LOCAL STORMWATER PROGRAMS WHAT THE STATE IS EXPECTING: LOCAL - - PowerPoint PPT Presentation

• M. Ann Neil Cosby

Sands Anderson PC 1111 E. Main Street Richmond, VA 23219 (804) 783-7225 ancosby@sandsanderson.com

VACO FALL Conference Hot Springs, Virginia November 2012

LOCAL STORMWATER PROGRAMS – WHAT THE STATE IS EXPECTING:

LOCAL STORMWATER MANAGEMENT ORDINANCES

STATE LAW REQUIREMENT

• Each locality that administers an approved

Virginia Stormwater Management Program (VSMP)must adopt a Stormwater Management Ordinance to do so.

• VSMP intended to be administered in conjunction with a local erosion

and sediment control program and MS4 program where applicable

• Va. Code § 10.1-603.3.E (Stormwater Management Act)
• Stormwater Management Ordinance must be

submitted to and approved by the Virginia Soil & Water Conservation Board (SWCB), prior to July 1, 2014.

STATE LAW REQUIREMENT

• Stormwater Management Ordinance must, at

minimum:

• Be consistent with Virginia Stormwater Regulations
• Address responsibility for and maintenance of stormwater BMPs
• Integrate the VSMP with the following:
• Erosion and sediment control
• Flood insurance criteria
• Flood plain management
• Other programs requiring compliance prior to authorizing

construction

• Va. Code § 10.1-603.3.E.

TIMELINE

• Timeline for submittal of proposed VSMP (including

required Ordinance)

• State law requires that local VSMP be approved by SWCB

by June 13, 2013.

• DCR suggests submitting a preliminary packet to Regional

DCR Office by April 1, 2013 with a request for a 1 year extension [to June 2014].

• Must show “substantial progress” in developing VSMP to
• btain extension
• “Substantial progress” means:
• Identification of the authority to accept complete

registration statements

• Preliminary draft of the Stormwater Management

Ordinance

• Draft staffing and funding plan

MODEL ORDINANCE

• DCR is currently working on a Model

Ordinance

• Localities should determine how ordinance

provisions may be integrated into existing programs

• May not be appropriate to adopt in full
• May need to amend other existing
• rdinances to ensure consistency

VSMP IN A NUTSHELL

• VSMP established to administer and enforce VSMP

General Permit for Discharges from Construction Activities.

• DCR still approves Construction General Permit
• But local administration allows “one stop shop” for developers
• Locality will grant VSMP Authority Permit, if General

Permit requirements are met.

• General Permit requirements include:
• Registration statement (submitted to DCR)
• Submission of required plans
• Payment of fees
• Posting of Bond
• Evidence of any off-site mitigation

ORDINANCE REQUIREMENTS

• Stormwater Management Ordinance must

include the following minimum criteria:

• Identification of the authority accepting complete registrations

and of the authorities completing plan review, plan approval, inspections and enforcement

• Submission and approval of an E&S Plan and Stormwater

Management Plan (SMP)

• Provisions to ensure all necessary plans meet necessary state

requirements

• Requirements for inspections and monitoring by the Operator
• Requirements for long-term inspections and maintenance of

stormwater management facilities

• Enforcement procedures and civil penalties
• Virginia Administrative Code, 4 VAC 50-60-148

ORDINANCE REQUIREMENTS

• Stormwater Management Ordinance

should also address:

• Hearings
• Appeals
• Policies and procedures to obtain and release bonds

CONTENT OF ORDINANCE

• Purpose and Intent
• Definitions
• Establishment of Program; Applicability
• Prohibitions; Permit requirement
• Plan Requirements
• Review criteria (Grandfathering)
• Long-term Maintenance Requirements
• Monitoring and Inspections
• Hearings, Enforcement, and Penalties
• Fees and Bonds

ESTABLISHING PROGRAM; APPLICABILITY

• Prohibitions and Applicability
• Prohibits land disturbing without a local VSMP permit, except…
• No permit is required for:
• Permitted mining or oil and gas operations
• Clearing conducted for agricultural purposes
• Single family residences disturbing less than one acre and not

part of a larger plan of development

• Land disturbing activities that disturb less than one acre of

land and are not part of a larger plan of development [note: locality can decrease this minimum threshold]

• Discharges to sanitary sewer or combined sewer system
• Activities under a state for federal reclamation program to

return abandoned property to any agricultural or open use

• Routine maintenance
• Land disturbing conducted in response to a public emergency

ESTABLISHING PROGRAM; APPLICABILITY

• Establishing Program
• Identify who will be accepting applications, reviewing and

approving plans, and conducting inspections and enforcement

• Localities are expressly authorized "enter into agreements
• r contracts with soil and water conservation districts,

adjacent localities, or other public or private entities to carry out or assist with the responsibilities of [the Stormwater Act]“

• Va. Code §10.1-603.3 A and H.
• Only applies to plan review and inspections
• Determining whether to conduct plan review and/or

inspections in-house may be based on cost to locality

STATEWIDE FEE SCHEDULE

Disturbed Area Fee < 1 acre $290 ≥ 1 acre & < 5 acres $2,700 ≥ 5 acres & < 10 acres $3,400 ≥ 10 acres & < 50 acres $4,500 ≥ 50 acres &< 100 acres $6,100 ≥ 100 acres $9,600

CALCULATION EXAMPLE

No. Type Unit Fee Total Fee DCR Portion (28%) Locality Portion 6 ≥ 1 acre & < 5 acres $2,700 $16,200 $4,536 $11,664 2 ≥ 5 acres & < 10 acres $3,400 $6,800 $1,904 $4,896 1 ≥ 10 acres & < 50 acres $4,500 $4,500 $1,260 $3,240 LOCALITY ANNUAL TOTAL $19,800 Will This Cover Program Costs? Is Your Current Staff Sufficient? Additional Fees? Cooperative Effort? Contract Portions of Program?

