Please consider the following comments on the proposed amendments to the Virginia Erosion and Stormwater Management Regulation, 9VAC25-875. Also note that these are staff comments and do not represent an adopted position of the Fairfax County Board of Supervisors.

1) Based on the wording in repealed 9VAC-870-114, the "subsection B" reference in 9VAC25-875-140.D should be "subsection C." Note: this section is not included in the proposed amendments but is a needed technical correction to the regulation.

2) By deleting old paragraph C in 9VAC25-875-490, the grandfathering for public projects under old paragraph B has been made permanent. Under old paragraph B, such projects are subject to the "one additional permit cycle" criteria. Was this intentional? This appears to be beyond the scope of what is stated in the regulatory action description as correcting technical errors.

3) There appears to be a consistency issue between 9VAC25-875-470.A.2 and 9VAC25-875-740. 9VAC25-875-470.A.2 references 9VAC-25-875-670 but 9VAC25-875-740 does not.

4) Why is the reference to June 30, 2012, being retained in 9VAC25-875-740.B? Clearly the date has passed and is no longer relevant. Note: this section is not included in the proposed amendments.

5) The proposed action to delete 9VAC25-875-490 paragraph A will eliminate the grandfathering for privately funded projects. Without that text in the regulation, any revisions that are submitted/needed while a qualifying grandfathered project is still under construction will not have a code basis for approval under the "old" technical criteria. The intent of grandfathering is to allow projects that started construction by the specified time to continue under the "old" technical criteria so they would not have to redesign stormwater management facilities. Deleting paragraph A removes the certainty of that protection. Paragraph A should be retained.

This Regulatory Action must not delete Paragraphs A and C of 9VAC25-875-490 in the stormwater consolidated regulations.

Deleting Paragraph A will eliminate the criteria that define those "privately funded" projects that qualify under the Grandfathering provision. Paragraph A must remain in the regulations, because it is referenced in Paragraph C.

Deleting Paragraph C removes the “one additional permit cycle” requirement/deadline to commence construction. Obviously, the deadline to start construction has past. However, there is no required date for the completion of such qualifying projects. The problem is that without this text in the regulations (and in the corresponding local ordinances), any Revisions that are needed to address issues that arise during construction will not have a code basis for approval. It is clear that the intent (and has been the interpretation and application for the last ten years) is to allow projects that started construction by the specified time to continue under the “old” technical criteria so they would not have to redesign the project to comply to subsequent changes in the requirements. New requirements should not be retroactively applied to previously approved projects.

Paragraph C must be retained, but may be edited to clarify the limited scope of the continued applicability, to read as follows (added text is underlined, deleted text is shown with strikethrough):

C. Land disturbing actives grandfathered under subsections A and B of this section, shall and had commenced construction prior to July 1, 2019, may remain subject to the technical criteria of Article 4 of this part for one additional permit cycle until construction is completed, and any revisions may be approved provided there is not an increase in the amount of phosphorous leaving each point of discharge and that there is not increase in the volume or rate of runoff. After completion, any additional land-disturbing activity must comply with the technical criteria in Article 2, 3 or 5 of this part. After that time Any portions of the project not under construction as of June 30, 2019, shall become are subject to any new the current technical criteria adopted by the board.

The other issue that deleting Paragraph C creates is with Paragraph B projects (i.e., non-Time Limits projects where there has been an obligation of local, state or federal funding prior to July 1, 2012, or the department has approved a SWM plan prior to July 1, 2012). Currently, Paragraph B projects are also subject to the “one additional permit cycle” criteria. Deleting paragraph C as proposed removes that limitation and would then expand the Grandfathering provision indefinitely for those Paragraph B projects. Currently, the only projects that have infinite Grandfathering are those that qualify under Paragraph D (i.e., cases where government bonding or public debt financing has been issued prior to July 1, 2012).