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).