1. A locality may petition the Board at any time for approval to change from
fully administering a VESMP pursuant to subdivision B 1 to administering a
VESMP in coordination with the Department pursuant to subdivision B 2 due to a
significant change in economic conditions or other fiscal emergency in the
locality. The provisions of the Administrative Process Act (§2.2-4000 et seq.)
shall govern any appeal of the Board's decision.
E. In support of VSMP VESMP 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 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 and general assistance to
localities in the establishment and administration of their
individual or regional 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. F. The Department shall develop a model
ordinance for establishing a VSMP VESMP 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. G. Each locality that administers an
approved VSMP that operates a regulated MS4 or that chooses to administer
a VESMP shall, by ordinance, establish a VSMP VESMP that
shall be administered in conjunction with a local MS4 program and a local
erosion and sediment control program if required pursuant to the Erosion and
Sediment Control Law (§ 62.1-44.15:51 et seq.) management
program, if applicable, and which shall include the following:
1. Consistency Ordinances, policies, and technical
materials consistent with regulations adopted in accordance with
provisions of this article;
2. Requirements for land-disturbance approvals;
3. Requirements for plan review, inspection, and
enforcement consistent with the requirements of this article, including
provisions requiring periodic inspections of the installation of stormwater
management measures. A VESMP authority 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;
4. Provisions charging each applicant a reasonable fee to
defray the cost of program administration for a regulated land-disturbing
activity that does not require permit coverage. Such fee may be in addition to
any fee charged pursuant to the statewide fee schedule established in
accordance with subdivision 9 of §62.1-44.15:28, although payment of fees may
be consolidated in order to provide greater convenience and efficiency for
those responsible for compliance with the program. A VESMP authority shall hold
a public hearing prior to establishing such fees. The fee shall not exceed an
amount commensurate with the services rendered, taking into consideration the
time, skill, and the VESMP authority's expense involved;
5. 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. 6. Provisions for the integration of the
VSMP with local erosion and sediment control, coordination of the VESMP
with flood insurance, flood plain management, and other programs requiring
compliance prior to authorizing construction land disturbance in
order to make the submission and approval of plans, issuance of permits
land-disturbance approvals, 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 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.
H. A VSMP The Board shall approve a VESMP when it
deems a program consistent with this article and associated regulations.
I. A VESMP authority may enter into agreements or
contracts with the Department, soil and water conservation districts,
adjacent localities, planning district commissions, or other public or
private entities to carry out or assist with the responsibilities of this
article plan review and inspections.
I. If a locality establishes a VSMP, it shall issue a
consolidated stormwater management and erosion and sediment control permit that
is consistent with the provisions of the Erosion and Sediment Control Law (§
62.1-44.15:51 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 A VESMP authority
shall then be required to obtain evidence of state VSMP permit
coverage where it from the Department's online reporting system,
where such coverage is required, prior to providing
land-disturbance approval to begin land disturbance.
K. Any VSMP adopted pursuant to and consistent with this
article shall be considered to meet the stormwater management requirements
under the Chesapeake Bay Preservation Act (§ 62.1-44.15:67 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 (§ 62.1-44.15:51 et seq.) and related regulations.
The VSMP VESMP authority responsible for regulating the
land-disturbing activity shall require compliance with the issued permit,
permit its applicable ordinances and the conditions, of
its land-disturbance approval and plan specifications. The state
Board shall enforce state permits and require compliance with its
applicable regulations, including when serving as a VSMP authority in a
locality that chose not to adopt a VESMP in accordance with subdivision B 3.
§62.1-44.15:27.1. Virginia Stormwater Management Programs
administered by the Board.
A. The Board shall administer a Virginia Stormwater
Management Program (VSMP) on behalf of any locality that notifies the Department
pursuant to subsection B of §62.1-44.15:27 that it has chosen to not
administer a VESMP as provided by subdivision B 3 of §62.1-44.15:27. In such a
locality:
1. The Board shall implement a VSMP in order to manage the
quality and quantity of stormwater runoff resulting from any land-disturbing
activity that (i) disturbs one acre or more of land or (ii) disturbs less than
one acre of land and is part of a larger common plan of development or sale
that results in one acre or greater of land disturbance, as required by this
article.
2. No person shall conduct a land-disturbing activity until
he has obtained land-disturbance approval from the VESCP authority and, if
required, submitted to the Department an application that includes a permit
registration statement and stormwater management plan, and the Department has
issued permit coverage.
B. The Board shall adopt regulations establishing
specifications for the VSMP, including permit requirements and requirements for
plan review, inspection, and enforcement that reflect the analogous stormwater
management requirements for a VESMP set forth in applicable provisions of this
article.
§62.1-44.15:28. Development of regulations.
A. The Board is authorized to adopt regulations that
establish requirements for the effective control of soil erosion, sediment
deposition, and stormwater, including nonagricultural runoff, that shall be met
in any VESMP to prevent the unreasonable degradation of properties, stream
channels, waters, and other natural resources, and that specify minimum
technical criteria and administrative procedures for Virginia Stormwater
Management Programs VESMPs. The regulations shall:
1. Establish standards and procedures for administering a
VSMP VESMP;
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 Erosion and Sediment
Control Law (§ 62.1-44.15:51 et seq.), as they relate to the prevention
of stream channel erosion standards of effectiveness of the VESMP and
criteria and procedures for reviewing and evaluating its effectiveness. The
minimum standards of program effectiveness established by the Board shall
provide that (i) no soil erosion control and stormwater management plan shall
be approved until it is reviewed by a plan reviewer certified pursuant to §
62.1-44.15:30, (ii) each inspection of a land-disturbing activity shall be
conducted by an inspector certified pursuant to §62.1-44.15:30, and (iii) each
VESMP shall contain a program administrator, a plan reviewer, and an inspector,
each of whom is certified pursuant to §62.1-44.15:30 and all of whom may be
the same person;
3. Be based upon relevant physical and developmental information
concerning the watersheds and drainage basins of the Commonwealth, including
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;
4. Include any survey of lands and waters as the Board
deems appropriate or as any applicable law requires to identify areas,
including multijurisdictional and watershed areas, with critical soil erosion
and sediment problems;
5. Contain conservation standards for various types of
soils and land uses, which shall include criteria, techniques, and methods for
the control of soil erosion and sediment resulting from land-disturbing
activities;
6. Establish water quality and water quantity technical
criteria. These criteria shall be periodically modified as required in
order to reflect current engineering methods;
3. 7. 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. 8. Require as a minimum the inclusion in
VSMPs VESMPs of certain administrative procedures that include, but
are not limited to, specifying the time period within which a VSMP
VESMP authority shall grant land-disturbing activity
land-disturbance approval, the conditions and processes under which such
approval shall be granted, the procedures for communicating disapproval, the
conditions under which an approval may be changed, and requirements for
inspection of approved projects;
5. 9. Establish by regulations a statewide
permit a statewide fee schedule to cover all costs associated with
the implementation of a VSMP VESMP related to land-disturbing
activities of one acre or greater where permit coverage is required,
and for land-disturbing activities where the Board serves as a VESMP authority
or VSMP authority. Such fee attributes include the costs associated with
plan review, VSMP permit registration statement review, permit
issuance, state-coverage permit 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
activities between 2,500 square feet and up to one acre in a
land-disturbing activity that disturbs 2,500 square feet or more but less than
one acre in an area of a locality designated as a Chesapeake Bay Preservation
Area pursuant to the Chesapeake Bay Preservation Act (§62.1-44.15:67 et
seq.) localities. The 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 §62.1-44.15:29. However, whenever the Board has approved a VSMP
VESMP, no more than 30 percent of the total revenue generated by the
statewide stormwater permit fees collected shall be remitted to the
State Treasurer for deposit in the Virginia Stormwater Management Fund, with
the balance going to the VSMP VESMP 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 VESMP; however, the fees shall be
set at a level sufficient for the Department, the Board, and the VSMP
VESMP to fully carry out their responsibilities under this article and
its attendant regulations and local ordinances or standards and
specifications where applicable. When establishing a VSMP, the VSMP
VESMP, the VESMP authority shall assess the statewide fee fees
pursuant to the 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 VESMP's
portion of the fees shall be used solely to carry out the VSMP's
VESMP's responsibilities under this article and its attendant
regulations, associated 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. In establishing the fee schedule under this
subdivision, the Department shall ensure that the VSMP VESMP
authority portion of the statewide permit fee for coverage under the
General Permit for Discharges of Stormwater from Construction Activities for
small construction activity involving a single family single-family
detached residential structure with a site or area, within or outside a common
plan of development or sale, that is equal to or greater than one acre but less
than five acres shall be no greater than the VSMP VESMP authority
portion of the fee for coverage of sites or areas with a land-disturbance
acreage of less than one acre within a common plan of development or sale.;
f. d. 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 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 (§ 62.1-44.15:51 et seq.) and this article. However, such
standards shall also apply to 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;
7. Establish a procedure by which a stormwater management
plan that is approved for a residential, commercial, or industrial subdivision
shall govern the development of the individual parcels, including those parcels
developed under subsequent owners;
8. e. Notwithstanding the other
provisions of this subdivision A 5 9, establish a
procedure by which neither a registration statement nor payment of the
Department's portion of the statewide permit fee established pursuant to
that this subdivision 9 shall be required for coverage under
the General Permit for Discharges of Stormwater from Construction Activities
for construction activity involving a single-family detached residential
structure, within or outside a common plan of development or sale;
9. 10. Establish statewide standards for soil
erosion control and stormwater management from land-disturbing activities;
11. Establish a procedure by which a soil erosion control
and stormwater management plan or stormwater management plan that is
approved for a residential, commercial, or industrial subdivision shall govern
the development of the individual parcels, including those parcels developed
under subsequent owners;
12. Provide for reciprocity with programs in other
states for the certification of proprietary best management practices;
10. 13. Require that VSMPs VESMPs
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.
a. 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 was subject to the water quantity
requirements that were in effect pursuant to this article prior to July 1,
2014, shall be deemed to satisfy the conditions of this subsection if the
practices are designed to (i) detain the water quality volume equal
to the first one-half inch of runoff multiplied by the impervious surface of
the land development project 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-year, two-year, 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. Any land-disturbing activity
that complies with these requirements 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 §62.1-44.15:27 or 62.1-44.15:33;
b. Any stream restoration or relocation project that incorporates
natural channel design concepts is not a man-made channel 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 article;
11. 14. Encourage low-impact development
designs, regional and watershed approaches, and nonstructural means for
controlling stormwater;
12. 15. 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;
13. 16. Establish procedures to be followed when
a locality that operates a VSMP wishes to transfer administration of the
VSMP to the Department chooses to change the type of program it
administers pursuant to subsection D of §62.1-44.15:27;
14. 17. Establish a statewide permit fee
schedule for stormwater management related to municipal separate storm sewer
system MS4 permits; and
15. 18. Provide for the evaluation and potential
inclusion of emerging or innovative stormwater control technologies that may
prove effective in reducing nonpoint source pollution.
B. The Board may integrate and consolidate components of
the regulations implementing the Erosion and Sediment Control program and the
Chesapeake Bay Preservation Area Designation and Management program with the
regulations governing the Virginia Stormwater Management Program (VSMP) Permit
program 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.
§62.1-44.15:29. Virginia Stormwater Management Fund.
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 §§ § 62.1-44.15:28, 62.1-44.15:38, and 62.1-44.15:71 and
all civil penalties collected pursuant to § 62.1-44.19:22 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.
§62.1-44.15:29.1. Stormwater Local Assistance Fund.
A. The State Comptroller shall continue in the state
treasury the Stormwater Local Assistance Fund (the Fund) established by Chapter
806 of the Acts of Assembly of 2013, which shall be administered by the
Department. All civil penalties and civil charges collected by the Board
pursuant to §§62.1-44.15:25, 62.1-44.15:48, 62.1-44.15:63, and 62.1-44.15:74,
subdivision (19) of §62.1-44.15, and §62.1-44.19:22 shall be paid into the
state treasury and credited to the Fund, together with such other funds as may
be made available to the Fund, which shall also receive bond proceeds from
bonds authorized by the General Assembly, sums appropriated to it by the
General Assembly, and other grants, gifts, and moneys as may be made available
to it from any other source, public or private. 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.
