Greetings,

In the coming year, my community will see a major new condo development go up next to one of our city parks in Chesapeake, Virginia.  This development will be on the headwaters of the Indian River, an impaired waterway.  As such, I have increased interest on aspects of the Construction General Permit.  After discussing this revised document with contacts at the Chesapeake Bay Foundation, I wish to commend the agencies for several positive aspects of the new permit including the continued requirement for the developer to meet all applicable water quality standards, continuing to require the SWPPP to be avaialble for public review, and required the use of pollution credits to be well documented.

Two area where the document could be improved include 

1) the Inspection Schedule - the current requirement for development by impaired waterways is for every 4 days OR every 5 days and within 1 day of a stormevent; except if it happens over a long weekend when the next business day may be 4 or 5 days away.  If there is a storm event, we really should require inspection with 24 hours; yes that may mean doing an inspection on a non-business day, but we really don't want damaged mitigation systems to go unfixed, especially if more rain is forecast.  Let's tighten this up!

2) Sediment runoff is a major concern.  I do not think it would be unreasonable to require the site operator to monitor turbidity in the runoff from the construction sites and take proactive steps to eliminate sediment runoff in alignment with their SWPPP.

Thank you for your consideration

Rogard Ross

3800 Rivercrest Pl, Chesapeake, VA 23325

To concerned parties,

I have been blessed after a lifetime of hard work and saving to get to move to and live on Beautiful Smith Mountain Lake for my retirement years. For approximately the last year and a half, I have witnessed large amounts of sediment from a nearby development, Kennedy Shores, flow into Smith Mountain Lake during rain events. I personally witnessed on the deck of my home a massive sea of yellow mud flowing into Smith Mountain Lake from Kennedy Shores on February 11, 2108. The rain occurred on the night of February 10th and morning of February 11th. These dates were a Saturday and a Sunday. The development was not being monitored by the developer or any state or local agency during this major rain event. Since the February 2018 event, I have taken pictures after many other large rain events when the site continued to let silt flow into SML. I reported the initial event to the developer, DEQ, Franklin County, and AEP. The only agency that showed me any significant concern was the DEQ but I learned after viewing this event that the primary enforcer was supposed to be Franklin County.

As a follow up to my story above, I believe that sediment run-off should be the holy grail of concern under the Storm Water Permitting process. I also believe that the inspection process during and immediately after storm events needs to be beefed up substantially. With the Kennedy Shores property, I as a private citizen was often the only one inspecting the run off into the lake after storms. I believe that a self inspection process by the developer should be mandatory and it should be a process that would include pictures and scientific evidence that could be easily verified by the responsible inspection agency.

I also think that the enforcement process as it exists now is extremely broken. There is somewhat of a conflict of interest with the county that is welcoming development which will be providing them with a new tax base and monitoring the developer to make them comply with the regulations. You would think that the county would only want quality development in their county that would result in long term quality developments for a long term quality tax base. That is not what has seemed to be the case with what I have witnessed in the last year and a half in Franklin County. I have been reporting the obvious violations via pictures to DEQ, Franklin County, and AEP. I have asked in my emails for a response to what was going to be done to correct the violations. I received many responses from the DEQ, only once from Franklin County, and none from AEP. I believe that the DEQ should use their authority to step in and take over situations like I have witnessed where the local authority is either incapable or unwilling to use the authority that they have to force the developer to comply with the environmental regulations and laws.

I would appreciate any consideration you can give to improve the prevention of Sediment Run-off,

Charlie White

621 Montevista Rd.

Union Hall, VA 24176

I am writing in support of reissuance of the proposed regulation for general permit for stormwater associated with construction activities, including requirements for a stormwater pollution prevention plan.

Public Comments on Proposed General Permit for Discharges of Stormwater from Construction Activities

To:  DEQ and the State Water Control Board

Thank you for your consideration of the information contained in the following comments related to the proposed changes to the General Permit for Discharges of Stormwater from Construction Activities. 

9VAC25-880-45 2(b)(1).

Per DEQ guidance memo 14-2014 issued August 25, 2014, land-disturbing activities that obtain first-time coverage under the 2014 general permit, with the exception of “grandfathered” projects or projects served by an existing stormwater management facility, are subject to the new Part II B technical criteria for two (2) additional general permit cycles. Any land-disturbing activities served by an existing on-site or off-site stormwater management facility, including a regional (watershed-wide) stormwater management facility, designed and implemented in accordance with the old Part II C technical criteria remain subject to the old Part II C technical criteria for two (2) additional general permit cycles.

