59 comments
Ch 5 Section 5.3.2.1 – Add Item 1.a “1% Rule”, or language to clearly include the 1% rule….”If the site being developed discharges to a channel, manmade or natural, where the receiving channel or pipe were to have a drainage area greater than 100 times that of the site’s drainage area, then any form of detention is not required to meet Channel Protection and Flooding portions of Water Quantity Stormwater Regulations.” This needs to be clearly put back into the current handbook, as taking it out from the 1999 Handbook when it was rewritten in 2013 has caused confusion, needless disturbance, and higher costs of construction. In the SAG response process, DEQ referenced a letter to us dated August 1, 2023, but DEQ’s response was ““…the limits of analysis” has generally replaced the phrase 1% Rule. Regardless, the requirement is established in 9VAC25-870-66 B.4 and C.3a and will be carried forward verbatim in the Virginia Erosion and Stormwater Management Regulation 9VAC25-875-600 B.4 and C.3a (effective July 1, 2024). DEQ has no plans to remove the limits of analysis requirements…” This response indicates that the 1% Rule was simply changed in language only and is viable. Without so stating this, it only adds more confusion. The language is properly written in the1999 Handbook, the VDOT Drainage Manual (Ch 11), the Erosion & Sediment Control Regulations 9VAC25-840-40 19(b)(1) and is by law 9VAC25-870-66 (Part B.4 and Part C.3.a) During this effort to reduce regulation and ease the burden on the costs of homes, this is critical language to put back in the handbook.
Appendix A, Section A.5.4 – Delete the second paragraph altogether. This section now mentions that no more than plus or minus 10% of an existing drainage area may be moved to another drainage area….There is no engineering merit to the “plus or minus a 10% drainage area”. It is arbitrary, leaves room for review delay, and creates needless extra detention requirements that add costs to construction. In the SAG response process, DEQ referenced a letter to us dated March 23, 2023, regarding the 10% subject within the Guidance Memo 22-2012. Within that response it was mentioned “….In addition, many urban counties, such as Fairfax County, have minimum requirements for natural divides for stormwater runoff leaving the development site and require approval for each diversion from one drainage area to another; thus, DEQ’s 10% requirement provides flexibility under the current statute and is less restrictive than some local county requirements.”….. The fact that we are “just under” what Fairfax’s policy is should not be the threshold for the rest of the state. The 10% drainage area change is a burden that is born on the more rolling terrain portions of the state and is more restrictive than the 2013 handbook. This section should be omitted from the handbook.
BMP Specifications - Ch 8.5 P-Fil-07, Section 2.1 – Add language in the second bullet for minimal disturbance that…”Stormwater BMP’s may be constructed within open space areas such that after construction, the areas are to remain relatively undisturbed and not be maintained more than 4 times per year.“ This was what the previous regulations allowed, and by omitting, now has increased burdens and costs. There is not much difference between a BMP and a utility easement (which is currently allowed in open space). Not allowing the BMP to be counted in the open space is an increase in burden from the previous manual.
The example ordinance from DEQ that was created for jurisdictions to emulate, should be changed to say the jurisdiction has 60/45 days to “review” the initial/resubmitted set of plans. The wording now says “act”. This causes further confusion and delay, which the new DEQ process is trying to improve. The word “act” should be changed to “review” to ensure jurisdictions complete their initial reviews in 60 days and subsequent resubmittals reviews in 45 days. This language was not in the handbook, but DEQ released it for localities without a public comment input. During this process for the handbook, the example ordinance should be changed too.
Ch 5 Section 5.3.2.6.1 – The Handbook has changed the regulations to reduce the maximum allowable phosphorous load from 0.41 to 0.26 lbs/ac/yr. This is against the Code 9VAC25-870-63 and 9VAC25-875-580 which are explicit and state as follows: “1. New development. The total phosphorus load of new development projects shall not exceed 0.41 pounds per acre per year, as calculated pursuant to 9VAC25-870-65.” The new VRRM spreadsheet significantly hurts developments with lawns (single family subdivisions, churches, parks, schools, etc) by almost 80% in additional load requirements. This is a new burden that increases costs for a significant portion of Virginians.
Add a final paragraph - “Unless local ordinances have adopted restrictions on early grading plans, design professionals may submit early grading plans for development projects, provided the BMP’s and calculations allow for this phase and/or future phases of the project. If future phases are subsequently proposed, the effectiveness of all prior BMPs must be preserved, improved, or additional BMPs may be required”. This language would help clear up a lot of the inconsistencies across the state whether early grading plans are allowed. Adding this language would certainly help reduce burdens and costs because early grading plans are so advantageous to construction timelines.
Ch. 1 Section 1.4.2 – The handbook is currently written that defines it as a “living document”, but in order to change it twice per year, DEQ gets to: choose who is on the committee; gather the on-line comments; determine if the comments are valid; prioritize their importance; filter if the items are reviewed; determine if it needs to go public; and authorize themselves to chair the committee. DEQ has implied that the handbook can change for the better, BUT what if they make the regulations more restrictive? The system as setup, is not fair and there should be a better “checks and balances” way. A system created with an independent group of professionals selected and chaired by personnel rotating from differing fields should be adopted.
Ch 4. Section 4.3.3.1.5 – DEQ should designate a point-of-contact at the Central Office to facilitate disputes between a reviewer and design professional. This would help, for example, with plans that are at a standstill if the reviewer does not agree with what other reviewers have allowed at other locations in the state. Adding this language would certainly help reduce burdens and costs associated with delays.