B. The purpose of the Fund is to provide matching grants to
local governments for the planning, design, and implementation of stormwater
best management practices that address cost efficiency and commitments related
to reducing water quality pollutant loads. Moneys in the Fund shall be used to
meet (i) obligations related to the Chesapeake Bay total maximum daily load
(TMDL) requirements, (ii) requirements for local impaired stream TMDLs, (iii)
water quality measures of the Chesapeake Bay Watershed Implementation Plan, and
(iv) water quality requirements related to the permitting of small municipal
separate storm sewer systems. The grants shall be used solely for stormwater
capital projects, including (a) new stormwater best management practices, (b)
stormwater best management practice retrofitting or maintenance, (c) stream
restoration, (d) low-impact development projects, (e) buffer restoration, (f)
pond retrofitting, and (g) wetlands restoration. Such grants shall be made in
accordance with eligibility determinations made by the Department pursuant to
criteria established by the Board.
C. Moneys in the Fund shall be used solely for the purpose
set forth herein and disbursements from it shall be made by the State Treasurer
on warrants issued by the Comptroller upon written request signed by the
Director.
§62.1-44.15:30. Training and certification.
A. The Board shall issue certificates of competence
separate or combined certifications 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 The
Board also shall issue a Responsible Land Disturber certificate to personnel
and contractors who have demonstrated adequate knowledge to the satisfaction of
the Board.
B. The Department shall administer education and
training programs authorized pursuant to subsection E of § 62.1-44.15:52,
the Department shall develop or certify expanded components to address program
administration, plan review, and project inspection elements for
specified subject areas of this article and attendant regulations.
Reasonable and is authorized to charge persons attending such programs
reasonable fees to cover the costs of these additional components may be
charged administering the programs.
B. Effective July 1, 2014, personnel C. Personnel of
VSMP or VESMP authorities who are administering programs,
reviewing plans, or conducting inspections pursuant to this chapter
article shall hold a certificate of competence certification in
the appropriate subject area as provided in subsection A. This
requirement shall not apply to third-party individuals who prepare and submit
plans to a VESMP or VSMP authority.
D. The Department shall establish procedures and
requirements for issuance and periodic renewal of certifications.
E. 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
of such certifications.
§62.1-44.15:31. Standards and specifications for state
agencies, federal entities, and other specified entities.
A. State entities, including the Department of
Transportation, and for linear projects set out in subsection B, As an alternative
to submitting soil erosion control and stormwater management plans for its
land-disturbing activities pursuant to §62.1-44.15:34, the Virginia Department
of Transportation shall, and any other state agency or federal entity may,
submit standards and specifications for its conduct of land-disturbing
activities for Department of Environmental Quality approval. Approved standards
and specifications shall be consistent with this article. The Department of
Environmental Quality shall have 60 days after receipt in which to act on any
standards and specifications submitted or resubmitted to it for approval.
B. As an alternative to submitting soil erosion control and
stormwater management plans pursuant to §62.1-44.15:34, 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 set of standards and specifications for
Department approval that describes describe how land-disturbing
activities shall be conducted. Such standards and specifications shall be
consistent with the requirements of this article and associated regulations,
including the regulations governing the General Virginia Stormwater Management
Program (VSMP) Permit for Discharges of Stormwater from Construction Activities
and the Erosion and Sediment Control Law (§ 62.1-44.15:51 et seq.) and
associated regulations. Each project constructed in accordance with the
requirements of this article, its attendant regulations, and where required
standards and specifications shall obtain coverage issued under the state
general permit prior to land disturbance. The standards may be submitted
for the following types of projects:
1. Construction, installation, or maintenance of electric
transmission and distribution lines, oil or gas transmission and distribution
pipelines, communication utility lines, 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.
The Department shall have 60 days after receipt in which to
act on any standards and specifications submitted or resubmitted to it for
approval. A linear project not included in subdivision 1 or 2, or for which the
owner chooses not to submit standards and specifications, shall comply with the
requirements of the VESMP or the VESCP and VSMP, as appropriate, in any locality
within which the project is located.
C. As an alternative to submitting soil erosion control and
stormwater management plans pursuant to §62.1-44.15:34, any person engaging in
more than one jurisdiction in the creation and operation of a wetland mitigation
or stream restoration bank that has been approved and is operated in accordance
with applicable federal and state guidance, laws, or regulations for the
establishment, use, and operation of a wetlands mitigation or stream
restoration bank, pursuant to a mitigation banking instrument signed by the
Department, the Marine Resources Commission, or the U.S. Army Corps of
Engineers, may submit standards and specifications for Department approval that
describe how land-disturbing activities shall be conducted. The Department
shall have 60 days after receipt in which to act on standards and
specifications submitted to it or resubmitted to it for approval.
D. All standards and specifications submitted to the
Department shall be periodically updated according to a schedule to be
established by the Department and shall be consistent with the requirements of
this article. Approval of standards and specifications by the Department does
not relieve the owner or operator of the duty to comply with any other applicable
local ordinances or regulations. Standards and specifications shall
include:
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 any 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, of the standards
and specifications program, project-specific plan design, plan
review and plan approval, and construction inspection and enforcement
compliance;
4. Provisions for ensuring that responsible personnel
and contractors assisting the owner in carrying out the land-disturbing
activity obtain training or qualifications for soil erosion control and
stormwater management as set forth in regulations adopted pursuant to this
article;
5. Provisions for ensuring that personnel implementing
approved standards and specifications pursuant to this section obtain
certifications or qualifications for erosion and sediment control and
stormwater management comparable to those required for local government
VESMP personnel pursuant to subsection C of §62.1-44.15:30;
5. 6. Implementation of a project tracking
and notification system that ensures notification to the Department
of all land-disturbing activities covered under this article; and
6. 7. Requirements for documenting onsite
changes as they occur to ensure compliance with the requirements of the
this article.
B. 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. E. The Department shall perform random site
inspections or inspections in response to a complaint to assure
ensure compliance with this article, the Erosion and Sediment Control
Law (§ 62.1-44.15:51 et seq.), and regulations adopted thereunder.
The Department may take enforcement actions in accordance with this article and
related regulations.
D. F. The Department shall assess an
administrative charge to cover the costs of services rendered associated with
its responsibilities pursuant to this section, including standards and
specifications review and approval, project inspections, and compliance. The
Board may take enforcement actions in accordance with this article and related
regulations.
§62.1-44.15:33. Authorization for more stringent ordinances.
A. Localities that are VSMP serving as VESMP
authorities are authorized to adopt more stringent soil erosion control or
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
an 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 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
ordinances a public hearing is held after giving due notice. This process
shall not be required when a VESMP authority chooses to reduce the threshold
for regulating land-disturbing activities to a smaller area of disturbed land
pursuant to §62.1-44.15:34. However, this section shall not be construed to
authorize a VESMP authority to impose a more stringent timeframe for
land-disturbance review and approval than those provided in this article.
B. Localities that are VSMP serving as VESMP
authorities shall submit a letter report to the Department when more stringent
stormwater management ordinances or more stringent requirements authorized by
such stormwater management ordinances, such as may be set forth in
design manuals, policies, or guidance documents developed by the localities,
are determined to be necessary pursuant to this section within 30 days after
adoption thereof. Any such letter report shall include a summary explanation as
to why the more stringent ordinance or requirement has been determined to be
necessary pursuant to this section. Upon the request of an affected landowner
or his agent submitted to the Department with a copy to be sent to the
locality, within 90 days after adoption of any such ordinance or derivative
requirement, localities shall submit the ordinance or requirement and all other
supporting materials to the Department for a determination of whether the
requirements of this section have been met and whether any determination made
by the locality pursuant to this section is supported by the evidence. The
Department shall issue a written determination setting forth its rationale
within 90 days of submission. Such a determination, or a failure by the
Department to make such a determination within the 90-day period, may be
appealed to the Board.
C. Localities shall not prohibit or otherwise limit the use of
any best management practice (BMP) approved for use by the Director or the
Board except as follows:
1. When the Director or the Board approves the use of any BMP
in accordance with its stated conditions, the locality serving as a VSMP
VESMP authority shall have authority to preclude the onsite use of the
approved BMP, or to require more stringent conditions upon its use, for a
specific land-disturbing project based on a review of the stormwater management
plan and project site conditions. Such limitations shall be based on
site-specific concerns. Any project or site-specific determination purportedly
authorized pursuant to this subsection may be appealed to the Department and
the Department shall issue a written determination regarding compliance with
this section to the requesting party within 90 days of submission. Any such
determination, or a failure by the Department to make any such determination
within the 90-day period, may be appealed to the Board.
2. When a locality is seeking to uniformly preclude
jurisdiction-wide or otherwise limit geographically the use of a BMP approved
by the Director or Board, or to apply more stringent conditions to the use of a
BMP approved by the Director or Board, upon the request of an affected
landowner or his agent submitted to the Department, with a copy submitted to
the locality, within 90 days after adoption, such authorizing ordinances,
design manuals, policies, or guidance documents developed by the locality that
set forth the BMP use policy shall be provided to the Department in such manner
as may be prescribed by the Department that includes a written justification
and explanation as to why such more stringent limitation or conditions are
determined to be necessary. The Department shall review all supporting
materials provided by the locality to determine whether the requirements of
this section have been met and that any determination made by the locality
pursuant to this section is reasonable under the circumstances. The Department
shall issue its determination to the locality in writing within 90 days of
submission. Such a determination, or a failure by the Department to make such a
determination within the 90-day period, may be appealed to the Board.
D. Based on a determination made in accordance with subsection
B or C, any ordinance or other requirement enacted or established by a locality
that is found to not comply with this section shall be null and void, replaced
with state minimum standards, and remanded to the locality for revision to
ensure compliance with this section. Any such ordinance or other requirement
that has been proposed but neither enacted nor established shall be remanded to
the locality for revision to ensure compliance with this section.
E. Any provisions of a local erosion and sediment control
or stormwater management program in existence before January 1, 2013
2016, that contains more stringent provisions than this article shall be
exempt from the requirements of this section if the locality chooses to
retain such provisions when it becomes a VESMP authority. However, such
provisions shall be reported to the Board at the time of submission of
the locality's VSMP VESMP approval package.
§62.1-44.15:34. Regulated activities; submission and approval
of a permit application; security for performance; exemptions.
A. A person shall not conduct any land-disturbing activity
until (i) he has submitted a permit to the appropriate VESMP
authority an application to the VSMP authority that includes a
state VSMP permit registration statement, if such statement is required,
and, after July 1, 2014, a required, a soil erosion control and
stormwater management plan or an executed agreement in lieu of a stormwater
management plan, and has obtained VSMP authority approval to begin land
disturbance. A locality that is not a VSMP authority shall provide a general
notice to applicants of the state permit coverage requirement and report all
approvals pursuant to the Erosion and Sediment Control Law (§ 62.1-44.15:51
et seq.) to begin land disturbance of one acre or greater to the Department at
least monthly. 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 state VSMP permit coverage where it is required prior to
providing approval to begin land disturbance. The VSMP authority shall act on
any permit plan, if required, and (ii) the VESMP authority has issued
its land-disturbance approval. In addition, as a prerequisite to engaging in an
approved land-disturbing activity, the name of the individual who will be
assisting the owner in carrying out the activity and holds a Responsible Land
Disturber certificate pursuant to §62.1-44.15:30 shall be submitted to the
VESMP authority. Any VESMP authority may waive the Responsible Land Disturber
certificate requirement for an agreement in lieu of a plan for construction of
a single-family detached residential structure; however, if a violation occurs
during the land-disturbing activity for the single-family detached residential
structure, then the owner shall correct the violation and provide the name of
the individual holding a Responsible Land Disturber certificate as provided by
§62.1-14:30. Failure to provide the name of an individual holding a
Responsible Land Disturber certificate prior to engaging in land-disturbing
activities may result in revocation of the land-disturbance approval and shall
subject the owner to the penalties provided in this article.
1. A VESMP authority that is implementing its program
pursuant to subsection A of §62.1-44.15:27 or subdivision B 1 of §
62.1-44.15:27 shall determine the completeness of any application within 15
days after receipt, and shall act on any application within 60 days after
it has been determined by the VSMP VESMP authority to be a
complete application. The VSMP authority may either issue project
VESMP authority shall issue either land-disturbance approval or denial and
shall provide written rationale for the any denial. The
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 approval, the VSMP
Prior to issuing a land-disturbance approval, a VESMP authority shall be
required to obtain evidence of permit coverage when such coverage is required.