The use of grandfathered existing on site or offsite facilities, including regional facilities designed to meet the Part IIC criteria is not reflected in the language in the proposed permit.  This will affect projects that have been permitted to use a regional facility designed to the Part IIC criteria, but have not yet begun construction or still have portions of the project that are not under construction.  Please include language consistent with the guidance.

9VAC25-880-45 2(b)(3)(d)(1)

Please clarify that this definition means that construction has begun on any portion of the project included on the stormwater management plan, including regional stormwater facilities.

9VAC25-880-50(B)(17)

Comment:  The requirement to purchase nutrient credits prior to the issuance of state coverage may cause delays in releasing plans for construction.  Complete SWPPPs (including approved stormwater management plans) are often approved by the locality early in the site plan process. Permit processing can take several weeks and nutrient credits are typically not purchased until the entire site plan has achieved approval from the locality and just before the plan is released for construction.  Final plan approval/release or land disturbance permits should be sufficient to make sure credits are purchased.

9VAC25-880-70 PART II G(2)(b)(2)(c)

The numbering appears to be incorrect in this proposed section.  This comment refers to the increased inspection frequency for frozen/stabilized projects. The inspection frequency for G(2)(a) properties should be the same as for those projects covered by G(2)(b) and(c).  There is no significant risk of polluted runoff from a property in an area with a TMDL if the ground is stabilized or frozen over a project not covered by a TMDL.  Requiring weekly inspection and inspections after a rain event when the project is stabilized or the ground frozen is overly burdensome as stormwater discharges are still unlikely. Please allow projects under a TMDL to revert to the 30 day inspection if the ground is stabilized or frozen.

In addition, the requirements are unclear for inspections once final stabilization has been reached. With the additional requirement of the submission of an as-built drawing for permit termination, projects may be at final stabilization for months or years before the final as-built submittals are completed for the project.  Requiring weekly inspections and inspections after a rain event when the project is stabilized and just awaiting as-built approval is overly burdensome and not necessary to meet the goal of pollution reduction.  Please add an additional item to the permit clarifying inspections are not required once final stabilization has been reached.

9VAC25-880-60 (B)(7) and 9VAC25-880-70 PART II D

Under the proposed language, projects will have to maintain signage until as-builts are submitted.  Often projects are completely closed with residents inside the buildings before as-builts are received and construction signage has been removed.  Please allow for construction signage to be removed once final stabilization has been achieved.

9VAC25-880-70 PART II F

Projects will have to implement all aspects of the SWPPP including inspections until as-builts are submitted.  Often projects are completely closed with residents inside the buildings for months or years before as-builts are received.  Requiring inspections until as-builts are submitted even though final stabilization has been achieved is overly burdensome for both the developer and the locality. Please allow for inspections to cease once final stabilization has been achieved.

Again, thank you for your review and consideration.

Melanie Mason

Watershed Management Planner

City of Alexandria, VA

1.       Based on conversations with various VSMP authorities, there is uncertainty whether phased projects, which were covered under the 2009 general permit and which continued permit coverage in 2014, will be renewed under the general permit effective July 1, 2019 for projects which have approval of ESC plans on initial phases, however, do not have ESC plan approval on all phases of a project.  This uncertainty applies for projects that have coverage for a total land area of development which encompasses all phases of a project. In reviewing this issue, the following items were noted:

a.       The upcoming general permit, effective July 2019, will be the first permit cycle in which localities (as the authority) are responsible for reviewing renewal applications and determining if all requirements of the regulations have been met for renewing coverage.

b.       9VAC25-880-30, Item A1 (Draft) requires that the Operator submits a complete and accurate registration statement prior to being given “Authorization to Discharge”. 

c.       9VAC25-880-30, Item A4, sub-items a and b (Draft) requires that the Operator obtain approval of an ESC plan (per Chapter 840) and a SWM (per Chapter 870) prior to being given “Authorization to Discharge”.

