Two Public Notices were issued for proposed changes to the Virginia Stormwater Management Regulations and its related Construction Activity Permit on October 18, 2013. This included a Public Comment due date of November 20, 2013 on two long debated and related regulations:
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| 1) |
Virginia Stormwater Management Regulations (VSMR)
(9VAC25-870) |
• General Notice
• Public Notice
• Redlined Regulation |
| 2) |
General Virginia Pollutant Discharge Elimination System (VPDES) Permit1 for Discharges of Stormwater from Construction Activity (9VAC25-880) |
• General Notice
• Public Notice
• Redlined Regulation |
The proposed changes are extensive, though most result from reorganization for readability versus substantive change - but several represent substantive changes that will affect public and private sector construction activity.
Anyone in public works and the land development and construction industry should immediately review the engineering, inspection and legal ramifications of these changes on your projects and comment by November 20, 2013.
The goal of these changes was to provide clarification, certainty and to streamline the regulations - industry leaders were surprised to see how extensive they were and that substantive changes are being proposed and in some cases may not be meeting the desired goal. DEQ will carefully consider all public comments received before finalizing the regulations for presentation to the State Water Control Board.
The biggest issues that stand out are: |
| 1) |
Proffered Rezoning Plans are no longer grandfathered (9VAC25-870-48.A).
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| 2) |
Rainfalls that trigger an inspection event were changed from a 0.25 inch/24 hour storm event to any “storm event” resulting in an actual discharge from the construction site (see 9VAC25-880.1 Definitions. “Measurable storm event”).
Historically, 0.50 inches was “unwritten policy.” However, the United States Environmental Protection Agency (EPA) wanted tougher standards, so the Regulatory Advisory Panel (RAP) agreed to 0.25 inches. The proposed standard will become a local government enforcement and site owner’s inspection nightmare because:
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| a) |
The rainfall amount that causes a discharge varies with antecedent moisture (i.e. how wet the ground is before rainfall) condition. For example, on Tuesday a one inch storm could have no discharge. On Wednesday a 0.10 inch storm could cause a discharge because the ground is saturated and the BMPs are close to full. |
| b) |
Every site is different. |
| c) |
Individual discharge points on the same site will have different discharge characteristics. |
| d) |
Every site’s runoff characteristics will change over time as development is implemented. |
| e) |
Paved subsheds could cause a discharge after just a few hundredths of an inch of rainfall.
|
| 3) |
Inspection Frequency– All of Northern Virginia is within a Total Maximum Daily Load (TMDL) watershed (i.e. the Chesapeake Bay) – therefore the current standard of an inspection every seven calendar days or once every 14 days and within 48 hours of runoff will change to every four days, or once every seven days and 48 hours after a “measurable storm event” (9VAC25-880-70.B.4.d.1 and 9VAC25-880.70.B.5.d.1).
The RAP had agreed to four “normal working days”, defined as Monday through Friday, less state holidays instead of four calendar days (see Field Notes Vol. 21, No. 3 and March 18 Comment Letter). DEQ staff explained last week that they do not agree with this Regulatory Advisory Panel (RAP) recommendation because during the Thanksgiving and Christmas weeks it is likely only one inspection would occur. |
| 4) |
Normal working days – Inspection frequency uses the phrase “normal working days” (9VAC25-880-70-B.4.d.(1), 9VAC25-880-70.B.5.d.(1), 9VAC25-880-Part II-F.2.a.(2)) for deciding when an inspection must occur. However it is not defined. On some sites, one subcontractor or another could be on the site every calendar day – so a definition is needed. We do not believe that this is a reasonable rationale for not agreeing with the RAP. |
| 5) |
SWPPP requirements for sites in a TMDL and Impaired Water are “fuzzy” (9VAC25-880-70.B.4) - The proposed regulation says you must develop “…a SWPPP that minimizes the pollutants of concern…. In addition, the operator shall implement…” the higher frequency inspections described in #4 above.