The VESMP authority also shall determine whether any resubmittal of a
previously disapproved application is complete within 15 days after receipt and
shall act on the resubmitted application within 45 days after receipt.
2. A VESMP authority implementing its program in
coordination with the Department pursuant to subdivision B 2 of §62.1-44.15:27
shall determine the completeness of any application within 15 days after
receipt, and shall act on any application within 60 days after it has been
determined by the VESMP authority to be complete. The VESMP authority shall
forward a soil erosion control and stormwater management plan to the Department
for review within five days of receipt. If the plan is incomplete, the
Department shall return the plan to the locality immediately and the
application process shall start over. If the plan is complete, the Department
shall review it for compliance with the water quality and water quantity
technical criteria and provide its recommendation to the VESMP authority. The
VESMP authority shall either (i) issue the land-disturbance approval or (ii)
issue a denial and provide a written rationale for the denial. In no case shall
a locality have more than 60 days for its decision on an application after it
has been determined to be complete. Prior to issuing a land-disturbance approval,
a VESMP authority shall be required to obtain evidence of permit coverage when
such coverage is required.
The VESMP authority also shall forward to the Department
any resubmittal of a previously disapproved application within five days after
receipt, and the VESMP authority shall determine whether the plan is complete
within 15 days of its receipt of the plan. The Department shall review the plan
for compliance with the water quality and water quantity technical criteria and
provide its recommendation to the VESMP authority, and the VESMP authority
shall act on the resubmitted application within 45 days after receipt.
3. When a state agency or federal entity submits a soil
erosion control and stormwater management plan for a project, land disturbance
shall not commence until the Board has reviewed and approved the plan and has
issued permit coverage when it is required.
a. The Board shall not approve a soil erosion control and
stormwater management plan submitted by a state agency or federal entity for a
project involving a land-disturbing activity (i) in any locality that has not
adopted a local program with more stringent ordinances than those of the state
program or (ii) in multiple jurisdictions with separate local programs, unless
the plan is consistent with the requirements of the state program.
b. The Board shall not approve a soil erosion control and
stormwater management plan submitted by a state agency or federal entity for a
project involving a land-disturbing activity in one locality with a local program
with more stringent ordinances than those of the state program, unless the plan
is consistent with the requirements of the local program.
c. If onsite changes occur, the state agency or federal
entity shall submit an amended soil erosion control and stormwater management
plan to the Department.
d. The state agency or federal entity responsible for the
land-disturbing activity shall ensure compliance with the approved plan. As
necessary, the Board shall provide project oversight and enforcement.
4. Prior to issuance of any land-disturbance approval, the
VESMP authority may also require an applicant, excluding state agencies
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 VSMP VESMP authority, to ensure
that measures could be taken by the VSMP VESMP authority at the
applicant's expense should he fail, after proper notice, within the time
specified to initiate or maintain appropriate actions that may be required
of him by the permit conditions comply with the conditions imposed by
the VESMP authority as a result of his land-disturbing activity. If the
VSMP VESMP authority takes such action upon such failure by the
applicant, the VSMP VESMP authority may collect from the
applicant 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 VESMP authority's 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. The VESMP authority may require changes to an
approved soil erosion control and stormwater management plan in the following
cases:
1. Where inspection has revealed that the plan is
inadequate to satisfy applicable regulations or ordinances; or
2. Where the owner finds that because of changed
circumstances or for other reasons the plan cannot be effectively carried out,
and proposed amendments to the plan, consistent with the requirements of this
article, are agreed to by the VESMP authority and the owner.
C. In order to prevent further erosion, a VESMP authority
may require approval of a soil erosion control and stormwater management plan
for any land identified as an erosion impact area by the VESMP authority.
D. A VESMP authority may enter into an agreement with an
adjacent VESMP authority regarding the administration of multijurisdictional
projects, specifying who shall be responsible for all or part of the
administrative procedures. Should adjacent VESMP authorities fail to reach such
an agreement, each shall be responsible for administering the area of the
multijurisdictional project that lies within its jurisdiction.
E. The following requirements shall apply to
land-disturbing activities in the Commonwealth:
1. Any land-disturbing activity that (i) disturbs one acre
or more of land or (ii) disturbs less than one acre of land and is part of a
larger common plan of development or sale that results in one acre or greater
of land disturbance may, in accordance with regulations adopted by the Board,
be required to obtain permit coverage.
2. For a land-disturbing activity occurring in an area not
designated as a Chesapeake Bay Preservation Area subject to the Chesapeake Bay
Preservation Act (§62.1-44.15:67 et seq.):
a. Soil erosion control requirements and water quantity
technical criteria adopted pursuant to this article shall apply to any activity
that disturbs 10,000 square feet or more, although the locality may reduce this
regulatory threshold to a smaller area of disturbed land. A plan addressing
these requirements shall be submitted to the VESMP authority in accordance with
subsection A. This subdivision shall also apply to additions or modifications
to existing single-family detached residential structures.
b. Soil erosion control requirements and water quantity and
water quality technical criteria shall apply to any activity that (i) disturbs
one acre or more of land or (ii) disturbs less than one acre of land and is
part of a larger common plan of development or sale that results in one acre or
greater of land disturbance, although the locality may reduce this regulatory
threshold to a smaller area of disturbed land. A plan addressing these
requirements shall be submitted to the VESMP authority in accordance with
subsection A.
3. For a land-disturbing activity occurring in an area
designated as a Chesapeake Bay Preservation Area subject to the Chesapeake Bay
Preservation Act (§62.1-44.15:67 et seq.):
a. Soil erosion control and water quantity and water
quality technical criteria shall apply to any land-disturbing activity that
disturbs 2,500 square feet or more of land, other than a single-family detached
residential structure. However, the governing body of any affected locality may
reduce this regulatory threshold to a smaller area of disturbed land. A plan
addressing these requirements shall be submitted to the VESMP authority in
accordance with subsection A.
b. For land-disturbing activities for single-family
detached residential structures, soil erosion control and water quantity
technical criteria shall apply to any land-disturbing activity that disturbs
2,500 square feet or more of land, and the locality also may require compliance
with the water quality technical criteria. A plan addressing these requirements
shall be submitted to the VESMP authority in accordance with subsection A.
C. F. Notwithstanding any other provisions of
this article, the following activities are exempt, not required to
comply with the requirements of this article unless otherwise required by
federal law:
1. Minor land-disturbing activities, including home gardens
and individual home landscaping, repairs, and maintenance work;
2. Installation, maintenance, or repair of any individual
service connection;
3. Installation, maintenance, or repair of any underground
utility line 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. Installation, maintenance, or repair of any septic tank
line or drainage field 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. Permitted surface or deep mining operations and
projects, or oil and gas operations and projects conducted under the
provisions of pursuant to Title 45.1;
2. 6. Clearing of lands specifically for bona
fide 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; agricultural engineering operations as
follows:, including 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 or as additionally set forth by the Board in
regulations. 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 provisions of the
Chesapeake Bay Preservation Act (§ 62.1-44.15:67 et seq.) may regulate
these single-family residences where land disturbance exceeds 2,500 square
feet;
4. Land-disturbing activities that disturb less than one
acre of land area except for land-disturbing activity exceeding an area of
2,500 square feet in all areas of the jurisdictions designated as subject to
the Chesapeake Bay Preservation Area Designation and Management Regulations
adopted pursuant to the provisions of the Chesapeake Bay Preservation Act (§
62.1-44.15:67 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 any locality that administers a VSMP may reduce this
exception to a smaller area of disturbed land or qualify the conditions under
which this exception shall apply;
5. 7. Installation of fence and sign posts or
telephone and electric poles and other kinds of posts or poles;
8. Shoreline erosion control projects on tidal waters when
all of the 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;
9. Repair or rebuilding of the tracks, rights-of-way,
bridges, communication facilities, and other related structures and facilities
of a railroad company;
10. 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 VESMP 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; and
11. Discharges to a sanitary sewer or a combined sewer
system; that are not from a land-disturbing activity.
G. Notwithstanding any other provision of this article, the
following activities are required to comply with the soil erosion control
requirements but are not required to comply with the water quantity and water
quality technical criteria, unless otherwise required by federal law:
6. 1. Activities under a state or federal
reclamation program to return an abandoned property to an agricultural or open
land use;
7. 2. 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
3. Discharges from a land-disturbing activity to a sanitary
sewer or a combined sewer system.
§62.1-44.15:35. Nutrient credit use and additional offsite
options for construction activities.
A. As used in this section:
"Nutrient credit" or "credit" means a
type of offsite option that is a nutrient credit certified pursuant to
Article 4.02 (§62.1-44.19:12 et seq.).
"Offsite option" means an alternative available,
away from the real property where land disturbance is occurring, to address
water quality or water quantity technical criteria established pursuant to §
62.1-44.15:28.
"Tributary," within the Chesapeake Bay watershed,
has the same meaning as in §62.1-44.19:13. For areas outside of the Chesapeake
Bay watershed, "tributary" includes the following watersheds:
Albemarle Sound, Coastal; Atlantic Ocean, Coastal; Big Sandy; Chowan;
Clinch-Powell; New Holston (Upper Tennessee); New River; Roanoke; and Yadkin.
"Virginia Stormwater Management Program Authority"
or "VSMP authority" has the same meaning as in § 62.1-44.15:24
and includes, until July 1, 2014, any locality that has adopted a local
stormwater management program.
B. A VSMP authority is authorized to allow compliance with
stormwater nonpoint nutrient runoff water quality criteria established pursuant
to § 62.1-44.15:28, in whole or in part, through the use of the
applicant's acquisition of nutrient credits in the same tributary.
C. No applicant shall use nutrient credits to address water
quantity control requirements. No applicant shall use nutrient credits or other
offsite options No offsite option shall be used in contravention of
local water quality-based limitations (i) determined pursuant to subsection B
of §62.1-44.19:14, (ii) adopted pursuant to §62.1-44.15:33 or other
applicable authority, (iii) deemed necessary to protect public water supplies
from demonstrated adverse nutrient impacts, or (iv) as otherwise may be
established or approved by the Board. Where such a limitation exists, offsite
options may be used provided that such options do not preclude or impair
compliance with the local limitation.
D. A VSMP authority shall allow offsite options in
accordance with subsection I C. Unless prohibited by subsection B, a
VESMP authority or a VSMP authority:
1. May allow the use of offsite options for compliance with
water quality and water quantity technical criteria established pursuant to §
62.1-44.15:28, in whole or in part; and
2. Shall allow the use of nutrient credits for compliance
with the water quality technical criteria when:
1. a. Less than five acres of land will be
disturbed;
2. The postconstruction phosphorous control b. The
phosphorous water quality reduction requirement is less than 10 pounds per
year; or
3. The state permit applicant demonstrates c. It is
demonstrated to the satisfaction of the VESMP or VSMP authority that
(i) alternative site designs have been considered that may accommodate onsite
best management practices, (ii) onsite best management practices have been
considered in alternative site designs to the maximum extent practicable, (iii)
appropriate onsite best management practices will be implemented, and (iv)
full compliance with postdevelopment nonpoint nutrient runoff compliance
requirements water quality technical criteria cannot practicably be
met onsite. For purposes of this subdivision, if an applicant demonstrates
The requirements of clauses (i) through (iv) shall be deemed to have been met
if it is demonstrated that onsite 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) water quality
reduction will be achieved.
E. Documentation of the applicant's acquisition of nutrient
credits shall be provided to the VSMP authority and the Department in a
certification from the credit provider documenting the number of phosphorus
nutrient credits acquired and the associated ratio of nitrogen nutrient credits
at the credit-generating entity. Until the effective date of regulations
establishing application fees in accordance with § 62.1-44.19:20, the
credit provider shall pay the Department a water quality enhancement fee equal
to six percent of the amount paid by the applicant for the credits. Such fee
shall be deposited into the Virginia Stormwater Management Fund established by
§ 62.1-44.15:29.
