Chapter 1. Watercourses Generally.

§§ 62.1-1 through 62.1-4. Repealed by Acts 1992, c. 836.

Cross references.

For present provisions as to fisheries and habitat of the tidal waters, see § 28.2-100 et seq.

Editor’s note.

At its regular session of 1966 the General Assembly directed the Code Commission to revise certain titles of the Code, including Title 62, relating to waters of the State, ports and harbors. In December of 1967, the Commission sent to the Governor and General Assembly a report containing the proposed revision of Title 62, which was published as House Document 9 of the 1968 session. This report contained revisor’s notes and other explanatory matter. The Commission’s draft of the revision of Title 62, as amended by the General Assembly, became chapter 659 of the Acts of 1968. Effective Oct. 1, 1968, it repealed Title 62 of the Code and enacted a new Title 62.1. Pursuant to § 30-152, the Code Commission incorporated in Title 62.1 the amendments to Title 62 enacted at the 1968 session of the General Assembly.

Subsequently, Acts 1992, c. 836, which revised and recodified the tidal fishing and habitat laws of Virginia, by inter alia, adding a Title 28.2 and repealing Title 28.1, repealed §§ 62.1-1 through 62.1-4, 62.1-9.1 , 62.1-13.1 through 62.1-13.20, 62.1-13.21 through 62.1-13.28, and 62.1-194.1:1 .

Some of the cases cited in the notes under the various sections of this title were decided under corresponding provisions of former Title 62.

§ 62.1-5. Repealed by Acts 1987, c. 488.

Cross references.

As to game, inland fisheries and boating, see § 29.1-100 et seq.

§ 62.1-6. Clearing watercourses between counties of obstructions.

The circuit court of any county which is divided by a watercourse from another county or through any part of which a watercourse passes may, by itself or in conjunction with the circuit court or circuit courts of any other county or counties, contract with any person or order laborers to be hired to clear such watercourse of obstructions in such manner and to such extent as may seem to it proper, and there shall be charged on any county whatever sum the court thereof may agree to pay for such purpose.

History. Code 1950, § 62-4; 1968, c. 659.

Cross references.

As to improvement of navigability of streams, see §§ 62.1-155 through 62.1-158 .

For other provisions relative to obstruction of watercourses, see §§ 62.1-164 , 62.1-194 through 62.1-194.3 .

§ 62.1-7. Rights of improving navigation preserved; dams, etc.

Whatever power is reserved to the General Assembly by any act heretofore passed to abate or remove any dam or other works in a watercourse, or to improve its navigation, shall continue in full force. And in no case shall the right of the Commonwealth, or of any company incorporated for opening, improving, or extending the navigation of any watercourse, to preference in the use of the water flowing therein for the purposes of such navigation be affected by any order of court, which, since the first day of April, 1816, has been made, or hereafter may be made, granting leave to any person to erect a dam or other obstruction across or in such watercourse.

History. Code 1950, § 62-5; 1968, c. 659.

§ 62.1-8. Limitation on power of courts to grant leave to erect dams.

Where a watercourse is navigable, or by law declared a public highway, no court shall grant leave to any person to erect in that part of it any dam which will obstruct ordinary navigation or the passage of fish; and where any law has been or shall be enacted for opening, improving or extending the navigation of a watercourse no court shall, while such law is in force, grant leave to any person to erect any dam or other obstruction across or in such watercourse which will in any way interfere with the navigation thereof without express authority of law or the consent of the company incorporated to open, improve or extend such navigation. Any such dam shall, notwithstanding it may be built under such leave, be deemed a nuisance, and may be abated as such, or such company or the Commonwealth may make a lock or locks in such dam for the passage of vessels and boats without being required to make any compensation therefor.

History. Code 1950, § 62-6; 1968, c. 659.

§ 62.1-9. Construction of two preceding sections.

Sections 62.1-7 and 62.1-8 shall not be construed to give any greater or other right to any person who has erected or may erect any dam or other obstruction across or in any watercourse, than such person would have had if such sections had not been enacted.

History. Code 1950, § 62-7; 1968, c. 659.

§ 62.1-9.1. Repealed by Acts 1992, c. 836.

Cross references.

For present provisions as to fisheries and habitat of the tidal waters, see § 28.2-100 et seq.

Chapter 2. State Policy as to Waters.

§ 62.1-10. Definitions.

As used in this chapter, the following terms shall have the meanings respectively ascribed to them:

  1. “Water” includes all waters, on the surface and under the ground, wholly or partially within or bordering the Commonwealth or within its jurisdiction and which affect the public welfare.
  2. “Beneficial use” means both instream and offstream uses. Instream beneficial uses include, but are not limited to, the protection of fish and wildlife habitat, maintenance of waste assimilation, recreation, navigation, and cultural and aesthetic values.  Offstream beneficial uses include, but are not limited to, domestic (including public water supply), agricultural, electric power generation, commercial and industrial uses. Public water supply uses for human consumption shall be considered the highest priority.

History. Code 1950, § 62-9.1; 1954, c. 330; 1958, c. 413; 1968, c. 659; 1989, c. 410.

Law Review.

For article assessing the adequacy of Virginia’s water policy, see 14 Wm. & Mary L. Rev. 312 (1972).

For article discussing common-law principles underlying public interests in tidal water resources, see 23 Wm. & Mary L. Rev. 835 (1982).

For 2007 annual survey article, “Environmental Law,” see 42 U. Rich. L. Rev. 383 (2007).

Michie’s Jurisprudence.

For related discussion, see 20 M. J. Waters and Watercourses, § 3.

§ 62.1-11. Waters declared natural resource; state regulation and conservation; limitations upon right to use.

  1. Such waters are a natural resource which should be regulated by the Commonwealth.
  2. The regulation, control, development and use of waters for all purposes beneficial to the public are within the jurisdiction of the Commonwealth which in the exercise of its police powers may establish measures to effectuate the proper and comprehensive utilization and protection of such waters.
  3. The changing wants and needs of the people of the Commonwealth may require the water resources of the Commonwealth to be put to uses beneficial to the public to the extent of which they are reasonably capable; the waste or unreasonable use or unreasonable method of use of water should be prevented; and the conservation of such water is to be exercised with a view to the welfare of the people of the Commonwealth and their interest in the reasonable and beneficial use thereof.
  4. The public welfare and interest of the people of the Commonwealth require the proper development, wise use, conservation and protection of water resources together with protection of land resources, as affected thereby.
  5. The right to the use of water or to the flow of water in or from any natural stream, lake or other watercourse in this Commonwealth is and shall be limited to such water as may reasonably be required for the beneficial use of the public to be served; such right shall not extend to the waste or unreasonable use or unreasonable method of use of such water.
  6. The quality of state waters is affected by the quantity of water and it is the intent of the Commonwealth, to the extent practicable, to maintain flow conditions to protect instream beneficial uses and public water supplies for human consumption.

History. Code 1950, § 62-9.2; 1954, c. 330; 1968, c. 659; 1989, c. 410.

Law Review.

For article assessing the adequacy of Virginia’s water policy, see 14 Wm. & Mary L. Rev. 312 (1972).

For article discussing common-law principles underlying public interests in tidal water resources, see 23 Wm. & Mary L. Rev. 835 (1982).

For article on interbasin transfer in a riparian jurisdiction, see 24 Wm. & Mary L. Rev. 591 (1983).

CASE NOTES

Appeal of actions of state water control board. —

No error attached by the Court of Appeals’ act in endorsing the State Water Control Board’s issuance of the permit to the city to build a reservoir, as the Board fulfilled its statutory mandates, did not abuse its discretion in approving certain scientific methodology or in determining to proceed with the permit decision, and reached a decision supported by substantial evidence. Alliance to Save the Mattaponi v. Commonwealth Dep't of Envtl. Quality ex rel. State Water Control Bd., 270 Va. 423 , 621 S.E.2d 78, 2005 Va. LEXIS 100 (2005), cert. denied, 547 U.S. 1192, 126 S. Ct. 2862, 165 L. Ed. 2d 895, 2006 U.S. LEXIS 4540 (2006).

§ 62.1-12. Valid uses not affected; chapter not applicable to proceedings determining rights.

Nothing in this chapter shall operate to affect any existing valid use of such waters or interfere with such uses hereafter acquired, nor shall it be construed as applying to the determination of rights in any proceeding now pending or hereafter instituted.

History. Code 1950, § 62-9.3; 1954, c. 330; 1968, c. 659.

Law Review.

For article assessing the adequacy of Virginia’s water policy, see 14 Wm. & Mary L. Rev. 312 (1972).

For article discussing common-law principles underlying public interests in tidal water resources, see 23 Wm. & Mary L. Rev. 835 (1982).

§ 62.1-13. Construction with reference to rights, etc., of counties, cities and towns.

Nothing in this chapter contained shall be construed as a declaration of policy of the Commonwealth to divest any county, city or town of its title or right to any water or of its powers conferred by law with respect to the disposition thereof; nor shall anything in this chapter be construed to authorize the impairment of any contract to which such county, city or town is a party, or to obligate any county, city or town to appropriate or expend any funds. The purpose of this chapter is to recognize the public use to which such water is devoted.

History. Code 1950, § 62-9.4; 1954, c. 330; 1968, c. 659.

Chapter 2.1. Wetlands.

§§ 62.1-13.1 through 62.1-13.20.

Repealed by Acts 1992, c. 836.

Cross references.

For present provisions as to fisheries and habitat of the tidal waters, see § 28.2-100 et seq.

Chapter 2.2. Coastal Primary Sand Dune Protection Act.

§§ 62.1-13.21 through 62.1-13.28.

Repealed by Acts 1992, c. 836.

Cross references.

For present provisions as to fisheries and habitat of the tidal waters, see § 28.2-100 et seq.

Chapter 3. State Water Control Law.

§§ 62.1-14 through 62.1-44.1.

Repealed by Acts 1970, c. 638.

Chapter 3.1. State Water Control Law.

Article 1. General Provisions.

§ 62.1-44.2. Short title; purpose.

The short title of this chapter is the State Water Control Law. It is the policy of the Commonwealth of Virginia and the purpose of this law to: (1) protect existing high quality state waters and restore all other state waters to such condition of quality that any such waters will permit all reasonable public uses and will support the propagation and growth of all aquatic life, including game fish, which might reasonably be expected to inhabit them; (2) safeguard the clean waters of the Commonwealth from pollution; (3) prevent any increase in pollution; (4) reduce existing pollution; (5) promote and encourage the reclamation and reuse of wastewater in a manner protective of the environment and public health; and (6) promote water resource conservation, management and distribution, and encourage water consumption reduction in order to provide for the health, safety, and welfare of the present and future citizens of the Commonwealth.

History. Code 1950, § 62.1-14 ; 1968, c. 659; 1970, c. 638; 1978, c. 827; 2000, c. 972.

Cross references.

As to the Attorney General’s limited authority to institute and conduct criminal prosecutions in the circuit courts of the Commonwealth, see § 2.2-511 .

As to the environmental laboratory certification program of the Division of Consolidated Laboratory Services, see § 2.2-1105 .

As to exemption of general permits issued pursuant to the State Water Control Law from Article 2 of the Administrative Process Act, see § 2.2-4006 .

As to regulation of car-washing fundraisers by localities, see § 15.2-2114.1 .

As to authority of localities to establish and enforce standards for use and services of sanitary, combined and stormwater sewer systems, treatment works and appurtenances, including implementation of pretreatment requirements pursuant to the State Water Control Act, see subdivision 10 of § 15.2-2122 .

Editor’s note.

This chapter, with the exception of §§ 62.1-44.34:1 and 62.1-44.34:2, was repealed by Acts 1973, c. 471. The 1973 act, which was effective July 1, 1974, and provided that it should expire at midnight on that date unless earlier reenacted, was itself repealed by Acts 1974, c. 96, effective March 22, 1974, and therefore never went into effect.

The 2000 amendments.

The 2000 amendment by c. 972 added clause (5) and redesignated former clause (5) as present clause (6).

Law Review.

For article on problems of water resource management in Virginia, see 13 Wm. & Mary L. Rev. 388 (1971).

For note, “Public Regulation of Water Quality in Virginia,” see 13 Wm. & Mary L. Rev. 424 (1971).

For note on private remedies to abate water pollution, see 13 Wm. & Mary L. Rev. 477 (1971).

For article on state constitutions and the environment, see 58 Va. L. Rev. 193 (1972).

For article on siting electric power facilities, see 58 Va. L. Rev. 257 (1972).

For article assessing the adequacy of Virginia’s water policy, see 14 Wm. & Mary L. Rev. 312 (1972).

For article, “Virginia Natural Resources Law and the New Virginia Wetlands Act,” see 30 Wash. & Lee L. Rev. 19 (1973).

For article discussing issues relating to toxic substances litigation, focusing on the Fourth Circuit, see 16 U. Rich. L. Rev. 247 (1982).

For article discussing common-law principles underlying public interests in tidal water resources, see 23 Wm. & Mary L. Rev. 835 (1982).

For article, “Water Rights Legislation in the East; A Program for Reform,” see 24 Wm. & Mary L. Rev. 547 (1983).

For article, “Public Access to Virginia’s Tidelands: A Framework for Analysis of Implied Dedications and Public Prescriptive Rights,” see 24 Wm. & Mary L. Rev. 669 (1983).

For article on stream flow maintenance in Virginia, see 18 U. Rich. L. Rev. 485 (1984).

For an article reviewing key environmental developments at the federal and state levels during the period from June, 1996, to June, 1998, see 32 U. Rich. L. Rev. 1217 (1998).

For 2000 survey of Virginia environmental law, see 34 U. Rich. L. Rev. 799 (2000).

Research References.

Virginia Forms (Matthew Bender). No. 16-711.1 Commercial Credit Line Deed of Trust, Assignment of Leases and Security Agreement.

Michie’s Jurisprudence.

For related discussion, see 1A M.J. Administrative Law, § 20; 20 M.J. Waters and Watercourses, §§ 3, 19.14B M.J. Process, § 16.

CASE NOTES

Control of discharges into state waters, where properly administered, is a valid exercise of state’s police power, entrusted to the Board by the State Water Control Law. Commonwealth ex rel. State Water Control Bd. v. County Utils. Corp., 223 Va. 534 , 290 S.E.2d 867, 1982 Va. LEXIS 236 (1982).

Error not to consider settlement. —

Trial court erred in upholding the state environmental quality department’s decision to deny the corporation a substantial part of its request for reimbursement from the Petroleum Storage Tank Fund for payments it made in settling a suit brought against it for property damage arising out of its petroleum storage spill. The trial court should have, but did not, consider the settlement amount in determining the reasonable and necessary costs of the occurrence, as the reimbursement amount was neither limited to judgments nor the reduction in market value of the property damaged, especially since the goal of the laws regarding reimbursement was to protect the quality of state waters and prevent any increase in pollution. 7-Eleven, Inc. v. Dep't of Envtl. Quality, 42 Va. App. 65, 590 S.E.2d 84, 2003 Va. App. LEXIS 703 (2003) (reversing 7-Eleven, Inc. v. Va. Dept. of Envtl. Quality, 56 Va. Cir. 276, 2001 Va. Cir. LEXIS 458 (Richmond 2001)).

Appeal of actions of State Water Control Board. —

Actions of the State Water Control Board in effect requiring privately owned utilities to abandon the treatment of sewage and connect their lines to those of publicly owned utility by a certain date were “case decisions” as defined by former § 9-6.14:4 (see now § 2.2-4001 ), and the “basic law under which the agency acted” was the State Water Control Law, § 62.1-44.2 et seq., which contains a detailed procedural scheme for judicial review of Board actions, set forth primarily at § 62.1-44.29 . Thus its appeal procedures applied and those of Part Two A of the Rules of the Supreme Court did not. Commonwealth ex rel. State Water Control Bd. v. County Utils. Corp., 223 Va. 534 , 290 S.E.2d 867, 1982 Va. LEXIS 236 (1982).

Any agency action rendered under the State Water Control Law must be subject to appeal under the Virginia Administrative Process Act (VAPA) if the action otherwise meets the VAPA’s criteria for judicial review and is not subject to any other statutory exclusion. May Dep't Stores Co. v. Commonwealth, Dep't of Envtl. Quality, 29 Va. App. 589, 513 S.E.2d 880, 1999 Va. App. LEXIS 236 (1999).

No error attached by the Court of Appeals’ act in endorsing the State Water Control Board’s issuance of the permit to the city to build a reservoir, as the Board fulfilled its statutory mandates, did not abuse its discretion in approving certain scientific methodology or in determining to proceed with the permit decision, and reached a decision supported by substantial evidence; but, while the Court of Appeals lacked jurisdiction, the circuit court had jurisdiction to consider an Indian tribe’s separate treaty claims asserted against the city under Treaty at Middle Plantation With Tributary Indians After Bacon’s Rebellion, May 29, 1677, art. V. Alliance to Save the Mattaponi v. Commonwealth Dep't of Envtl. Quality ex rel. State Water Control Bd., 270 Va. 423 , 621 S.E.2d 78, 2005 Va. LEXIS 100 (2005), cert. denied, 547 U.S. 1192, 126 S. Ct. 2862, 165 L. Ed. 2d 895, 2006 U.S. LEXIS 4540 (2006).

CIRCUIT COURT OPINIONS

Board’s actions consistent with statute. —

Statute is a broad policy statement, and to the extent this section specifically addressed any issues on appeal, it does not require any action by the State Water Control Board and/or that the Board’s actions were consistent with the statute. Chesapeake Bay Found., Inc. v. Commonwealth ex rel. Va. State Water Control Bd., 90 Va. Cir. 392, 2015 Va. Cir. LEXIS 99 (Richmond July 9, 2015).

OPINIONS OF THE ATTORNEY GENERAL

Riparian landowners. —

The provisions of the Virginia Scenic Rivers Act do not apply to riparian landowners constructing dams, docks, or other structures that could impede water flow along tributaries of designated waterways unless those tributaries are included within the scope of the designation. The Scenic Rivers Act does not impose any restrictions on a riparian landowner’s management of surface water on his land abutting a designated waterway, and accordingly that a riparian landowner may engage in grading, plowing, timbering, or otherwise develop his property in a manner that might impede the flow of surface water across his property into a designated scenic river. See opinion of Attorney General to C. Eric Young, Esquire, Tazewell County Attorney, 17-037, 2017 Va. AG LEXIS 28 (12/7/17).

§ 62.1-44.3. (For expiration date, see Acts 2016, cc. 68 and 758, as amended by Acts 2017, c. 345) Definitions.

