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.