LOCAL VSMP PERMIT REQUIREMENTS

• Operator must submit the following to the

locality to obtain local VSMP permit:

• General Permit registration statement
• Necessary Plans
• Other control measures
• Fees
• Proof of off-site mitigation measures
• Bond

Stormwater Pollution Prevention Plan (“SWiPPP”)

Other statutory criteria Stormwater Management Plan (“SWMP”) E&S Plan

S Plan

Pollution Prevention Plan (“P3")

NECESSARY PLANS

PLANS APPROVED BY THE LOCALITY

• Erosion & Sediment Control Plan
• Approved by the Locality in accordance with

existing E&S ordinance

• Stormwater Management Plan
• Approved by the locality in accordance with

Technical Criteria set forth in Regulations.

• Local staff will need to be certified to conduct

Plan Review and Inspections.

• Training will not be offered by DCR free of

charge

PLANS REQUIRED BUT NOT APPROVED BY THE LOCALITY

• Pollution Prevention Plan
• Required to address any hazardous pollutants
• Other statutory SWPPP requirements
• These plans are not “approved” by the

Locality

• Must be maintained on site; available on the

internet

GRANDFATHERED PROJECTS

• Any land-disturbing activity proposed to occur

pursuant to

• i) a currently valid proffered or conditional zoning plan or
• ii) a preliminary or final subdivision plat or
• iii)a preliminary or final site plan or
• iv) a zoning with a plan of development or
• v) any other plan of development or site plan approved by the

Locality and determined to be equivalent thereto

• And where…

GRANDFATHERED PROJECTS

• The plan/plat was approved prior to July 1, 2012
• and provided a layout identifying the specified stormwater

management facilities is shown on the plan/plat

• and VSMP permit coverage has not been granted prior to July 1,

2014

• Grandfathered until June 30, 2019
• Appears inconsistent with Virginia’s Vested Rights Statute (Va.

Code §15.2-2307)

• Statute provides for the vesting of preliminary plats and plans
• nly if "the applicant diligently pursues approval of the final plat
• r plan within a reasonable period of time under the

circumstances."

INSPECTION REQUIREMENTS

• Post-construction inspections of stormwater

maintenance facilities must be conducted pursuant to the Locality's adopted inspection program, and shall occur, at minimum, at least

• nce every five (5) years.
• Ordinance may reference Inspection Policies and

Procedures, but these must be included in Program Application.

• State fee schedule does not include $$ for long-

term inspections

HEARINGS

• Stormwater Management Act requires that:
• A party aggrieved by any action of the VSMP authority taken

without a formal hearing may demand in writing a formal hearing

• Petition must be filed within 30 days after notice of such

action.

• Section 10.1-603.12:6 of the Code of Virginia
• As local VSMP's will be administered at the staff level,

most, if not all, decisions will be taken without a formal hearing.

• This means that a formal hearing must be held any time

an operator or another person claims to be "aggrieved" by a decision of the VSMP program administrator.

HEARINGS

• Local formal hearings must be consistent with state

hearings:

• Conducted by the local governing body or at least one

member thereof.

• Question: Can a separate appeals board be established?
• A verbatim record of the proceedings of such hearings must

be taken, and depositions may be taken and read as in actions at law.

• Subpoenas can and shall be issued upon request.
• Witnesses who are subpoenaed shall receive the same fees

and reimbursement for mileage as in civil actions.

• See Va. Code §10.1-603.12:7.

APPEALS

• Stormwater Management Act states “appeals shall be

conducted “in accordance with local appeal procedures.”

• Va. Code § 10.1-603.13
• What does this mean?
• Who can appeal?
• What procedure applies?

ENFORCEMENT PROVISIONS

• Enforcement provisions must incorporate:
• Informal and formal administrative enforcement procedures
• AND
• Civil and criminal judicial enforcement procedures
• From a list in 4 VAC 50-60-116 [VA Administrative Code]

ENFORCEMENT PROVISIONS

• Administrative remedies include:
• 1.) verbal warnings and inspection reports;
• 2.) notices of corrective action;
• 3.) consent special orders and civil charges in accordance

applicable sections of the Act;

• 4.) notices to comply in accordance with the Act;
• 5.) special orders [in accordance with subdivision 7 of §10.1-603.2:1
• f the Act];
• 6.) emergency special orders [in accordance with subdivision 7 of

§10.1-603.2:1 of the Act]; and

• 7.) public notice and comment periods for proposed settlements

and consent special orders [pursuant to 4VAC50-60-660].

• BUT the last three remedies only apply to the SWCB,

not to localities.

MORE STRINGENT STANDARDS AUTHORIZED

• Localities are authorized to adopt more stringent

stormwater management ordinances than those meeting the minimum Regulations

• Any more stringent requirements must based on
• Factual findings of a watershed management study
• Determination of necessity to
• prevent any further degradation to water resources
• address TMDL requirements
• protect exceptional state waters or
• to address specific existing water pollution including
• nutrient and sediment loadings, stream channel erosion,

depleted groundwater resources, or excessive localized flooding within the watershed

MORE STRINGENT STANDARDS AUTHORIZED

• Prior to adopting more stringent ordinances a public

hearing must be held

• Localities must report to the Soil and Water

Conservation Board when more stringent stormwater management ordinances are determined to be necessary.

• M. Ann Neil Cosby

Sands Anderson PC 1111 E. Main Street Richmond, VA 23219 (804) 783-7225 ancosby@sandsanderson.com

THANK YOU!