F. Nutrient credits 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 except as
otherwise limited in subsection C. Nutrient credits outside the same or
adjacent eight-digit hydrologic unit code may only be used if it is determined
by the VSMP authority that no credits are available within the same or adjacent
eight-digit hydrologic unit code when the VSMP authority accepts the final site
design. In such cases, and subject to other limitations imposed in this
section, credits available within the same tributary may be used. In no case
shall credits 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 nutrient
credits, the applicant shall (i) comply with a 1:1 ratio of the nutrient
credits to the site's remaining postdevelopment nonpoint nutrient runoff
compliance requirement being met by credit use and (ii) use credits certified
as perpetual credits pursuant to Article 4.02 (§62.1-44.19:12 et seq.).
H. D. No VSMP or VESMP authority may
grant an exception to, or waiver of, postdevelopment post-development
nonpoint nutrient runoff compliance requirements unless offsite options have
been considered and found not available.
I. E. The VSMP or VESMP authority shall
require that nutrient credits and other offsite 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 phosphorous water quality reductions prior
to the commencement of the 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 July 1, 2014. The applicant
In the case of a phased project, the land disturber may acquire or achieve the
offsite nutrient reductions prior to the commencement of each phase of the
land-disturbing activity in an amount sufficient for each such phase. The land
disturber shall have the right to select between the use of nutrient
credits or other offsite 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 nutrient credits. In the case of a phased project,
the applicant may acquire or achieve the offsite nutrient reductions prior to
the commencement of each phase of the land-disturbing activity in an amount
sufficient for each such phase.
J. Nutrient reductions obtained through nutrient credits
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 nutrient credits are used takes place. If the activity
for which the nutrient credits 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.
K. A F. With the consent of the land disturber, in
resolving enforcement actions, the VESMP authority or the Board may include the
use of offsite options to compensate for (i) nutrient control deficiencies
occurring during the period of noncompliance and (ii) permanent nutrient
control deficiencies.
G. 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
offsite options. The locality may use funds collected for nutrient reductions
pursuant to a locality pollutant loading pro rata share program for nutrient
reductions in the same tributary within the same locality as the
land-disturbing activity, or for the acquisition of nutrient credits.
H. Nutrient credits shall not be used to address water
quantity technical criteria. Nutrient credits shall be generated in the same or
adjacent fourth order subbasin, as defined by the hydrologic unit boundaries of
the National Watershed Boundary Dataset, as the land-disturbing activity. If no
credits are available within these subbasins when the VESMP or VSMP authority
accepts the final site design, credits available within the same tributary may
be used. The following requirements apply to the use of nutrient credits:
1. Documentation of the acquisition of nutrient credits
shall be provided to the VESMP authority and the Department or the VSMP
authority in a certification from the credit provider documenting the number of
phosphorus nutrient credits acquired and the associated ratio of nitrogen nutrient
credits at the credit-generating entity.
2. Until the effective date of regulations establishing
application fees in accordance with §62.1-44.19:20, the credit provider shall
pay the Department a water quality enhancement fee equal to six percent of the
amount paid for the credits. Such fee shall be deposited into the Virginia
Stormwater Management Fund established by §62.1-44.15:29.
3. For that portion of a site's compliance with water
quality technical criteria being obtained through nutrient credits, the land
disturber shall (i) comply with a 1:1 ratio of the nutrient credits to the
site's remaining post-development nonpoint nutrient runoff compliance
requirement being met by credit use and (ii) use credits certified as perpetual
credits pursuant to Article 4.02 (§62.1-44.19:12 et seq.).
4. A VESMP or VSMP authority shall allow the full or
partial substitution of perpetual nutrient credits for existing onsite nutrient
controls when (i) the nutrient credits will compensate for 10 or fewer pounds
of the annual phosphorous requirement associated with the original
land-disturbing activity or (ii) existing onsite controls are not functioning
as anticipated after reasonable attempts to comply with applicable maintenance
agreements or requirements and the use of nutrient credits will account for the
deficiency. Upon determination by the VESMP or VSMP authority that the
conditions established by clause (i) or (ii) have been met, the party
responsible for maintenance shall be released from maintenance obligations
related to the onsite phosphorous controls for which the nutrient credits are
substituted.
L. To the extent available, with the consent of the
applicant, the VSMP authority, the Board or the Department may include the use
of nutrient credits or other offsite measures in resolving enforcement actions
to compensate for (i) nutrient control deficiencies occurring during the period
of noncompliance and (ii) permanent nutrient control deficiencies.
M. 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 nutrient credits or other offsite options.
N. In order to properly account for allowed nonpoint
nutrient offsite reductions, an applicant shall report to the Department, in
accordance with Department procedures, information regarding all offsite
reductions that have been authorized to meet stormwater postdevelopment
nonpoint nutrient runoff compliance requirements.
O. An applicant or a permittee found to be in noncompliance
with the requirements of this section shall be subject to the enforcement and
penalty provisions of this article.
I. The use of nutrient credits to meet post-construction
nutrient control requirements shall be accounted for in the implementation of
total maximum daily loads and MS4 permits as specified in subdivisions 1, 2,
and 3. In order to ensure that the nutrient reduction benefits of nutrient
credits used to meet post-construction nutrient control requirements are
attributed to the location of the land-disturbing activity where the credit is
used, the following account method shall be used:
1. Chesapeake Bay TMDL.
a. Where nutrient credits are used to meet nutrient
reduction requirements applicable to redevelopment projects, a 1:1 credit shall
be applied toward MS4 compliance with the Chesapeake Bay TMDL waste load
allocation or related MS4 permit requirement applicable to the MS4 service
area, including the site of the land-disturbing activity, such that the
nutrient reductions of redevelopment projects are counted as part of the MS4
nutrient reductions to the same extent as when land-disturbing activities use
onsite measures to comply.
b. Where nutrient credits are used to meet
post-construction requirements applicable to new development projects, the
nutrient reduction benefits represented by such credits shall be attributed to
the location of the land-disturbing activity where the credit is used to the
same extent as when land-disturbing activities use onsite measures to comply.
c. A 1:1 credit shall be applied toward compliance by a
locality that operates a regulated MS4 with its Chesapeake Bay TMDL waste load
allocation or related MS4 permit requirement to the extent that nutrient
credits are obtained by the MS4 jurisdiction from a nutrient credit-generating
entity as defined in §62.1-44.19:13 independent of or in excess of those
required to meet the post-construction requirements.
2. Local nutrient-related TMDLs adopted prior to the
land-disturbing activity.
a. Where nutrient credits are used to meet nutrient
reduction requirements applicable to redevelopment projects, a 1:1 credit shall
be applied toward MS4 compliance with any local TMDL waste load allocation or
related MS4 permit requirement applicable to the MS4 service area, including
the site of the land-disturbing activity, such that the nutrient reductions of
redevelopment projects are counted as part of the MS4 nutrient reductions to
the same extent as when land-disturbing activities use onsite measures to
comply, provided the nutrient credits are generated upstream of where the
land-disturbing activity discharges to the water body segment that is subject
to the TMDL.
b. Where nutrient credits are used to meet
post-construction requirements applicable to new development projects, the
nutrient reduction benefits represented by such credits shall be attributed to
the location of the land-disturbing activity where the credit is used to the
same extent as when land-disturbing activities use onsite measures to comply,
provided the nutrient credits are generated upstream of where the
land-disturbing activity discharges to the water body segment that is subject
to the TMDL.
c. A 1:1 credit shall be applied toward MS4 compliance with
any local TMDL waste load allocation or related MS4 permit requirement to the
extent that nutrient credits are obtained by the MS4 jurisdiction from a
nutrient credit-generating entity as defined in §62.1-44.19:13 independent of
or in excess of those required to meet the post-construction requirements.
However, such credits shall be generated upstream of where the land-disturbing
activity discharges to the water body segment that is subject to the TMDL.
3. Future local nutrient-related TMDLs.
This subdivision applies only to areas where there has been
a documented prior use of nutrient credits to meet nutrient control
requirements in an MS4 service area that flows to or is upstream of a water
body segment for which a nutrient-related TMDL is being developed. For a TMDL
waste load allocation applicable to the MS4, the Board shall develop the TMDL
waste load allocation with the nutrient reduction benefits represented by the
nutrient credit use being attributed to the MS4, except when the Board
determines during the TMDL development process that reasonable assurance of
implementation cannot be provided for nonpoint source load allocations due to
the nutrient reduction benefits being attributed in this manner. The Board
shall have no obligation to account for nutrient reduction benefits in this
manner if the MS4 does not provide the Board with adequate documentation of (i)
the location of the land-disturbing activities, (ii) the number of nutrient
credits, and (iii) the generation of the nutrient credits upstream of the site
at which the land-disturbing activity discharges to the water body segment
addressed by the TMDL. Such attribution shall not be interpreted as amending
the requirement that the TMDL be established at a level necessary to meet the
applicable water quality standard.
§62.1-44.15:37. Notices to comply and stop work orders.
A. The 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) shall conduct such investigations and perform such other actions as
are necessary to carry out the provisions of this article. If the VSMP
authority, where authorized to enforce this article, or the Department
When the VESMP authority or the Board 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 or
conditions of land-disturbance approval, or to obtain an approved plan, permit,
or land-disturbance approval prior to commencing land-disturbing activities,
the VESMP authority or the Board may serve a notice to comply upon the owner,
permittee, or person conducting land-disturbing activities without an approved
plan, permit, or approval. Such notice to comply shall be served by delivery by
facsimile, email, or other technology; by mailing with confirmation of
delivery to the address specified in the permit or land-disturbance
application, if available, or in the land records of the locality; or by
delivery at the site of the development activities to the agent or employee
supervising such activities to a person previously identified to the
VESMP authority by the permittee or owner. The notice to comply
shall specify the measures needed to comply with the permit conditions and
shall specify the or land-disturbance approval conditions, or shall
identify the plan approval or permit or land-disturbance approval needed to
comply with this article, and shall specify a reasonable time within which
such measures shall be completed. In any instance in which a required permit
or land-disturbance approval has not been obtained, the VESMP authority or the
Board may require immediate compliance. In any other case, the VESMP authority
or the Board may establish the time for compliance by taking into account the
risk of damage to natural resources and other relevant factors. Notwithstanding
any other provision in this subsection, a VESMP authority or the Board may
count any days of noncompliance as days of violation should the VESMP authority
or the Board take an enforcement action. The issuance of a notice to comply by
the Board shall not be considered a case decision as defined in §2.2-4001.
B. 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 Board, or the
permit may be revoked by the VSMP authority, or the state permit may be revoked
by the Board. The Board or the VSMP authority, where authorized to enforce this
article, may pursue enforcement in accordance with § 62.1-44.15:48.
B. 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
in a notice to comply issued in accordance with subsection A, a locality
serving as the VESMP authority or the Board may issue a stop work order
requiring the owner, permittee, person responsible for carrying out an
approved plan, or person conducting the land-disturbing activities without
an approved plan or required permit or land-disturbance approval to
cease all land-disturbing activities until the violation of the permit
has ceased, or an approved plan and required permits and approvals are
obtained, and specified corrective measures have been completed. The VESMP
authority or the Board shall lift the order immediately upon completion and
approval of corrective action or upon obtaining an approved plan or any
required permits or approvals.
Such orders shall be issued (i) in accordance with local
procedures if issued by a locality serving as a VSMP authority or (ii) after a
hearing held in accordance with the requirements C. When such an order
is issued by the Board, it shall be issued in accordance with the procedures 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
in the manner set forth in subsection A. However, where the alleged
noncompliance is causing 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, the locality serving as the VESMP authority or the Board may issue,
without advance notice or procedures, 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.
D. The owner, permittee, or person conducting a
land-disturbing activity may appeal the issuance of any order to the circuit
court of the jurisdiction wherein the violation was alleged to occur or other
appropriate court.
E. An aggrieved owner of property sustaining pecuniary
damage from soil erosion or sediment deposition resulting from a violation of
an approved plan or required land-disturbance approval, or from the conduct of
a land-disturbing activity commenced without an approved plan or required
land-disturbance approval, may give written notice of an alleged violation to
the locality serving as the VESMP authority and to the Board.
1. If the VESMP authority has not responded to the alleged
violation in a manner that causes the violation to cease and abates the damage
to the aggrieved owner's property within 30 days following receipt of the
notice from the aggrieved owner, the aggrieved owner may request that the Board
conduct an investigation and, if necessary, require the violator to stop the
alleged violation and abate the damage to the property of the aggrieved owner.
