Regulation	Proposed Changes
Virginia Water Protection Permit Program Regulation	Regulation text Table of changes
WP1: VWP General Permit for Impacts Less Than One-Half Acre	Regulation text Table of changes
WP2: VWP General Permit for Utility Line Activities	Regulation text Table of changes
WP3: VWP General Permit for Linear Transportation Projects	Regulation text Table of changes
WP4: VWP General Permit for Development and Certain Mining Activities	Regulation text Table of changes

Timing
Five Notices of Intended Regulatory Action (NOIRAs) were published May 13, 2014 (Main Regulation, WP1, WP2, WP3, WP4). DEQ solicited public comments, then formed a Citizen Advisory Group (CAG) to offer insight during the revision process. The proposed changes will now follow the standard state review process with the Department of Planning and Budget, the Governor’s office, and public comment:

The Regulatory Change Process

DEQ published the five NOIRAs, then solicited public comments and formed a CAG. On March 30, DEQ presented the proposed changes to the State Water Control Board. Now Virginia’s Department of Planning and Budget (DPB) will prepare an Economic Impact Analysis (EIA), and DEQ will respond to that analysis.

The proposed changes, the DPB EIA, and DEQ’s response will be published in the Virginia Register, kicking off a 60 day public comment period. DEQ may change the proposed regulations based on comments received at that time. After that, the proposed final regulation will be published in the Virginia Register. The Governor may review the final regulation. If the Governor has concerns, the Governor may formally object or may suspend the effective date of some or all of the regulation until the end of the next General Assembly session. If the Governor does not act, after a 30 day waiting period the regulation will become effective.

Gubernatorial actions may also result in an additional 30 day public comment period on the changes. In addition, DEQ can suspend this process for 30 days upon request from 25 or more individuals requesting DEQ solicit additional comment (uness DEQ determines the changes have minor or inconsequential impact).

This process can take 6-24 months. DEQ anticipates that the process will last ±12 months, and has indicated that if new GPs cannot be adopted and in place before August 1, 2016, then DEQ will reauthorize the existing GPs with new expiration dates and thereby eliminate any time gap in the GPs. The IPs will remain in place during this process.

Stakeholder Involvement
The current General Permit (GP) regulations are effective through August 1, 2016. In 2014 DEQ convened the VWP Permit CAG, which met from August 2014 to January 2015. Three WSSI staff were involved in that process: Mike Rolband, Dan Lucey, and Beth Silverman Sprenkle; our September 2014 Field Notes article outlined the goals of this regulation review process.

The CAG, which included representatives of local, state, and federal government agencies; business interest groups; consultants; and non-profit organizations, extended its original number of planned meetings from five (ending in October) to nine (ending in January) to provide additional time for revisions and review, and to include more stakeholders as changes to the surface water withdrawal provisions became significant. Two of the meetings were dedicated to surface water withdrawal alone. The CAG reached consensus on many topics, but at times the consensus was on a position that was different from the position held by DEQ. At other times, lack of input from the CAG may have been viewed as consensus between the few who voiced opinions. As an example, surface water withdrawal topics did not solicit much comment or involvement from the CAG members who were not frequent practitioners, and the lack of discussion may have been interpreted as consensus.

There is some concern among the regulated public that this regulatory revision process strayed from the May 2014 NOIRAs. The public perception is that the NOIRAs did not provide a comprehensive scope of anticipated changes, particularly the proposed changes to surface water regulations (including controversial definitions). Interested parties who did not seek appointment to the CAG had relied on the scope of the NOIRA to determine their anticipated level of involvement. Therefore there has been some public concern that the CAG could not adequately address surface water withdrawal issues.

Immediate Outcome: Change in Expiration Dates for Current GPs
As an offshoot of the discussions at CAG meetings with the agency, DEQ legal staff and the Attorney General’s office recently revised the general permit authorization expiration date options.

Major Change: GP Timeframes Extended but with a Fixed Expiration Date
One of the most significant impacts of these changes is the alteration of the wetland GP expiration timelines. DEQ proposes for all GPs to expire on August 1, 2031. This means that all of the work under WP1, WP2, WP3, and WP4 would have to stop on that date and could not resume until DEQ authorizes the work anew unless DEQ has already adopted new GPs with transition language prior to August 1, 2031, which DEQ has verbally committed to do.

This is a major stumbling block that the public has encountered with Virginia stormwater permits and with the U.S. Army Corps of Engineers’ Nationwide Permits. In 2001, the stakeholders worked with DEQ to craft a solution to prevent such a glitch. The simple and elegant solution – issue project approvals that last a specified length of time from issuance (i.e., three years, five years, or seven years) combined with the review and renewal of the regulations every five to seven years – allowed projects to complete their impacts, compensation, and monitoring under one permit. It worked very well and was unanimously promoted by the CAG during this process.

While it is good in the short term that the timeframes for completing work under a GP have increased, it could be a major detriment that all GP-authorized work might come to a halt if new GPs are not adopted and in place before August 1, 2031 - and cause financing difficulties for projects starting in the last year or two prior to August 1, 2031. DEQ has indicated that this is not a problem because projects anticipating the need for permit continuity in that time frame could instead apply for an Individual Permit. The IP process, however, is lengthy and consumes a significant amount of public and DEQ staff time, and is unnecessarily cumbersome for the smaller impacts for which GPs are designed. Additionally, those projects wishing to use a GP could be subject to new DEQ regulations, which could be considerably different.

Other Proposed Changes
The revisions are numerous, but many reflect the evolving nature of wetland permitting over the last 15 years. While they do not substantively change the VWP Permit program, they do alter some important aspects of the permits. We’ve summarized the additional key proposed changes here. WSSI staff are prepared to interpret what these DEQ-recommended changes can mean for your projects. DEQ’s memo to the SWCB provides a guide to the proposed changes and DEQ’s interpretation of the CAG process and input.