Unless a different meaning is required by the context, the following terms as used in this chapter shall have the meanings hereinafter respectively ascribed to them:

“Beneficial use” means both instream and offstream uses. Instream beneficial uses include, but are not limited to, the protection of fish and wildlife resources and habitat, maintenance of waste assimilation, recreation, navigation, and cultural and aesthetic values. The preservation of instream flows for purposes of the protection of navigation, maintenance of waste assimilation capacity, the protection of fish and wildlife resources and habitat, recreation, cultural and aesthetic values is an instream beneficial use of Virginia’s waters. Offstream beneficial uses include, but are not limited to, domestic (including public water supply), agricultural uses, electric power generation, commercial, and industrial uses.

“Board” means the State Water Control Board. However, when used outside the context of the promulgation of regulations, including regulations to establish general permits, pursuant to this chapter, “Board” means the Department of Environmental Quality.

“Certificate” means any certificate issued by the Department.

“Department” means the Department of Environmental Quality.

“Director” means the Director of the Department of Environmental Quality.

“Establishment” means any industrial establishment, mill, factory, tannery, paper or pulp mill, mine, coal mine, colliery, breaker or coal-processing operations, quarry, oil refinery, boat, vessel, and every other industry or plant or works the operation of which produces industrial wastes or other wastes or which may otherwise alter the physical, chemical or biological properties of any state waters.

“Excavate” or “excavation” means ditching, dredging, or mechanized removal of earth, soil or rock.

“Industrial wastes” means liquid or other wastes resulting from any process of industry, manufacture, trade, or business or from the development of any natural resources.

“The law” or “this law” means the law contained in this chapter as now existing or hereafter amended.

“Member” means a member of the Board.

“Normal agricultural activities” means those activities defined as an agricultural operation in § 3.2-300 and any activity that is conducted as part of or in furtherance of such agricultural operation but shall not include any activity for which a permit would have been required as of January 1, 1997, under 33 U.S.C. § 1344 or any regulations promulgated pursuant thereto.

“Normal silvicultural activities” means any silvicultural activity as defined in § 10.1-1181.1 and any activity that is conducted as part of or in furtherance of such silvicultural activity but shall not include any activity for which a permit would have been required as of January 1, 1997, under 33 U.S.C. § 1344 or any regulations promulgated pursuant thereto.

“Other wastes” means decayed wood, sawdust, shavings, bark, lime, garbage, refuse, ashes, offal, tar, oil, chemicals, and all other substances except industrial wastes and sewage which may cause pollution in any state waters.

“Owner” means the Commonwealth or any of its political subdivisions, including but not limited to sanitation district commissions and authorities and any public or private institution, corporation, association, firm, or company organized or existing under the laws of this or any other state or country, or any officer or agency of the United States, or any person or group of persons acting individually or as a group that owns, operates, charters, rents, or otherwise exercises control over or is responsible for any actual or potential discharge of sewage, industrial wastes, or other wastes to state waters, or any facility or operation that has the capability to alter the physical, chemical, or biological properties of state waters in contravention of § 62.1-44.5 .

“Person” means an individual, corporation, partnership, association, governmental body, municipal corporation, or any other legal entity.

“Policies” means policies established under subdivisions (3a) and (3b) of § 62.1-44.15 .

“Pollution” means such alteration of the physical, chemical, or biological properties of any state waters as will or is likely to create a nuisance or render such waters (a) harmful or detrimental or injurious to the public health, safety, or welfare or to the health of animals, fish, or aquatic life; (b) unsuitable with reasonable treatment for use as present or possible future sources of public water supply; or (c) unsuitable for recreational, commercial, industrial, agricultural, or other reasonable uses, provided that (i) an alteration of the physical, chemical, or biological property of state waters or a discharge or deposit of sewage, industrial wastes or other wastes to state waters by any owner which by itself is not sufficient to cause pollution but which, in combination with such alteration of or discharge or deposit to state waters by other owners, is sufficient to cause pollution; (ii) the discharge of untreated sewage by any owner into state waters; and (iii) contributing to the contravention of standards of water quality duly established by the Board, are “pollution” for the terms and purposes of this chapter.

“Pretreatment requirements” means any requirements arising under the Board’s pretreatment regulations including the duty to allow or carry out inspections, entry, or monitoring activities; any rules, regulations, or orders issued by the owner of a publicly owned treatment works; or any reporting requirements imposed by the owner of a publicly owned treatment works or by the regulations of the Board.

“Pretreatment standards” means any standards of performance or other requirements imposed by regulation of the Board upon an industrial user of a publicly owned treatment works.

“Reclaimed water” means water resulting from the treatment of domestic, municipal, or industrial wastewater that is suitable for a direct beneficial or controlled use that would not otherwise occur. Specifically excluded from this definition is “gray water.”

“Reclamation” means the treatment of domestic, municipal, or industrial wastewater or sewage to produce reclaimed water for a direct beneficial or controlled use that would not otherwise occur.

“Regulation” means a regulation issued under § 62.1-44.15 (10).

“Reuse” means the use of reclaimed water for a direct beneficial use or a controlled use that is in accordance with the requirements of the Board.

“Rule” means a rule adopted by the Board to regulate the procedure of the Board pursuant to § 62.1-44.15 (7).

“Ruling” means a ruling issued under § 62.1-44.15 (9).

“Sewage” means the water-carried human wastes from residences, buildings, industrial establishments or other places together with such industrial wastes and underground, surface, storm, or other water as may be present.

“Sewage treatment works” or “treatment works” means any device or system used in the storage, treatment, disposal, or reclamation of sewage or combinations of sewage and industrial wastes, including but not limited to pumping, power, and other equipment, and appurtenances, and any works, including land, that are or will be (i) an integral part of the treatment process or (ii) used for the ultimate disposal of residues or effluent resulting from such treatment. These terms shall not include onsite sewage systems or alternative discharging sewage systems.

“Sewerage system” means pipelines or conduits, pumping stations, and force mains, and all other construction, devices, and appliances appurtenant thereto, used for conducting sewage or industrial wastes or other wastes to a point of ultimate disposal.

“Special order” means a special order issued under subdivisions (8a), (8b), and (8c) of § 62.1-44.15 .

“Standards” means standards established under subdivisions (3a) and (3b) of § 62.1-44.15 .

“State waters” means all water, on the surface and under the ground, wholly or partially within or bordering the Commonwealth or within its jurisdiction, including wetlands.

“Wetlands” means those areas that are inundated or saturated by surface or groundwater at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs and similar areas.

History. Code 1950, § 62.1-15; 1968, c. 659; 1970, c. 638; 1988, c. 167; 1990, c. 717; 1991, c. 702; 2000, cc. 972, 1032, 1054; 2003, c. 614; 2007, c. 659; 2015, cc. 104, 677; 2016, cc. 68, 758; 2022, c. 356.

Section set out twice.

The section above is effective until July 1, 2018, or 30 days after the adoption by the State Water Control Board of the regulations pursuant to Acts 2016, cc. 68 and 758, cl. 9, whichever occurs later. For this section as in effect at that time, see the following section, also numbered 62.1-44.3 .

Editor’s note.

Acts 2000, cc. 1032 and 1054, cl. 2, as amended by Acts 2001, cc. 435 and 464, cls. 1 and 2, provide: “That the State Water Control Board shall promulgate regulations governing excavation activities in wetlands to be effective within 280 days of enactment of this act and shall adopt proposed regulations to implement all other provisions of this act by January 1, 2001, to become effective on October 1, 2001; provided however, and notwithstanding any other provision(s) of law to the contrary, including §§ 62.1-44.5 , 62.1-44.15 , and 62.1-44.15:5 , that the proposed amendment to the State Water Control Board’s regulations 9 VAC 25-210 et seq. and 9 VAC 25-680 et seq., acted upon by the Board on December 13, 2000, shall, when promulgated as final regulations upon completion of the regulatory process established by the Administrative Process Act ( § 9-6.14:1 et seq. [now § 2.2-4000 et seq.]) become effective on August 1, 2001, with respect to linear transportation projects of the Virginia Department of Transportation.”

Acts 2000, cc. 1032 and 1054, cl. 3 provides: “That the State Water Control Board shall promptly, but no later than July 1, 2002, seek from the U.S. Army Corps of Engineers the issuance to Virginia of a § 404 Clean Water Act State Programmatic General Permit. The Board shall report to the House Committee on Chesapeake and Its Tributaries and the Senate Committee on Agriculture, Conservation and Natural Resources at least every six months on its progress in obtaining the State Programmatic General Permit.”

Acts 2000, cc. 1032 and 1054, cl. 4 provides: “That nothing in this act shall be construed to restrict the State Water Control Board’s authority to issue Virginia Water Protection Permits for activities requiring certification under § 401 of the Clean Water Act.”

Acts 2003, c. 614, cl. 2, provides: “That the Sewage Collection and Treatment regulations promulgated by the Virginia Board of Health that are in effect as of the effective date of this act shall remain in full force and effect until altered, amended or rescinded by the State Water Control Board pursuant to its authority under subsection D of § 62.1-44.18 of this act.”

At the direction of the Virginia Code Commission, Title 3.2 references were substituted for Title 3.1 references to conform to Acts 2008, c. 860.

The 2000 amendments.

The 2000 amendment by c. 972 substituted a period for a semicolon at the end of the paragraphs throughout the section; added the paragraphs defining “Reuse,” “Reclaimed water,” and “Reclamation,” and deleted “and” at the end of the paragraph defining “Pretreatment requirements.”

The 2000 amendments by cc. 1032 and 1054 are identical, and added “including wetlands” at the end of the paragraph defining “State waters”; deleted “and” at the end of the paragraph defining “Pretreatment requirements”; and added the paragraphs defining, “Excavate” or “excavation,” “Normal agricultural activities,” “Normal silvicultural activities,” and “Wetlands.”

The 2003 amendments.

The 2003 amendment by c. 614 inserted the definition of “Sewage treatment works.”

The 2007 amendments.

The 2007 amendment by c. 659 rewrote the section.

The 2015 amendments.

The 2015 amendments by cc. 104 and 677 are identical, and added the definitions for “Department” and “Director.”

The 2022 amendments.

The 2022 amendment by c. 356 added the second sentence in the definition of “Board”; and substituted “Department” for “Board” in the definition of “Certificate.”

Law Review.

For article on stream flow maintenance in Virginia, see 18 U. Rich. L. Rev. 485 (1984).

For survey of administrative procedure in Virginia for 1989, see 23 U. Rich. L. Rev. 431 (1989).

For 2000 survey of Virginia environmental law, see 34 U. Rich. L. Rev. 799 (2000).

For 2003/2004 survey of real estate and land use law, see 39 U. Rich. L. Rev. 357 (2004).

For 2007 annual survey article, “Environmental Law,” see 42 U. Rich. L. Rev. 383 (2007).

For article, “Construction Law,” see 45 U. Rich. L. Rev. 227 (2010).

Michie’s Jurisprudence.

For related discussion, see 1A M.J. Administrative Law, § 16.

CASE NOTES

“Owner,” as used in the basic law, refers to an entity exercising control over a potential discharge site. Under this definition, Environmental Defense Fund, a nonprofit environmental group, was without standing. Similarly, standing to challenge the denial of a formal hearing has been limited to “owners.” Environmental Defense Fund v. Virginia State Water Control Bd., 12 Va. App. 456, 404 S.E.2d 728, 7 Va. Law Rep. 2575, 1991 Va. App. LEXIS 100 (1991).

Origin of state’s authority. —

The king had the power to convey land under navigable waters to private persons, and this was codified by language excluding from state ownership all bay, river, and creek beds in the Commonwealth not conveyed by special grant or compact according to the law. Kraft v. Burr, 252 Va. 273 , 476 S.E.2d 715, 1996 Va. LEXIS 82 (1996).

Jurisdiction. —

Where it was found that Virginia law now regulated activities in wetlands beyond its federal mandate, it would have been perverse for the appellate court to conclude that the jurisdictional limits of the Virginia Wetlands Resources Act of 2000 depended upon the Clean Water Act; therefore, the state water board possessed jurisdiction over its civil enforcement action against developers who, without obtaining a permit from the state water board, began ditching and draining wetlands on a 43-acre property. Treacy v. Newdunn Assocs., LLP, 344 F.3d 407, 2003 U.S. App. LEXIS 18681 (4th Cir. 2003), cert. denied, 541 U.S. 972, 124 S. Ct. 1874, 158 L. Ed. 2d 466, 2004 U.S. LEXIS 2567 (2004).

Standing requirements. —

Court of Appeals of Virginia properly determined that an environmental conservation organization had standing to appeal the approval of a wastewater discharge permit affecting the James River issued by the State Water Control Board, reversing the judgment of the circuit court, as it presented sufficient allegations of an injury in fact, a link between the injury and the grant of a wastewater discharge permit, and an available civil remedy. Philip Morris USA, Inc. v. Chesapeake Bay Found., Inc., 273 Va. 564 , 643 S.E.2d 219, 2007 Va. LEXIS 67 (2007).

The State of Virginia has made itself and its political subdivisions subject to court control for water pollution due to waste disposal. Wilson v. United States, 425 F. Supp. 143, 1977 U.S. Dist. LEXIS 17963 (E.D. Va. 1977).

This section and subsection (1) of § 62.1-44.4 provide that no one, including the State or any of its political subdivisions, shall have the right to discharge waste into state water. By these statutes, the Virginia General Assembly made the State of Virginia and its political subdivisions subject to court control for water pollution due to waste disposal. Wilson v. United States, 425 F. Supp. 143, 1977 U.S. Dist. LEXIS 17963 (E.D. Va. 1977).

The City of Virginia Beach and the Virginia Beach school board may not claim immunity to the common-law charges of liability for water pollution due to waste disposal. In addition, as to the governmental-proprietary theories of municipal immunity, the evolution of the arbitrary demarcation line between governmental and proprietary functions has placed the issue of sewage systems on the proprietary and nonimmune side. Wilson v. United States, 425 F. Supp. 143, 1977 U.S. Dist. LEXIS 17963 (E.D. Va. 1977).

The Hampton Roads Sanitation District Commission is subject to court control for water pollution due to waste disposal. It cannot, therefore, claim sovereign immunity to common-law charges of liability for water pollution due to waste disposal. Wilson v. United States, 425 F. Supp. 143, 1977 U.S. Dist. LEXIS 17963 (E.D. Va. 1977).

Discharge of Oil Into Waters Law not applicable to landfill seepage. —

Trial court erred by holding a county liable to landowners for contamination caused by a solid waste landfill under the Discharge of Oil Into Waters Law, § 62-1.44.34:14 et seq., because the oil discharge law did not apply to the passive, gradual seepage of leachate and landfill gas into groundwater that occurred, rather, such an occurrence fell squarely within the ambit of the Virginia Waste Management Act, § 10.1-1400 et seq., and the Virginia Solid Waste Management Regulations, 9 Va. Admin. Code § 20-81-10 et seq., which extensively govern the operation of a solid waste disposal facility and impose requirements designed to protect groundwater and to prevent seepage of leachate and landfill gas into the groundwater. Campbell County v. Royal, 283 Va. 4 , 720 S.E.2d 90, 2012 Va. LEXIS 19 (2012).

CIRCUIT COURT OPINIONS

“Pollution.” —

Petitioners’ request to remand the Virginia State Water Control Board’s amended regulations was denied because the Board clearly fulfilled its statutory obligation to “ensure” the prevention of “pollution,” the General Assembly vested the Board with discretion to promulgate regulations permitting discharge under certain statutory conditions, and the Board was aided by an expert panel, staff presentation, the Virginia Department of Environmental Quality, and testimony from interested persons both for and against the amendments (including the petitioners) pertaining to the land application, marketing, and distribution of biosolids, and conducted lengthy discussion and deliberations. Jeff Kelble of the Potomac Riverkeeper, Inc. v. Commonwealth ex rel. Va. State Water Control Bd., 94 Va. Cir. 534, 2016 Va. Cir. LEXIS 197 (Richmond Dec. 7, 2016).

§ 62.1-44.3. (For effective date, see Acts 2016, cc. 68 and 758, as amended by Acts 2017, c. 345) Definitions.

Unless a different meaning is required by the context, the following terms as used in this chapter shall have the meanings hereinafter respectively ascribed to them:

“Beneficial use” means both instream and offstream uses. Instream beneficial uses include, but are not limited to, the protection of fish and wildlife resources and habitat, maintenance of waste assimilation, recreation, navigation, and cultural and aesthetic values. The preservation of instream flows for purposes of the protection of navigation, maintenance of waste assimilation capacity, the protection of fish and wildlife resources and habitat, recreation, cultural and aesthetic values is an instream beneficial use of Virginia’s waters. Offstream beneficial uses include, but are not limited to, domestic (including public water supply), agricultural uses, electric power generation, commercial, and industrial uses.

“Board” means the State Water Control Board. However, when used outside the context of the promulgation of regulations, including regulations to establish general permits, pursuant to this chapter, “Board” means the Department of Environmental Quality.

“Certificate” means any certificate or permit issued by the Department.

“Department” means the Department of Environmental Quality.

“Director” means the Director of the Department of Environmental Quality.

“Establishment” means any industrial establishment, mill, factory, tannery, paper or pulp mill, mine, coal mine, colliery, breaker or coal-processing operations, quarry, oil refinery, boat, vessel, and every other industry or plant or works the operation of which produces industrial wastes or other wastes or which may otherwise alter the physical, chemical or biological properties of any state waters.

“Excavate” or “excavation” means ditching, dredging, or mechanized removal of earth, soil or rock.

“Industrial wastes” means liquid or other wastes resulting from any process of industry, manufacture, trade, or business or from the development of any natural resources.

“Land-disturbance approval” means an approval allowing a land-disturbing activity to commence issued by (i) a Virginia Erosion and Stormwater Management Program authority after the requirements of § 62.1-44.15:34 have been met or (ii) a Virginia Erosion and Sediment Control Program authority after the requirements of § 62.1-44.15:55 have been met.

“The law” or “this law” means the law contained in this chapter as now existing or hereafter amended.

“Member” means a member of the Board.