d.       9VAC25-880-45, Item B (Draft) states that operators having permit coverage under the 2009 and 2014 cycles, who obtain renewed coverage under the 2019 cycle can conduct land disturbance in accordance with Part IIC of the VSMP regulations (Chapter 870).

e.       9VAC25-880-50, Item B, sub-items 1-18 (Draft) lists required items for a registration statement.  Sub-item number 7 states “If the construction activity was previously authorized to discharge under the general permit effective July 1, 2014, the dates of ESC plan approval”.  The plural word “dates” would imply that multiple plans could be involved (i.e.- individual phases, with separately approved ESC plans for each section, within a larger common plan of development). 

f.        Guidance Memo No. 14-2002 states: “For reissuance under the 2014 general permit erosion and sediment control plan approval is not required prior to submitting a registration statement for existing construction activities.”  This guidance document further noted that ESC plan approval was, however, required within 60 days after the date of coverage. It did not specify if the ESC plan had to include the entire larger common plan of development or if only an ESC plan for the first phase to be constructed was required.  Further clarification discussing requirements for ongoing projects, in which ESC plans were already prepared for previous phases, was not included within the guidance memo.

g.       VAR 10, Part II, Item B, sub-item 2 outlines ESC plan requirements and sub-item 3 outlines SWM requirements to be included within the SWPPP.  The regulations require that the SWPPP be prepared prior to submitting a registration statement; Therefore, the requirement of an ESC and SWM plan are required for permit coverage.  That said, no mention is made regarding sections of a phased project that are part of a larger common area of development and which are not yet designed at the time the registration statement is submitted.

As noted within item “a” above, this is the first general permit cycle in which localities are the acting authority responsible for renewing permits (the DEQ approved renewals for the 2014 cycle).  As such, multiple independent entities will now be responsible for reviewing permit renewal applications and each entity could have different interpretations on whether a given project meets the requirements for renewal.  For that reason, it would seem prudent for the DEQ to issue a Guidance Document to clarify, for phased projects having permit coverage for a larger area of development, whether:

                                 i.            Approved ESC and SWM plans, addressing all phases of a project, which comprise the total coverage area listed on a 2009 permit and which renewed coverage in 2014, is required for renewal of coverage under the general permit effective July 1, 2019.

OR

                               ii.            An approved ESC plan for at least one phase of a multi-phase project, having coverage for a larger development area under the 2009 permit and which renewed coverage in 2014, is required for renewal of coverage under the general permit effective July 1, 2019.  An approved SWM plan, addressing all phases of a project, which comprise the total coverage area listed on a 2009 permit and which renewed coverage in 2014, is required for renewal of coverage under the general permit effective July 1, 2019.

OR- (Preferred)

                             iii.            Projects shall remain subject to Part IIC requirements of chapter 870 so long as the vested conditions outlined in Virginia Code section § 15.2-2307, paragraph A are met for those projects subject to Part IIC requirements of chapter 870 prior to permit renewal for the 2018-2024 CGP cycle.

Notes:

·         In option ii, it would seem reasonable that a SWM plan should be in place for the overall project area.  However, the same does not seem reasonable for ESC plans.  It is our opinion that a requirement to have an ESC covering the entire overall area of development has unintended negative consequences.  Individual ESC plans covering only those areas to be constructed with a given phase of a project would be far more effective.  The best form of ESC for future development areas would be to leave those areas natural until such time that construction begins.  Overall ESC plans would result in mass clearing and grading operations for extremely large areas.  For multi-phased projects, most of these mass cleared areas would remain dormant for years before construction occurs.  While stabilization measures would be required, the ability to control and manage large areas outside of those areas to be immediately developed would not be effective.  The most likely result would be excessive failures of ESC measures. 

·         Option iii would be preferred, as this would avoid the issue outlined in question #3 below. To clarify, the conditions noted within Virginia Code section § 15.2-2307, paragraph A are: (i) obtains or is the beneficiary of a significant affirmative governmental act which remains in effect allowing development of a specific project, (ii) relies in good faith on the significant affirmative governmental act, and (iii) incurs extensive obligations or substantial expenses in diligent pursuit of the specific project in reliance on the significant affirmative governmental act.

Assuming all other requirements are met, If a permit renewal application is submitted for coverage under the 2019-2024 CGP for a multi-phased development that has a master SWM plan, however, does not have approved ESC plans for future areas of development, will the reviewing authority renew the permit?