The example ordinance from DEQ for jurisdictions to adopt, mentions performance bond options for localities. It is requested that DEQ help the development community by creating an acceptable bond percentage that is more in line with closing a project. Often the language now requires 100% or 125% of the costs, which is an enormous expense, and almost never needed. A land disturbance bond should be set up to allow a jurisdiction to stabilize a site, not build the whole site. The bond should be more in line with 25%-50% of construction costs. This would save a considerable amount in up-front fees. This language was not in the handbook, but DEQ released it for localities without a public comment input. During this process for the Handbook, the example ordinance should be changed too. It would be helpful if this language was added to the Handbook.
Add language at the end of Item 10 that states. “Note 9VAC25-870-820 states that the VSMP may not request more than 50% of the permit fee at the time of plan submission.” This added to the handbook would allow municipalities, owners and developers to understand that only half the fee needs to be collected at time of submission. If 100% is collected up front, there should be return of half the fee if the project does not start land disturbance. These fees range now from $2,700 to $9,600. They are considerable amounts for small owners that decide not to do a project based on unexpected costs of construction.
This is a very significant and expensive change and I’m having difficulty understanding if there is any science behind this change. Is this just a decision made by an individual at DEQ? What are the guidelines for changing these pollutant loads, shouldn’t it have to go through some vetting process? I just read very recently that the Chesapeake Bay “clean up” plan was well ahead of its target measurements and yet as a developer, I am getting hammered with additional costs that will simply be added to the cost of the lots and homes I’m building.
Virginian developers are being hit with all these incidental costs that keep driving up housing costs, putting housing out of the reach of many “would be” homeowners.
I asked my engineer to calculate the change in my pollutant load cost on a development that I am currently in the middle of. Under the current rules, I had to pay $20,000 for the off-set costs, but under the new guidelines, it will be 5 or 6 times that cost! $100,000- to $120,000! This seems to really penalize the more rural developments with yards and single-family homes…this is not a reasonable adjustment and should NOT go into effect. Please leave the pollutant load unchanged at the .41 lbs./ac/yr., that is expensive enough, as is.
I have been developing since 2000 and brought over 800 lots and homes to the market during that time. The 2014 changes were particularly painful and expensive and these new changes are not going to help our home shortages and higher prices. Does Governor Youngkin know about these more stringent regulations and additional burdens on housing. I heard he was all about reducing and streamlining the regs governing housing. I think he needs to know.
There is a step DEQ could take that would help with the costs of homes. Performance bonds are a direct cost to the developer that get passed on to the home buyer, EVERY cost gets passed on to the end user.. Bonding should reflect the cost to the county or city of stabilizing a site back to a permanent sod condition should the developer default and not complete the project. Since grading and storm water ponds are nearly always the first things completed, the bond should only cover costs associated with E & S controls being in place and adequate grass coverage. Bonds should not be based on the complete build out, because the county or city is not going to do that. The next owner/developer would be responsible for renewing the project and pay a bond suitable to the next level of development. This is a “common sense” approach to reducing upfront costs that enable builders and developers to take on new projects to help alleviate the high cost of housing.
This is another fee that needs NOT to be collected all up front. At the very least, there should be a two step collection process, so that as the developer begins step 2, THEN he pays the balance of the fee. This would decrease the amount of the upfront costs associated with development that affect the smaller builder/developers like myself.
Section A.5.4 The requirement to limit a deviation of 10% between post-developed and pre-developed drainage areas was introduced in guidance in 2023 and was absent from previous editions of the Handbooks. This stipulation was subject to comments in early 2023 and has been recently discussed by the SAG committee overseeing this Handbook. This provision imposes additional burdens on the development community and introduces language into a Handbook marketed as one aimed at reducing regulatory complexity. The specific value of "10%" lacks definition within existing regulations or prior DEQ enforcement practices before 2023. It is recommended this section of the Handbook be removed.
Chapter 5 and Appendix A with regards to Limits of Analysis and the “1% Rule”. The existing language in the Handbook lacks consistency with current regulations and Virginia Erosion and Sediment Control Handbook, Chapter 4. According to these standards, a receiving channel can be deemed sufficient if the total drainage area to the point of analysis is 100 times greater than the contributing drainage area of the project site. If the channel meets adequacy criteria, there is no justification or advantage in implementing any detention, specifically any measures meeting energy balance, as this would be inconsistent with standards accepted by DEQ in the past.
When a manmade system discharges into a sizable channel, either manmade or natural coinciding with the limits of analysis, further flow reduction becomes unnecessary. Under such circumstances, requiring additional flow reduction is unwarranted. The current language could mandate the needless detention of runoff, particularly for sites situated adjacent to or upstream of large bodies of water capable of accommodating increased runoff. For instance, sites directly discharging into the Lower James River, Chesapeake Bay, Smith Mountain Lake, or Lake Anna should not be compelled to restrict flows based on the energy balance equation.
These channels, whether manmade or natural already meet the 1% rule and are unaffected by the minimal flows from typical development sites. Implementing additional detention measures would have negligible impact on the large channel while significantly increasing costs to the development.
Recommend adding language that supports "No additional measures are required if discharging to a natural or manmade channel with a contributing drainage area 100 times or greater than the site contributing drainage area."
Section A.5.1.3 Defining a manmade lake as a natural channel is inconsistent with the definition of a natural channel defined in current regulations, and Section A.5.1.B of the proposed Manual. A manmade lake has not been defined as a natural channel in any prior Handbooks with exception of Guidance adopted in 2023. It was commented on then and recently by the SAG Committee on this Handbook. The current language in the proposed Handbook with regards to Limits of Analysis, discharging to natural channels, and redefining of manmade lakes to a natural channel requires outfalls to manmade lakes to meet an “Energy Balance” condition that is impossible to meet considering existing conditions at these outfalls are typically small drainage areas with sheet flow conditions, UNLESS there is a recognition that it is acceptable to outfall to a larger body of water as discussed in other public comments herein titled, "Limits of Analysis and 1% Rule.”
