We have reviewed the guidance document and offer the following comments:

Section C states:

If DEQ observes a trend of deficient SWM and/or ESC plans that were reviewed by the same Dual Combined Administrator for ESC and SWM, DEQ reserves the authority to suspend, revoke or refuse to grant or review the certification pursuant to the process provided in 9VAC25-850-90 and no longer accept that Dual Combined Administrator for ESC and SWM’s Certification for the streamlined review unless that person retakes all six (6) required classes and passes the related tests to receive a new certification number. For professional engineers, DEQ will notify the Virginia Department of Professional and Occupational Regulation (DPOR) for their review. For purposes of this guidance DEQ defines a trend of deficiency as:

1. Five incomplete review checklists, and/or;
2. Three plan reviews which generate comments that are deemed significant enough to require resubmission in lieu of plan approval.

1. The definition of “a trend of deficiency” is overly punitive and does not allow for an appeal process. We have experienced incomplete reviews resulting in invalid comments. For example, DEQ has made comments they could have been resolved if a thorough review was performed. Additionally, multiple comments for the same issue are not uncommon.

There needs to be some type of appeals process to improve the determination of a trend of deficiency.

Additionally, there needs to be a timeframe associated with this process. For example, a trend in deficiency is to be evaluated of a two year period.  

2. Furthermore, “comments that are deemed significant enough to require resubmission in lieu of plan approval” is not well defined and subjective.

3. Notifying the Virginia Department of Professional and Occupational Regulation (DPOR) for their review” may have unintended consequences. It may dissuade participation in the program unless changes to the guidance are made addressing the above concerns.

Additionally, having DPOR review compliance with DEQ checklists appears to be outside their charge which is to issue professional credentials, enforce standards of professional conduct, and to work with local law enforcement to assist in bringing criminal charges of individuals practicing without a license.

Signed: Steve Pandish, PE, Kelsey Ryan, PE, and MacKenzie Bauman, PE (Gordon)

As written, I do not think this document will encourage the use of the streamlined process.  The liability/risk that is being placed on the Developer, PE & DCA may keep it from being utilized.  In addition, if DEQ chooses to review during the “audit period” this will only extend the review timeline as additional time and will already have been spent outside of the DEQ period and part of the concern, whether valid or not, is the type of review we are currently experiencing from DEQ at the moment.  For example, some comments are generic and provide no clarification on what the actual issue is with the plan or for the more specific comments the information requested is already on the plans so it is apparent thorough reviews are not being completed.  This is happening into 2^nd/3^rd submittals. 

My gut reaction when reading this was that I hope plans that I stamp and seal do NOT get submitted as part of this process and that I would not want to put any DCA on our staff into this position.  A third party DCA at least has a choice to be a part of this process.  However, as a PE, I may have no choice if the developer hires a 3^rd party reviewer.  To get reported to DPOR on a subjective “trend of deficiency” if another certified party has reviewed and approved the plans seems over the top.

Recommend including a section on how the proposed process applies to Annual Standards and Specifications entities.

AES Clean Energy (AES CE) appreciates the Virginia Department of Environmental Quality’s (DEQ) recognition of the current delays in the review process for stormwater management (SWM) and erosion and sediment control (ESC) plans where DEQ is the Virginia Stormwater Management Program (VSMP) authority, and we applaud the agency’s initiative to create a more streamlined process. AES CE is overall supportive of the proposal, however requests clarification on the below items and makes the applicable recommendations:

1. “If DEQ elects to audit the SWM and/or ESC Plan during the 60-day period and observes deficiencies, then those deficiencies must be addressed by the Applicant.” “For plans that are deficient, the law allows the agency 45 days to act on any resubmitted plans.”

How will application deficiencies be communicated from agencies to the applicant? To streamline the response time to potentially several agency requests, AES CE recommends that an applicant be provided with a consolidated list of requests, and once those deficiencies are addressed by the applicant, the application be deemed approved. If DEQ elects to audit an application and deficiencies are observed within the 60-day period, then the applicant should be notified by email no later than five working days after the 60-day period. DEQ should consider building a website where an applicant can view the status of their application to facilitate review transparency and timely communication.

2. “Otherwise, if DEQ elects to NOT conduct a completeness review during that initial 15 day period, and relies upon the certification by the professional engineer and Dual Combined Administrator for ESC and SWM, the 60-day period for streamlined approval will commence upon receipt of the SWM Plan.”