“Municipal separate storm sewer” means a conveyance or system of conveyances otherwise known as a municipal separate storm sewer system or “MS4,” including roads with drainage systems, municipal streets, catch basins, curbs, gutters, ditches, man-made channels, or storm drains, that is:

  1. Owned or operated by a federal entity, state, city, town, county, district, association, or other public body, created by or pursuant to state law, having jurisdiction over disposal of sewage, industrial wastes, stormwater, or other wastes, including a special district under state law such as a sewer district, flood control district, drainage district or similar entity, or a designated and approved management agency under § 208 of the federal Clean Water Act (33 U.S.C. § 1251 et seq.) that discharges to surface waters;
  2. Designed or used for collecting or conveying stormwater;
  3. Not a combined sewer; and
  4. Not part of a publicly owned treatment works. “Normal agricultural activities” means those activities defined as an agricultural operation in § 3.2-300 and any activity that is conducted as part of or in furtherance of such agricultural operation but shall not include any activity for which a permit would have been required as of January 1, 1997, under 33 U.S.C. § 1344 or any regulations promulgated pursuant thereto. “Normal silvicultural activities” means any silvicultural activity as defined in § 10.1-1181.1 and any activity that is conducted as part of or in furtherance of such silvicultural activity but shall not include any activity for which a permit would have been required as of January 1, 1997, under 33 U.S.C. § 1344 or any regulations promulgated pursuant thereto. “Other wastes” means decayed wood, sawdust, shavings, bark, lime, garbage, refuse, ashes, offal, tar, oil, chemicals, and all other substances except industrial wastes and sewage which may cause pollution in any state waters. “Owner” means the Commonwealth or any of its political subdivisions, including but not limited to sanitation district commissions and authorities and any public or private institution, corporation, association, firm, or company organized or existing under the laws of this or any other state or country, or any officer or agency of the United States, or any person or group of persons acting individually or as a group that owns, operates, charters, rents, or otherwise exercises control over or is responsible for any actual or potential discharge of sewage, industrial wastes, or other wastes to state waters, or any facility or operation that has the capability to alter the physical, chemical, or biological properties of state waters in contravention of § 62.1-44.5 . “Person” means an individual, corporation, partnership, association, governmental body, municipal corporation, or any other legal entity. “Policies” means policies established under subdivisions (3a) and (3b) of § 62.1-44.15 . “Pollution” means such alteration of the physical, chemical, or biological properties of any state waters as will or is likely to create a nuisance or render such waters (a) harmful or detrimental or injurious to the public health, safety, or welfare or to the health of animals, fish, or aquatic life; (b) unsuitable with reasonable treatment for use as present or possible future sources of public water supply; or (c) unsuitable for recreational, commercial, industrial, agricultural, or other reasonable uses, provided that (i) an alteration of the physical, chemical, or biological property of state waters or a discharge or deposit of sewage, industrial wastes or other wastes to state waters by any owner which by itself is not sufficient to cause pollution but which, in combination with such alteration of or discharge or deposit to state waters by other owners, is sufficient to cause pollution; (ii) the discharge of untreated sewage by any owner into state waters; and (iii) contributing to the contravention of standards of water quality duly established by the Board, are “pollution” for the terms and purposes of this chapter. “Pretreatment requirements” means any requirements arising under the Board’s pretreatment regulations including the duty to allow or carry out inspections, entry, or monitoring activities; any rules, regulations, or orders issued by the owner of a publicly owned treatment works; or any reporting requirements imposed by the owner of a publicly owned treatment works or by the regulations of the Board. “Pretreatment standards” means any standards of performance or other requirements imposed by regulation of the Board upon an industrial user of a publicly owned treatment works. “Reclaimed water” means water resulting from the treatment of domestic, municipal, or industrial wastewater that is suitable for a direct beneficial or controlled use that would not otherwise occur. Specifically excluded from this definition is “gray water.” “Reclamation” means the treatment of domestic, municipal, or industrial wastewater or sewage to produce reclaimed water for a direct beneficial or controlled use that would not otherwise occur. “Regulation” means a regulation issued under subdivision (10) of § 62.1-44.15 . “Reuse” means the use of reclaimed water for a direct beneficial use or a controlled use that is in accordance with the requirements of the Board. “Rule” means a rule adopted by the Board to regulate the procedure of the Board pursuant to subdivision (7) of § 62.1-44.15. “Ruling” means a ruling issued under subdivision (9) of § 62.1-44.15. “Sewage” means the water-carried human wastes from residences, buildings, industrial establishments or other places together with such industrial wastes and underground, surface, storm, or other water as may be present.

    “Sewage treatment works” or “treatment works” means any device or system used in the storage, treatment, disposal, or reclamation of sewage or combinations of sewage and industrial wastes, including but not limited to pumping, power, and other equipment, and appurtenances, and any works, including land, that are or will be (i) an integral part of the treatment process or (ii) used for the ultimate disposal of residues or effluent resulting from such treatment. These terms shall not include onsite sewage systems or alternative discharging sewage systems.

    “Sewerage system” means pipelines or conduits, pumping stations, and force mains, and all other construction, devices, and appliances appurtenant thereto, used for conducting sewage or industrial wastes or other wastes to a point of ultimate disposal.

    “Special order” means a special order issued under subdivisions (8a), (8b), and (8c) of § 62.1-44.15.

    “Standards” means standards established under subdivisions (3a) and (3b) of § 62.1-44.15.

    “State waters” means all water, on the surface and under the ground, wholly or partially within or bordering the Commonwealth or within its jurisdiction, including wetlands.

    “Wetlands” means those areas that are inundated or saturated by surface or groundwater at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs and similar areas.

History. Code 1950, § 62.1-15; 1968, c. 659; 1970, c. 638; 1988, c. 167; 1990, c. 717; 1991, c. 702; 2000, cc. 972, 1032, 1054; 2003, c. 614; 2007, c. 659; 2015, cc. 104, 677; 2016, cc. 68, 758; contingently amended by 2022, c. 356.

Section set out twice.

The section above is effective July 1, 2018, or 30 days after the adoption by the State Water Control Board of the regulations pursuant to Acts 2016, cc. 68 and 758, cl. 9, whichever occurs later. For this section as in effect until that time, see the preceding section, also numbered 62.1-44.3 .

§ 62.1-44.3:1. Certified mail; subsequent mail or notices may be sent by regular mail.

Whenever in this chapter the Board or the Department is required to send any mail or notice by certified mail and such mail or notice is sent certified mail, return receipt requested, then any subsequent, identical mail or notice that is sent by the Board or the Department may be sent by regular mail.

History. 2011, c. 566.

§ 62.1-44.4. Control by Commonwealth as to water quality.

  1. No right to continue existing quality degradation in any state water shall exist nor shall such right be or be deemed to have been acquired by virtue of past or future discharge of sewage, industrial wastes or other wastes or other action by any owner. The right and control of the Commonwealth in and over all state waters is hereby expressly reserved and reaffirmed.
  2. Waters whose existing quality is better than the established standards as of the date on which such standards become effective will be maintained at high quality; provided that the Board has the power to authorize any project or development, which would constitute a new or an increased discharge of effluent to high quality water, when it has been affirmatively demonstrated that a change is justifiable to provide necessary economic or social development; and provided, further, that the necessary degree of waste treatment to maintain high water quality will be required where physically and economically feasible. Present and anticipated use of such waters will be preserved and protected.

History. Code 1950, § 62.1-16; 1968, c. 659; 1970, c. 638.

Law Review.

For survey of Virginia administrative law for the year 1969-1970, see 56 Va. L. Rev. 1603 (1970).

For article on stream flow maintenance in Virginia, see 18 U. Rich. L. Rev. 485 (1984).

CASE NOTES

No right created superior to city’s right lawfully to pollute. —

This section is merely one portion of a statutory scheme to regulate the quality of the Commonwealth’s waters. The section does not by its terms purport to grant a new riparian right to private property owners which is superior to a city’s state-regulated right to lawfully pollute public waters. Ancarrow v. City of Richmond, 600 F.2d 443, 1979 U.S. App. LEXIS 14244 (4th Cir.), cert. denied, 444 U.S. 992, 100 S. Ct. 523, 62 L. Ed. 2d 421, 1979 U.S. LEXIS 4062 (1979).

The State of Virginia has made itself and its political subdivisions subject to court control for water pollution due to waste disposal. Wilson v. United States, 425 F. Supp. 143, 1977 U.S. Dist. LEXIS 17963 (E.D. Va. 1977).

Section 62.1-44.3 and subsection (1) of this section provide that no one, including the State or any of its political subdivisions, shall have the right to discharge waste into state water. By these statutes, the Virginia General Assembly made the State of Virginia and its political subdivisions subject to court control for water pollution due to waste disposal. Wilson v. United States, 425 F. Supp. 143, 1977 U.S. Dist. LEXIS 17963 (E.D. Va. 1977).

The City of Virginia Beach and the Virginia Beach school board may not claim immunity to the common-law charges of liability for water pollution due to waste disposal. In addition, as to the governmental-proprietary theories of municipal immunity, the evolution of the arbitrary demarcation line between governmental and proprietary functions has placed the issue of sewage systems on the proprietary and nonimmune side. Wilson v. United States, 425 F. Supp. 143, 1977 U.S. Dist. LEXIS 17963 (E.D. Va. 1977).

The Hampton Roads Sanitation District Commission is subject to court control for water pollution due to waste disposal. It cannot, therefore, claim sovereign immunity to common-law charges of liability for water pollution due to waste disposal. Wilson v. United States, 425 F. Supp. 143, 1977 U.S. Dist. LEXIS 17963 (E.D. Va. 1977).

§ 62.1-44.5. (For expiration date — see notes) Prohibition of waste discharges or other quality alterations of state waters except as authorized by permit; notification required.

  1. Except in compliance with a certificate or permit issued by the Board or other entity authorized by the Board to issue a certificate or permit pursuant to this chapter, it shall be unlawful for any person to:
    1. Discharge into state waters sewage, industrial wastes, other wastes, or any noxious or deleterious substances;
    2. Excavate in a wetland;
    3. Otherwise alter the physical, chemical or biological properties of state waters and make them detrimental to the public health, or to animal or aquatic life, or to the uses of such waters for domestic or industrial consumption, or for recreation, or for other uses; or
    4. On and after October 1, 2001, conduct the following activities in a wetland:
      1. New activities to cause draining that significantly alters or degrades existing wetland acreage or functions;
      2. Filling or dumping;
      3. Permanent flooding or impounding; or
      4. New activities that cause significant alteration or degradation of existing wetland acreage or functions.
  2. Any person in violation of the provisions of subsection A who discharges or causes or allows (i) a discharge of sewage, industrial waste, other wastes or any noxious or deleterious substance into or upon state waters or (ii) a discharge that may reasonably be expected to enter state waters shall, upon learning of the discharge, promptly notify, but in no case later than 24 hours the Board, the Director of the Department of Environmental Quality, or the coordinator of emergency services appointed pursuant to § 44-146.19 for the political subdivision reasonably expected to be affected by the discharge. Written notice to the Director of the Department of Environmental Quality shall follow initial notice within the time frame specified by the federal Clean Water Act.

5. Discharge stormwater into state waters from Municipal Separate Storm Sewer Systems or land disturbing activities.

History. Code 1950, § 62.1-17; 1968, c. 659; 1970, c. 638; 1990, c. 717; 1996, c. 119; 2000, cc. 1032, 1054; 2001, cc. 354, 383; 2004, c. 372; 2013, cc. 756, 793; 2016, cc. 68, 758.

Section set out twice.

The section above is effective until July 1, 2018, or 30 days after the adoption by the State Water Control Board of the regulations pursuant to Acts 2016, cc. 68 and 758, cl. 9, whichever occurs later. For this section as in effect at that time, see the following section, also numbered 62.1-44.5 .

Editor’s note.

Acts 2000, cc. 1032 and 1054, cl. 2, as amended by Acts 2001, cc. 435 and 464, cls. 1 and 2, provide: “That the State Water Control Board shall promulgate regulations governing excavation activities in wetlands to be effective within 280 days of enactment of this act and shall adopt proposed regulations to implement all other provision(s) of this act by January 1, 2001, to become effective on October 1, 2001; provided however, and notwithstanding any other provision of law to the contrary, including §§ 62.1-44.5 , 62.1-44.15 , and 62.1-44.15:5 , that the proposed amendment to the State Water Control Board’s regulations 9 VAC 25-210 et seq. and 9 VAC 25-680 et seq., acted upon by the Board on December 13, 2000, shall, when promulgated as final regulations upon completion of the regulatory process established by the Administrative Process Act ( § 9-6.14:1 et seq. [now § 2.2-4000 et seq.]) become effective on August 1, 2001, with respect to linear transportation projects of the Virginia Department of Transportation.”

Acts 2000, cc. 1032 and 1054, cl. 3 provides: “That the State Water Control Board shall promptly, but no later than July 1, 2002, seek from the U.S. Army Corps of Engineers the issuance to Virginia of a § 404 Clean Water Act State Programmatic General Permit. The Board shall report to the House Committee on Chesapeake and Its Tributaries and the Senate Committee on Agriculture, Conservation and Natural Resources at least every six months on its progress in obtaining the State Programmatic General Permit.”

Acts 2000, cc. 1032 and 1054, cl. 4 provides: “That nothing in this act shall be construed to restrict the State Water Control Board’s authority to issue Virginia Water Protection Permits for activities requiring certification under § 401 of the Clean Water Act.”

Acts 2004, c. 372, which added subdivision A 5, in cl. 3 provides: “That the provisions of the first enactment clause including the provisions that transfer the responsibility for administering the issuance of national pollutant discharge elimination system permits for the control of stormwater discharges from MS4 and construction activities shall become effective on January 1, 2005, or upon the U.S. Environmental Protection Agency’s authorization for delegation of program authority to the Virginia Soil and Water Conservation Board, whichever is the latter.” The U.S. Environmental Protection Agency approved the transfer of program authority to the Virginia Soil and Water Conservation Board in a letter dated December 30, 2004.

Acts 2004, c. 372, cl. 4 provides: “That the Department of Conservation and Recreation shall on or after July 1, 2004, seek authorization for delegation of program authority for the Virginia Soil and Water Conservation Board for the issuance of national pollutant discharge elimination system permits for the control of stormwater discharges from MS4 and construction activities from the U.S. Environmental Protection Agency under the federal Clean Water Act. Such permits issued by the State Water Control Board that have not expired or been revoked or terminated before or on the program transfer date shall continue to remain in effect until their specified expiration dates.”

Acts 2004, c. 372, cl. 5 provides: “That the Virginia Stormwater Management Act regulations (4 VAC 3-20 et. seq.) shall be transferred from the Board of Conservation and Recreation to the Virginia Soil and Water Conservation Board on July 1, 2004 and the Virginia Soil and Water Conservation Board may amend, modify, or delete provisions in the these regulations in order to implement this Act. Such regulations that are in effect shall remain in full force and effect until altered, amended, or rescinded by the Virginia Soil and Water Conservation Board.”

Acts 2004, c. 372, cl. 6 provides: “That the Virginia Pollutant Discharge Elimination System (VPDES) General Permit Regulation For Discharges of Storm Water From Construction Activities, 9 VAC 25-180-10 et seq., and the General Virginia Pollutant Discharge Elimination System (VPDES) Permit Regulation For Discharges Of Storm Water From Small Municipal Separate Storm Sewer Systems, 9 VAC 25-750-10 et seq., are hereby transferred from the State Water Control Board to the Virginia Soil and Water Conservation Board as set forth in the third enactment clause and shall remain in full force and effect until amended, modified, or repealed by the Virginia Soil and Water Conservation Board. Those amendments to the regulations necessitated by this act shall be exempt from Article 2 ( § 2.2-4006 et seq.) of the Administrative Process Act. Any future amendments shall be adopted in accordance with the provisions of the Administrative Process Act.”

Acts 2004, c. 372, cl. 7 provides: “That the relevant provisions of Fees For Permits And Certificates Regulations, 9 VAC 25-20-10 et seq., and the Virginia Pollutant Discharge Elimination System (VPDES) Permit Regulations, 9 VAC 25-31-10 et seq., and other necessary regulations pertaining to the administration and implementation of an NPDES permit program associated with MS4 or construction activity stormwater discharge programs as adopted by the State Water Control Board shall be vested with and remain in full force and effect for the State Water Control Board and also shall be hereby transferred to and be in full force and effect for the Virginia Soil and Water Conservation Board on the effective date as set forth in the third enactment clause, as identical regulations until amended, modified, or repealed by the individual actions of the Virginia Water Control Board or the Virginia Soil and Water Conservation Board to reflect each board’s authorities as authorized by this act. Those amendments necessitated by this act shall be exempt from Article 2 ( § 2.2-4006 et seq.) of the Administrative Process Act.”

Acts 2004, c. 372, cl. 8 provides: “That the Virginia Soil and Water Conservation Board, on or after July 1, 2004, shall have authority to transfer relevant provisions in the existing regulations of the State Water Control Board and program administration provisions that may be required by the U.S. Environmental Protection Agency into the Virginia Stormwater Management Act regulations (4 VAC 3-20 et. seq.). These actions shall be exempt from Article 2 ( § 2.2-4006 et seq.) of the Administrative Process Act. Such amendments shall be effective no earlier than the effective date as set forth in the third enactment clause.”

Acts 2004, c. 372, cl. 9 provides: “That on or after July 1, 2004, the Virginia Soil and Water Conservation Board may amend, modify, or delete provisions in the existing Virginia Stormwater Management Act regulations (4 VAC 3-20 et. seq.) including but not limited to those pertaining to the standards and procedures for delegating authority for administering a stormwater management program to localities. Such amendments shall be effective no earlier than the effective date as set forth in the third enactment clause.”

The 2000 amendments.

The 2000 amendments by cc. 1032 and 1054 are identical, and in subsection A, redesignated former clauses (i) and (ii) as present subdivisions A 1 and A 3, and added subdivisions A 2 and A 4.

The 2001 amendments.

The 2001 amendment by cc. 354 and 383 are identical, and in subsection B, substituted “in violation of the provisions of subsection A” for “required to obtain a permit or certificate pursuant to this chapter,” and deleted “in violation of the provisions of subsection A” following “(ii) a discharge that may reasonably be expected to enter state waters.”

The 2004 amendments.

The 2004 amendment by c. 372 added subdivision A 5.

The 2013 amendments.

The 2013 amendments by cc. 756 and 793 are identical, and in subsection A, inserted “or permit” and “or other entity authorized by the Board to issue a certificate or permit pursuant to this chapter” in the introductory language, and deleted “unless in compliance with a permit issued pursuant to Article 1.1 (§ 10.1-603.1 et seq.) of Chapter 6 of Title 10.1” at the end of subdivision A 5.

Law Review.

For survey of Virginia administrative law for the year 1969-1970, see 56 Va. L. Rev. 1603 (1970).

For article assessing the adequacy of Virginia’s water policy, see 14 Wm. & Mary L. Rev. 312 (1972).

For article on stream flow maintenance in Virginia, see 18 U. Rich. L. Rev. 485 (1984).