2.       Section 9VAC25-880-30 (Authorization to Discharge); Item H (Continuation of General Permit Coverage) states: “coverages are automatically continued if the owner has submitted a complete registration statement…”.  What is meant by the term “automatically”?  Does this mean that, under the same conditions of renewal approval in 2014, permits will be renewed for the 2019-2024 cycle… such that the concern with Question 1 above is not an issue?.. or would the requirement for a “complete” registration mean that all items required for a registration statement listed in section 50 be included (to include a SWPPP, which requires ESC plans)?  Why was the term “automatically” added here, as that implies that only those items required for the registration statement under the current 2014-2019 permit would be required… that said, the confusion referenced in question #1 would still apply for the current permit, particularly given the requirement to have an approved ESC plan within 60 days after the date of coverage of the 2014 permit.

3.       The attached “Example A” sketch was prepared to better address related concerns to question #1 above.  Using this “Example A” document, what SWM design criteria (i.e.- Part IIB or IIC) would be required if sections 4, 5 and 6 were not yet designed and if the reviewing authority did not renew coverage under the 2019-2024 permit cycle?  In this scenario, assume the SWM pond as well as sections 1, 2, and 3 were designed using Part IIC criteria, had been approved by the authority, and had already been constructed during the 2014-2019 permit cycle under an active general permit.  Further assume that all storm related infrastructure within sections 1,2, and 3 as well as the downstream pond was designed/ sized, using Part IIC criteria, to accommodate future sections 4, 5, and 6 (under the assumption that the active permit would be renewed and sections 4, 5, and 6 would be completed or under construction during the 2019-2024 permit cycle).  To reiterate, in this scenario, the pond shown on “Exhibit A” was built to accommodate the entire subdivision (i.e.- all 6 proposed sections) using Part IIC criteria.  Also, assume there is only an approved ESC plan for sections 1, 2 and 3 and that all three non-approved sections (sections 4, 5 and 6) were included in the total site acreage covered by the general permit, however, do not have approved ESC plans.  Only the SWM plan (i.e.- not an ESC plan) exists that addresses the entire site area covered by the permit.

Note:

·         I’m not aware of any documentation provided by either the DEQ or by a locality (i.e.- the current reviewing authority) which indicates that, for phased projects, an approved ESC plan is required for sections not yet designed.  The guidance document referenced in item “f” of question #1 above states that ESC plan approval is required within 60 days of coverage renewal (so enforcement of this requirement would have been AFTER July 1, 2014 and was the responsibility of those localities that were VSMP reviewing authorities).  I am not aware of any notices or violations being issued by a locality for projects prepared by our office which did not have ESC plan approval for “future” phases of a project within the required 60 days;  Therefore, it stands to reason that the “intent” was to ensure an approved ESC plan was in place for ONLY the phase of a project to initially be constructed and not the entire area covered by the general permit.  As required, and pursuant to VAR-10, Part II, Section B, the SWPPP would be amended/ modified/ updated as future sections were approved (i.e.- as approval of a future section would constitute a “change in the design, construction, operation, or maintenance that has a significant effect on the discharge of pollutants to surface waters and that has not been previously addressed in the SWPPP” as noted in subsection 1)

·         In the scenario noted within this question (question 3), future plans would be extremely difficult for localities to review.  How would upstream sections be designed to Part IIB criteria that flow to sections that were designed under Part IIC criteria?  The only practical way to do this would be to isolate the upstream sections, treating them as a separate project with separate SWM controls.  Doing so would result in the existing basin (previously designed under Part IIC) to be over designed.  Further, independently meeting SWM requirements for the upstream sections would have extreme impacts to those sections.  For residential projects, numerous lots would be lost in order to accommodate entirely new SWM basins, which would result in substantial changes to the layout, which would require amendments to the previously approved tentative… which would be required to go back through the governmental approval process.  This would seem to conflict with State vesting laws. 

·         The number of projects that are currently being designed under Part IIC design criteria is finite and continues to dwindle over time.  It is unclear why the regulations need to include excessive amounts information to account for what is a relatively small and finite quantity of projects.  The ability for developers to finish multi-phased projects (having investing millions of dollars in some cases) under the same laws they were required to abide by at the time the projects started should be afforded to them (similar to state vesting laws). 