AES CE recommends that DEQ be required to communicate to the applicant the date that which DEQ elected to not conduct a completeness review during that initial 15-day period and noting the commencement date of the 60-day period.  Such communication should be emailed to the applicant no later than five workings days from the date at which DEQ elected to not conduct a completeness review. AES CE reiterates the need for a website to review application status.

3. “DEQ retains its authority to further review any SWM and ESC Plan submitted under this streamlined SWM and ESC plan review process, and under its discretion require modification or re-submittal under the general plan review process. For purposes of this guidance the 60-day period will be considered to be the “Audit Period.” During the Audit Period, DEQ may review plans and will provide any and all comments to the applicant for resubmission and further review. Plans for audit review will be selected by DEQ on the basis of workload and project risk level (by looking at project disturbance area, percentage of disturbed land with higher risks for erosion,⁶ and the percentage of impervious cover⁷).”

“₇ For purposes of this guidance, as a rule of thumb, if greater than 25% of the Limits of Disturbance (LOD) is Impervious (including unconnected impervious area), then DEQ will consider the site to be High Risk, if 10-25% of the site is Impervious then DEQ will consider the site to be Medium Risk, and if less than 10% of the site is Impervious, then DEQ will consider the site to be low risk.” 

This language, in conjunction with the March 29, 2022 and April 14, 2022 DEQ memorandums characterizing solar panels as impervious surfaces, negatively targets the solar industry in this audit process and is effectively stating that all solar projects will need to go through the general plan review process. AES CE recommends removing this language and doing a random sampling from the pool of projects for audit.  

4. “If DEQ observes a trend of deficient SWM and/or ESC plans that were reviewed by the same Dual Combined Administrator for ESC and SWM, DEQ reserves the authority to suspend, revoke or refuse to grant or review the certification pursuant to the process provided in 9VAC25- 850-90 and no longer accept that Dual Combined Administrator for ESC and SWM’s Certification for the streamlined review unless that person retakes all six (6) required classes and passes the related tests to receive a new certification number. For professional engineers, DEQ will notify the Virginia Department of Professional and Occupational Regulation (DPOR) for their review. For purposes of this guidance DEQ defines a trend of deficiency as: a) Five incomplete review checklists, and/or; b) Three plan reviews which generate comments that are deemed significant enough to require resubmission in lieu of plan approval. Qualifying for the streamlined SWM and ESC plan review process does not alleviate the permittee/owner from the obligation to comply with any statute, regulation, permit condition, DEQ Guidance, memo or letter to Industry from DEQ, Technical Bulletin, other order, certificate, certification, DEQ Manual, standard, or other applicable requirement.”

AES CE recommends that DEQ re-evaluate the penalty for Dual Combined Administrators as the potential for the two identified trends of deficiency are common for large scale, complex project and the penalties associated include significant time and fees for the individual. AES CE also recommends that penalties for DEQ representatives be clearly identified in this section for instances including (1) they do not meet outlined timelines and (2) approved plans are followed but become enforcement issues. If DEQ elects to retain this penalty for Dual Combined Administrators, will this information be available to future applicants to inform them of which Dual Combined Administrators are not meeting these standards.

5.  Plan Submission Checklist, Section G, #41 “Geotechnical investigation/report”

AES CE recommends revising this requirement for inclusion of the geotechnical investigation report within the plan submission to instead require only a reference note to the report rather than providing a separate standalone document. Pertinent information provided in the geotechnical report will be depicted in the plan submission and providing a standalone document is redundant.

6. Certification section under checklist:

1. • “I hereby certify that all wetlands permits required by law will be obtained, if required, prior to commencing land disturbing activities.”

AES CE recommends revising this certification statement to specify that wetland permits required by law will be obtained prior to commencing land disturbing activities in proposed impact areas.

2. • “I hereby certify that permission to construct any offsite improvements, if proposed, will be obtained prior to commencing land disturbing activities.”

AES CE recommends revising this certification statement to specify that permission to construct any offsite improvements will be obtained prior to commencing land disturbing activities in proposed offsite areas.

3. • “I hereby certify that all offsite nonpoint source nutrient credits will be obtained, if proposed, prior to commencing land disturbing activities”

AES CE recommends revising this certification statement to specify that all offsite nonpoint source nutrient credits will be obtained prior to commencing land disturbing activities in associated impact areas.