For comment, “The Inconsistency of Virginia’s Execution of the NPDES Permit Program: The Foreclosure of Citizen Attorneys General from State and Federal Courts,” see 29 U. Rich. L. Rev. 715 (1995).

For 2000 survey of Virginia environmental law, see 34 U. Rich. L. Rev. 799 (2000).

For article, “Environmental Law,” see 35 U. Rich. L. Rev. 601 (2001).

Michie’s Jurisprudence.

For related discussion, see 20 M.J. Waters and Watercourses, § 24.

CASE NOTES

Extent to which public right to discharge sewage has been qualified. —

The public right to discharge sewage into state waters has been qualified by the legislature only to the extent provided by the pollution control statutes. Moore v. Hampton Rds. San. Dist. Comm'n, 557 F.2d 1030, 1976 U.S. App. LEXIS 6759, 1977 U.S. App. LEXIS 12467 (4th Cir. 1976), cert. denied, 434 U.S. 1012, 98 S. Ct. 725, 54 L. Ed. 2d 755, 1978 U.S. LEXIS 272 (1978).

City’s discharges not protected by public policy. —

Discharges of raw sewage into state waters by a city, whether or not the discharges could be characterized as occasional, were not protected by the public policy of this State, and the plaintiffs’ rights to cultivate oysters were not subject to a right of the city to violate state law. Moore v. Hampton Rds. San. Dist. Comm'n, 557 F.2d 1030, 1976 U.S. App. LEXIS 6759, 1977 U.S. App. LEXIS 12467 (4th Cir. 1976), cert. denied, 434 U.S. 1012, 98 S. Ct. 725, 54 L. Ed. 2d 755, 1978 U.S. LEXIS 272 (1978).

Permit properly granted. —

Facts taken in the light most favorable to sustaining the administrative agency’s action, giving due account of the presumption of official regularity, the experience and specialized competence of the agency, and the purposes of the basic law under which the agency has acted, showed that substantial evidence supported the trial court’s ruling that affirmed the administrative agency’s decision to grant the county’s permit request allowing the county to discharged treated wastewater into the river. Crutchfield v. State Water Control Bd., Dep't of Envtl. Quality, 45 Va. App. 546, 612 S.E.2d 249, 2005 Va. App. LEXIS 170 (2005).

§ 62.1-44.5. (For effective date — see notes) Prohibition of waste discharges or other quality alterations of state waters except as authorized by permit; notification required.

  1. Except in compliance with a certificate, land-disturbance approval, or permit issued by the Board or other entity authorized by the Board to issue a certificate, land-disturbance approval, or permit pursuant to this chapter, it shall be unlawful for any person to:
    1. Discharge into state waters sewage, industrial wastes, other wastes, or any noxious or deleterious substances;
    2. Excavate in a wetland;
    3. Otherwise alter the physical, chemical, or biological properties of state waters and make them detrimental to the public health, or to animal or aquatic life, or to the uses of such waters for domestic or industrial consumption, or for recreation, or for other uses;
    4. On and after October 1, 2001, conduct the following activities in a wetland:
      1. New activities to cause draining that significantly alters or degrades existing wetland acreage or functions;
      2. Filling or dumping;
      3. Permanent flooding or impounding; or
      4. New activities that cause significant alteration or degradation of existing wetland acreage or functions; or
  2. Any person in violation of the provisions of subsection A who discharges or causes or allows (i) a discharge of sewage, industrial waste, other wastes, or any noxious or deleterious substance into or upon state waters or (ii) a discharge that may reasonably be expected to enter state waters shall, upon learning of the discharge, promptly notify, but in no case later than 24 hours the Board, the Director of the Department of Environmental Quality, or the coordinator of emergency services appointed pursuant to § 44-146.19 for the political subdivision reasonably expected to be affected by the discharge. Written notice to the Director of the Department of Environmental Quality shall follow initial notice within the time frame specified by the federal Clean Water Act.

5. Discharge stormwater into state waters from Municipal Separate Storm Sewer Systems or land disturbing activities.

History. Code 1950, § 62.1-17; 1968, c. 659; 1970, c. 638; 1990, c. 717; 1996, c. 119; 2000, cc. 1032, 1054; 2001, cc. 354, 383; 2004, c. 372; 2013, cc. 756, 793; 2016, cc. 68, 758.

Section set out twice.

The section above is effective July 1, 2018, or 30 days after the adoption by the State Water Control Board of the regulations pursuant to Acts 2016, cc. 68 and 758, cl. 9, whichever occurs later. For this section as in effect until that time, see the preceding section, also numbered 62.1-44.5 .

Editor’s note.

Acts 2016, cc. 68 and 758, cl. 9 provides: “That the State Water Control Board (the Board) shall adopt regulations to implement the requirements of this act. The adoption of such regulations shall be exempt from the requirements of Article 2 ( § 2.2-4006 et seq.) of the Administrative Process Act ( § 2.2-4000 et seq.) of the Code of Virginia. However, the Department shall (i) provide a Notice of Intended Regulatory Action, (ii) form a stakeholders advisory group, (iii) provide for a 60-day public comment period prior to the Board’s adoption of the regulations, and (iv) provide the Board with a written summary of comments received and responses to comments prior to the Board’s adoption of the regulations.”

Acts 2016, cc. 68 and 758, cl. 10, as amended by Acts 2017, c. 345, cl. 2, provides: “That the provisions of this act shall become effective July 1, 2018, or 30 days after the adoption by the State Water Control Board of the regulations required by the ninth enactment of this act, whichever occurs later.”

The 2016 amendments.

The 2016 amendments by cc. 68 and 758 are identical, and in subsection A, twice inserted “land-disturbance approval”; in subdivision A 3, deleted “or” from the end of the subdivision; in subdivision A 4 d, added “or” at the end. For effective date, see Editor’s note.

§ 62.1-44.6. Chapter supplementary to existing laws.

This chapter is intended to supplement existing laws and no part thereof shall be construed to repeal any existing laws specifically enacted for the protection of health or the protection of fish, shellfish and game of the Commonwealth, except that the administration of any such laws pertaining to the pollution of state waters, as herein defined, shall be in accord with the purpose of this chapter and general policies adopted by the Board.

History. Code 1950, § 62.1-18; 1968, c. 659; 1970, c. 638.

§ 62.1-44.6:1. Permit rationale.

In granting a permit pursuant to this chapter, the Department shall provide in writing a clear and concise statement of the legal basis, scientific rationale, and justification for the decision reached. When the decision of the Department is to deny a permit pursuant to this chapter, the Department shall, in consultation with legal counsel, provide a clear and concise statement explaining the reason for the denial, the scientific justification for the same, and how the Department’s decision is in compliance with applicable laws and regulations. Copies of the decision, certified by the Director, shall be mailed by certified mail to the permittee or applicant.

History. 2022, c. 356.

Article 2. Control Board Generally.

§ 62.1-44.7. Board continued.

The State Water Control Board established in the Executive Department of the Commonwealth, is continued.

History. Code 1950, § 62.1-19; 1968, c. 659; 1970, c. 638.

Cross references.

As to the creation of the Department of Environmental Quality and the consolidation of the State Water Control Board into that department, see § 10.1-1183.

§ 62.1-44.8. Number, appointment and terms of members.

The Board shall consist of seven members appointed by the Governor subject to confirmation by the General Assembly. Members shall be appointed for the terms of four years each. Vacancies other than by expiration of a term shall be filled by the Governor by appointment for the unexpired term.

History. Code 1950, § 62.1-20; 1968, c. 659; 1970, c. 638; 2008, cc. 276, 557.

Editor’s note.

Acts 2008, cc. 276 and 557, cl. 2 provides: “That the provisions of this act do not apply to any permit action public noticed prior to July 1, 2008.”

The 2008 amendments.

The 2008 amendments by cc. 276 and 557 are identical, and deleted “appointed before July 1, 1970, shall continue in office for the terms for which appointed. Effective July 1, 1970, two members shall be appointed for a term of one year, and two members shall be appointed for a term of four years. Thereafter the successors of all members” following “Members” in the second sentence.

§ 62.1-44.9. Qualifications of members.

  1. Members of the Board shall be citizens of the Commonwealth; shall be selected from the Commonwealth at large for merit without regard to political affiliation; and shall, by character and reputation, reasonably be expected to inspire the highest degree of cooperation and confidence in the work of the Board. Members shall, by their education, training, or experience, be knowledgeable of water quality control and regulation and shall be fairly representative of conservation, public health, business, land development, and agriculture. In making appointments, the Governor shall endeavor to ensure balanced geographical representation. No person shall become a member of the Board who receives, or during the previous two years has received, a significant portion of his income directly or indirectly from certificate or permit holders or applicants for a certificate or permit.For the purposes of this section, “significant portion of income” means 10 percent or more of gross personal income for a calendar year, except that it means 50 percent or more of gross personal income for a calendar year if the recipient is over 60 years of age and is receiving that portion under retirement, pension, or similar arrangement. Income includes retirement benefits, consultant fees, and stock dividends. Income is not received directly or indirectly from certificate or permit holders or applicants for certificates or permits when it is derived from mutual fund payments, or from other diversified investments for which the recipient does not know the identity of the primary sources of income.
  2. Notwithstanding any other provision of this section relating to Board membership, the qualifications for Board membership shall not be more strict than those that are required by federal statute or regulations of the United States Environmental Protection Agency.

History. Code 1950, § 62.1-21; 1968, c. 659; 1970, c. 638; 1994, c. 461; 2008, cc. 276, 557; 2013, cc. 756, 793; 2014, c. 150.

Editor’s note.

Acts 2008, cc. 276 and 557, cl. 2 provides: “That the provisions of this act do not apply to any permit action public noticed prior to July 1, 2008.”

The 2008 amendments.

The 2008 amendments by cc. 276 and 557 are identical, and in subsection A, inserted the second sentence; substituted “that are” for “which may be” in subsection B; and made minor stylistic changes.

The 2013 amendments.

The 2013 amendments by cc. 756 and 793 are identical, and inserted “land development,” near the end of the second sentence of subsection A.

The 2014 amendments.

The 2014 amendment by c. 150, amended subsection A by adding the second to last sentence.

§ 62.1-44.10. Repealed by Acts 1980, c. 728.

§ 62.1-44.11. Meetings.

The Board shall meet at least four times a year, and other meetings may be held at any time or place determined by the Board or upon call of the chairman or upon written request of any two members. All members shall be duly notified of the time and place of any regular or other meeting at least five days in advance of such meeting.

History. Code 1950, § 62.1-23; 1968, c. 659; 1970, c. 638.

§ 62.1-44.12. Records of proceedings; special orders, standards, policies, rules and regulations.

The Board shall keep a complete and accurate record of the proceedings at all its meetings, a copy of which shall be kept on file in the office of the Executive Director and open to public inspection. Any standards, policies, rules or regulations adopted by the Board to have general effect in part or all of the Commonwealth shall be filed in accordance with the Virginia Register Act (§ 2.2-4100 et seq.). The owner to whom any special order is issued under the provisions of § 62.1-44.15 shall be notified by certified mail sent to the last known address of such owner and the time limits specified shall be counted from the date of mailing.

History. Code 1950, § 62.1-24; 1968, c. 659; 1970, c. 638; 1977, c. 32; 1981, c. 620.

§ 62.1-44.13. Inspections and investigations, etc.

The Board shall make such inspections, conduct such investigations and do such other things as are necessary to carry out the provisions of this chapter, within the limits of appropriation, funds, or personnel which are, or become, available from any source for this purpose.

History. Code 1950, § 62.1-25; 1968, c. 659; 1970, c. 638.

§ 62.1-44.14. Chairman; Executive Director; employment of personnel; supervision; budget preparation.

The Board shall elect its chairman, and the Executive Director shall be appointed as set forth in § 2.2-106 . The Executive Director shall serve as executive officer and devote his whole time to the performance of his duties, and he shall have such administrative powers as are conferred upon him by the Board; and, further, the Board may delegate to its Executive Director any of the powers and duties invested in it by this chapter except the adoption and promulgation of standards, rules and regulations; and the revocation of certificates. The Executive Director is authorized to issue, modify or revoke orders in cases of emergency as described in §§ 62.1-44.15 (8b) and 62.1-44.34:20 of this chapter. The Executive Director is further authorized to employ such consultants and full-time technical and clerical workers as are necessary and within the available funds to carry out the purposes of this chapter.

It shall be the duty of the Executive Director to exercise general supervision and control over the quality and management of all state waters and to administer and enforce this chapter, and all certificates, standards, policies, rules, regulations, rulings and special orders promulgated by the Board. The Executive Director shall prepare, approve, and submit all requests for appropriations and be responsible for all expenditures pursuant to appropriations. The Executive Director shall be vested with all the authority of the Board when it is not in session, except for the Board’s authority to issue special orders pursuant to subdivisions (8a) and (8b) of § 62.1-44.15 and subject to such regulations as may be prescribed by the Board. In no event shall the Executive Director have the authority to adopt or promulgate any regulation.

History. Code 1950, § 62.1-26; 1968, c. 659; 1970, c. 638; 1981, c. 620; 1984, c. 444; 1985, c. 397; 1992, c. 456; 2005, c. 706; 2013, cc. 756, 793; 2022, c. 356.

Editor’s note.

Acts 2005, c. 706, cl. 2 provides: “That the Director of the Department of Environmental Quality shall develop uniform procedures to govern the formal hearings conducted pursuant to this act to ensure they are conducted in accordance with the Administrative Process Act, any policies adopted by the State Water Control Board, the Virginia Waste Management Board, or the State Air Pollution Control Board and to ensure that the facility owners and operators have access to information on how such hearings will be conducted. In addition, the Director of the Department of Environmental Quality shall develop and implement an early dispute resolution process to help identify and resolve disagreements regarding what is required to comply with the regulations promulgated by the State Air Pollution Control Board, the State Water Control Board, the Virginia Waste Management Board and any related guidance. The process shall be available after the issuance of a notice of alleged violation or other notice of deficiency issued by the Department. The early dispute resolution process shall be developed by September 1, 2005, and information on the process shall be provided to the public and to facilities potentially impacted by the provisions of this act.”

The 2005 amendments.

The 2005 amendment by c. 706, in the first paragraph, inserted “and” preceding “the revocation of certificates,” deleted “and the issuance, modification, or revocation of orders” at the end of the second sentence, and made minor stylistic changes.

The 2013 amendments.

The 2013 amendments by cc. 756 and 793 are identical, and added the last two sentences in the second paragraph.

The 2022 amendments.

The 2022 amendment by c. 356 deleted “to consider permits pursuant to § 62.1-44.15:02 ” following “the Board’s authority” in the second paragraph in the penultimate sentence.

§ 62.1-44.15. (For expiration date, see Acts 2016, cc. 68 and 758, as amended by Acts 2017, c. 345) Powers and duties; civil penalties.

It shall be the duty of the Board and it shall have the authority:

  1. [Repealed.]
  2. To study and investigate all problems concerned with the quality of state waters and to make reports and recommendations. (2a) To study and investigate methods, procedures, devices, appliances, and technologies that could assist in water conservation or water consumption reduction. (2b) To coordinate its efforts toward water conservation with other persons or groups, within or without the Commonwealth. (2c) To make reports concerning, and formulate recommendations based upon, any such water conservation studies to ensure that present and future water needs of the citizens of the Commonwealth are met. (3a) To establish such standards of quality and policies for any state waters consistent with the general policy set forth in this chapter, and to modify, amend or cancel any such standards or policies established and to take all appropriate steps to prevent quality alteration contrary to the public interest or to standards or policies thus established, except that a description of provisions of any proposed standard or policy adopted by regulation which are more restrictive than applicable federal requirements, together with the reason why the more restrictive provisions are needed, shall be provided to the standing committee of each house of the General Assembly to which matters relating to the content of the standard or policy are most properly referable. The Board shall, from time to time, but at least once every three years, hold public hearings pursuant to § 2.2-4007.01 but, upon the request of an affected person or upon its own motion, hold hearings pursuant to § 2.2-4009 , for the purpose of reviewing the standards of quality, and, as appropriate, adopting, modifying, or canceling such standards. Whenever the Board considers the adoption, modification, amendment or cancellation of any standard, it shall give due consideration to, among other factors, the economic and social costs and benefits which can reasonably be expected to obtain as a consequence of the standards as adopted, modified, amended or cancelled. The Board shall also give due consideration to the public health standards issued by the Virginia Department of Health with respect to issues of public health policy and protection. If the Board does not follow the public health standards of the Virginia Department of Health, the Board’s reason for any deviation shall be made in writing and published for any and all concerned parties. (3b) Except as provided in subdivision (3a), such standards and policies are to be adopted or modified, amended or cancelled in the manner provided by the Administrative Process Act (§ 2.2-4000 et seq.). (5a) All certificates issued by the Board under this chapter shall have fixed terms. The term of a Virginia Pollution Discharge Elimination System permit shall not exceed five years. The term of a Virginia Water Protection Permit shall be based upon the projected duration of the project, the length of any required monitoring, or other project operations or permit conditions; however, the term shall not exceed 15 years. The term of a Virginia Pollution Abatement permit shall not exceed 10 years, except that the term of a Virginia Pollution Abatement permit for confined animal feeding operations shall be 10 years. The Department of Environmental Quality shall inspect all facilities for which a Virginia Pollution Abatement permit has been issued to ensure compliance with statutory, regulatory, and permit requirements. Department personnel performing inspections of confined animal feeding operations shall be certified under the voluntary nutrient management training and certification program established in § 10.1-104.2. The term of a certificate issued by the Board shall not be extended by modification beyond the maximum duration and the certificate shall expire at the end of the term unless an application for a new permit has been timely filed as required by the regulations of the Board and the Board is unable, through no fault of the permittee, to issue a new permit before the expiration date of the previous permit. (5b) Any certificate issued by the Board under this chapter may, after notice and opportunity for a hearing, be amended or revoked on any of the following grounds or for good cause as may be provided by the regulations of the Board:
    1. The owner has violated any regulation or order of the Board, any condition of a certificate, any provision of this chapter, or any order of a court, where such violation results in a release of harmful substances into the environment or poses a substantial threat of release of harmful substances into the environment or presents a hazard to human health or the violation is representative of a pattern of serious or repeated violations which, in the opinion of the Board, demonstrates the owner’s disregard for or inability to comply with applicable laws, regulations, or requirements;
    2. The owner has failed to disclose fully all relevant material facts or has misrepresented a material fact in applying for a certificate, or in any other report or document required under this law or under the regulations of the Board;
    3. The activity for which the certificate was issued endangers human health or the environment and can be regulated to acceptable levels by amendment or revocation of the certificate; or
    4. There exists a material change in the basis on which the permit was issued that requires either a temporary or a permanent reduction or elimination of any discharge controlled by the certificate necessary to protect human health or the environment.
      1. Whenever the Board shall determine that any owner, whether or not he shall have been issued a certificate for discharge of waste, has discharged sewage, industrial waste, or other waste into state waters in such quantity, concentration or manner that fish are killed as a result thereof, it may effect such settlement with the owner as will cover the costs incurred by the Board and by the Department of Wildlife Resources in investigating such killing of fish, plus the replacement value of the fish destroyed, or as it deems proper, and if no such settlement is reached within a reasonable time, the Board shall authorize its executive secretary to bring a civil action in the name of the Board to recover from the owner such costs and value, plus any court or other legal costs incurred in connection with such action.
      2. If the owner is a political subdivision of the Commonwealth, the action may be brought in any circuit court within the territory embraced by such political subdivision. If the owner is an establishment, as defined in this chapter, the action shall be brought in the circuit court of the city or the circuit court of the county in which such establishment is located. If the owner is an individual or group of individuals, the action shall be brought in the circuit court of the city or circuit court of the county in which such person or any of them reside.
      3. For the purposes of this subdivision 11, the State Water Control Board shall be deemed the owner of the fish killed and the proceedings shall be as though the State Water Control Board were the owner of the fish. The fact that the owner has or held a certificate issued under this chapter shall not be raised as a defense in bar to any such action.
      4. The proceeds of any recovery had under this subdivision 11 shall, when received by the Board, be applied, first, to reimburse the Board for any expenses incurred in investigating such killing of fish. The balance shall be paid to the Board of Wildlife Resources to be used for the fisheries’ management practices as in its judgment will best restore or replace the fisheries’ values lost as a result of such discharge of waste, including, where appropriate, replacement of the fish killed with game fish or other appropriate species. Any such funds received are hereby appropriated for that purpose.
      5. Nothing in this subdivision 11 shall be construed in any way to limit or prevent any other action which is now authorized by law by the Board against any owner.
      6. Notwithstanding the foregoing, the provisions of this subdivision 11 shall not apply to any owner who adds or applies any chemicals or other substances that are recommended or approved by the State Department of Health to state waters in the course of processing or treating such waters for public water supply purposes, except where negligence is shown.
    (5c) Any certificate issued by the Board under this chapter relating to dredging projects governed under Chapter 12 (§ 28.2-1200 et seq.) or Chapter 13 (§ 28.2-1300 et seq.) of Title 28.2 may be conditioned upon a demonstration of financial responsibility for the completion of compensatory mitigation requirements. Financial responsibility may be demonstrated by a letter of credit, a certificate of deposit or a performance bond executed in a form approved by the Board. If the U.S. Army Corps of Engineers requires demonstration of financial responsibility for the completion of compensatory mitigation required for a particular project, then the mechanism and amount approved by the U.S. Army Corps of Engineers shall be used to meet this requirement. (8a) Except as otherwise provided in Articles 2.4 (§ 62.1-44.15:51 et seq.) and 2.5 (§ 62.1-44.15:67 et seq.), to issue special orders to owners who (i) are permitting or causing the pollution, as defined by § 62.1-44.3 , of state waters to cease and desist from such pollution, (ii) have failed to construct facilities in accordance with final approved plans and specifications to construct such facilities in accordance with final approved plans and specifications, (iii) have violated the terms and provisions of a certificate issued by the Board to comply with such terms and provisions, (iv) have failed to comply with a directive from the Board to comply with such directive, (v) have contravened duly adopted and promulgated water quality standards and policies to cease and desist from such contravention and to comply with such water quality standards and policies, (vi) have violated the terms and provisions of a pretreatment permit issued by the Board or by the owner of a publicly owned treatment works to comply with such terms and provisions or (vii) have contravened any applicable pretreatment standard or requirement to comply with such standard or requirement; and also to issue such orders to require any owner to comply with the provisions of this chapter and any decision of the Board. Except as otherwise provided by a separate article, orders issued pursuant to this subdivision may include civil penalties of up to $32,500 per violation, not to exceed $100,000 per order. The Board may assess penalties under this subdivision if (a) the person has been issued at least two written notices of alleged violation by the Department for the same or substantially related violations at the same site, (b) such violations have not been resolved by demonstration that there was no violation, by an order issued by the Board or the Director, or by other means, (c) at least 130 days have passed since the issuance of the first notice of alleged violation, and (d) there is a finding that such violations have occurred after a hearing conducted in accordance with subdivision (8b). The actual amount of any penalty assessed shall be based upon the severity of the violations, the extent of any potential or actual environmental harm, the compliance history of the facility or person, any economic benefit realized from the noncompliance, and the ability of the person to pay the penalty. The Board shall provide the person with the calculation for the proposed penalty prior to any hearing conducted for the issuance of an order that assesses penalties pursuant to this subdivision. The issuance of a notice of alleged violation by the Department shall not be considered a case decision as defined in § 2.2-4001 . Any notice of alleged violation shall include a description of each violation, the specific provision of law violated, and information on the process for obtaining a final decision or fact finding from the Department on whether or not a violation has occurred, and nothing in this section shall preclude an owner from seeking such a determination. Such civil penalties shall be paid into the state treasury and deposited by the State Treasurer into the Virginia Environmental Emergency Response Fund (§ 10.1-2500 et seq.), except that civil penalties assessed for violations of Article 9 (§ 62.1-44.3 4:8 et seq.) or Article 11 (§ 62.1-44.34:14 et seq.) shall be paid into the Virginia Petroleum Storage Tank Fund in accordance with § 62.1-44.34:11 , and except that civil penalties assessed for violations of Article 2.3 (§ 62.1-44.15:24 et seq.) shall be paid in accordance with the provisions of § 62.1-44.15:48 . (8b) Such special orders are to be issued only after a hearing before a hearing officer appointed by the Supreme Court in accordance with § 2.2-4020 or, if requested by the person, before a quorum of the Board with at least 30 days’ notice to the affected owners, of the time, place and purpose thereof, and they shall become effective not less than 15 days after service as provided in § 62.1-44.12 ; provided that if the Board finds that any such owner is grossly affecting or presents an imminent and substantial danger to (i) the public health, safety or welfare, or the health of animals, fish or aquatic life; (ii) a public water supply; or (iii) recreational, commercial, industrial, agricultural or other reasonable uses, it may issue, without advance notice or hearing, an emergency special order directing the owner to cease such pollution or discharge immediately, and shall provide an opportunity for a hearing, after reasonable notice as to the time and place thereof to the owner, to affirm, modify, amend or cancel such emergency special order. If an owner who has been issued such a special order or an emergency special order is not complying with the terms thereof, the Board may proceed in accordance with § 62.1-44.23 , and where the order is based on a finding of an imminent and substantial danger, the court shall issue an injunction compelling compliance with the emergency special order pending a hearing by the Board. If an emergency special order requires cessation of a discharge, the Board shall provide an opportunity for a hearing within 48 hours of the issuance of the injunction. (8c) The provisions of this section notwithstanding, the Board may proceed directly under § 62.1-44.32 for any past violation or violations of any provision of this chapter or any regulation duly promulgated hereunder. (8d) With the consent of any owner who has violated or failed, neglected or refused to obey any regulation or order of the Board, any condition of a permit or any provision of this chapter, the Board may provide, in an order issued by the Board against such person, for the payment of civil charges for past violations in specific sums not to exceed the limit specified in § 62.1-44.32 (a). Such civil charges shall be instead of any appropriate civil penalty which could be imposed under § 62.1-44.32 (a) and shall not be subject to the provisions of § 2.2-514 . Such civil charges shall be paid into the state treasury and deposited by the State Treasurer into the Virginia Environmental Emergency Response Fund (§ 10.1-2500 et seq.), excluding civil charges assessed for violations of Article 9 (§ 62.1-44.34:8 et seq.) or 10 (§ 62.1-44.34:10 et seq.) of Chapter 3.1, or a regulation, administrative or judicial order, or term or condition of approval relating to or issued under those articles, or civil charges assessed for violations of Article 2.3 (§ 62.1-44.15:24 et seq.), or a regulation, administrative or judicial order, or term or condition of approval relating to or issued under that article.The amendments to this section adopted by the 1976 Session of the General Assembly shall not be construed as limiting or expanding any cause of action or any other remedy possessed by the Board prior to the effective date of said amendments. (8e) The Board shall develop and provide an opportunity for public comment on guidelines and procedures that contain specific criteria for calculating the appropriate penalty for each violation based upon the severity of the violations, the extent of any potential or actual environmental harm, the compliance history of the facility or person, any economic benefit realized from the noncompliance, and the ability of the person to pay the penalty. (8f) Before issuing a special order under subdivision (8a) or by consent under (8d), with or without an assessment of a civil penalty, to an owner of a sewerage system requiring corrective action to prevent or minimize overflows of sewage from such system, the Board shall provide public notice of and reasonable opportunity to comment on the proposed order. Any such order under subdivision (8d) may impose civil penalties in amounts up to the maximum amount authorized in § 309(g) of the Clean Water Act. Any person who comments on the proposed order shall be given notice of any hearing to be held on the terms of the order. In any hearing held, such person shall have a reasonable opportunity to be heard and to present evidence. If no hearing is held before issuance of an order under subdivision (8d), any person who commented on the proposed order may file a petition, within 30 days after the issuance of such order, requesting the Board to set aside such order and provide a formal hearing thereon. If the evidence presented by the petitioner in support of the petition is material and was not considered in the issuance of the order, the Board shall immediately set aside the order, provide a formal hearing, and make such petitioner a party. If the Board denies the petition, the Board shall provide notice to the petitioner and make available to the public the reasons for such denial, and the petitioner shall have the right to judicial review of such decision under § 62.1-44.29 if he meets the requirements thereof. (8g) To issue special orders for violations of this chapter to persons constructing or operating any natural gas transmission pipeline greater than 36 inches inside diameter. An order issued pursuant to this subdivision may include a civil penalty of up to $50,000 per violation, not to exceed $500,000 per order. The Board may assess a penalty under this subdivision if (i) the person has been issued at least two written notices of alleged violation by the Department for violations involving the same pipeline; (ii) such violations have not been resolved by a demonstration that there was no violation, by an order issued by the Board or the Director, including an order pursuant to subdivision (8d), or by other means; and (iii) there is a finding that such violation occurred after a hearing was conducted (a) before a hearing officer appointed by the Supreme Court, (b) in accordance with § 2.2-4020 , and (c) with at least 30 days’ notice to such person of the time, place, and purpose thereof. Such order shall become effective not less than 15 days after service as provided in § 62.1-44.12 . The actual amount of any penalty assessed shall be based upon the severity of the violation, the extent of any potential or actual environmental harm, the compliance history of the person, any economic benefit realized from the noncompliance, and the ability of the person to pay the penalty. The Board shall provide the person with the calculation for the proposed penalty prior to any hearing conducted for the issuance of an order that assesses penalties pursuant to this subdivision. The issuance of a notice of alleged violation by the Department shall not be a case decision as defined in § 2.2-4001 . Any notice of alleged violation shall include a description of each violation, the specific provision of law violated, and information on the process for obtaining a final decision or fact-finding from the Department on whether or not a violation has occurred, and nothing in this subdivision shall preclude a person from seeking such a determination. Such civil penalties shall be paid into the state treasury and deposited by the State Treasurer into the Virginia Environmental Emergency Response Fund (§ 10.1-2500 et seq.), except that civil penalties assessed for violations of Article 2.3 (§ 62.1-44.15:24 et seq.) or 2.4 (§ 62.1-44.15:51 et seq.) shall be paid into the state treasury and deposited by the State Treasurer into the Virginia Stormwater Management Fund (§ 62.1-44.15:29 ).

(4) To conduct or have conducted scientific experiments, investigations, studies, and research to discover methods for maintaining water quality consistent with the purposes of this chapter. To this end the Board may cooperate with any public or private agency in the conduct of such experiments, investigations and research and may receive in behalf of the Commonwealth any moneys that any such agency may contribute as its share of the cost under any such cooperative agreement. Such moneys shall be used only for the purposes for which they are contributed and any balance remaining after the conclusion of the experiments, investigations, studies, and research, shall be returned to the contributors.

(5) To issue, revoke or amend certificates under prescribed conditions for: (a) the discharge of sewage, industrial wastes and other wastes into or adjacent to state waters; (b) the alteration otherwise of the physical, chemical or biological properties of state waters; (c) excavation in a wetland; or (d) on and after October 1, 2001, the conduct of the following activities in a wetland: (i) new activities to cause draining that significantly alters or degrades existing wetland acreage or functions, (ii) filling or dumping, (iii) permanent flooding or impounding, or (iv) new activities that cause significant alteration or degradation of existing wetland acreage or functions. However, to the extent allowed by federal law, any person holding a certificate issued by the Board that is intending to upgrade the permitted facility by installing technology, control equipment, or other apparatus that the permittee demonstrates to the satisfaction of the Director will result in improved energy efficiency, reduction in the amount of nutrients discharged, and improved water quality shall not be required to obtain a new, modified, or amended permit. The permit holder shall provide the demonstration anticipated by this subdivision to the Department no later than 30 days prior to commencing construction.

(6) To make investigations and inspections, to ensure compliance with any certificates, standards, policies, rules, regulations, rulings and special orders which it may adopt, issue or establish and to furnish advice, recommendations, or instructions for the purpose of obtaining such compliance. In recognition of §§ 32.1-164 and 62.1-44.18 , the Board and the State Department of Health shall enter into a memorandum of understanding establishing a common format to consolidate and simplify inspections of sewage treatment plants and coordinate the scheduling of the inspections. The new format shall ensure that all sewage treatment plants are inspected at appropriate intervals in order to protect water quality and public health and at the same time avoid any unnecessary administrative burden on those being inspected.

(7) To adopt rules governing the procedure of the Board with respect to: (a) hearings; (b) the filing of reports; (c) the issuance of certificates and special orders; and (d) all other matters relating to procedure; and to amend or cancel any rule adopted. Public notice of every rule adopted under this section shall be by such means as the Board may prescribe.

(9) To make such rulings under §§ 62.1-44.16 , 62.1-44.17 , and 62.1-44.19 as may be required upon requests or applications to the Board, the owner or owners affected to be notified by certified mail as soon as practicable after the Board makes them and such rulings to become effective upon such notification.

(10) To adopt such regulations as it deems necessary to enforce the general water quality management program of the Board in all or part of the Commonwealth, except that a description of provisions of any proposed regulation which are more restrictive than applicable federal requirements, together with the reason why the more restrictive provisions are needed, shall be provided to the standing committee of each house of the General Assembly to which matters relating to the content of the regulation are most properly referable.

(11) To investigate any large-scale killing of fish.

(12) To administer programs of financial assistance for planning, construction, operation, and maintenance of water quality control facilities for political subdivisions in the Commonwealth.

(13) To establish policies and programs for effective area-wide or basin-wide water quality control and management. The Board may develop comprehensive pollution abatement and water quality control plans on an area-wide or basin-wide basis. In conjunction with this, the Board, when considering proposals for waste treatment facilities, is to consider the feasibility of combined or joint treatment facilities and is to ensure that the approval of waste treatment facilities is in accordance with the water quality management and pollution control plan in the watershed or basin as a whole. In making such determinations, the Board is to seek the advice of local, regional, or state planning authorities.

(14) To establish requirements for the treatment of sewage, industrial wastes and other wastes that are consistent with the purposes of this chapter; however, no treatment shall be less than secondary or its equivalent, unless the owner can demonstrate that a lesser degree of treatment is consistent with the purposes of this chapter.

(15) To promote and establish requirements for the reclamation and reuse of wastewater that are protective of state waters and public health as an alternative to directly discharging pollutants into waters of the state. The requirements shall address various potential categories of reuse and may include general permits and provide for greater flexibility and less stringent requirements commensurate with the quality of the reclaimed water and its intended use. The requirements shall be developed in consultation with the Department of Health and other appropriate state agencies. This authority shall not be construed as conferring upon the Board any power or duty duplicative of those of the State Board of Health.

(16) To establish and implement policies and programs to protect and enhance the Commonwealth’s wetland resources. Regulatory programs shall be designed to achieve no net loss of existing wetland acreage and functions. Voluntary and incentive-based programs shall be developed to achieve a net resource gain in acreage and functions of wetlands. The Board shall seek and obtain advice and guidance from the Virginia Institute of Marine Science in implementing these policies and programs.

(17) To establish additional procedures for obtaining a Virginia Water Protection Permit pursuant to §§ 62.1-44.15:20 and 62.1-44.15:22 for a proposed water withdrawal involving the transfer of water resources between major river basins within the Commonwealth that may impact water basins in another state. Such additional procedures shall not apply to any water withdrawal in existence as of July 1, 2012, except where the expansion of such withdrawal requires a permit under §§ 62.1-44.15:20 and 62.1-44.15:22 , in which event such additional procedures may apply to the extent of the expanded withdrawal only. The applicant shall provide as part of the application (i) an analysis of alternatives to such a transfer, (ii) a comprehensive analysis of the impacts that would occur in the source and receiving basins, (iii) a description of measures to mitigate any adverse impacts that may arise, (iv) a description of how notice shall be provided to interested parties, and (v) any other requirements that the Board may adopt that are consistent with the provisions of this section and §§ 62.1-44.15:20 and 62.1-44.15:22 or regulations adopted thereunder. This subdivision shall not be construed as limiting or expanding the Board’s authority under §§ 62.1-44.15:20 and 62.1-44.15:22 to issue permits and impose conditions or limitations on the permitted activity.

(18) To be the lead agency for the Commonwealth’s nonpoint source pollution management program, including coordination of the nonpoint source control elements of programs developed pursuant to certain state and federal laws, including § 319 of the federal Clean Water Act and § 6217 of the federal Coastal Zone Management Act. Further responsibilities include the adoption of regulations necessary to implement a nonpoint source pollution management program in the Commonwealth, the distribution of assigned funds, the identification and establishment of priorities to address nonpoint source related water quality problems, the administration of the Statewide Nonpoint Source Advisory Committee, and the development of a program for the prevention and control of soil erosion, sediment deposition, and nonagricultural runoff to conserve Virginia’s natural resources.