2. Upon receipt of the request, the Board shall conduct an
investigation of the aggrieved owner's complaint. If the Board's investigation
of the complaint indicates that (i) there is a violation and the VESMP
authority has not responded to the violation as required by the VESMP and (ii)
the VESMP authority has not responded to the alleged violation in a manner that
causes the violation to cease and abates the damage to the aggrieved owner's
property within 30 days from receipt of the notice from the aggrieved owner,
then the Board shall give written notice to the VESMP authority that the Board
intends to issue an order pursuant to subdivision 3.
3. If the VESMP authority has not instituted action to stop
the violation and abate the damage to the aggrieved owner's property within 10
days following receipt of the notice from the Board, the Board is authorized to
issue an order requiring the owner, person responsible for carrying out an
approved plan, or person conducting the land-disturbing activity without an
approved plan or required land-disturbance approval to cease all
land-disturbing activities until the violation of the plan has ceased or an
approved plan and required land-disturbance approval are obtained, as
appropriate, and specified corrective measures have been completed. The Board
also may immediately initiate a program review of the VESMP.
4. Such orders are to be issued in accordance with the
procedures of the Administrative Process Act (§2.2-4000 et seq.) and they
shall become effective upon service on the person by mailing, with
confirmation of delivery, 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 Board. Any subsequent identical mail or notice that is sent
by the Board may be sent by regular mail. However, if the VSMP authority
or the Department Board 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
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.
5. If a person who has been issued an order or an
emergency order is not complying with the terms thereof, the VSMP
authority or the Department Board may institute a proceeding in
accordance with § 62.1-44.15:42 the appropriate circuit court for
an injunction, mandamus, or other appropriate remedy compelling the person to
comply with such order. 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 §62.1-44.15:48. Any civil
penalties assessed by a court shall be paid into the state treasury and
deposited by the State Treasurer into the Stormwater Local Assistance Fund
established pursuant to §62.1-44.15:29.1.
§62.1-44.15:39. Right of entry.
The Department, the VSMP authority, where authorized to
enforce this article, any duly authorized agent of the Department or VSMP
authority, or any locality that is the operator of a regulated municipal
separate storm sewer system In addition to the Board's authority set
forth in §62.1-44.20, a locality serving as a VESMP authority or any duly
authorized agent thereof 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 localities that operate regulated 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 VESMP authority may also enter any
establishment or upon any property, public or private, for the purpose of
initiating or maintaining appropriate actions that are required by the
permit conditions associated with conditions imposed by the VESMP
authority on a land-disturbing activity when a permittee an owner,
after proper notice, has failed to take acceptable action within the time
specified.
§62.1-44.15:40. Information to be furnished.
The Board, the Department, or the VSMP authority, where
authorized to enforce this article, may require every permit applicant, every
permittee, or any person subject to state permit requirements under this
article a locality serving as a VESMP authority may require every owner,
including every applicant for a permit or land-disturbance approval, 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. The Board or
Department also may require any locality that is a VESMP authority to furnish
when requested any information as may be required to accomplish the purposes of
this article. Any personal information shall not be disclosed except to an
appropriate official of the Board, Department, U.S. Environmental Protection
Agency, or VSMP VESMP 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 VSMP VESMP
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 permittee owner or under that permittee's owner'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 VSMP
locality serving as a VESMP 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 activity
that may have occurred, or similar documents.
§62.1-44.15:41. Liability of common interest communities.
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 that 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 that 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 clause (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.
§62.1-44.15:46. Appeals.
Any permittee or party aggrieved by a state permit or
(i) a permit or permit enforcement decision of the Department or
Board under this article or (ii) a decision of the Board under this article
concerning a land-disturbing activity in a locality subject to the Chesapeake
Bay Preservation Act (§62.1-44.15:67 et seq.), or any person who has
participated, in person or by submittal of written comments, in the public
comment process related to a final such decision of the
Department or Board under this article, whether such decision is
affirmative or negative, is entitled to judicial review thereof in accordance
with §62.1-44.29. Appeals of other final decisions of the Board under this
article shall be subject to judicial review 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 Constitution of the United States. 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 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 the Administrative Process Act (§ 2.2-4000
et seq.) shall not apply to decisions rendered by localities. Appeals of
decisions rendered by localities shall be conducted in accordance with local
appeal procedures and shall include an opportunity for judicial review in the
circuit court of the locality in which the land disturbance occurs or is
proposed to occur. Unless otherwise provided by law, the circuit court shall
conduct such review in accordance with the standards established in § 2.2-4027,
and the decisions of the circuit court shall be subject to review by the Court
of Appeals, as in other cases under this article.
A final decision by a locality, when serving as a VESMP
authority, shall be subject to judicial review, provided that an appeal is
filed in the appropriate court within 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 a land-disturbing activity.
§62.1-44.15:48. Penalties, injunctions, and other legal
actions.
A. For a land-disturbing activity that disturbs 2,500
square feet or more of land in an area of a locality that is designated as a
Chesapeake Bay Preservation Area pursuant to the Chesapeake Bay Preservation
Act (§62.1-44.15:67 et seq.), or that disturbs one acre or more of land or is
part of a larger common plan of development or sale that disturbs one acre or
more of land anywhere else in the Commonwealth:
1. Any person who violates any applicable
provision of this article or of any regulation, ordinance permit,
or standard and specification adopted or approved by the Board
hereunder, or who fails, neglects, or refuses to comply with any order of
the Board, or a court, issued as herein provided, shall be subject to a civil
penalty pursuant to §62.1-44.32. The court shall direct that any penalty be
paid into the state treasury and deposited by the State Treasurer into the
Stormwater Local Assistance Fund established pursuant to §62.1-44.15:29.1.
2. Any person who violates any applicable provision of this
article, or any ordinance adopted pursuant to this article, including those
adopted pursuant to the conditions of an MS4 permit, or any condition of a
local land-disturbance approval, or who fails, neglects, or refuses to
comply with any order of a VSMP authority authorized to enforce this
article, the Department, the Board, locality serving as a VESMP
authority or a 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 VSMP authority in enforcing the provisions
of this article. The Board, Department, or VSMP authority may issue a summons
for collection of the civil penalty and the action may be prosecuted in the
appropriate court. Such civil penalties shall be paid into the treasury
of the locality in which the violation occurred and are to be used solely for
stormwater management capital projects, including (i) new stormwater best
management practices; (ii) stormwater best management practice maintenance,
inspection, or retrofitting; (iii) stream restoration; (iv) low-impact
development projects; (v) buffer restoration; (vi) pond retrofitting; and (vii)
wetlands restoration.
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 Stormwater Local Assistance Fund established
pursuant to §62.1-44.15:29.1.
B. For a land-disturbing activity that disturbs an area
measuring not less than 10,000 square feet but less than one acre in an area
that is not designated as a Chesapeake Bay Preservation Area pursuant to the
Chesapeake Bay Preservation Act (§62.1-44.15:67 et seq.) and is not part of a
larger common plan of development or sale that disturbs one acre or more of
land:
1. Any person who violates any applicable provision of this
article or of any regulation or order of the Board issued pursuant to this
article, or any condition of a land-disturbance approval issued by the Board,
or fails to obtain a required land-disturbance approval, shall be subject to a
civil penalty not to exceed $5,000 for each violation with a limit of $50,000
within the discretion of the court in a civil action initiated by the Board.
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 that exceed a
total of $50,000. The court shall direct the penalty to be paid into the state
treasury and deposited by the State Treasurer into the Stormwater Local
Assistance Fund established pursuant to §62.1-44.15:29.1.
2. Any locality serving as a VESMP authority shall adopt an
ordinance providing that a violation of any ordinance or provision of its
program adopted pursuant to this article, or any condition of a
land-disturbance approval, shall be subject to a civil penalty. Such ordinance
shall provide that any person who violates any applicable provision of this
article or any ordinance or order of a locality issued pursuant to this
article, or any condition of a land-disturbance approval issued by the
locality, or fails to obtain a required land-disturbance approval, shall be
subject to a civil penalty not to exceed $5,000 for each violation with a limit
of $50,000 within the discretion of the court in a civil action initiated by
the locality. 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 that exceed a total of $50,000. 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 and used pursuant to subdivision A 2, except
that 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
Local Assistance Fund established pursuant to § 62.1-44.15:29.
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 §62.1-44.15:29.1.
B. Any person who willfully or negligently violates any
provision of this article, any regulation or order of the Board, any order of a
VSMP authority authorized to enforce this article or the Department, any
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, any order of the VSMP authority or the Department, any 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 VSMP authority, where
authorized to enforce this article,
C. The violation of any provision of this article may also
result in the following sanctions:
1. The Board may seek an injunction, mandamus, or other
appropriate remedy pursuant to §62.1-44.23. A locality serving as a VESMP
authority may apply to the 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 a local ordinance or order
or the conditions of a local land-disturbance approval. Any person violating or
failing, neglecting, or refusing to obey any injunction, mandamus, or other
remedy obtained pursuant to this article shall be subject, in the discretion of
the court, to a civil penalty that shall be assessed and used in accordance
with the provisions of subsection A or B, as applicable.
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 VSMP
authority or the Department, or any provision of this article, the Board,
Department, or 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 The Board or a locality serving as a
VESMP authority may use the criminal provisions provided in §62.1-44.32.
§62.1-44.15:49. Enforcement authority of MS4 localities.
A. Localities shall adopt a stormwater ordinance pursuant
to the conditions of a MS4 permit 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
Each locality subject to an MS4 permit shall adopt an ordinance to implement a
municipal separate storm sewer system management program that is consistent
with this chapter and that contains provisions as required to comply with
a state an MS4 permit. Such locality may utilize the civil penalty
provisions in subsection A subdivision A 2 of §62.1-44.15:48,
the injunctive authority as provided for in subdivision D 1
subsection C of §62.1-44.15:48, and the civil charges as authorized
in subdivision D 2 of § 62.1-44.15:48 §62.1-44.15:25.1, and
the criminal provisions in §62.1-44.32, 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 approved as a VSMP
authority.
§62.1-44.15:50. Cooperation with federal and state agencies.
A VSMP VESMP authority and the Department are
authorized to cooperate and enter into agreements with any federal or state
agency in connection with the requirements for land-disturbing activities
for stormwater management.
Article 2.4.
Erosion and Sediment Control Law for Localities Not
Administering a Virginia Erosion and Stormwater Management Program.
§62.1-44.15:51. 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 VESCP authority and the owner that
specifies conservation measures that must be implemented in the construction of
a single-family residence detached residential structure; this
contract may be executed by the plan-approving VESCP 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 in order to obtain authorization for
land-disturbing activities to commence.
"Certified inspector" means an employee or agent of
a VESCP authority who (i) holds a certificate of competence
certification 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 VESCP authority who (i) holds a certificate of competence
certification 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, 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 VESCP authority who (i) holds a certificate of competence
certification 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.
"Department" means the Department of Environmental
Quality.
"Director" means the Director of the Department of
Environmental Quality.
"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 Chapter 5
of Title 10.1.
"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 that
is not associated with a current land-disturbing activity but is
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" "Land
disturbance" or "land-disturbing activity" means any
man-made change to the land 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, or has the potential to
change its runoff characteristics, including the 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. Permitted surface or deep mining operations and
projects, or oil and gas operations and projects conducted pursuant to Title
45.1;
6. Tilling, planting, or harvesting of agricultural,
horticultural, or forest crops, 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
Title 10.1 or is converted to bona fide agricultural or improved pasture use as
described in subsection B of § 10.1-1163;
7. Repair or rebuilding of the tracks, rights-of-way,
bridges, communication facilities, and other related structures and facilities
of a railroad company;
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 (§ 10.1-604 et seq.), ditches, strip cropping, lister
furrowing, contour cultivating, contour furrowing, land drainage, and land
irrigation;
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; 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;
10. Installation of fence and sign posts or telephone and
electric poles and other kinds of posts or poles;
11. Shoreline erosion control projects on tidal waters when
all of the 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
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 VESCP authority.
"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 same as provided in §
62.1-44.3. For a land-disturbing activity that is regulated under this article,
"owner" also includes the owner or owners of the freehold of the
premises or lesser estate therein, 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.