7. AES CE recommends a thorough spelling and grammatical review of the guidance document.

I am writing on behalf of the Virginia Association for Commercial Real Estate (VACRE) to provide comments on the proposed guidance document for streamlined plan review GM22-2011 that was published in the Virginia Register of Regulations on August 1, 2022

VACRE represents Northern Virginia, Hampton Roads and Richmond area commercial and industrial developers who have teamed with other professionals from the urban crescent of Virginia to serve as the voice of the commercial and industrial development community in Virginia.  NAIOP Northern Virginia, the Hampton Roads Association for Commercial Real Estate (HRACRE) and the Greater Richmond Association for Commercial Real Estate (GRACRE) comprise the three member chapters of VACRE.  There are about 800 member companies and more than 2000 individuals in VACRE’s three member chapters.  Many of the companies comprising VACRE’s chapters have offices and are creating jobs and promoting Virginia’s economic development in two or all three of the regions of Virginia that VACRE represents. 

The cost and complexity of compliance with Virginia’s stormwater management requirements makes this program one of the most challenging for the owners and developers of most any private or public development.  While the Department of Environmental Quality has done a good job implementing this program that they inherited from the Department of Conservation around 2014, delays in permit processing have been a source of frustration for many.  Because delays can often result from inadequate submissions from applicants, as well as complex and piecemeal guidance from the agency, the proposed checklist and process for streamlined plan review process for applicants with projects in localities where DEQ conducts the plan review (i.e., “opt-out” localities) will be allow both private and public projects to be completed more quickly, at reduced cost and with less unexpected delays.

The proposed streamlined process not only will increase the efficiency of the permitting process and institute business-like tracking of permit applications during processing, but they will increase environmental protection with performance standards and other requirements that are required to be met to get permits processed within a fixed timeframe.

VACRE strongly supports this proposed guidance.  Our members greatly appreciate the transformational work DEQ staff is doing on Virginia’s stormwater and erosion control programs under the leadership of its Director Mike Rolband through issuance of this and other proposed guidance as well as through other process and regulatory improvements underway. 

Thank you for consideration of these comments. 

Sincerely,

Philip F. Abraham

Legislative Counsel

Virginia Association for Commercial Real Estate

The Virginia Farm Bureau Federation (VFBF) appreciates the opportunity to submit comments to the Department of Environmental Quality on the Stormwater Management and Erosion Sediment Control Design Guide, No.22-2012.

Virginia Farm Bureau is the Commonwealth’s largest general farm organization, representing more than 33,000 farmers of nearly every type of crop and livestock across Virginia. Farm Bureau and its members have worked together to build a sustainable future of safe and abundant food, fiber, and renewable fuel for the United States and the world.

VFBF appreciates the Department’s work to clarify solar projects’ compliance with Virginia’s Stormwater Management Program. We supported DEQ’s March 29, 2022 technical memorandum implementing a stronger post-development stormwater management policy for solar projects. Farm Bureau supports proper mitigation of the impacts of solar projects to reduce nutrient loads to the Chesapeake Bay. This organization has long supported all sectors should work towards achieving our Chesapeake Bay goals.

We believe evaluating the solar panels as unconnected impervious areas aligns with how these areas are assessed in the Chesapeake Bay Program Model.  This will allow Virginia to take credit for compliance and increase the likelihood of our complying with the Third Phase of the Commonwealth’s Watershed Implementation Plan (WIP).

We recognize that this guidance is complimentary to Guidance Memo No. 22-2011.  In that plan information, we appreciate requiring the plan to identify prime farmland in the Land Cover Tabulation.  We would hope that this step would help the developer of the solar facility to avoid locating these facilities and panels on prime farmland or minimizing the impact to such areas.

The Virginia Farm Bureau Federation respectfully submits these comments and appreciates the Administration’s attention to this issue and look forward to continuing to work on mitigation efforts on-site of renewable energy projects during the planned Regulatory Advisory Panel as designed in HB 206. 