History. Code 1950, § 62.1-27; 1968, c. 659; 1970, c. 638; 1972, c. 741; 1975, c. 335; 1976, c. 621; 1977, c. 32; 1978, c. 827; 1984, c. 11; 1985, cc. 249, 397; 1988, cc. 167, 328; 1989, c. 389; 1990, c. 717; 1991, cc. 239, 718; 1993, c. 456; 1994, c. 698; 1998, cc. 805, 863; 2000, cc. 972, 1032, 1054; 2002, cc. 49, 396; 2004, c. 431; 2005, c. 706; 2007, cc. 144, 633, 873, 916; 2011, cc. 52, 101; 2012, cc. 574, 581; 2013, cc. 756, 793; 2020, cc. 449, 958.

Section set out twice.

The section above is effective until July 1, 2018, or 30 days after the adoption by the State Water Control Board of the regulations required by the ninth enactment of this act, whichever occurs later. For this section as in effect at that time, see the following section, also numbered 62.1-44.15 .

Editor’s note.

Acts 1989, c. 389, cl. 2 provides that the act shall not affect any pending litigation to which the State Water Control Board is a party.

Acts 2000, cc. 1032 and 1054, cl. 4 provides: “That nothing in this act shall be construed to restrict the State Water Control Board’s authority to issue Virginia Water Protection Permits for activities requiring certification under § 401 of the Clean Water Act.”

Acts 2002, cc. 49 and 396, cl. 2 provide: “That the State Water Control Board shall promulgate regulations to implement the provisions of this act to be effective within 280 days of its enactment.”

Acts 2005, c. 706, cl. 2 provides: “That the Director of the Department of Environmental Quality shall develop uniform procedures to govern the formal hearings conducted pursuant to this act to ensure they are conducted in accordance with the Administrative Process Act, any policies adopted by the State Water Control Board, the Virginia Waste Management Board, or the State Air Pollution Control Board and to ensure that the facility owners and operators have access to information on how such hearings will be conducted. In addition, the Director of the Department of Environmental Quality shall develop and implement an early dispute resolution process to help identify and resolve disagreements regarding what is required to comply with the regulations promulgated by the State Air Pollution Control Board, the State Water Control Board, the Virginia Waste Management Board and any related guidance. The process shall be available after the issuance of a notice of alleged violation or other notice of deficiency issued by the Department. The early dispute resolution process shall be developed by September 1, 2005, and information on the process shall be provided to the public and to facilities potentially impacted by the provisions of this act.”

For complete transition provisions related to transfer of certain water quality programs (stormwater management, erosion and sediment control, and the Chesapeake Bay Preservation Areas) formerly administered by the Department of Conservation and Recreation, to the Department of Environmental Quality, see Acts 2013, cc. 756 and 793, cls. 4 through 14, noted in full under Article 2.3 ( § 62.1-44.15:24 et seq.) of Chapter 3.1 of Title 62.1.

Acts 2013, cc. 756 and 793, cl. 7 provides: “That the regulations adopted by the Virginia Soil and Water Conservation Board to administer and implement the Virginia Stormwater Management Act ( § 10.1-603.1 et seq. of the Code of Virginia), the Erosion and Sediment Control Law ( § 10.1-560 et seq. of the Code of Virginia), and the Chesapeake Bay Preservation Act ( § 10.1-2100 et seq. of the Code of Virginia) are transferred from the Virginia Soil and Water Conservation Board to the State Water Control Board, and the State Water Control Board may amend, modify, or delete provisions in these regulations in order to implement this act. Such regulations shall remain in full force and effect until altered, amended, or rescinded by the State Water Control Board.”

The 2000 amendments.

The 2000 amendment by c. 972 substituted “this title” for “title 62.1” near the end of subdivision (8d) and added subdivision (15).

The 2000 amendments by cc. 1032 and 1054 are identical, and rewrote subdivision (5), which formerly read: “To issue certificates for the discharge of sewage, industrial wastes and other wastes into or adjacent to or the alteration otherwise of the physical, chemical or biological properties of state waters under prescribed conditions and to revoke or amend such certificates”; added the third sentence in subdivision (5a); substituted “this title” for “title 62.1” in the last sentence of subdivision (8d); and added subdivision (15) (now subdivision 16).

The 2002 amendments.

The 2002 amendments by cc. 49 and 396 are identical, and added subdivision (5c).

The 2004 amendments.

The 2004 amendment by c. 431 substituted “that” for “which” in subdivisions (2a) and (4); substituted “15” for “fifteen” in subdivisions (5a) and (8b); in subdivision (5a), twice substituted “10” for “ten” and inserted the present third sentence; and in subdivision (8b), substituted “30” for “thirty” and “48” for “forty-eight.”

The 2005 amendments.

The 2005 amendment by c. 706 inserted the second through eight sentences in subdivision (8a), “before a hearing officer appointed by the Supreme Court in accordance with § 2.2-4020 or, if requested by the person, before a quorum of the Board” in the first sentence in subdivision (8b); in subdivision (8c), deleted “pursuant to Chapter 25” preceding “(§ 10.1-2500 et seq.)” and “of Title 10.1” preceding “excluding civil charges”; inserted subdivision (8e); and substituted “the” for “this” preceding “Commonwealth” in subdivision (12).

The 2007 amendments.

The 2007 amendment by c. 144 added subdivision (8f).

The 2007 amendment by c. 633 deleted the third sentence in subdivision (5a).

The 2007 amendments by cc. 873 and 916 are identical, and substituted “§ 2.2-4007.01 ” for “subsection B of § 2.2-4007 ” in subdivision (3a).

The 2011 amendments.

The 2011 amendments by cc. 52 and 101 are identical, and in the fifth sentence in subdivision (5a), substituted “permit has been issued to ensure compliance with statutory, regulatory, and permit requirements” for “permit has been issued at least once every five years, except that the Department shall inspect all facilities covered by the Virginia Pollution Abatement permit for confined animal feeding operations annually.”

The 2012 amendments.

The 2012 amendment by c. 574 added subdivision (17).

The 2012 amendment by c. 581 added the second and third sentences of subdivision (5), and made minor stylistic changes.

The 2013 amendments.

The 2013 amendments by cc. 756 and 793 are identical, and in subdivision (8a), substituted “Except as otherwise provided in Articles 2.4 (§ 62.1-44.15:51 et seq.) and 2.5 (§ 62.1-44.15:67 et seq.) issue” for “To issue” at the beginning of the first sentence, added the exception at the beginning of the second sentence, and added “and except that civil penalties assessed for violations of Article 2.3 (§ 62.1-44.15:24 et seq.) shall be paid in accordance with the provisions of § 62.1-44.15:48 ” at the end of the eighth sentence; added “articles, or civil charges assessed for violations of Article 2.3 (§ 62.1-44.15:24 et seq.), or a regulation, administrative or judicial order, or term or condition of approval relating to or issued under that article” at the end of the third sentence of the first paragraph of subdivision (8e); and added subdivision (18).

The 2020 amendments.

The 2020 amendment by c. 449, in subdivision (8a), in the first sentence, substituted “to issue special orders to owners who” for “issue special orders to owners” and deleted “who” following the (i) through (vii) designators, and substituted “this subdivision” for “this subsection” wherever it occurs; added subdivision (8g); and in subdivisions (11) (c) through (f), substituted “subdivision 11” for “subsection” wherever it occurs.

The 2020 amendment by c. 958, in subdivision (11) (a), substituted “by the Board and by the Department of Wildlife Resources” for “by the Board and by the Department of Game and Inland Fisheries” and in subdivision (11) (d), substituted “Board of Wildlife Resources” for “Board of Game and Inland Fisheries” in the second sentence.

Cross references.

As to power of Board to promulgate rules regulating discharge of waste from boats, see § 62.1-44.33 .

As to duties of Potomac Aquifer Recharge Oversight Committee concerning imminent danger to the environment, public water supply or public health, see §§ 62.1-273 and 62.1-275 .

As to alternate compliance methods for persons or facilities meeting the criteria for E3 or E4 facilities under § 10.1- 1187.3, see § 10.1-1187.6.

As to authority of localities to assess civil penalties in order to enforce standards for use and services of sanitary, combined and stormwater sewer systems, treatment works and appurtenances, see subdivision 10 of § 15.2-2122 .

Law Review.

For survey of Virginia law on municipal corporations and administrative law for the year 1970-1971, see 57 Va. L. Rev. 1572 (1971).

For article assessing the adequacy of Virginia’s water policy, see 14 Wm. & Mary L. Rev. 312 (1972).

For comment on the problem of enforcement with regard to the secondary treatment standards pursuant to the 1972 Federal Water Pollution Control Act amendments, see 12 U. Rich. L. Rev. 581 (1978).

For comment on nonpoint pollution control in Virginia, see 13 U. Rich. L. Rev. 539 (1979).

For article on stream flow maintenance in Virginia, see 18 U. Rich. L. Rev. 485 (1984).

For survey of administrative procedure in Virginia for 1989, see 23 U. Rich. L. Rev. 431 (1989).

For survey on environmental law in Virginia for 1989, see 23 U. Rich. L. Rev. 625 (1989).

For comment, “The Inconsistency of Virginia’s Execution of the NPDES Permit Program: The Foreclosure of Citizen Attorneys General from State and Federal Courts,” see 29 U. Rich. L. Rev. 715 (1995).

For 2000 survey of Virginia environmental law, see 34 U. Rich. L. Rev. 799 (2000).

For article, “Environmental Law,” see 35 U. Rich. L. Rev. 601 (2001).

For article surveying changes in environmental law in Virginia from June 2001 to June 2002, see 37 U. Rich. L. Rev. 117 (2002).

For 2003/2004 survey of environmental law, see 39 U. Rich. L. Rev. 203 (2004).

For article, “Why Does the Chesapeake Bay Need Litigators?,” see 40 U. Rich. L. Rev. 1113 (2006).

For annual survey article, see “Environmental Law,” see 44 U. Rich. L. Rev. 423 (2009).

Michie’s Jurisprudence.

For related discussion, see 1A M.J. Administrative Law, § 20; 9A M.J. Health and Sanitation, § 5.

CASE NOTES

Legislative intent governing the Board’s authority to establish and enforce standards was at all times to require that rules be promulgated which are reasonable, practicable of attainment, based upon a fair weighing of the economic and social costs and benefits involved, and of uniform application to all affected parties similarly situated. Commonwealth ex rel. State Water Control Bd. v. County Utils. Corp., 223 Va. 534 , 290 S.E.2d 867, 1982 Va. LEXIS 236 (1982).

The primary responsibility of the State Water Control Board is the protection of the state’s groundwaters from contamination in all forms. Environmental Defense Fund, Inc. v. Lamphier, 714 F.2d 331, 1983 U.S. App. LEXIS 25186 (4th Cir. 1983).

Board’s actions held not confiscatory. —

State Water Control Board’s action requiring connection of privately owned utilities’ sewer lines to lines of public utility, which would leave the utilities’ collector lines in operation and have no effect on the rates charged to customers, where the cost of construction of the treatment facilities had long been recaptured, and where abandonment of treatment facilities would have no effect on the utilities’ continuation in business, operating profit, or value as going concerns, although there was presently no economically feasible alternative use for the abandoned structures or the land on which they stood, did not render the Board’s actions confiscatory. Commonwealth ex rel. State Water Control Bd. v. County Utils. Corp., 223 Va. 534 , 290 S.E.2d 867, 1982 Va. LEXIS 236 (1982).

Orders based on unattainable special standard held arbitrary. —

Where the Board adopted a “Special Standard” (captioned “Objective for Nutrients”) which it knew to be unattainable at any cost, treated it as a desirable goal but made no effort to enforce it for over nine years, then without notice of hearing directed privately owned utilities to cease their treatment activities because of their inability to comply with it, leaving the utilities the alternative of connecting to public utility, such orders were the quintessence of arbitrary governmental action, arbitrary, capricious and unreasonable. Commonwealth ex rel. State Water Control Bd. v. County Utils. Corp., 223 Va. 534 , 290 S.E.2d 867, 1982 Va. LEXIS 236 (1982).

Requirements for issuing national pollutant discharge elimination system permits. —

Since national pollutant discharge elimination system permits issued pursuant to State programs structured under the Federal Water Pollution Control Act (33 U.S.C. §§ 1251-1376) are state matters subject to minimum federal requirements, the State Water Control Board is not required by the National Environmental Policy Act (42 U.S.C. § 4332) to prepare an Environmental Impact Statement before issuing such a permit. Chesapeake Bay Found., Inc. v. Virginia State Water Control Bd., 453 F. Supp. 122, 1978 U.S. Dist. LEXIS 16943 (E.D. Va. 1978).

When an agency fails to conform to required statutory authority when enacting its regulations, an affected party may successfully challenge the regulations without the necessity of showing that it was harmed by the agency’s failure to comply with the law. Commonwealth ex rel. State Water Control Bd. v. APCO, 9 Va. App. 254, 386 S.E.2d 633, 6 Va. Law Rep. 863, 1989 Va. App. LEXIS 150 (1989).

Later rule change and amendment did not bar resolution of dispute surrounding original water control rule. —

Validity of 1987 discharge regulation was a justiciable issue which was not mooted when the State Water Control Board promulgated its emergency or replacement regulation or by the General Assembly amending this section following court’s invalidation of the 1987 regulation. The validity of all such regulations as they could apply to utilities was likely to arise again unless the questions raised and the shadow which had been cast over the regulations were addressed and resolved. Commonwealth ex rel. State Water Control Bd. v. APCO, 12 Va. App. 73, 402 S.E.2d 703, 7 Va. Law Rep. 1897, 1991 Va. App. LEXIS 44 (1991).

Amendment limits evidentiary hearing requirements. —

Under the 1989 amendment, the basic law governing the State Water Control Board does not require an evidential hearing provided by § 9-6.14:8 except upon request or upon its own motion. Commonwealth ex rel. State Water Control Bd. v. APCO, 12 Va. App. 73, 402 S.E.2d 703, 7 Va. Law Rep. 1897, 1991 Va. App. LEXIS 44 (1991).

Failure to hold evidential hearing to promulgate regulations. —

The State Water Control Board failed to comply with the requirements of former § 9-6.14:8 [see now § 2.2-4009 ] and subdivision (3a) of this section by failing to hold an evidential hearing in order to promulgate its regulations. Commonwealth ex rel. State Water Control Bd. v. APCO, 9 Va. App. 254, 386 S.E.2d 633, 6 Va. Law Rep. 863, 1989 Va. App. LEXIS 150 (1989).

Standing requirements. —

While the trial court erred in holding that the plain language of § 62.1-44.29 did not confer representational standing on two citizen groups in their challenge against the issuance of a water protection permit to a developer, and they did not have standing to sue in their own right, said holding failed to address whether the citizens alleged sufficient injury to confer standing on a member of either of their groups in a personal and individual manner; thus, the matter was remanded for a determination as to whether the citizens alleged sufficient facts to grant them representational standing. Chesapeake Bay Found., Inc. v. Commonwealth ex rel. State Water Control Bd., 46 Va. App. 104, 616 S.E.2d 39, 2005 Va. App. LEXIS 286 (2005).

Court of Appeals of Virginia properly determined that an environmental conservation organization had standing to appeal the approval of a wastewater discharge permit affecting the James River issued by the State Water Control Board, reversing the judgment of the circuit court, as it presented sufficient allegations of an injury in fact, a link between the injury and the grant of a wastewater discharge permit, and an available civil remedy. Philip Morris USA, Inc. v. Chesapeake Bay Found., Inc., 273 Va. 564 , 643 S.E.2d 219, 2007 Va. LEXIS 67 (2007).

CIRCUIT COURT OPINIONS

State Water Control Board’s discretion. —

Statute provides the State Water Control Board with great deference, and to the extent this section specifically addressed any issues on appeal, the statute expressly grants broad discretion to the Board and therefore, the Board did not err under the statute. Chesapeake Bay Found., Inc. v. Commonwealth ex rel. Va. State Water Control Bd., 90 Va. Cir. 392, 2015 Va. Cir. LEXIS 99 (Richmond July 9, 2015).

Requirements for issuing national pollutant discharge elimination system permits. —

Where the Virginia Water Control Board issues permits which are compliant with applicable provisions of state and federal law, including water quality standards, considering § 62.1-44.15 , the statute that authorizes the Board to issue such permits, there is no requirement that the Board or its Director make explicit findings that the proposed discharge neither causes nor contributes to water control violations and that the proposed discharge is compatible with existing uses by wildlife and recreation before issuing a water sewage discharge permit. Crutchfield v. State Water Control Bd., 64 Va. Cir. 211, 2004 Va. Cir. LEXIS 202 (Richmond Mar. 11, 2004).

Granting of sewer discharge permits. —

Board should not have denied the company’s sewer discharge permit application that would have allowed it to discharge treated effleunt from the company’s plant into a nearby small tributary. The Board found that there would be no actual violations of water quality standards and the record showed that minimum treatment requirements would be met, and, thus, the general policy of promoting water quality would be met. Captain's Cove Util. Co. v. State Water Control Bd., 74 Va. Cir. 253, 2007 Va. Cir. LEXIS 275 (Accomack County Oct. 11, 2007), rev'd, No. 2735-07-1, 2008 Va. App. LEXIS 375 (Va. Ct. App. Aug. 5, 2008).

§ 62.1-44.15. (For effective date, see Acts 2016, cc. 68 and 758, as amended by Acts 2017, c. 345) Powers and duties; civil penalties.