There are references throughout the manual that define a maximum allowable load of 0.26 lbs/yr/acre. This is inconsistent with current regulation. It has been recognized by DEQ that regulation must change for implementation of VRRM 4.1 due to its reduced maximum allowable load from 0.41 lbs/yr/ac to 0.26 lbs/yr/ac. The same implementation shall apply to this manual if the proposed manual will dictate 0.26lbs/yr/ac as it does in Section A.4. Consider revising all references of 0.26lbs/yr/ac to the maximum allowable load of 0.41lbs/yr/ac as defined by current regulation.
Overall, this Manual has done a good job of combining older Manuals; however of the 1,600+ pages, there are ten concerns that have been consistent through commentary from Guidance adoptions in 2023 and from SAG Committee commentary this past year that have not been addressed well in this Proposed Manual. Those items have been commented on by Developers, Engineers, Contractors, LLC publicly herein and we support those comments.
I would like to offer my concurrence of the comments made by Developers Engineers & Contractors, LLC.
I continue to have concerns about the language in A.3.7.2.D.
Option 1 requires a curve number adjustment for soils that are disturbed during construction (e.g., soil that was HSG-C pre-development (CN=74), but which will be mass graded and returned to managed turf, must be adjusted to CN 80. This is going to make water quantity compliance, particularly energy balance, a huge challenge.
Option 2 is concerning as this provision also may carry a significant increased cost of compliance. Additionally, I would like clarification on whether compost must carry the U.S. Composting Seal of Testing Assurance or just "generally" meet those criteria. If compost must carry the seal, this is creating another situation like we currently have for bioretention media, where the number of suppliers in VA is very limited, and costs remain extremely high with the lack of competition.
Options 3, 4, and 5 are non-starters for me. I have commented on this in further detail in previous public comment periods.
Please source where in NEH or other non-VA DEQ standard engineering hydrologic
documents that require to adjust the HSG by atleast 1 factor when disturbing soils or
working with disturbed soils as described in GM 22-2012 Section 5.302 AND this new SWHB in section A.3.7.2. THIS COMMENT WAS MADE during comment period for GM 22-2012 and it was not addressed properly then and is now carried over into this SWM HB with little back up.
It is not found in the state regulations. The state regulations specifically state in 9VAC25-870-66.E "all pervious lands on the site shall be assumed to be in good hydrologic conditions in accordance with the US Dept of Ag NRCS standards, regardless of conditions existing at the time of computations." In otherwords, despite how disturbed the conditions are, it does not give leeway for predevelopment to downgrade the runoff CN to poor. Post development may use "poor" pervious conditions due to disturbance if engineer judges so.
NRCS has hydrologic conditions already assigned for poor and good conditions stating that
"Poor=Factors impair infiltration and tend to increase runoff; Good= Factors encourage average and better than average infiltration and tend to decrease runoff"
It seems redundant to re-create NEH guidance and state that if lands are now disturbed (which is equivalent to impairing the infiltration ability of the soil using conditions of Poor) that instead of using historic standard practices (and whats used all over the country), that we should negate NEH and come up with new rules/science for hydrology. This is not common practice anywhere, and is creating a new "regulation" per se that is outside the science that is already approved by the State Regulations. If new regs/rules outside of the State Regulations are being created please provide the actual science/studies that supports this hydrologic adjustment (similarly to how NEH has done) for public commenting prior to putting this in an adopted manual for local regulatory agency to follow. This method needs further discussion and commenting before adopting.
9VAC25-870-72.C also specifically states "NRCS OR other standard hydrologic & hydraulic
methods shall be used..." This curve number adjustment described is not standard with
NRCS, or Rational Method, or previous VA SWM/ESC Handbooks. It is not standard in other hydrologic methods or engineering practice. As it is not actually standard, VA DEQ guidance to adjust disturbed soils is then going against the State Regulations and created a new requirement/science that is not allowing proper time to discuss/comment before adopting.
Also something to consider-Shouldn't the energy balance equation with the improvement factor already take into consider all these nuance adjustment with post development soils mixing? It would make things much simpler then messing/overcomplicating common Hydrologic modeling practices that have been tried and true over the many years.
Same/similar comment was written during SAG comment period by James Taylor with Balzer & Associates stating:
"Modification of the pre- to post- HSG is not possible with the VRRM spreadsheets. If you do not provide matching soil area totals, the VRRM worksheet returns an error and does not compute.
Full implementation of DEQ Spec. No. 4 (Soil Compost Amendment) per the specifications is not practical in western parts of the state due to the slope limitations in the specification.
While the science behind the concept is acknowleged, a requirement to adjust the post-developed CN for disturbed soils is not stated in the VSMP Regulations, current and previous Virginia Stormwater Handbooks, or previous DEQ guidance (Virginia Runoff Reduction Method, GM 16-2001). Nor is modifying the HSG from pre-to post-development a common practice across the state currently.
Universal application of an adjustment for any disturbed soil would translate to a substantial additional burden on land development, particularly in rural areas where pre-development lands are undisturbed. This is new content/rules from previous Virginia regulations/guidance and we request that this topic be discussed further including a formal reponse from DEQ if not accepted."
DEQ SAG response said "The review team appreciates the suggested revision. However, proposed revision is too extensive to incorporate at this stage of review. We look forward to addressing this issue in the next update."
If the review team finds it too extensive to properly incorporate and address this issue, then it should NOT be put in the SWM HB at all, and should be removed until it is fully able to be resolved. It was rushed through in the GM-22-2012 guidance and it is being rushed again now.