"Runoff volume" means the volume of water that runs
off the land development project from a prescribed storm event.
"Soil erosion" means the movement of soil by wind
or water into state waters or onto lands in the Commonwealth.
"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 a
locality 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.
A locality that has chosen not to establish a Virginia Erosion and Stormwater
Management Program pursuant to subdivision B 3 of §62.1-44.15:27 is required
to become a VESCP authority in accordance with this article.
"Virginia Stormwater Management Program" or
"VSMP" means a program established by the Board pursuant to §
62.1-44.15:27.1 on behalf of a locality on or after July 1, 2014, to manage the
quality and quantity of runoff resulting from any land-disturbing activity that
(i) disturbs one acre or more of land or (ii) disturbs less than one acre of
land and is part of a larger common plan of development or sale that results in
one acre or greater of land disturbance.
"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.
§62.1-44.15:51.1. Applicability.
The requirements of this article shall apply in any
locality that has chosen not to establish a Virginia Erosion and Stormwater
Management Program (VESMP) pursuant to subdivision B 3 of §62.1-44.15:27. Each
such locality shall be required to adopt and administer a Board-approved VESCP.
§62.1-44.15:52. Virginia Erosion and Sediment Control
Program.
A. The Board shall develop a program and 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
shall be met in any control program to prevent the unreasonable degradation of
properties, stream channels, waters, and other natural resources. 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 or §62.1-44.15:54 or
62.1-44.15:65. Any plan approved prior to July 1, 2014, that provides for
stormwater management 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 equal
to the first one-half inch of runoff multiplied by the impervious surface of
the land development project 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-year, two-year, 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 requirement for natural or man-made channels as defined
in regulations promulgated pursuant to §62.1-44.15:54 or 62.1-44.15:65. 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 Virginia Erosion and Stormwater Management
Act (§62.1-44.15:24 et seq.) and attendant regulations, unless such
land-disturbing activities are in accordance with the grandfathering provisions
of the Virginia Erosion and Stormwater Management Program (VSMP)
Permit (VESMP) Regulations or exempt pursuant to subdivision C 7
G 2 of §62.1-44.15:34.
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 VESCP authorities.
C. The Board shall adopt regulations establishing minimum
standards of effectiveness of erosion and sediment control programs, and
criteria and procedures for reviewing and evaluating the effectiveness of
VESCPs. In developing minimum standards for program effectiveness, the Board
shall consider information and standards on which the regulations promulgated
pursuant to subsection A are based.
D. The Board shall approve VESCP authorities and shall
periodically conduct a comprehensive program compliance review and evaluation
to ensure that all VESCPs operating under the jurisdiction of this article meet
minimum standards of effectiveness in controlling soil erosion, sediment
deposition, and nonagricultural runoff. The Department shall develop a schedule
for conducting periodic reviews and evaluations of the effectiveness of 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 (§ 62.1-44.15:24 et seq.) and associated regulations and
the Chesapeake Bay Preservation Act (§ 62.1-44.15:67 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 pursuant to subdivision (19) of §62.1-44.15.
E. The Board shall issue certificates of competence
certifications concerning the content, application, and intent of specified
subject areas of this article 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 article 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 Erosion
and Stormwater Management Act (§62.1-44.15:24 et seq.) and attendant
regulations in accordance with §62.1-44.15:30.
F. Department personnel conducting inspections pursuant to
this article shall hold a certificate of competence certification
as provided in subsection E.
§62.1-44.15:53. Certification of program personnel.
A. The minimum standards of VESCP effectiveness established by
the Board pursuant to subsection C of §62.1-44.15:52 shall provide that (i) 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 shall
be conducted by a certified inspector; and (iii) a 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 area of plan review, project inspection, or program administration
that was attained prior to the adoption of the mandatory certification
provisions of subsection A 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 have met the provisions of this section
for the purposes of renewals of certifications.
§62.1-44.15:54. Virginia Erosion and Sediment Control
Program.
A. Counties and cities shall adopt and administer a VESCP.
Any town lying within a county that has adopted its own
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 locality that has chosen
not to establish a Virginia Erosion and Stormwater Management Program (VESMP)
pursuant to subdivision B 3 of §62.1-44.15:27 shall administer a VESCP in
accordance with this article; however, a town may enter into an agreement with
a county to administer the town's VESCP pursuant to subsection C of §
62.1-44.15:27.
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.
C. Any VESCP adopted by a county, city, or town shall be
approved by the Board if it establishes by ordinance requirements that are
consistent with this article and associated regulations.
D. Each approved VESCP operated by a county, city, or town
shall include provisions for the integration coordination 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 shall
conduct compliance reviews of VESCPs in accordance with subdivision (19) of §
62.1-44.15. The Board or Department also may require any locality that is a
VESCP authority to furnish when requested any information as may be required to
accomplish the purposes of this article.
F. Following completion of a compliance review of a VESCP
in accordance with subsection D of § 62.1-44.15:52, 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 Department of a VESCP indicates that the VESCP
authority has not administered, enforced where authorized to do so, or
conducted its VESCP in a manner that satisfies the minimum standards of
effectiveness established pursuant to subsection C of § 62.1-44.15:52,
the Board shall 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 VESCP authority 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 corrective action, then the Board
shall have the authority to (i) issue a special order to any 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 § 62.1-44.15:29 or (ii) revoke its
approval 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.
G. If the Board revokes its approval of 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 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.
H. If the Board (i) revokes its approval of a VESCP of a
district, or of a county, city, or town not in a district, or (ii) finds that a
local program consistent with this article and associated regulations has not
been adopted by a district or a county, city, or town that is required to adopt
and administer a VESCP, 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
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.
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. F. Any VESCP authority that 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 VESCP authority shall hold a public hearing prior to
establishing a schedule of fees. The fee shall not exceed an amount
commensurate with the services rendered, taking into consideration the time,
skill, and the VESCP authority's expense involved.
K. The governing body of any county, city, or town, or a
district board G. Any locality that 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 land-disturbance approval, 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 that 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 that 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 § 62.1-44.15:63.
The penalties set out in this subsection are also available to the Board in its
enforcement actions.
§62.1-44.15:55. Regulated land-disturbing activities;
submission and approval of erosion and sediment control plan.
A. Except as provided in § 62.1-44.15:56 for state
agency and federal entity land-disturbing activities §62.1-44.15:31 for
a land-disturbing activity conducted by a state agency, federal entity, or
other specified entity, no person shall engage in any land-disturbing
activity until he has submitted to the VESCP authority an erosion and sediment
control plan for the land-disturbing activity and the plan has been reviewed
and approved. 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 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 VESCP, an erosion and sediment control plan may,
at the request of one or all of the VESCP authorities, be submitted to the
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
multijurisdictional projects whereby the jurisdiction that contains the greater
portion of the project shall be responsible for all or part of the
administrative procedures Where Virginia Pollutant Discharge Elimination
System permit coverage is required, a VESCP authority shall be required to
obtain evidence of such coverage from the Department's online reporting system
prior to approving the erosion and sediment control plan. A VESCP authority may
enter into an agreement with an adjacent VESCP or VESMP authority regarding the
administration of multijurisdictional projects specifying who shall be
responsible for all or part of the administrative procedures. Should adjacent
authorities fail to come to such an agreement, each shall be responsible for
administering the area of the multijurisdictional project that lies within its
jurisdiction. 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
VESCP authority.
B. The VESCP authority shall review erosion and sediment
control plans submitted to it and grant written approval within 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 erosion and
sediment control measures included in the plan and 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 VESCP authority, as provided by §
62.1-44.15:52, who will be in charge of and responsible for carrying out the
land-disturbing activity. However, any 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 §
62.1-44.15:52. 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 VESCP authority within the time specified in this subsection, 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. 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 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 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 (§ 62.1-44.15:24 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 Department shall have 60 days in which to approve the
standards and specifications. If no action is taken by the Department within 60
days, the standards and specifications shall be deemed approved. Individual
approval of separate projects within subdivisions 1 and 2 is not necessary when
approved specifications are followed. Projects not included in subdivisions 1
and 2 shall comply with the requirements of the appropriate 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 Department for review and approval
consistent with guidelines established by the Board.
The Department shall have 60 days in which to approve the
specifications. If no action is taken by the 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 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. D. In order to prevent further erosion, a
VESCP authority may require approval of an erosion and sediment control plan
for any land identified by the VESCP authority as an erosion impact area.
G. E. For the purposes of subsections A and B,
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.
F. Notwithstanding any other provisions of this article,
the following activities are not required to comply with the requirements of this
article unless otherwise required by federal law:
1. Disturbance of a land area of less than 10,000 square
feet in size or less than 2,500 square feet in an area designated as a
Chesapeake Bay Preservation Area pursuant to the Chesapeake Bay Preservation
Act (§62.1-44.15:67 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;
2. Minor land-disturbing activities such as home gardens
and individual home landscaping, repairs, and maintenance work;
3. Installation, maintenance, or repair of any individual
service connection;
4. Installation, maintenance, or repair of any underground
utility line 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;
5. Installation, maintenance, or repair of any septic tank
line or drainage field unless included in an overall plan for land-disturbing
activity relating to construction of the building to be served by the septic
tank system;
6. Permitted surface or deep mining operations and
projects, or oil and gas operations and projects conducted pursuant to Title
45.1;
7. Clearing of lands specifically for bona fide
agricultural purposes; the management, tilling, planting, or harvesting of
agricultural, horticultural, or forest crops; livestock feedlot operations;
agricultural engineering operations, including 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; or as additionally set forth by the Board in
regulations. 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 Title 10.1 or is converted to bona fide agricultural or improved pasture use
as described in subsection B of §10.1-1163;
8. Installation of fence and sign posts or telephone and
electric poles and other kinds of posts or poles;
9. Shoreline erosion control projects on tidal waters when
all of the 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;
10. 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 VESMP
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;
11. Discharges to a sanitary sewer or a combined sewer
system that are not from a land-disturbing activity; and
12. Repair or rebuilding of the tracks, rights-of-way,
bridges, communication facilities, and other related structures and facilities
of a railroad company.
§62.1-44.15:57. 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 shall 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 Program Pollutant Discharge Elimination System 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 that 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 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 the difference should the amount of the reasonable cost of
such action exceed the amount of the security held. Within 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.
§62.1-44.15:58. Monitoring, reports, and inspections.
A. The 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 §62.1-44.15:52,
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 VESCP authority may waive the certificate of competence
requirement for an agreement in lieu of a plan for construction of a
single-family residence detached residential structure. The owner,
permittee, or person responsible for carrying out the plan shall be given
notice of the inspection. If the 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 mailing with
confirmation of delivery 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 When the
VESCP authority or the Board determines that there is a failure to comply with
the conditions of land-disturbance approval or to obtain an approved plan or a
land-disturbance approval prior to commencing land-disturbing activity, the
VESCP authority or the Board may serve a notice to comply upon the owner or
person responsible for carrying out the land-disturbing activity. Such notice
to comply shall be served by delivery by facsimile, e-mail, or other
technology; by mailing with confirmation of delivery to the address specified
in the plan or land-disturbance application, if available, or in the land
records of the locality; or by delivery at the site to a person previously
identified to the VESCP authority by the owner. The notice to comply
shall specify the measures needed to comply with the plan
land-disturbance approval conditions or shall identify the plan approval or
land-disturbance approval needed to comply with this article and shall
specify the a reasonable time within which such measures shall be
completed. In any instance in which a required land-disturbance approval has
not been obtained, the VESCP authority or the Board may require immediate
compliance. In any other case, the VESCP authority or the Board may establish
the time for compliance by taking into account the risk of damage to natural
resources and other relevant factors. Notwithstanding any other provision in
this subsection, a VESCP authority or the Board may count any days of
noncompliance as days of violation should the VESCP authority or the Board take
an enforcement action. The issuance of a notice to comply by the Board shall
not be considered a case decision as defined in §2.2-4001. Upon failure to
comply within the time specified, the permit any plan approval or
land-disturbance approval may be revoked and the VESCP authority, where
authorized to enforce this article, the Department, or the Board may pursue
enforcement as provided by §62.1-44.15:63.