It shall be the duty of the Board and it shall have the authority:

  1. [Repealed.]
  2. To study and investigate all problems concerned with the quality of state waters and to make reports and recommendations. (2a) To study and investigate methods, procedures, devices, appliances, and technologies that could assist in water conservation or water consumption reduction. (2b) To coordinate its efforts toward water conservation with other persons or groups, within or without the Commonwealth. (2c) To make reports concerning, and formulate recommendations based upon, any such water conservation studies to ensure that present and future water needs of the citizens of the Commonwealth are met. (3a) To establish such standards of quality and policies for any state waters consistent with the general policy set forth in this chapter, and to modify, amend, or cancel any such standards or policies established and to take all appropriate steps to prevent quality alteration contrary to the public interest or to standards or policies thus established, except that a description of provisions of any proposed standard or policy adopted by regulation which are more restrictive than applicable federal requirements, together with the reason why the more restrictive provisions are needed, shall be provided to the standing committee of each house of the General Assembly to which matters relating to the content of the standard or policy are most properly referable. The Board shall, from time to time, but at least once every three years, hold public hearings pursuant to § 2.2-4007.01 but, upon the request of an affected person or upon its own motion, hold hearings pursuant to § 2.2-4009 , for the purpose of reviewing the standards of quality, and, as appropriate, adopting, modifying, or canceling such standards. Whenever the Board considers the adoption, modification, amendment, or cancellation of any standard, it shall give due consideration to, among other factors, the economic and social costs and benefits which can reasonably be expected to obtain as a consequence of the standards as adopted, modified, amended, or cancelled. The Board shall also give due consideration to the public health standards issued by the Virginia Department of Health with respect to issues of public health policy and protection. If the Board does not follow the public health standards of the Virginia Department of Health, the Board’s reason for any deviation shall be made in writing and published for any and all concerned parties. (3b) Except as provided in subdivision (3a), such standards and policies are to be adopted or modified, amended, or cancelled in the manner provided by the Administrative Process Act (§ 2.2-4000 et seq.). (5a) All certificates issued by the Board under this chapter shall have fixed terms. The term of a Virginia Pollution Discharge Elimination System permit shall not exceed five years. The term of a Virginia Water Protection Permit shall be based upon the projected duration of the project, the length of any required monitoring, or other project operations or permit conditions; however, the term shall not exceed 15 years. The term of a Virginia Pollution Abatement permit shall not exceed 10 years, except that the term of a Virginia Pollution Abatement permit for confined animal feeding operations shall be 10 years. The Department of Environmental Quality shall inspect all facilities for which a Virginia Pollution Abatement permit has been issued to ensure compliance with statutory, regulatory, and permit requirements. Department personnel performing inspections of confined animal feeding operations shall be certified under the voluntary nutrient management training and certification program established in § 10.1-104.2. The term of a certificate issued by the Board shall not be extended by modification beyond the maximum duration and the certificate shall expire at the end of the term unless an application for a new permit has been timely filed as required by the regulations of the Board and the Board is unable, through no fault of the permittee, to issue a new permit before the expiration date of the previous permit. (5b) Any certificate or land-disturbance approval issued by the Board under this chapter may, after notice and opportunity for a hearing, be amended or revoked on any of the following grounds or for good cause as may be provided by the regulations of the Board:
    1. The owner has violated any regulation or order of the Board, any condition of a certificate or land-disturbance approval, any provision of this chapter, or any order of a court, where such violation results in a release of harmful substances into the environment, poses a substantial threat of release of harmful substances into the environment, causes unreasonable property degradation, or presents a hazard to human health or the violation is representative of a pattern of serious or repeated violations which, in the opinion of the Board, demonstrates the owner’s disregard for or inability to comply with applicable laws, regulations, or requirements;
    2. The owner has failed to disclose fully all relevant material facts or has misrepresented a material fact in applying for a certificate or land-disturbance approval, or in any other report or document required under this law or under the regulations of the Board;
    3. The activity for which the certificate or land-disturbance approval was issued endangers human health or the environment or causes unreasonable property degradation and can be regulated to acceptable levels or practices by amendment or revocation of the certificate or land-disturbance approval; or
    4. There exists a material change in the basis on which the certificate, land-disturbance approval, or permit was issued that requires either a temporary or a permanent reduction or elimination of any discharge or land-disturbing activity controlled by the certificate, land-disturbance approval, or permit necessary to protect human health or the environment or stop or prevent unreasonable degradation of property.
      1. Whenever the Board shall determine that any owner, whether or not he shall have been issued a certificate for discharge of waste, has discharged sewage, industrial waste, or other waste into state waters in such quantity, concentration, or manner that fish are killed as a result thereof, it may effect such settlement with the owner as will cover the costs incurred by the Board and by the Department of Wildlife Resources in investigating such killing of fish, plus the replacement value of the fish destroyed, or as it deems proper, and if no such settlement is reached within a reasonable time, the Board shall authorize its executive secretary to bring a civil action in the name of the Board to recover from the owner such costs and value, plus any court or other legal costs incurred in connection with such action.
      2. If the owner is a political subdivision of the Commonwealth, the action may be brought in any circuit court within the territory embraced by such political subdivision. If the owner is an establishment, as defined in this chapter, the action shall be brought in the circuit court of the city or the circuit court of the county in which such establishment is located. If the owner is an individual or group of individuals, the action shall be brought in the circuit court of the city or circuit court of the county in which such person or any of them reside.
      3. For the purposes of this subdivision 11, the State Water Control Board shall be deemed the owner of the fish killed and the proceedings shall be as though the State Water Control Board were the owner of the fish. The fact that the owner has or held a certificate issued under this chapter shall not be raised as a defense in bar to any such action.
      4. The proceeds of any recovery had under this subdivision 11 shall, when received by the Board, be applied, first, to reimburse the Board for any expenses incurred in investigating such killing of fish. The balance shall be paid to the Board of Wildlife Resources to be used for the fisheries’ management practices as in its judgment will best restore or replace the fisheries’ values lost as a result of such discharge of waste, including, where appropriate, replacement of the fish killed with game fish or other appropriate species. Any such funds received are hereby appropriated for that purpose.
      5. Nothing in this subdivision 11 shall be construed in any way to limit or prevent any other action which is now authorized by law by the Board against any owner.
      6. Notwithstanding the foregoing, the provisions of this subdivision 11 shall not apply to any owner who adds or applies any chemicals or other substances that are recommended or approved by the State Department of Health to state waters in the course of processing or treating such waters for public water supply purposes, except where negligence is shown.
    (5c) Any certificate issued by the Board under this chapter relating to dredging projects governed under Chapter 12 (§ 28.2-1200 et seq.) or Chapter 13 (§ 28.2-1300 et seq.) of Title 28.2 may be conditioned upon a demonstration of financial responsibility for the completion of compensatory mitigation requirements. Financial responsibility may be demonstrated by a letter of credit, a certificate of deposit, or a performance bond executed in a form approved by the Board. If the U.S. Army Corps of Engineers requires demonstration of financial responsibility for the completion of compensatory mitigation required for a particular project, then the mechanism and amount approved by the U.S. Army Corps of Engineers shall be used to meet this requirement. (8a) Except as otherwise provided in subdivision (19) and Article 2.3 (§ 62.1-44.15:24 et seq.), to issue special orders to owners, including owners as defined in § 62.1-44.15:24 , who (i) are permitting or causing the pollution, as defined by § 62.1-44.3 , of state waters or the unreasonable degradation of property to cease and desist from such pollution or degradation, (ii) have failed to construct facilities in accordance with final approved plans and specifications to construct such facilities in accordance with final approved plans and specifications, (iii) have violated the terms and provisions of a certificate or land-disturbance approval issued by the Board to comply with such terms and provisions, (iv) have failed to comply with a directive from the Board to comply with such directive, (v) have contravened duly adopted and promulgated water quality standards and policies to cease and desist from such contravention and to comply with such water quality standards and policies, (vi) have violated the terms and provisions of a pretreatment permit issued by the Board or by the owner of a publicly owned treatment works to comply with such terms and provisions, or (vii) have contravened any applicable pretreatment standard or requirement to comply with such standard or requirement; and also to issue such orders to require any owner to comply with the provisions of this chapter and any decision of the Board. Except as otherwise provided by a separate article, orders issued pursuant to this subdivision may include civil penalties of up to $ 32,500 per violation, not to exceed $ 100,000 per order. The Board may assess penalties under this subdivision if (a) the person has been issued at least two written notices of alleged violation by the Department for the same or substantially related violations at the same site, (b) such violations have not been resolved by demonstration that there was no violation, by an order issued by the Board or the Director, or by other means, (c) at least 130 days have passed since the issuance of the first notice of alleged violation, and (d) there is a finding that such violations have occurred after a hearing conducted in accordance with subdivision (8b). The actual amount of any penalty assessed shall be based upon the severity of the violations, the extent of any potential or actual environmental harm, the compliance history of the facility or person, any economic benefit realized from the noncompliance, and the ability of the person to pay the penalty. The Board shall provide the person with the calculation for the proposed penalty prior to any hearing conducted for the issuance of an order that assesses penalties pursuant to this subdivision. The issuance of a notice of alleged violation by the Department shall not be considered a case decision as defined in § 2.2-4001 . Any notice of alleged violation shall include a description of each violation, the specific provision of law violated, and information on the process for obtaining a final decision or fact finding from the Department on whether or not a violation has occurred, and nothing in this section shall preclude an owner from seeking such a determination. Such civil penalties shall be paid into the state treasury and deposited by the State Treasurer into the Virginia Environmental Emergency Response Fund (§ 10.1-2500 et seq.), except that civil penalties assessed for violations of Article 9 (§ 62.1-44.3 4:8 et seq.) or Article 11 (§ 62.1-44.34:14 et seq.) shall be paid into the Virginia Petroleum Storage Tank Fund in accordance with § 62.1-44.34:11 , and except that civil penalties assessed for violations of subdivision (19) or Article 2.3 (§ 62.1-44.15:24 et seq.) shall be paid into the Stormwater Local Assistance Fund in accordance with § 62.1-44.15:29 .1. (8b) Such special orders are to be issued only after a hearing before a hearing officer appointed by the Supreme Court in accordance with § 2.2-4020 or, if requested by the person, before a quorum of the Board with at least 30 days’ notice to the affected owners, of the time, place, and purpose thereof, and they shall become effective not less than 15 days after service as provided in 62.1-44.12 , provided that if the Board finds that any such owner is grossly affecting or presents an imminent and substantial danger to (i) the public health, safety, or welfare, or the health of animals, fish, or aquatic life; (ii) a public water supply; or (iii) recreational, commercial, industrial, agricultural, or other reasonable uses, it may issue, without advance notice or hearing, an emergency special order directing the owner to cease such pollution or discharge immediately, and shall provide an opportunity for a hearing, after reasonable notice as to the time and place thereof to the owner, to affirm, modify, amend, or cancel such emergency special order. If an owner who has been issued such a special order or an emergency special order is not complying with the terms thereof, the Board may proceed in accordance with 62.1-44.23 , and where the order is based on a finding of an imminent and substantial danger, the court shall issue an injunction compelling compliance with the emergency special order pending a hearing by the Board. If an emergency special order requires cessation of a discharge, the Board shall provide an opportunity for a hearing within 48 hours of the issuance of the injunction. (8c) The provisions of this section notwithstanding, the Board may proceed directly under § 62.1-44.32 for any past violation or violations of any provision of this chapter or any regulation duly promulgated hereunder. (8d) Except as otherwise provided in subdivision (19), subdivision 2 of § 62.1-44.15:25 , or § 62.1-44.15:63 , with the consent of any owner who has violated or failed, neglected, or refused to obey any regulation or order of the Board, any condition of a certificate, land-disturbance approval, or permit, or any provision of this chapter, the Board may provide, in an order issued by the Board against such person, for the payment of civil charges for past violations in specific sums not to exceed the limit specified in subsection (a) of § 62.1-44.32 . Such civil charges shall be instead of any appropriate civil penalty which could be imposed under subsection (a) of § 62.1-44.32 and shall not be subject to the provisions of § 2.2-514 . Such civil charges shall be paid into the state treasury and deposited by the State Treasurer into the Virginia Environmental Emergency Response Fund (§ 10.1-2500 et seq.), excluding civil charges assessed for violations of Article 9 (§ 62.1-44.34:8 et seq.) or 10 (§ 62.1-44.34:10 et seq.) of Chapter 3.1, or a regulation, administrative or judicial order, or term or condition of approval relating to or issued under those articles, or civil charges assessed for violations of Article 2.3 (§ 62.1-44.15:24 et seq.) or 2.5 (§ 62.1-44.15:67 et seq.) or a regulation, administrative or judicial order, or term or condition of approval relating to or issued under Article 2.3 or 2.5.The amendments to this section adopted by the 1976 Session of the General Assembly shall not be construed as limiting or expanding any cause of action or any other remedy possessed by the Board prior to the effective date of said amendments. (8e) The Board shall develop and provide an opportunity for public comment on guidelines and procedures that contain specific criteria for calculating the appropriate penalty for each violation based upon the severity of the violations, the extent of any potential or actual environmental harm, the compliance history of the facility or person, any economic benefit realized from the noncompliance, and the ability of the person to pay the penalty. (8f) Before issuing a special order under subdivision (8a) or by consent under (8d), with or without an assessment of a civil penalty, to an owner of a sewerage system requiring corrective action to prevent or minimize overflows of sewage from such system, the Board shall provide public notice of and reasonable opportunity to comment on the proposed order. Any such order under subdivision (8d) may impose civil penalties in amounts up to the maximum amount authorized in § 309(g) of the Clean Water Act. Any person who comments on the proposed order shall be given notice of any hearing to be held on the terms of the order. In any hearing held, such person shall have a reasonable opportunity to be heard and to present evidence. If no hearing is held before issuance of an order under subdivision (8d), any person who commented on the proposed order may file a petition, within 30 days after the issuance of such order, requesting the Board to set aside such order and provide a formal hearing thereon. If the evidence presented by the petitioner in support of the petition is material and was not considered in the issuance of the order, the Board shall immediately set aside the order, provide a formal hearing, and make such petitioner a party. If the Board denies the petition, the Board shall provide notice to the petitioner and make available to the public the reasons for such denial, and the petitioner shall have the right to judicial review of such decision under § 62.1-44.29 if he meets the requirements thereof. (8g) To issue special orders for violations of this chapter to persons constructing or operating any natural gas transmission pipeline greater than 36 inches inside diameter. An order issued pursuant to this subdivision may include a civil penalty of up to $50,000 per violation, not to exceed $500,000 per order. The Board may assess a penalty under this subdivision if (i) the person has been issued at least two written notices of alleged violation by the Department for violations involving the same pipeline; (ii) such violations have not been resolved by a demonstration that there was no violation, by an order issued by the Board or the Director, including an order pursuant to subdivision (8d), or by other means; and (iii) there is a finding that such violation occurred after a hearing was conducted (a) before a hearing officer appointed by the Supreme Court, (b) in accordance with § 2.2-4020 , and (c) with at least 30 days’ notice to such person of the time, place, and purpose thereof. Such order shall become effective not less than 15 days after service as provided in § 62.1-44.12 . The actual amount of any penalty assessed shall be based upon the severity of the violation, the extent of any potential or actual environmental harm, the compliance history of the person, any economic benefit realized from the noncompliance, and the ability of the person to pay the penalty. The Board shall provide the person with the calculation for the proposed penalty prior to any hearing conducted for the issuance of an order that assesses penalties pursuant to this subdivision. The issuance of a notice of alleged violation by the Department shall not be a case decision as defined in § 2.2-4001 . Any notice of alleged violation shall include a description of each violation, the specific provision of law violated, and information on the process for obtaining a final decision or fact-finding from the Department on whether or not a violation has occurred, and nothing in this subdivision shall preclude a person from seeking such a determination. Such civil penalties shall be paid into the state treasury and deposited by the State Treasurer into the Virginia Environmental Emergency Response Fund (§ 10.1-2500 et seq.), except that civil penalties assessed for violations of Article 2.3 (§ 62.1-44.15:24 et seq.) or 2.4 (§ 62.1-44.15:51 et seq.) shall be paid into the state treasury and deposited by the State Treasurer into the Virginia Stormwater Management Fund (§ 62.1-44.15:29 ).

(4) To conduct or have conducted scientific experiments, investigations, studies, and research to discover methods for maintaining water quality consistent with the purposes of this chapter. To this end the Board may cooperate with any public or private agency in the conduct of such experiments, investigations, and research and may receive in behalf of the Commonwealth any moneys that any such agency may contribute as its share of the cost under any such cooperative agreement. Such moneys shall be used only for the purposes for which they are contributed and any balance remaining after the conclusion of the experiments, investigations, studies, and research, shall be returned to the contributors.

(5) To issue, revoke, or amend certificates and land-disturbance approvals under prescribed conditions for (a) the discharge of sewage, stormwater, industrial wastes, and other wastes into or adjacent to state waters; (b) the alteration otherwise of the physical, chemical, or biological properties of state waters; (c) excavation in a wetland; or (d) on and after October 1, 2001, the conduct of the following activities in a wetland: (i) new activities to cause draining that significantly alters or degrades existing wetland acreage or functions, (ii) filling or dumping, (iii) permanent flooding or impounding, or (iv) new activities that cause significant alteration or degradation of existing wetland acreage or functions. However, to the extent allowed by federal law, any person holding a certificate issued by the Board that is intending to upgrade the permitted facility by installing technology, control equipment, or other apparatus that the permittee demonstrates to the satisfaction of the Director will result in improved energy efficiency, reduction in the amount of nutrients discharged, and improved water quality shall not be required to obtain a new, modified, or amended permit. The permit holder shall provide the demonstration anticipated by this subdivision to the Department no later than 30 days prior to commencing construction.

(6) To make investigations and inspections, to ensure compliance with the conditions of any certificates, land-disturbance approvals, standards, policies, rules, regulations, rulings, and orders that it may adopt, issue, or establish, and to furnish advice, recommendations, or instructions for the purpose of obtaining such compliance. In recognition of §§ 32.1-164 and 62.1-44.18 , the Board and the State Department of Health shall enter into a memorandum of understanding establishing a common format to consolidate and simplify inspections of sewage treatment plants and coordinate the scheduling of the inspections. The new format shall ensure that all sewage treatment plants are inspected at appropriate intervals in order to protect water quality and public health and at the same time avoid any unnecessary administrative burden on those being inspected.

(7) To adopt rules governing the procedure of the Board with respect to (a) hearings; (b) the filing of reports; (c) the issuance of certificates and orders; and (d) all other matters relating to procedure; and to amend or cancel any rule adopted. Public notice of every rule adopted under this section shall be by such means as the Board may prescribe.

(9) To make such rulings under §§ 62.1-44.16 , 62.1-44.17 , and 62.1-44.19 as may be required upon requests or applications to the Board, the owner or owners affected to be notified by certified mail as soon as practicable after the Board makes them and such rulings to become effective upon such notification.

(10) To adopt such regulations as it deems necessary to enforce the general soil erosion control and stormwater management program and water quality management program of the Board in all or part of the Commonwealth, except that a description of provisions of any proposed regulation which are more restrictive than applicable federal requirements, together with the reason why the more restrictive provisions are needed, shall be provided to the standing committee of each house of the General Assembly to which matters relating to the content of the regulation are most properly referable.

(11) To investigate any large-scale killing of fish.

(12) To administer programs of financial assistance for planning, construction, operation, and maintenance of water quality control facilities for political subdivisions in the Commonwealth.

(13) To establish policies and programs for effective area-wide or basin-wide water quality control and management. The Board may develop comprehensive pollution abatement and water quality control plans on an area-wide or basin-wide basis. In conjunction with this, the Board, when considering proposals for waste treatment facilities, is to consider the feasibility of combined or joint treatment facilities and is to ensure that the approval of waste treatment facilities is in accordance with the water quality management and pollution control plan in the watershed or basin as a whole. In making such determinations, the Board is to seek the advice of local, regional, or state planning authorities.