For Stormwater Manual:
I asked my Consultant to briefly explain how the Proposed Manual would have an effect on a subdivision I just permitted and constructed. I have major concerns with Section A.5.4 as this will require more burden. In fact, I understand it may be impossible to meet and I will be in a position to request a waiver which is risky and subjective. I also have a major concern for reducing the pollutant load from 0.41 lbs/ac/yr to 0.26 lbs/ac/yr. I have been told that this will help most projects with high density, but in my case, it will become a larger development burden and add significant cost to my projects. Additionally, I understand the proposed Manual defines manmade lakes as natural channels so discharges to those lakes will be treated differently than a manmade channel. I am not sure how a manmade lake is defined any different than something "constructed by man" which is the regulatory definition of manmade. In summary, the proposed Manual as written creates more development burden and cost than I have had to overcome using current regulation and older manuals. Please consider elimination of Section A.5.4, leaving the pollutant load as-is, and eliminate the sentence that a manmade lake is a natural channel.
For VRRM:
I had my Consultant evaluate a subdivision I just had approved using the VRRM 3. This subdivision has been permitted and constructed. I asked them to apply the VRRM 4.1 so I may further understand the proposed change. The results of their evaluation determined the required phosphorous load reduction would increase 50% versus the current VRRM 3. This is an additional burden that is contrary to the Governors Order to reduce regulations by 25%. I understand the new VRRM 4.1 will affect a small sample of developments that are predominantly a managed turf ground cover. Understanding this small sample of development is my line of business, I would encourage DEQ to establish exceptions for these projects. There was a time prior to 2014 when post development impervious cover for a project under 16% did not require water quality BMPs. The proposed new VRRM will propose a 15 lbs. reduction as compared to the current permitted 10 lbs. reduction on a project that has a post developed condition of 12% impervious cover. This is a very aggressive change to something that wasn't required 10 years ago.
I have been discussing development issues with one my Engineering colleagues and they have informed the following issue will increase development burden and/or cost. In an effort to assist with reducing these burdens, please consider the following,
Title: Section 5.3.2.1 and Appendix A Limits of Analysis
In Chapter 5 and Appendix A with regards to discharges at limits of analysis where the contributing drainage area from the project is less than 1% of the overall drainage area, there is guidance to require additional detention. Detention requirements to meet “Energy Balance” is not necessary when discharging to larger bodies of water such as Lakes, Rivers, or Bays. The regulations allow for no additional detention if the 1% condition is met. The sections of the Manual stating otherwise shall be revised to meet the current regulations. Suggest a statement, “If the site being developed discharges to a channel, manmade or natural, where the receiving channel or pipe were to have a drainage area greater than 100 times that of the site’s drainage area, then any form of detention is not required to meet Channel Protection and Flooding portions of Water Quantity Stormwater Regulations.”
Title: Section A.5.4 10% allowance
Section A.5.4 adds additional burden to situations where the post developed drainage area is greater than 10% of the pre-developed area. These situations are common and should not have additional burden as the regulations do not require these additional burdens. Furthermore, the value 10% is arbitrary. Approving this will set a precedent giving the Agency the ability to reduce to 5% or 1% in the future. Recommend eliminating Section A.5.4.
Title: Section A.5.1.3 Manmade Lakes
In Section A.5.1.3, eliminate the statement that Manmade lakes shall be considered Natural Channels. A manmade lake is not natural and meets the current regulatory definition of a manmade channel that simply states “constructed by man” in 9VAC25-870-10.
Title: Pollutant Load References
This manual references a pollutant load allowance of 0.26 lbs/ac/yr that is more restrictive than current regulations limit of 0.41 lbs/ac/yr. A proposed guidance shall not propose more burden than the current regulations allow as stated in 9VAC25-870-63.
Title: Ponds in Open Space – Ch 8.5 P-Fil-07
The manual does not allow Stormwater Ponds in Open Space. We suggest to add language to address concerns regarding increased burdens and costs. Consider the following language in the second bullet of Chapter 8.5 P-Fil-07, Section 2.1:
"Stormwater Best Management Practices (BMPs) may be constructed within open space areas with minimal disturbance, such that after construction, these areas are to remain relatively undisturbed and not be subject to maintenance more than four times per year. This provision aligns with previous regulations and aims to prevent unnecessary burdens and costs associated with post-construction maintenance. It is important to note the similarity between a BMP and a utility easement, both of which serve critical functions within open space. Failure to include BMPs within the open space designation would represent an increase in burden from previous guidelines."
Title: Allow Early Grading Plan Approval – Section 4.3.3
In order to address the inconsistencies surrounding the allowance of early grading plans across various jurisdictions within the state, it is proposed to append a final paragraph to Chapter 4, Section 4.3.3:
"Subject to any restrictions imposed by local ordinances, design professionals are permitted to submit early grading plans for development projects, provided that the Best Management Practices (BMPs) and associated calculations accommodate the current phase and any potential future development. It is understood details of future phases may not be known and estimations may be made. If subsequent phases are proposed, it is imperative that the effectiveness of all prior BMPs is maintained, enhanced, or supplemented by additional BMPs as necessary.” By incorporating this language, it is anticipated that the ambiguity surrounding the permissibility of early grading plans will be alleviated, thereby streamlining the development process and reducing associated burdens and costs.
Title: Create an independent system to alter the Handbook, Section 1.4.2
Chapter 1, Section 1.4.2 currently designates the handbook as a "living document," allowing the Department of Environmental Quality (DEQ) to oversee changes twice annually. However, the current system grants DEQ extensive control over the alteration process, including committee selection, comment gathering, validity determination, prioritization, filtering, public dissemination, and committee chair authorization. While DEQ asserts that these changes aim for improvement, there is a concern that they could potentially result in more restrictive regulations without sufficient checks and balances, contrary to the principles upon which our government was founded. Therefore, it is recommended to establish an independent system for modifying the handbook.