B. Notwithstanding the provisions of 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 issuance of an inspection report denoting a violation
of this section, or §62.1-44.15:55 or 62.1-44.15:56,
in conjunction with or subsequent to a notice to comply as specified in
subsection A, a VESCP authority, where authorized to enforce this article,
or the Department or the Board may issue an a stop work
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 §62.1-44.15:55, requiring that all of the land-disturbing
activities be stopped until an approved plan or any required permits are
is obtained. When such an order is issued by the Board, it shall be
issued in accordance with the procedures of the Administrative Process Act (§
2.2-4000 et seq.). 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, such a stop work order may be
issued whether or not the alleged violator has been issued a notice to comply
as specified in subsection A. Otherwise, such an order may be issued only after
the alleged violator has failed to comply with a notice to comply. The order
for noncompliance with a plan 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 VESCP authority, the Department Board,
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.
The stop work order for disturbance without an approved plan or
permits shall be served upon the owner by mailing with confirmation of
delivery to the address specified in the land records of the locality, shall be
posted on the site where the disturbance is occurring, and shall remain in
effect until such time as permits and plan approvals are secured, except
in such situations where an agricultural exemption applies. If the alleged
violator has not obtained an approved erosion and sediment control plan or
any required permit within seven days from the date of service of the
stop work order, the Department Board or the chief
administrative officer or his designee on behalf of the VESCP authority may
issue a subsequent 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 has
been obtained. The subsequent order shall be served upon the owner by mailing
with confirmation of delivery to the address specified in the permit
application plan or the land records of the locality in which the
site is located. The owner may appeal the issuance of any 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 Board 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 §62.1-44.15:63.
§62.1-44.15:60. Right of entry.
The Department, the VESCP authority, where authorized to
enforce this article, In addition to the Board's authority set forth in
§62.1-44.20, a locality serving as a VESCP authority or any duly
authorized agent of the Department or such VESCP authority thereof
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 that are required by the permit conditions associated
with conditions imposed by the VESCP authority on a land-disturbing
activity when a permittee an owner, after proper notice, has failed
to take acceptable action within the time specified.
§62.1-44.15:62. Judicial appeals.
A. A final decision by a county, city, or town, when serving
as a VESCP authority under this article, shall be subject to judicial review,
provided that an appeal is filed within 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 Board, Department, or district
shall be subject to judicial review in accordance with the provisions of the
Administrative Process Act (§2.2-4000 et seq.).
§62.1-44.15:63. Penalties, injunctions and other legal
actions.
A. Violators of § 62.1-44.15:55, 62.1-44.15:56, or
62.1-44.15:58 shall be guilty of a Class 1 misdemeanor.
B. Any person 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 VESCP authority, any condition of a
permit land-disturbance approval, or any provision of this article
or associated regulation shall, upon a finding of an appropriate 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 G of §62.1-44.15:54, such assessment shall be in
accordance with the schedule. The VESCP authority or the Department
Board may issue a summons for collection of the civil penalty. In any trial
for a scheduled violation, it shall be the burden of the locality or
Department Board or the VESCP authority 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 and are to be used solely
for stormwater management capital projects, including (i) new stormwater best
management practices; (ii) stormwater best management practice maintenance,
inspection, or retrofitting; (iii) stream restoration; (iv) low-impact
development projects; (v) buffer restoration; (vi) pond retrofitting; and (vii)
wetlands restoration. Where the violator is the locality itself, or its
agent, or where the Department Board is issuing the summons, the
court shall direct the penalty to be paid into the state treasury and
deposited by the State Treasurer into the Stormwater Local Assistance Fund
established pursuant to §62.1-44.15:29.1.
C. B. The VESCP authority, the Department
Board, or the owner of property that 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 §62.1-44.15:55, 62.1-44.15:56,
or 62.1-44.15:58 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 VESCP, the Department Board, and the VESCP authority
that a violation of the VESCP has caused, or creates a probability of causing,
damage to his property, and (ii) neither the person who has violated the VESCP,
the Department Board, nor the VESCP authority has taken
corrective action within 15 days to eliminate the conditions that have caused,
or create the probability of causing, damage to his property.
D. C. In addition to any criminal or
civil penalties provided under this article, any person who violates any
provision of this article may be liable to the VESCP authority or the
Department Board, as appropriate, in a civil action for damages.
E. D. Without limiting the remedies that 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 VESCP authority wherein the land
lies or the Department Board. Any civil penalties assessed by a
court shall be paid into the treasury of the locality wherein the land lies,
except that where and used pursuant to requirements of subsection A.
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 Board, the court
shall direct the penalty to be paid into the state treasury and deposited by
the State Treasurer into the Stormwater Local Assistance Fund (§
62.1-44.15:29.1).
F. E. With the consent of any person 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 VESCP
authority, any condition of a permit land-disturbance approval,
or any provision of this article or associated regulations, the Board, the
Director, or VESCP authority may provide, in an order issued by the Board or
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 D. Such civil charges shall be instead of any appropriate civil
penalty that could be imposed under subsection B or E A or D.
G. F. Upon request of a 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.
§62.1-44.15:64. Stop work orders by Board; 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 land-disturbance approval, or from the conduct of
land-disturbing activities commenced without an approved plan or required
permit land-disturbance approval, may give written notice of the
alleged violation to the VESCP authority and to the Director Board.
B. Upon receipt of the notice from the aggrieved owner and
notification to the VESCP authority, the Director shall conduct an
investigation of the aggrieved owner's complaint.
C. If the VESCP authority has not responded to the
alleged violation in a manner that causes the violation to cease and abates the
damage to the aggrieved owner's property within 30 days following receipt of
the notice from the aggrieved owner, the aggrieved owner may request that the
Director Board conduct an investigation and, if necessary, require
the violator to stop the alleged violation and abate the damage to his
property.
D. If (i) the Director's C. If the Board's investigation
of the complaint indicates that (i) the VESCP authority has not
responded to the alleged violation as required by the VESCP, (ii) the VESCP
authority has not responded to the alleged violation within 30 days from the
date of the notice given pursuant to subsection A, and (iii) the Director is
requested by the aggrieved owner there is a violation and it is
necessary to require the violator to cease the violation as requested by
the aggrieved owner, then the Director Board shall give
written notice to the VESCP authority that the Department Board
intends to issue an order pursuant to subsection E D.
E. D. If the VESCP authority has not instituted
action to stop the violation and abate the damage to the aggrieved owner's
property within 10 days following receipt of the notice from the Director,
the Department Board, the Board 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
land-disturbance approval to cease all land-disturbing activities until the
violation of the plan or permit has ceased or an approved plan and
required permits land-disturbance approval are obtained, as
appropriate, and specified corrective measures have been completed. The
Department Board also may immediately initiate a program review of
the VESCP.
F. E. Such orders are to be issued after a
hearing held in accordance with the requirements procedures
of the Administrative Process Act (§2.2-4000 et seq.), and they shall become
effective upon service on the person by mailing with confirmation of delivery,
sent to his address specified in the land records of the locality, or by
personal delivery by an agent of the Director Board. Any
subsequent identical mail or notice that is sent by the Department
Board may be sent by regular mail. However, if the Department
Board 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. F. 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. G. Any person violating or failing,
neglecting, or refusing to obey any injunction, mandamus, or other remedy
obtained pursuant to subsection G 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 and
deposited by the State Treasurer into the Stormwater Local Assistance Fund (§
62.1-44.15:29.1).
§62.1-44.15:65. Authorization for more stringent ordinances.
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 erosion and sediment control
ordinances are determined to be necessary pursuant to this section. However,
this This process shall not be required when a VESCP authority chooses
to reduce the threshold for regulating land-disturbing activities to a smaller
area of disturbed land pursuant to §62.1-44.15:55. This section shall not
be construed to authorize any district or locality VESCP authority
to impose any more stringent regulations for plan approval or permit
issuance ordinances for land-disturbance review and approval than
those specified in §§ §62.1-44.15:55 and 62.1-44.15:57.
B. Any provisions of an erosion and sediment control program
in existence before July 1, 2012, that contains more stringent provisions than
this article shall be exempt from the analysis requirements of subsection A.
§62.1-44.15:69. Powers and duties of the Board.
The Board is responsible for carrying out the purposes and
provisions of this article and is authorized to:
1. Provide land use and development and water quality
protection information and assistance to the various levels of local, regional,
and state government within the Commonwealth.
2. Consult, advise, and coordinate with the Governor, the
Secretary, the General Assembly, other state agencies, regional agencies, local
governments, and federal agencies for the purpose of implementing this article.
3. Provide financial and technical assistance and advice to
local governments and to regional and state agencies concerning aspects of land
use and development and water quality protection pursuant to this article.
4. Promulgate regulations pursuant to the Administrative
Process Act (§2.2-4000 et seq.).
5. Develop, promulgate, and keep current the criteria required
by §62.1-44.15:72.
6. Provide technical assistance and advice or other aid for
the development, adoption, and implementation of local comprehensive plans,
zoning ordinances, subdivision ordinances, and other land use and development
and water quality protection measures utilizing criteria established by the
Board to carry out the provisions of this article.
7. Develop procedures for use by local governments to
designate Chesapeake Bay Preservation Areas in accordance with the criteria
developed pursuant to §62.1-44.15:72.
8. Ensure that local government comprehensive plans, zoning
ordinances, and subdivision ordinances are in accordance with the provisions of
this article. Determination of compliance shall be in accordance with the
provisions of the Administrative Process Act (§2.2-4000 et seq.).
9. Make application for federal funds that may become
available under federal acts and to transmit such funds when applicable to any
appropriate person.
10. Take administrative and legal actions pursuant to
subdivision (19) of §62.1-44.15 to ensure compliance by counties, cities,
and towns with the provisions of this article including the proper enforcement
and implementation of, and continual compliance with, this article.
11. Perform such other duties and responsibilities related to
the use and development of land and the protection of water quality as the
Secretary may assign.
§62.1-44.15:74. Local governments to designate Chesapeake Bay
Preservation Areas; incorporate into local plans and ordinances; impose civil
penalties.
A. Counties, cities, and towns in Tidewater Virginia shall use
the criteria developed by the Board to determine the extent of the Chesapeake
Bay Preservation Area within their jurisdictions. Designation of Chesapeake Bay
Preservation Areas shall be accomplished by every county, city, and town in
Tidewater Virginia not later than 12 months after adoption of criteria by the
Board.
B. Counties, cities, and towns in Tidewater Virginia shall
incorporate protection of the quality of state waters into each locality's
comprehensive plan consistent with the provisions of this article.
C. All counties, cities, and towns in Tidewater Virginia shall
have zoning ordinances that incorporate measures to protect the quality of
state waters in the Chesapeake Bay Preservation Areas consistent with the
provisions of this article. Zoning in Chesapeake Bay Preservation Areas shall
comply with all criteria set forth in or established pursuant to §
62.1-44.15:72.
D. Counties, cities, and towns in Tidewater Virginia shall
incorporate protection of the quality of state waters in Chesapeake Bay
Preservation Areas into their subdivision ordinances consistent with the
provisions of this article. Counties, cities, and towns in Tidewater Virginia
shall ensure that all subdivisions developed pursuant to their subdivision
ordinances comply with all criteria developed by the Board.
E. In addition to any other remedies which may be obtained
under any local ordinance enacted to protect the quality of state waters in
Chesapeake Bay Preservation Areas, counties, cities, and towns in Tidewater
Virginia may incorporate the following penalties into their zoning,
subdivision, or other ordinances:
1. Any person who (i) violates any provision of any such
ordinance or (ii) violates or fails, neglects, or refuses to obey any local
governmental body's or official's final notice, order, rule, regulation, or
variance or permit condition authorized under such ordinance shall, upon such
finding by an appropriate circuit court, be assessed a civil penalty not to
exceed $5,000 for each day of violation. Such civil penalties may, at the
discretion of the court assessing them, be directed to be paid into the
treasury of the county, city, or town in which the violation occurred for the
purpose of abating environmental damage to or restoring Chesapeake Bay
Preservation Areas therein, in such a manner as the court may direct by order,
except that where the violator is the county, city, or town 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 Stormwater Local Assistance Fund
established by §62.1-44.15:29.1.