Martha Moore

Senior Vice President Governmental Relations

Virginia Farm Bureau Federation

August 31, 2022

Ms. Melanie Davenport

Commonwealth of Virginia

Department of Environmental Quality

Director - Division of Water Permitting

1111 East Main Street

Richmond, VA 23219

Re:      Guidance Memo No. 22-2011 Public Comment

Streamlined Plan Review for Construction Stormwater Plans and Erosion and Sediment Control Plans submitted by a Professional Engineer and reviewed by a Dual Combined Administrator for Erosion and Sediment Control and Stormwater Management

Dear Ms. Davenport:

Hewitt Solutions is an active and experienced design and consulting firm in the solar land development space that has worked very closely with DEQ for several years. We appreciate the opportunity to review the aforementioned guidance memo and offer the following comments: 

Section B (Page 4)

• Clarify if DEQ is advising locality VSMPs on approach to or adoption of a similar process, and if DEQ will allow or encourage them to use a similar approach.

• This memo specifies that the plans must be designed under the direct supervision of a professional engineer.  Will DEQ still accept plans designed by licensed LA or LS-B?

Section B (Page 5)

• Clarify the process if the locality VESCP has not approved the ESC plan, but the 60 days of DEQ SWM audit time has lapsed - therefore DEQ considering the SWM plan approved?
• Clarify the process if the locality VESCP issues comments and the plan is updated, prior to the close of the 60-day audit window, and if this would trigger a new completeness review and audit period entirely.
• In the past, DEQ has required locality ESC plan approval prior to SWM plan approval. Clarify if that has changed.

Section C (Page 6)

• Clarify when DEQ pulls a plan during the audit period what the anticipated review timeframes are, or if they are referenced back to the standard code requirements. 
• Suggest an absolute (rather than relative), or hybrid, approach of determining low-medium-high risk sites for audit review. For example, a 10-acre site with 50% of LOD in erodible soils represents far less risk than a 2,000-acre site with 15% of LOD in erodible soils.
• Suggest adding more defined information and guidance on what plans will be audited. As it reads now with no concrete guidance, the design and construction industry at large can only assume that these changes will lengthen, not shorten, the review period (i.e., plans will have an additional 60 days in the audit period, then be pulled for a standard review as they are subject to today.)
• The discussion of “strikes” for professionals and DCAs involved in plan preparation incites questions and comments on several points, including:
  • Who will be responsible for deeming the plans deficient enough to count as one of the three strikes for the DCA?
  • Is there an appeal process for strikes against the DCA? Who will the arbiter of disagreements or appeals be?
  • Who will keep a record of the DCAs strikes?  Will this information be publicly available?
  • Suggest requiring the DEQ plan reviewer contact the engineer and DCA to discuss why they deem the plan deficient before the strike is issued. This would ensure that both parties are on the same page and ensure that the plan was deficient (i.e., the plan reviewer did not simply miss something.)

Appendix A: Plan Submission Checklist (Page 8)

• If DEQ is not the VESCP authority, clarify if the ESC portion of the checklist need to be filled out, and if the checklist will be deemed incomplete if not.

• Clarify where to provide the latitude & longitude of SWM facilities: middle of facility, center of spillway, etc.

We appreciate your time and consideration of the comments within.

Respectfully,

The Hewitt Solutions Team

Appalachian Power Company (APCO) is an Annual Standards and Specifications (AS&S) holder for our electric and communication linear projects, and also have projects that are non-linear within localities where the DEQ is the Virginia Stormwater Management Permit (VSMP) Authority.  We agree with the need for a streamlined plan review process and are in favor of the model framework that DEQ is putting forward.  APCO understands the guidance memo does not apply to AS&S projects but believes DEQ could see the same improvements to review time and staff workload by allowing AS&S holders to approve project variances under Guidance Memo 15-2003 as part of the streamlined process.

APCO has engineering standards that set cover sheet templates for our projects and we ask the DEQ to allow the plan submittal checklist to be included as a General Notes plan sheet or included in a narrative report accompanying the plan set submittal.

APCO has heard from our consultants that there is a concern over the language within Section C regarding audits or compliance inspection results including actions to revoke certifications or engage DPOR is some enforcement action.  These concerns come from past comments received during plan review cycles that may be due to regional differences or changes in interpretation of regulations over time by DEQ.  We believe that the plan review checklist and streamlined process will focus attention of the certified plan reviewer to the regulatory requirements and that sound engineering judgement should be a focus of any audit or inspection.  APCO wants to make sure that our consultants are not jeopardizing their livelihoods or professional licensure over interpretations of the regulations and instead specifically held to the regulations as written and requirements within the General Permit.

We appreciate the opportunity to review and comment on this document.

Sincerely,


Jared Webb, PE