Under this proposed system, an independent group of professionals, selected from diverse fields relevant to environmental regulation, would be tasked with overseeing handbook revisions. This group would be chaired by personnel rotating from different backgrounds within the environmental and land development sector to ensure a balanced and impartial approach. By introducing this independent oversight, the process of handbook modification would be subject to greater scrutiny and accountability, aligning more closely with the principles of checks and balances inherent in our governmental system.
Thank you for your consideration of these comments.
Chapter 1, Section 1.4.2 currently designates the handbook as a "living document," allowing the Department of Environmental Quality (DEQ) to oversee changes twice annually. However, the current system grants DEQ extensive control over the alteration process, including committee selection, comment gathering, validity determination, prioritization, filtering, public dissemination, and committee chair authorization. While DEQ asserts that these changes aim for improvement, there is a concern that they could potentially result in more restrictive regulations without sufficient checks and balances, contrary to the principles upon which our government was founded. Therefore, it is recommended to establish an independent system for modifying the handbook.
Under this proposed system, an independent group of professionals, selected from diverse fields relevant to environmental regulation, would be tasked with overseeing handbook revisions. This group would be chaired by personnel rotating from different backgrounds within the environmental and land development sector to ensure a balanced and impartial approach. By introducing this independent oversight, the process of handbook modification would be subject to greater scrutiny and accountability, aligning more closely with the principles of checks and balances inherent in our governmental system.
This section adds additional burden to situations where the post development drainage area is greater that 10% of the pre-development drainage area. These situations are common and should not have additional burden as the regulations do not require these additional burdens. Furthermore, the 10% is arbitrary. Approving this will set a precedent giving the Agency the ability to reduce to 5 or 1% in the future. Recommend eliminating this section.
Manuel references pollutant load allowance of .26 lbs/ac/yr that is more restrictive than current regulations limit of .41 lbs/ac/yr. We should not be proposing more burden that the current regulations allow as stated in 9VAC25-870-63
Chapter 1 currently designates the handbook as a "living document", allowing The department to oversee changes twice annually. However, the current system grants DEQ extensive control over the alteration process, including committee selection, comment gathering, validity determination, among others. While DEQ asserts that these changes aim for improvement, there is a concern that they could result in more restrictive regulations without sufficient checks and balances, contrary to the principles upon which our government was founded. Therefore it is recommended that an independent group of professionals selected from diverse fields relevant to environmental regulation and land development be tasked with overseeing handbook revisions.
In Chapter 5 and Appendix A with regards to discharges at limits of analysis where the contributing drainage area from the project is less than 1% of the overall drainage area, there is guidance to require additional detention. Detention requirements to meet “Energy Balance” is not necessary when discharging to larger bodies of water such as Lakes, Rivers, or Bays. The regulations allow for no additional detention if the 1% condition is met. The sections of the Manual stating otherwise shall be revised to meet the current regulations. Suggest a statement, “If the site being developed discharges to a channel, manmade or natural, where the receiving channel or pipe were to have a drainage area greater than 100 times that of the site’s drainage area, then any form of detention is not required to meet Channel Protection and Flooding portions of Water Quantity Stormwater Regulations.”
Section A.5.4 adds additional burden to situations where the post developed drainage area is greater than 10% of the pre-developed area. These situations are common and should not have additional burden as the regulations do not require these additional burdens. Furthermore, the value 10% is arbitrary. Approving this will set a precedent giving the Agency the ability to reduce to 5% or 1% in the future. Recommend eliminating Section A.5.4.
In Section A.5.1.3, eliminate the statement that Manmade lakes shall be considered Natural Channels. A manmade lake is not natural and meets the current regulatory definition of a manmade channel that simply states “constructed by man” in 9VAC25-870-10.
This manual references a pollutant load allowance of 0.26 lbs/ac/yr that is more restrictive than current regulations limit of 0.41 lbs/ac/yr. A proposed guidance shall not propose more burden than the current regulations allow as stated in 9VAC25-870-63.
The manual does not allow Stormwater Ponds in Open Space. We suggest to add language to address concerns regarding increased burdens and costs. Consider the following language in the second bullet of Chapter 8.5 P-Fil-07, Section 2.1: "Stormwater Best Management Practices (BMPs) may be constructed within open space areas with minimal disturbance, such that after construction, these areas are to remain relatively undisturbed and not be subject to maintenance more than four times per year. This provision aligns with previous regulations and aims to prevent unnecessary burdens and costs associated with post-construction maintenance. It is important to note the similarity between a BMP and a utility easement, both of which serve critical functions within open space. Failure to include BMPs within the open space designation would represent an increase in burden from previous guidelines."
In order to address the inconsistencies surrounding the allowance of early grading plans across various jurisdictions within the state, it is proposed to append a final paragraph to Chapter 4, Section 4.3.3: "Subject to any restrictions imposed by local ordinances, design professionals are permitted to submit early grading plans for development projects, provided that the Best Management Practices (BMPs) and associated calculations accommodate the current phase and any potential future development. It is understood details of future phases may not be known and estimations may be made. If subsequent phases are proposed, it is imperative that the effectiveness of all prior BMPs is maintained, enhanced, or supplemented by additional BMPs as necessary.” By incorporating this language, it is anticipated that the ambiguity surrounding the permissibility of early grading plans will be alleviated, thereby streamlining the development process and reducing associated burdens and costs.