The problem with this is twofold: |
| |
a) |
Staff had assured the RAP that the only actions needed for construction activities in any impaired water, exceptional water, or TMDL would be the normal statewide stormwater and Erosion & Sediment control requirements plus faster soil stabilization (7 days) and more frequent inspections. |
| |
b) |
The language provided does not provide a standard for “minimizes”, nor provide an easy tool to determine what the hundreds of TMDLs require the permittees to do. (The Chesapeake Bay TMDL is the largest – but several hundred others exist in Virginia.) |
| |
This puts an undefinable requirement on the regulated public, as well as the local regulator who must now enforce this requirement.
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| 6) |
A Stormwater Pollution Prevention Plan (SWPPP) is now required prior to registration, versus prior to land disturbance (9VAC25-880.50.B.10) - It is currently required prior to registration, but the draft approved by the RAP removed this requirement to reduce “up front” costs to permittees to promote economic development. This means that engineering work will now be needed earlier in the approval process to obtain your VPDES permit and gain protection for two permit cycles under 9VAC25.870.47.B. To prepare a SWPPP, you need Erosion and Sediment Control plans, Stormwater Management plans, etc. – so there will be a lot more design work at an earlier date versus the current proposal.
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| 7) |
The technical requirements for these Stormwater regulations is no longer explicitly defined (see “Documents Incorporated by Reference” (9VAC25-870)). The Virginia Runoff Reduction Method (VRRM) is the technical “heart” that decides how your site meets the quality requirements of the Stormwater regulations. Previously a version dated March 28, 2011 was referenced. Now the date is “2013” and the current online document has two different dates in 2013 on its cover sheet. DEQ will be able to change this document through the end of 2013 and still keep it incorporated into these regulations unless a specific version is cited and available for review prior to adoption.
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| There are also positive changes: |
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a) |
Infill lots that disturb less than one acre but more than 2500 square feet within a common plan of development now clearly do not need a VPDES permit nor pay that fee. (See Fee Table in 9VAC25-870-820 and references to “Common Plan of Development”: 9VAC25-870-55.A.1, 9VAC25-870-95.H, 9VAC25-880-50.A.1.c, and 9VAC25-880-50.A.2.b) |
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b) |
A Stormwater Pollution Prevention Plan (SWPPP) template for infill lots will be provided by DEQ (9VAC25-880-70-Part II Preamble) |
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c) |
The submission deadline to continue to use the current General Permit for existing projects may change from April 1, 2014, to June 30, 2014. (9VAC25-880-30.H.1 says June 30, 2014, while 9VAC25-880-50.A.2.a.(1) says April 1, 2014.) Hopefully both will become June 30, 2014. |
What should you do?
Send in comments so that they are delivered no later than November 20, 2014 to:
Drew Hammond, Environmental Specialist
Virginia Department of Environmental Quality
629 East Main Street
P.O. Box 1105
Richmond, Virginia 23218
Email:
andrew.hammond@deq.virginia.gov
Phone: 804.698.4037
Fax: 804.698.4032
With Copy to:
Mike Toalson
Home Builders Association of Virginia
707 East Franklin Street
Richmond, Virginia 23219
Email: mltoalson@hbav.com
Phone: 804.643.2797
Fax: 804.780.2482
Phil Abraham
Virginia Association of Commercial Real Estate
c/o The Vectre Corporation
707 East Main Street, Suite 1800
Richmond, Virginia 23219
Email: pabraham@vectrecorp.com
Phone: 804.644.6600
Fax: 804.644.6628
If you submit a comment, you are then allowed to address the State Water Control Board (SWCB) at the hearing on December 17, 2014.
For more information on Virginia Stormwater Management Regulations and Construction Activity Permits, please contact Mike Rolband. |
1Prior to July 1, 2013, this was known as the Virginia Stormwater Management Program (VSMP) Permit when run by the Virginia Department of Conservation and Recreation (DCR). Historically, prior to the transfer to DCR, it was called the VPDES to be consistent with national nomenclature. |