4.       Section 9VAC25-880-45, item B (draft) states “….Portions of the project not under construction as of June 30, 2024 shall no longer be eligible to use the technical design criteria in Part II C of the VSMP regulation.” 

Items to note:

a.       Section 9VAC25-870-47 (under the general “Part II” of the Chapter 870 VSMP Regulations- NOT the Chapter 880 General Permit Regulations), section B states similar language (i.e.- “After such time, portions of the project not under construction shall be subject to any new technical criteria adopted by the board”).  It is my understanding that changes to Chapter 870 have NOT been authorized; Therefore, only the interpretation of the term “portions of a project not under construction” can be addressed.  Unfortunately, this wording doesn’t account for items outside the control of the engineer or developer. 

b.       Section 9VAC25-880-45, item B4 (draft) defines “….Portions of the project not under construction”

Based on the current wording of the regulations (related to “portions of a project not under construction”), a locality could approve a site plan (which may have taken 8 months or more to get approved) in late June of 2024.  In many localities, the actual issuance of a land disturbance permit is not done until the pre-construction meeting, which needs to be scheduled with the authority.  If the locality, as the authority, approved a plan in late June of 2024, they could find themselves setting up a pre-construction meeting in July, knowing the plans at that time will not be in compliance with the regulations (as the project may not be under construction prior to June 30, 2019, depending on the DEQ’s definition of “under construction”).  Could this section be modified to require “Plan Approval” by June 30, 2019 for grandfathered projects and “Plan Approval” by June 30, 2024 for projects with previous permit coverage and which are renewed. 

Since Chapter 870 uses the same language, and changes to Chapter 870 have not been authorized, can the suggested change noted above be made (by superseding Chapter 870 via changes within Chapter 880)?

A preferred addition to the definition of “portions of a project not under construction” would be a statement that any project or portions of projects meeting the vesting requirements of Virginia Code § 15.2-2307, paragraph A would be deemed to be a project under construction.  This would allow ongoing residential projects with approved zoning and tentative plans to continue moving toward completion of the overall project under the same criteria that was known to them when the project started.  Arbitrary dates should not be defined for developers who have and continue to invest substantial sums of money actively pursuing completion of their multi-phased projects.

Will the DEQ be willing to include language within the definition for “portions of a project not under construction” that includes any project or portions of projects meeting the vesting requirements of Virginia Code § 15.2-2307, paragraph A?

5.       Section 9VAC25-880-50, Item B (Draft); sub-item 3 requires a site map that shows the limits of disturbance as well as construction entrances.  What would be shown for a phased project, required to have permit coverage for the initial phase (prior to plan approval for that initial phase), however, does not have an approved ESC plans for future phases?  What information is to be shown on the site map for future sections not yet designed?  If sub-item 13 (regarding projects that are part of a larger common plan of development) is checked, would the requirement of sub-item 3 need to show construction entrances and limits of disturbance for the entire common plan of development area or just for the initial section.  The initial phase, being the only portion fully designed, would be the only area in which this information could be accurately reflected on a site map.

6.       Section 9VAC25-880-50, Item B (Draft); sub-item 7… there are two #7’s listed, which should be corrected.  Doing so will increase subsequent numbers by a value of 1.  For the purpose of this document, the numbers currently shown within the draft regulations will be referenced.

7.       Section 9VAC25-880-50, Item B (Draft); sub-item 15… Please clarify the first part of the sentence which states “Where applicable…” When would a SWM agreement not be required for a site with a BMP? 

8.       Section 9VAC25-880-50, Item B (Draft); sub-item 15.  This section lists a requirement to have an approved SWM agreement in place, prior to issuance of a permit (as this section lists information that must be contained within the registration statement submitted by the Operator).  Sub-item 15 references 9VAC25-870-112A, which states that the agreement must be recorded “…prior to state permit termination or earlier as required by the VSMP authority…”  Many localities will approve a site plan without a SWM agreement in place, knowing that they can hold up C of O if required. If a recorded SWM agreement is required with the registration statement, it would directly conflict with the referenced section 9VAC25-870-112A, which gives the reviewing authority the ability to approve a plan without requiring a SWM agreement.   Please clarify if only a draft (non-executed copy) of a SWM agreement is required with the registration statement.  Otherwise, since a complete registration statement is required prior to authorization to discharge (per 9VAC25-880-30-A1), the authority would no longer have the flexibility of approving a plan, as previously afforded to them in 9VAC25-870-112A, without evidence of an agreement.  Could this requirement simply be deleted?  Section 9VAC25-880-60 (Termination of general permit coverage), Item B, number 8 already requires evidence that a SWM Maintenance Agreement has been recorded.  Requiring, evidence of a recorded SWM Maintenance Agreement within the termination requirements (Section 60) is the appropriate place.  (A SWM Maintenance Agreement is further required under Part 1 of VAR-10, Item F, sub-item 1a)