Chapter 1, Section 1.4.2 currently designates the handbook as a "living document," allowing the Department of Environmental Quality (DEQ) to oversee changes twice annually. However, the current system grants DEQ extensive control over the alteration process, including committee selection, comment gathering, validity determination, prioritization, filtering, public dissemination, and committee chair authorization. While DEQ asserts that these changes aim for improvement, there is a concern that they could potentially result in more restrictive regulations without sufficient checks and balances, contrary to the principles upon which our government was founded. Therefore, it is recommended to establish an independent system for modifying the handbook.
Under this proposed system, an independent group of professionals, selected from diverse fields relevant to environmental regulation, would be tasked with overseeing handbook revisions. This group would be chaired by personnel rotating from different backgrounds within the environmental and land development sector to ensure a balanced and impartial approach. By introducing this independent oversight, the process of handbook modification would be subject to greater scrutiny and accountability, aligning more closely with the principles of checks and balances inherent in our governmental system.
The revised manual references a pollutant load allowance of 0.26 lbs/ac/yr that is more restrictive than the current limit of 0.41 lbs/ac/yr. It is my understanding that a guidance document cannot propose something more restrictive than the current regulation.
Overall, this Manual has done a good job of combining older Manuals; however of the 1,600+ pages, there are ten concerns that have been consistent through commentary from Guidance adoptions in 2023 and from SAG Committee commentary this past year that have not been addressed well in this Proposed Manual. Those items have been commented on by Developers, Engineers, Contractors, LLC publicly herein and I support those comments.
Determination of HSG: A critical design value which is often improperly evaluated and subsequently used to generate an inaccurate system design. The designer is directed to the NRCS or local soil survey to determine HSG but never a follow up as required "In all cases the designer should evaluate the existing soils to ensure a proper HSG designation." The NRCS soil survey program was not created to evaluate 1/3 acre parcels. Soil surveys identifying URBAN LAND having HSG D designations can be evaluated based on surface textures and placed into a useful category, according to the USDA DEQ guidelines. There are VA licensed professionals able to determine the proper designation based on a site evaluation, if regulatory agencies alllowed. There are many systems, presently installed which are based on improper HSG designations which is the designers choice.
Infiltration Testing: At present, a qualitative approach to determining another critical design value is the falling head test. It is not a quantitative method of determining hydraulic conductivity. "This constant rate of infiltration is sometimes called the soil's permeability but is technically defined as the saturated hydraulic conductivity (Ksat)." Ksat should be used for design. The infiltration rate determined by the suggested methods and the falling head result in different values. It seems with all the three decimal values in the spreadsheets that the engineering community would be better served using intrinsic soil properties and site evaluated HSG values. (if not at least use a 6" head rather than 24" to determine infiltration rate)
March 27, 2024
On behalf of MAREC Action (informally, “Mid-Atlantic Renewable Energy Coalition”), thank you for the opportunity to comment on Version 1.0 of the Virginia Stormwater Management Handbook.
MAREC Action is a coalition of utility-scale solar, wind, and battery storage developers, wind turbine and solar panel manufacturers, and public interest organizations dedicated to promoting the growth and development of renewable energy in the Mid-Atlantic region. MAREC Action provides expert guidance and advocacy on policy and regulatory issues, as well as a unified voice for the industry.
MAREC Action encourages DEQ to work collaboratively with each segment of the solar industry when creating or revising regulations related to erosion and sediment control, and stormwater management, as each party has distinct experience and expertise on site design, construction, and operations. While several MAREC Action members are vertically integrated companies - responsible for greenfield development, construction, and ultimately owning and operating the facility – others specialize in one stage of the development process. Thus, we encourage DEQ to maintain an open dialogue with many industry trade groups to ensure that a diversity of firms can participate in regulatory workgroups or respond to agency inquiries related to best management practices and advancements in technology.
While the primary purpose of a solar facility is to deliver affordable, clean electricity, MAREC Action encourages DEQ to view solar deployment as a potential tool to providing long term water quality benefits to the Commonwealth of Virginia and the Chesapeake Bay. Sites developed according to best management practices – such as the prompt stabilization of soils during construction, or revegetation of the project area with native species - can deliver significant ecosystem services, especially when compared to the previous land use. For example, Walston et al (2021) observed that a solar facility with native vegetation or turf grass planted underneath panels can result in a 95% and 19% increase, respectively, in sediment and water retention when compared to row crop agriculture.[1] Similarly, solar deployment typically reduces the quantity and frequency of pesticides and fertilizer application on a project site – in turn, providing water quality benefits to the local watershed.[2] Given such potential ecosystem services benefits, solar deployment will have a role in helping Virginia attain its Total Maximum Daily Load and other regional stormwater management goals.
First, MAREC Action applauds DEQ for undergoing through extensive process of updating and consolidating the Virginia Erosion and Sediment Control and Stormwater Management Handbooks, as well as other guidance documents issued by DEQ. DEQ Director Rolband has affirmed the agency’s intent to streamline existing regulations and accelerate the permitting process. Indeed, clear and transparent permitting guidelines will be an essential element to achieving Virginia’s energy goals.
Given the long development timeline associated with solar project development, it is paramount new regulations and guidance shaping solar deployment apply only to projects in the earliest stages of development. MAREC Action observed that DEQ took these development timelines into account when the agency applied the revised stormwater management calculations to solar projects that receive their System Impact Study (SIS) after December 31st, 2024. This affords future solar projects time to consider the revised regulations when designing panel areas, stormwater management BMPs, and buffers. In some cases, developers may be required to lease additional land to accommodate the new guidance.
Below are MAREC’s comments on specific sections in the manual.
MAREC Action requests clarification on whether the section below applies only to slopes, or to all areas after the site clearing and development phase.