2. With the consent of any person who (i) violates any
provision of any local ordinance related to the protection of water quality in
Chesapeake Bay Preservation Areas or (ii) violates or fails, neglects, or
refuses to obey any local governmental body's or official's notice, order,
rule, regulation, or variance or permit condition authorized under such
ordinance, the local government may provide for the issuance of an order
against such person for the one-time payment of civil charges for each
violation in specific sums, not to exceed $10,000 for each violation. Such
civil charges shall be paid into the treasury of the county, city, or town in
which the violation occurred for the purpose of abating environmental damage to
or restoring Chesapeake Bay Preservation Areas therein, except that where the
violator is the county, city, or town itself, or its agent, the civil charges
shall be paid into the state treasury and deposited by the State Treasurer
into the Stormwater Local Assistance Fund established by §62.1-44.15:29.1.
Civil charges shall be in lieu of any appropriate civil penalty that could be
imposed under subdivision 1. Civil charges may be in addition to the cost of
any restoration required or ordered by the local governmental body or official.
F. Localities that are subject to the provisions of this
article may by ordinance adopt an appeal period for any person aggrieved by a
decision of a board that has been established by the locality to hear cases
regarding ordinances adopted pursuant to this article. The ordinance shall
allow the aggrieved party a minimum of 30 days from the date of such decision
to appeal the decision to the circuit court.
§62.1-44.19:22. Enforcement and penalties.
A. Transfer of certified nutrient credits by an operator of a
nutrient credit-generating entity may be suspended by the Department until such
time as the operator comes into compliance with this article and attendant
regulations.
B. Any operator of a nutrient credit-generating entity who
violates any provision of this article, or of any regulations adopted
hereunder, shall be subject to a civil penalty not to exceed $10,000 within the
discretion of the court. The Department may issue a summons for collection of
the civil penalty, and the action may be prosecuted in the appropriate circuit
court. When the penalties are assessed by the court as a result of a summons
issued by the Department, the court shall direct the penalty to be paid into
the state treasury and deposited by the State Treasurer into the Virginia
Stormwater Management Local Assistance Fund established pursuant
to § 62.1-44.15:29 §62.1-44.15:29.1.
§62.1-44.22. Private actions.
The fact that any owner holds or has held a certificate or
land-disturbance approval issued under this chapter shall not constitute a
defense in any civil action involving private rights.
Compliance with the provisions of this chapter 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.
§62.1-44.23. Enforcement by injunction, etc.
Any person violating or failing, neglecting or refusing to
obey any rule, regulation, order, water quality standard, pretreatment
standard, approved standard and specification, or requirement of or any
provision of any certificate or land-disturbance approval issued by the
Board, or by the owner of a publicly owned treatment works issued to an
industrial user, or any provisions of this chapter, except as provided by a
separate article, may be compelled in a proceeding instituted in any
appropriate court by the Board to obey same and to comply therewith by
injunction, mandamus or other appropriate remedy.
§62.1-44.25. Right to hearing.
Any owner under §§ Article 2.3 (§62.1-44.15:24 et
seq.), Article 2.5 (§62.1-44.15:67 et seq.), or §62.1-44.16, 62.1-44.17,
and or 62.1-44.19 aggrieved by any action of the Board taken without
a formal hearing, or by inaction of the Board, may demand in writing a formal
hearing of such owner's grievance, provided a petition requesting such hearing
is filed with the Board. In cases involving actions of the Board, such petition
must be filed within thirty 30 days after notice of such action
is mailed to such owner by certified mail.
§62.1-44.26. Hearings.
A. The formal hearings held by the Board under this
chapter shall be conducted pursuant to §2.2-4009 or 2.2-4020 and 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 mileage
as in civil actions.
§62.1-44.29. Judicial review.
Any owner aggrieved by 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 Board under subdivision (5), (8a), (8b),
(8c), or (19) of §62.1-44.15 (5), 62.1-44.15 (8a), (8b), and (8c),
or § 62.1-44.15:20, 62.1-44.15:21, 62.1-44.15:22, 62.1-44.15:23,
62.1-44.16, 62.1-44.17, 62.1-44.19, or 62.1-44.25, 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 which is an invasion of a legally protected interest and which
is concrete and particularized; (ii) such injury is fairly traceable to the
decision of 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.
§62.1-44.31. Violation of order or certificate or failure to
cooperate with Board.
It shall be unlawful for any owner to fail to comply with any
special order adopted by the Board, which has become final under the
provisions of this chapter, or to fail to comply with a pretreatment condition
incorporated into the permit issued to it by the owner of a publicly owned
treatment works or to fail to comply with any pretreatment standard or
pretreatment requirement, or to discharge sewage, industrial waste or other
waste in violation of any condition contained in a certificate or
land-disturbance approval issued by the Board or in excess of the waste
covered by such certificate or land-disturbance approval, or to fail or
refuse to furnish information, plans, specifications or other data reasonably
necessary and pertinent required by the Board under this chapter.
For the purpose of this section, the term "owner" shall
mean, in addition to the definition contained in §§ 62.1-44.3 and
62.1-44.15:24, any responsible corporate officer so designated in the
applicable discharge permit.
§62.1-44.32. Penalties.
(a) Except as otherwise provided in this chapter, any person who
violates any provision of this chapter, or who fails, neglects, or refuses to
comply with any regulation, certificate, land-disturbance approval, or
order of the Board, or order of a 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. Such civil penalties shall be paid into the
state treasury and deposited by the State Treasurer into the Virginia
Environmental Emergency Response Fund pursuant to Chapter 25 (§10.1-2500 et
seq.) of Title 10.1, excluding penalties assessed for violations of Article
2.3 (§62.1-44.15:24 et seq.), 2.4 (§62.1-44.15:51 et seq.), 2.5 (§
62.1-44.15:67 et seq.), 9 (§62.1-44.34:8 et seq.), or 10 (§
62.1-44.34:10 et seq.) of Chapter 3.1 of Title 62.1, or a regulation,
administrative or judicial order, or term or condition of approval relating to
or issued under those articles.
Such civil penalties may, in the discretion of the court
assessing them, be directed to be paid into the treasury of the county, city,
or town in which the violation occurred, to be used for the purpose of abating
environmental pollution therein in such manner as the court may, by order, direct,
except that where the owner in violation is such county, city, or town
itself, or its agent, the court shall direct such penalty to be paid into the
state treasury and deposited by the State Treasurer into the Virginia
Environmental Emergency Response Fund pursuant to Chapter 25 of Title 10.1,
excluding penalties assessed for violations of Article 2.3, 2.4, 2.5, 9,
or 10 of Chapter 3.1 of Title 62.1, or a regulation, administrative or judicial
order, or term or condition of approval relating to or issued under those
articles.
In the event that a county, city, or town, or its agent, is
the owner, such county, city, or town, or its agent, may initiate a civil
action against any user or users of a waste water treatment facility to recover
that portion of any civil penalty imposed against the owner proximately
resulting from the act or acts of such user or users in violation of any
applicable federal, state, or local requirements.
(b) Except as otherwise provided in this chapter, any person
who willfully or negligently violates (1) any provision of this chapter,
any regulation or order of the Board, or any condition of a certificate
or land-disturbance approval of the Board, (2) any land-disturbance approval,
ordinance, or order of a locality serving as a Virginia Erosion and Stormwater
Management Program authority, or (3) 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 (A) any provision of this chapter, any
regulation or order of the Board, or any condition of a certificate
or land-disturbance approval of the Board, (B) any land-disturbance approval,
ordinance, or order of a locality serving as a Virginia Erosion and Stormwater
Management Program authority, or (C) 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 chapter or knowingly renders inaccurate
any monitoring device or method required to be maintained under this chapter,
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) Except as otherwise provided in this chapter, any person
who knowingly violates any provision of this chapter, 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) Criminal prosecution under this section shall be commenced
within three years of discovery of the offense, notwithstanding the limitations
provided in any other statute.
2. That §§62.1-44.15:26, 62.1-44.15:32, 62.1-44.15:36,
62.1-44.15:38, 62.1-44.15:42 through 62.1- 44.15:45, 62.1-44.15:47,
62.1-44.15:56, 62.1-44.15:61, and 62.1-44.15:71 of the Code of Virginia are
repealed.
3. That any locality that operates a regulated municipal
separate storm sewer system (MS4) and was required to adopt a Virginia
Stormwater Management Program (VSMP) as of July 1, 2014, is authorized to
continue to operate its Virginia Erosion and Sediment Control Program (VESCP)
and its VSMP until the State Water Control Board approves its consolidated
VESMP.
4. That any locality that does not operate a regulated MS4
and elected to adopt a VSMP is authorized to continue to operate its VESCP and
its VSMP until the State Water Control Board approves its consolidated VESMP.
5. That any locality that does not operate a regulated MS4,
did not elect to adopt a VSMP, and chooses to fully administer a VESMP pursuant
to subdivision B 1 of §62.1-44.15:27 of the Code of Virginia, as amended by
this act, is authorized to continue to operate its VESCP until the State Water
Control Board approves its consolidated VESMP. For any such locality that does
not, as of the effective date of this act, employ a person holding a
certificate of competence in the area of stormwater management plan review,
project inspection, or program administration, the Department of Environmental
Quality (the Department) shall assist with those responsibilities until new
training and certifications have been obtained according to a timeframe to be
established by the Department.
6. That any locality that does not operate a regulated MS4,
did not elect to adopt a VSMP, and chooses to administer a VESMP with the
Department's assistance pursuant to subdivision B 2 of §62.1-44.15:27 of the
Code of Virginia, as amended by this act, is authorized to continue to operate
its VESCP until the State Water Control Board approves its consolidated VESMP.
For any such locality that, as of the effective date of this act, does not
employ a person holding a certificate of competence in the area of stormwater
management plan review, project inspection, or program administration, the
Department shall assist with those responsibilities until new training and
certifications have been obtained according to a timeframe to be established by
the Department. The Department shall be responsible for stormwater management
plan review in any such locality.
7. That any person who holds a valid separate, combined, or
dual certificate of competence from the State Water Control Board in the area
of erosion and sediment control plan review, project inspection, or program
administration, or such a certificate in stormwater management plan review,
project inspection, or program administration, shall retain such certification
until the Department establishes new training and certifications and provides a
schedule according to which such a person may meet the eligibility requirements
for certification or recertification, as applicable. The State Water Control
Board shall incorporate the valid certificates of competence into the new
eligibility requirements for certification or recertification purposes as
appropriate.
8. That the Department shall conduct an evaluation of fees
related to the consolidated Virginia Erosion and Stormwater Management Program
in order to determine whether the program can be funded adequately under the
current fee structure. The Department shall conduct its evaluation based on
revenues and resource needs from July 1, 2014, to June 30, 2016, and shall
complete its assessment by September 1, 2016. Every VSMP authority and VESCP
authority shall submit information to the Department by August 1, 2016,
concerning its use of the fees that it received under the Virginia Stormwater
Management Program and Virginia Erosion and Sediment Control Program between
July 1, 2014, and June 30, 2016. The information shall be submitted on a form
to be provided by the Department. The Department shall then convene a
Stakeholders Advisory Group (SAG) to review the Department's evaluation and
consider the need to establish revised fees to fund the consolidated VESMP and
any other issues of concern regarding the Virginia Erosion and Stormwater
Management Program. The Department shall report the results of its evaluation
and the SAG's discussion to the Governor and the chairs of the Senate Finance
Committee, the House Appropriations Committee, the Senate Agriculture, Conservation
and Natural Resources Committee, and the House Agriculture, Chesapeake and
Natural Resources Committee by the first day of the 2017 Regular Session.
9. That the State Water Control Board (the Board) shall adopt
regulations to implement the requirements of this act. The adoption of such
regulations shall be exempt from the requirements of Article 2 (§2.2-4006 et
seq.) of the Administrative Process Act (§2.2-4000 et seq.) of the Code of
Virginia. However, the Department shall (i) provide a Notice of Intended
Regulatory Action, (ii) form a stakeholders advisory group, (iii) provide for a
60-day public comment period prior to the Board's adoption of the regulations,
and (iv) provide the Board with a written summary of comments received and
responses to comments prior to the Board's adoption of the regulations.
10. That the provisions of this act shall become effective
July 1, 2017, or 30 days after the adoption by the State Water Control Board of
the regulations required by the ninth enactment of this act, whichever occurs
later.
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