9.       Section 9VAC25-880-60, Item C – Notice of Termination (Draft); sub-item 7 requires record drawings for SWM facilities.  What would need to be included with the N.O.T. application submittal?  Would the As-Built documents need to be submitted along with the N.O.T. application on projects where the DEQ is the authority?  Please clarify the required format and level of detail/ survey required for construction record drawings when the DEQ is the authority. (Construction Record Drawings are further required under Part 1 of VAR-10, Item F, sub-item 1a).  Please either be specific with the permitted tolerance for design vs. actual conditions or provide further guidance for engineers to determine what is acceptable.  What one engineer deems to be “close enough” may not be the same as other engineers.

Per Part II.B.1.a, a signed copy of the registration statement is required to be available with the SWPPP.  Oftentimes, permitting is completed by an owner/developer or their representative and, subsequently, a Transfer Agreement is completed to assign the permit to a contractor.  With the transfer agreement process, it is uncommon that a contractor acquires the original, signed copy of the registration statement.  

Would it be possible to update this section to indicate that a signed copy of the registration statement, OR a signed copy of the transfer agreement be required to be available with the SWPPP, since the DEQ would have copies of both of these documents on file for both entities anyway?

Part II.B.4.e.(9), proposes that waste containers be closed during precipitation events and at the end of the business day, or implementation of similarly effective practices...

While this is an excellent pollution prevention concept and we do not intend to oppose it, it fails, in practice, when we try to implement such practices for large, roll-off dumpsters (e.g., 20- or 30-yard dumpsters), as the waste management industry does not, currently, have the ability to supply covers for these waste containers.  

In the past, when we have attempted similar measures, such as tarps, we've found that following a precipitation event of multiple-inches of rain or heavy, wet snow, the tarps fall into the roll-offs and are unretrieveable without dispensing the stormwater within the dumpsters.

In order to meet this requirement, the construction industry will need explicit guidance on how to meet the second half of this proposed requirement: "...or implementing other similarly effective practices.  Minimization of exposure is not required in cases where the exposure to precipitation will not result in a discharge of pollutants...".   In such a case, and simply as an example, would roll-off dumpsters positioned, without cover, in a sloped area that has containment berms along its lower three sides (the upper side utilized for access by the vendor) be sufficient to meet the "cases where the exposure to precipitation will not result in a discharge of pollutants", particuarly in those cases of dumpster sizes that are unable to be supplied with covers?

9VAC25-880-50.B.15 of the proposed permit indicates that the registration statement include information regarding whether the area disturbed will result in the demolition of structures equal to or greater than 10,000 sq.ft of floor space built or renovated prior to January 1, 1980.   Further in Part 1.B.4.b, this requirement is further explained to be for the management of PCB impairments, and are further required to be documented and managed within the SWPPP under Part II.B.6-7.

Similar to another comment I've provided, contractors often receive their permit through a transfer agreement, and often after the initial owner/developer has had a site cleared/demolished.  In this case, if the original registration statement indicates that the project needed appropriate management for PCB contamination, but the contractor, via transfer agreement, receives a cleared/abated site, will the contractor be required to develop a SWPPP with all of the requirements of Part II.B.6-7, or is there a way to either add additional language to these sections to describe that if PCB abatement/management is complete, then these sections no longer apply?   Alternatively, could the transfer agreement be updated to include a section that indicates that if the original permit/registration statement indicated that PCB contamination was in need of abatement/management, and that work has been completed prior to the completion of the transfer agreement, and in the development of the contractor's SWPPP, the requirements of Part II.B.6-7 no longer apply (e.g., II.B.6.b.(3) - modified inspection schedule in accordance with Part II.G.2.a)?