Therefore, maintenance of a sufficiently stabilized surface (> 75% intact mulch or temporary vegetation) on slopes (> 5%) during the site clearing and development phase is important and should be followed by rapid establishment of a permanent perennial stand of vegetation sufficient to meet assumptions for unconnected surface water flow following storm events as enhanced by the panel arrays and drip lines.
Based on observations of regulations in other states, MAREC Action is not aware of other jurisdictions with similar standards related to soil decompaction. In particular, 6.3.1.5.3 mentions requiring “designers of any site to adjust post development curve numbers by one HSG to account for compaction during construction.” Increasing the HSG classification for post-development land covers by one factor will result in considerable impacts on post-construction runoff computations for solar facilities. As A.3.7.2 D. provides numerous favorable alternatives, MAREC Action requests clarity that these alternatives remain allowable within the proposed revisions. DEQ may consider a requirement to test HSG after the mitigation work is complete in order to verify water quantity goals are achieved.
Further, MAREC Action encourages DEQ to not assume soil will remain compacted for prolonged durations. Soil may naturally decompact, especially as the operational lifetime of a solar facility typically exceeds 30 years.
MAREC Action appreciates DEQ’s thoughtful consideration to the relationship between widespread adoption of single-axis tracker technology and managing stormwater runoff. However, due to the varying physical limits of tracking panels, it is not possible to achieve a fully vertical position, as suggested during heavy rain events. This requirement should be amended to specify “to the extent possible according to manufacturer specifications”. Failing to adhere to the wind/hail/safety stow angles will invalidate multi-year term warranties and carries a higher risk for catastrophic equipment damage.
Requiring that at least 25% of the stand be legume species is a workable requirement for temporary stabilization or initial installation, however, the ratio is difficult to maintain for the full duration of operations as these species can die off quickly. Furthermore, routine nitrogen fertilization not only represents a significant cost, and would encourage the presence of undesirable species and result in water quality impacts. To achieve a cost-effective and practical nitrogen-fixing requirement, the provision could be set at requiring legumes as 25% of seed mix by percentage PLS.
While in most applications, the minimum disconnection length between two rows of solar panels can be equal to the width of each row. However, MAREC encourages an allowance for alterations here is needed, with additional mitigation to offset the variance, approved by consultation with the Department.
Based on updated phosphorus targets for new development, and pollutant loads for both impervious cover and managed turf, there is a significant increase in the total phosphorus load reduction for ground-mount solar projects across the Commonwealth. MAREC respectfully requests that DEQ clarify the acceptable use of redevelopment vs. new-development on the appendix spreadsheet. For example, if the existing land use is row-crop or pastureland, the redevelopment version of VRRM v4 would result in significantly less of an impact as compared to the new-development version.
Second, MAREC requests clarification on the allowable maintenance operations for solar facilities in the mixed-open land cover category. Guidance and previous comment responses indicates that DEQ intends for solar facilities to be categorized under mixed-open in areas where grading and compaction are not applicable. However, this would require sites to be mowed less than 4 times per year. With the standard vegetation proposed on-site, this may not be feasible to achieve the native and deep-rooted vegetation that successfully improves hydrologic conditions.
This concludes MAREC’s comments on Version 1.0 of the Virginia Stormwater Management Handbook. Thank you for your consideration.
Sincerely,
CommentID: 222381
MAREC Action requests clarification on whether the section below applies only to slopes, or to all areas after the site clearing and development phase.
Therefore, maintenance of a sufficiently stabilized surface (> 75% intact mulch or temporary vegetation) on slopes (> 5%) during the site clearing and development phase is important and should be followed by rapid establishment of a permanent perennial stand of vegetation sufficient to meet assumptions for unconnected surface water flow following storm events as enhanced by the panel arrays and drip lines.
Based on observations of regulations in other states, MAREC Action is not aware of other jurisdictions with similar standards related to soil decompaction. In particular, 6.3.1.5.3 mentions requiring “designers of any site to adjust post development curve numbers by one HSG to account for compaction during construction.” Increasing the HSG classification for post-development land covers by one factor will result in considerable impacts on post-construction runoff computations for solar facilities. As A.3.7.2 D. provides numerous favorable alternatives, MAREC Action requests clarity that these alternatives remain allowable within the proposed revisions. DEQ may consider a requirement to test HSG after the mitigation work is complete in order to verify water quantity goals are achieved.
Further, MAREC Action encourages DEQ to not assume soil will remain compacted for prolonged durations. Soil may naturally decompact, especially as the operational lifetime of a solar facility typically exceeds 30 years.
MAREC Action appreciates DEQ’s thoughtful consideration to the relationship between widespread adoption of single-axis tracker technology and managing stormwater runoff. However, due to the varying physical limits of tracking panels, it is not possible to achieve a fully vertical position, as suggested during heavy rain events. This requirement should be amended to specify “to the extent possible according to manufacturer specifications”. Failing to adhere to the wind/hail/safety stow angles will invalidate multi-year term warranties and carries a higher risk for catastrophic equipment damage.
Requiring that at least 25% of the stand be legume species is a workable requirement for temporary stabilization or initial installation, however, the ratio is difficult to maintain for the full duration of operations as these species can die off quickly. Furthermore, routine nitrogen fertilization not only represents a significant cost, and would encourage the presence of undesirable species and result in water quality impacts. To achieve a cost-effective and practical nitrogen-fixing requirement, the provision could be set at requiring legumes as 25% of seed mix by percentage PLS.
While in most applications, the minimum disconnection length between two rows of solar panels can be equal to the width of each row. However, MAREC encourages an allowance for alterations here is needed, with additional mitigation to offset the variance, approved by consultation with the Department.
Based on updated phosphorus targets for new development, and pollutant loads for both impervious cover and managed turf, there is a significant increase in the total phosphorus load reduction for ground-mount solar projects across the Commonwealth. MAREC Action respectfully requests that DEQ clarify the acceptable use of redevelopment vs. new-development on the appendix spreadsheet. For example, if the existing land use is row-crop or pastureland, the redevelopment version of VRRM v4 would result in significantly less of an impact as compared to the new-development version.
Second, MAREC Action requests clarification on the allowable maintenance operations for solar facilities in the mixed-open land cover category. Guidance and previous comment responses indicates that DEQ intends for solar facilities to be categorized under mixed-open in areas where grading and compaction are not applicable. However, this would require sites to be mowed less than 4 times per year. With the standard vegetation proposed on-site, this may not be feasible to achieve the native and deep-rooted vegetation that successfully improves hydrologic conditions.
It has come to our attention that the last draft reviewed by the SAG committee is different than what was posted on the web for this public review regarding the "exclusions of linear projects". In the draft for the last review by the SAG members, Section 4.3.2.7.2 had specific language under SWM Exceptions that "...VDEQ may use their best professional judgment when evaluating aboveground or underground linear utility projects. If the project will not result in significant changes to the pre-development runoff characteristics of the land surface after the completion of construction and final stabilization, then the VESMP authority or VDEQ, at their discretion, may waive the requirement for the preparation and implementation of an SWM Plan. These requests will be considered on a site-specific basis, as an SWM plan may be required if the linear utility project will alter the pre-development runoff characteristics of the land surface". This exclusion has been of a key importance to allowing linear projects to be built without the costs of water quantity and quality and was part of the GM 15-2003. Has this language been placed somewhere else, as we have not been able to find it.
While at it, we would like to add that the Professional Engineer should also be allowed to use at his or her discretion that the linear project of less than 30' wide can be done without a SWM Plan provided the linear project will not alter the pre-development runoff characteristics of the land surface.
MAREC observed that Section 6.3.1.5.3 of the Handbook deviates from item four of the Guidance Memo 22-2012. Interconnection Approval is determined to be a PJM approval of a new service request before April 14, 2022, rather than submission of the new service request by December 31st, 2024. Furthermore, the Handbook does not stipulate that a review by the electric utility would qualify projects under the previous guidance. In this manner, distribution-level projects are unable to use the previous guidance, as they may not submit service requests to PJM. These projects may be required to lease additional land – or redesign projects entirely - to accommodate the new guidance. Thus, MAREC requests DEQ clarify the Handbook to match the text in the Guidance Memo No. 22-2012, November 30, 2022.
I have been unable to locate clear direction regarding exemption of linear utility projects from the SWM requirements. The lack of clear direction within the stormwater manual has caused permitting confusion and delay over the past ten years. Specializing in water and sewer infrastructure projects, I have seen this occur repeatedly since the new regulations where enacted 10 years ago, despite GM 15 having been issued. These linear utilities are most often built on private property within a narrow utility easement. The ability to provide effective stormwater management practices within a narrow utility easement is not practical and imposes additional impact to private property owners who are many times hesitant to grant the easement for the buried utility itself. Additionally, to effectively install and implement BMP strategies downstream of the easement area could necessitate property acquisition in addition to easements, further complicating property rights and leading to potential condemnations. Furthermore, the uncertainty of a requirement can delay design, reviews, and construction timelines for critical infrastructure that will serve the health, safety, and welfare of the general public. A typical water or sewer utility will have a minimum 50-foot width of disturbance to allow for sidecasting of excavated soils, staging of materials, and passage of equipment and materials along the installation corridor. Large diameter sewer interceptors, water supply, or distribution lines may require a wider disturbance depending on size and depth of bury. The disturbed areas are returned to pre-construction grades and left in a stabilized vegetated state per applicable E&S measures. I respectfully request that a clear exemption for linear utilities be included within the new SWM manual with references included in the erosion and sediment control portions of the regulation. Thank you.
I strongly concur with and had the same comments as:
Additional point to the Section A.5.4 about limiting 10% deviation of drainage area. This should be rephrased to be a suggestion/recommendation, because local agencies take the terminology as "should" as equivalent to "shall." If should by DEQ definitions is meant to be recommendation/goal to strive for, please define that somewhere because local agencies will not grant waivers or variances for anything listed in the SWM Hanbook as a requirements, because to them the Handbook/Specs are equivalent to laws.
If "should" really does mean "shall" and is a strict requirement, I understand it is ideal to maintain predevelopment divides, but its not feasible to set a restrictive percent deviation when detention at every single outfall is not feasible due to the downstream receiving conditions. Especially in very rural situation where downstream properties don't have an defined receiving channel to discharge a detention system to because the watershed is rural and does not concentrate, it sheet flows or shallowly runs off onto neighbor properties. Those situations a downstream property can already be affected by flooding and erosion due to the rural nature and having large amounts of sheet flow area that doesnt have a concentrated outfall. So they don't have the ability to install a detention system to maintain predevelopment flows because of a lack of a defined channel to discharge to. The solution in those situation are to send drainage area to another watershed that does have a defined receiving channel, which is inevitably always more than a 10% deviation of the drainage area because impervious area generated more than 10% runoff than predevelopment conditions of forests and lawns. This happens on every one of my byright rural subdivisions where I am just installing a few house on multiple multi acre lot that predevelopment wise sheet flows to an adjacent property that would be problematic to have increased volumes of sheet flow. So I install storm sewer and send the lots drainage area to another outfall where there is a detention facility that can be constructed. That outfall is compliant with regulations so it shouldnt matter if any watersheds change by 10%. It should be phrased as recommendation to strive for as said previously.
Any other comment not listed in this list made by others I agree with as well.