(14) To establish requirements for the treatment of sewage, industrial wastes, and other wastes that are consistent with the purposes of this chapter; however, no treatment shall be less than secondary or its equivalent, unless the owner can demonstrate that a lesser degree of treatment is consistent with the purposes of this chapter.

(15) To promote and establish requirements for the reclamation and reuse of wastewater that are protective of state waters and public health as an alternative to directly discharging pollutants into waters of the state. The requirements shall address various potential categories of reuse and may include general permits and provide for greater flexibility and less stringent requirements commensurate with the quality of the reclaimed water and its intended use. The requirements shall be developed in consultation with the Department of Health and other appropriate state agencies. This authority shall not be construed as conferring upon the Board any power or duty duplicative of those of the State Board of Health.

(16) To establish and implement policies and programs to protect and enhance the Commonwealth’s wetland resources. Regulatory programs shall be designed to achieve no net loss of existing wetland acreage and functions. Voluntary and incentive-based programs shall be developed to achieve a net resource gain in acreage and functions of wetlands. The Board shall seek and obtain advice and guidance from the Virginia Institute of Marine Science in implementing these policies and programs.

(17) To establish additional procedures for obtaining a Virginia Water Protection Permit pursuant to §§ 62.1-44.15:20 and 62.1-44.15:22 for a proposed water withdrawal involving the transfer of water resources between major river basins within the Commonwealth that may impact water basins in another state. Such additional procedures shall not apply to any water withdrawal in existence as of July 1, 2012, except where the expansion of such withdrawal requires a permit under §§ 62.1-44.15:20 and 62.1-44.15:22 , in which event such additional procedures may apply to the extent of the expanded withdrawal only. The applicant shall provide as part of the application (i) an analysis of alternatives to such a transfer, (ii) a comprehensive analysis of the impacts that would occur in the source and receiving basins, (iii) a description of measures to mitigate any adverse impacts that may arise, (iv) a description of how notice shall be provided to interested parties, and (v) any other requirements that the Board may adopt that are consistent with the provisions of this section and §§ 62.1-44.15:20 and 62.1-44.15:22 or regulations adopted thereunder. This subdivision shall not be construed as limiting or expanding the Board’s authority under §§ 62.1-44.15:20 and 62.1-44.15:22 to issue permits and impose conditions or limitations on the permitted activity.

(18) To be the lead agency for the Commonwealth’s nonpoint source pollution management program, including coordination of the nonpoint source control elements of programs developed pursuant to certain state and federal laws, including § 319 of the federal Clean Water Act and § 6217 of the federal Coastal Zone Management Act. Further responsibilities include the adoption of regulations necessary to implement a nonpoint source pollution management program in the Commonwealth, the distribution of assigned funds, the identification and establishment of priorities to address nonpoint source related water quality problems, the administration of the Statewide Nonpoint Source Advisory Committee, and the development of a program for the prevention and control of soil erosion, sediment deposition, and nonagricultural runoff to conserve Virginia’s natural resources.

(19) To review for compliance with the provisions of this chapter the Virginia Erosion and Stormwater Management Programs adopted by localities pursuant to § 62.1-44.15:27 , the Virginia Erosion and Sediment Control Programs adopted by localities pursuant to subdivision B 3 of § 62.1-44.15:27 , and the programs adopted by localities pursuant to the Chesapeake Bay Preservation Act (§ 62.1-44.15:67 et seq.). The Board shall develop and implement a schedule for conducting such program reviews as often as necessary but at least once every five years. Following the completion of a compliance review in which deficiencies are found, the Board shall establish a schedule for the locality to follow in correcting the deficiencies and bringing its program into compliance. If the locality fails to bring its program into compliance in accordance with the compliance schedule, then the Board is authorized to (i) issue a special order to any locality imposing a civil penalty not to exceed $ 5,000 per violation with the maximum amount not to exceed $ 50,000 per order for noncompliance with the state program, to be paid into the state treasury and deposited in the Stormwater Local Assistance Fund established in § 62.1-44.15:29.1 or (ii) with the consent of the locality, provide in an order issued against the locality for the payment of civil charges for violations in lieu of civil penalties, in specific sums not to exceed the limit stated in this subdivision. Such civil charges shall be in lieu of any appropriate civil penalty that could be imposed under subsection (a) of § 62.1-44.32 and shall not be subject to the provisions of § 2.2-514 . The Board shall not delegate to the Department its authority to issue special orders pursuant to clause (i). In lieu of issuing an order, the Board is authorized to take legal action against a locality pursuant to § 62.1-44.23 to ensure compliance.

History. Code 1950, § 62.1-27; 1968, c. 659; 1970, c. 638; 1972, c. 741; 1975, c. 335; 1976, c. 621; 1977, c. 32; 1978, c. 827; 1984, c. 11; 1985, cc. 249, 397; 1988, cc. 167, 328; 1989, c. 389; 1990, c. 717; 1991, cc. 239, 718; 1993, c. 456; 1994, c. 698; 1998, cc. 805, 863; 2000, cc. 972, 1032, 1054; 2002, cc. 49, 396; 2004, c. 431; 2005, c. 706; 2007, cc. 144, 633, 873, 916; 2011, cc. 52, 101; 2012, cc. 574, 581; 2013, cc. 756, 793; 2016, cc. 68, 758; 2020, cc. 449, 958.

Section set out twice.

The section above is effective July 1, 2018, or 30 days after the adoption by the State Water Control Board of the regulations required by Acts 2016, cc. 68 and 758, cl. 9, whichever occurs later. For this section as in effect until that time, see the preceding section, also numbered 62.1-44.15 .

Editor’s note.

Acts 2016, cc. 68 and 758, cl. 9 provides: “That the State Water Control Board (the Board) shall adopt regulations to implement the requirements of this act. The adoption of such regulations shall be exempt from the requirements of Article 2 ( § 2.2-4006 et seq.) of the Administrative Process Act ( § 2.2-4000 et seq.) of the Code of Virginia. However, the Department shall (i) provide a Notice of Intended Regulatory Action, (ii) form a stakeholders advisory group, (iii) provide for a 60-day public comment period prior to the Board’s adoption of the regulations, and (iv) provide the Board with a written summary of comments received and responses to comments prior to the Board’s adoption of the regulations.”

Acts 2016, cc. 68 and 758, cl. 10, as amended by Acts 2017, c. 345, cl. 2, provides: “That the provisions of this act shall become effective July 1, 2018, or 30 days after the adoption by the State Water Control Board of the regulations required by the ninth enactment of this act, whichever occurs later.”

The 2016 amendments.

The 2016 amendments by cc. 68 and 758 are identical, and added subdivision (19); inserted “land-disturbance approval(s)” following “certificate(s)” throughout the section; in subdivision (5), inserted “stormwater”; in subdivision (5b) 1, inserted “causes unreasonable property degradation”; in subdivision (5b) 3, inserted “or causes unreasonable property degradation” and “or practices”; in subdivision (5b) 4, inserted “certificate, land-disturbance approval, or,” “or land-disturbing activity,” “land-disturbance approval, or permit” and added “or stop or prevent unreasonable degradation of property”; in subdivisions (6) and (7), deleted “special” preceding “orders”; in subdivision (8a), substituted “including owners as defined in § 62.1-44.15:24 ” for “(i),” and inserted “into the Stormwater Local Assistance Fund” near the end; in subdivision (8d), inserted “Except as otherwise provided in subdivision (19), subdivision 2 of § 62.1-44.15:25 , or § 62.1-44.15:63 ” and inserted “certificate, land-disturbance approval, or,” in subdivision (10), inserted “soil erosion control and stormwater management program and”; and made minor stylistic changes and updated statutory references throughout. For effective date, see Editor’s note.

§ 62.1-44.15:01. Further duties of Board; localities particularly affected.

  1. After June 30, 1994, before promulgating any regulation under consideration or granting any variance to an existing regulation, or issuing any permit, if the Board finds that there are localities particularly affected by the regulation, variance or permit, the Board shall:
    1. Publish, or require the applicant to publish, a notice in a local paper of general circulation in the localities affected at least 30 days prior to the close of any public comment period. Such notice shall contain a statement of the estimated local impact of the proposed action, which at a minimum shall include information on the specific pollutants involved and the total quantity of each that may be discharged.
    2. Mail the notice to the chief elected official and chief administrative officer and planning district commission for those localities.Written comments shall be accepted by the Board for at least 15 days after any hearing on the regulation, variance or permit, unless the Board votes to shorten the period.For the purposes of this section, the term “locality particularly affected” means any locality that bears any identified disproportionate material water quality impact that would not be experienced by other localities.
  2. On or after January 1, 2007, the Board shall ensure that all wetland inventory maps that identify the location of wetlands in the Commonwealth and that are maintained by the Board be made readily available to the public. The Board shall notify the circuit court clerk’s office and other appropriate officials in each locality of the availability of the wetland inventory maps and request that the locality provide information in the location where the land records of the locality are maintained on the availability of the wetland inventory maps as well as the potential Virginia Water Protection Permit requirements.

History. 1993, c. 944; 2005, c. 478.

Editor’s note.

Acts 1993, c. 944, which enacted this section, in cl. 2 provides that the requirements of the 1993 act affecting regulatory actions shall apply only to regulatory actions for which a notice of intended regulatory action has been filed with the Registrar of Regulations on or after July 1, 1993.

The 2005 amendments.

The 2005 amendment by c. 478, substituted “that” for “which” in the last sentence of subdivision A 1 and in the last undesignated paragraph, added subsection B, and made minor stylistic changes.

§ 62.1-44.15:02. Repealed by Acts 2022, c. 256, effective July 1, 2022.

Editor’s note.

This section was also amended in 2022 by Acts 2022, c. 597, but due to the repeal by Acts 2022, c. 256 the amendment is not set out.

§ 62.1-44.15:03. Disposal of fill; notice to locality.

The Department shall establish a process whereby any person that receives coverage under the General Virginia Pollutant Discharge Elimination System Permit for Discharges of Stormwater from Construction Activities and that will be transporting fill from a project site for disposal as part of its land-disturbing activities shall disclose to the Department the following information, which the Department shall disclose to every locality where such fill will be disposed of: (i) the source of the fill to be disposed of, (ii) the contents of the fill, and (iii) the location of the disposal.

History. 2020, c. 565.

Editor’s note.

Acts 2020, c. 565 was codified as this section at the direction of the Virginia Code Commission.

§ 62.1-44.15:1. Limitation on power to require construction of sewerage systems or sewage or other waste treatment works; ammonia criteria.

  1. Nothing contained in this chapter shall be construed to empower the Board to require the Commonwealth, or any political subdivision thereof, or any authority created under the provisions of § 15.2-5102 or §§ 15.2-5152 through 15.2-5158 , to construct any sewerage system, sewage treatment works, or water treatment plant waste treatment works or system necessary to (i) upgrade the present level of treatment in existing systems or works to abate existing pollution of state waters or (ii) expand a system or works to accommodate additional growth, unless the Board shall have previously committed itself to provide financial assistance from federal and state funds equal to the maximum amount provided for under § 8 or other applicable sections of the Federal Water Pollution Control Act, P.L. 84-660, as amended, or unless the Commonwealth or political subdivision or authority voluntarily agrees, or is directed by the Board with the concurrence of the Governor, to proceed with such construction, subject to reimbursement under § 8 or other applicable sections of such federal act.The foregoing restriction shall not apply to those cases where existing sewerage systems or sewage or other waste treatment works cease to perform in accordance with their approved certificate requirements.
  2. Nothing contained in this chapter shall be construed to empower the Board to require the Commonwealth, or any political subdivision thereof, to upgrade the level of treatment in any works to a level more stringent than that required by applicable provisions of the Federal Water Pollution Control Act, P.L. 84-660, as amended.
  3. Nothing contained in this chapter shall be construed to empower the Board to adopt the 2013 proposed Aquatic Life Ambient Water Quality Criteria for Ammonia of the U.S. Environmental Protection Agency unless the Board includes in such adoption a phased implementation program consistent with the federal Clean Water Act (33 U.S.C. § 1251 et seq.) that includes (i) consideration of the relative priority of ammonia criteria and other water quality and water infrastructure needs of the local community, (ii) mechanisms to coordinate implementation timing with grant funding mechanisms pursuant to § 10.1-2131 and other treatment facility expansion and upgrade plans, (iii) appropriate long-term compliance schedules for facilities or classes of facilities utilizing multiple permit cycles, and (iv) appropriate mechanisms to address affordability limitations and financial hardship situations remaining notwithstanding the other elements of the phased implementation program.

History. 1971, Ex. Sess., cc. 197, 245; 1973, c. 179; 1975, c. 279; 1981, c. 262; 2018, cc. 510, 511.

Editor’s note.

Acts 2018, cc. 510 and 511, cl. 2 provides: “That the Department of Environmental Quality shall (i) identify any other states that have adopted the U.S. Environmental Protection Agency 2013 Aquatic Life Ambient Water Quality Criteria for Ammonia (the Criteria) as of July 1, 2018; (ii) identify the specific procedures and practices for the implementation of the Criteria by the General Assembly or the State Water Control Board (the Board) that will both minimize the impact of the Criteria on Virginia sewerage systems or other treatment works and be permissible under the federal Clean Water Act (33 U.S.C. § 1251 et seq.), including an opportunity to request consideration of alternative effluent limitations based on a demonstration by the permittee, acceptable to the Board, of the lack of appreciable harm from the discharge of ammonia to aquatic life that is present in the vicinity of the discharge or which should be present but for the discharge; and (iii) report its findings to the Chairmen of the Senate Committee on Agriculture, Conservation and Natural Resources, the House Committee on Agriculture, Chesapeake and Natural Resources, the Senate Finance Committee, and the House Appropriations Committee no later than November 1, 2018. The completion of such identification and reporting shall not preclude the Board from proceeding to adopt the Criteria.”

Acts 2018, cc. 510 and 511, cl. 3 provides: “That the inclusion of the phased implementation program required by this act in the current regulatory action of the State Water Control Board (the Board) on the adoption of the U.S. Environmental Protection Agency 2013 Aquatic Life Ambient Water Quality Criteria for Ammonia shall not require reproposal of the current action and shall not be considered changes with substantial impact under § 2.2-4007.06 of the Code of Virginia if the Department of Environmental Quality provides a 60-day public comment period on the proposed phased implementation program before it is presented to the Board for adoption.”

The 2018 amendments.

The 2018 amendments by cc. 510 and 511 are identical, and redesignated the existing provisions as subsections A and B, added subsection C, and made stylistic changes.

Law Review.

For survey of Virginia administrative law for the year 1974-1975, see 61 Va. L. Rev. 1632 (1975).

§ 62.1-44.15:1.1. Special orders; penalties.

The Board is authorized to issue special orders in compliance with the Administrative Process Act (§ 2.2-4000 et seq.) requiring that an owner file with the Board a plan to abate, control, prevent, remove, or contain any substantial and imminent threat to public health or the environment that is reasonably likely to occur if such facility ceases operations. Such plan shall also include a demonstration of financial capability to implement the plan. Financial capability may be demonstrated by the establishment of an escrow account, the creation of a trust fund to be maintained within the Board, submission of a bond, corporate guarantee based upon audited financial statements, or such other instruments as the Board may deem appropriate. The Board may require that such plan and instruments be updated as appropriate. The Board shall give due consideration to any plan submitted by the owner in accordance with §§ 10.1-1309.1, 10.1-1410, and 10.1-1428, in determining the necessity for and suitability of any plan submitted under this section.

For the purposes of this section, “ceases operation” means to cease conducting the normal operation of a facility which is regulated under this chapter under circumstances where it would be reasonable to expect that such operation will not be resumed by the owner at the facility. The term shall not include the sale or transfer of a facility in the ordinary course of business or a permit transfer in accordance with Board regulations.

Any person who ceases operations and who knowingly and willfully fails to implement a closure plan or to provide adequate funds for implementation of such plan shall, if such failure results in a significant harm or an imminent and substantial threat of significant harm to human health or the environment, be liable to the Commonwealth and any political subdivision thereof for the costs incurred in abating, controlling, preventing, removing, or containing such harm or threat.

Any person who ceases operations and who knowingly and willfully fails to implement a closure plan or to provide adequate funds for implementation of such plan shall, if such failure results in a significant harm or an imminent and substantial threat of significant harm to human health or the environment, be guilty of a Class 4 felony.

History. 1991, c. 702.

Cross references.

As to punishment for Class 4 felonies, see § 18.2-10 .

§ 62.1-44.15:1.2. Lake level contingency plans.

Any Virginia Pollutant Discharge Elimination System permit issued for a surface water impoundment whose primary purpose is to provide cooling water to power generators shall include a lake level contingency plan to allow specific reductions in the flow required to be released when the water level above the dam drops below designated levels due to drought conditions. The plan shall take into account and minimize any adverse effects of any release reduction requirements on beneficial uses, as defined in § 62.1-10 , within the impoundment, and on downstream users. The reduction in release amounts required by a lake level contingency plan shall not be implemented to the extent they result in an adverse impact to (i) the ability to meet water quality standards based upon permitted discharge amounts, (ii) the ability to provide adequate water supplies for consumptive purposes such as drinking water and fire protection, and (iii) fish and wildlife resources. In the event there is an imminent threat of such an adverse impact, the permit holder and the Department of Environmental Quality shall be notified. Upon such notification, the permit holder may increase release amounts as specified in the permit for up to forty-eight hours or until such time as the Department of Environmental Quality determines whether or not the increase in release amounts is necessary. This section shall not apply to any such facility that addresses releases and flow requirements during drought conditions in a Virginia Water Protection Permit.

History. 2000, cc. 103, 119; 2001, c. 116.

The 2001 amendments.

The 2001 amendment by c. 116 divided the former first sentence into the present first and second sentences; in the present first sentence, substituted “Pollutant” for “Pollution”; in the present second sentence, substituted “The plan” for “and such plans,” and inserted “beneficial uses, as defined in § 62.1-10 , within the impoundment, and on”; and inserted the present third, fourth and fifth sentences.

Law Review.

For 2000 survey of Virginia environmental law, see 34 U. Rich. L. Rev. 799 (2000).

§ 62.1-44.15:2. Extraordinary hardship program.

There is hereby established a supplemental program of financial assistance for the construction of water quality control facilities by political subdivisions of the Commonwealth. All sums appropriated for this program shall be apportioned by the Board among the political subdivisions qualifying, to provide financial assistance in addition to that otherwise available to help relieve extraordinary hardship in local funding of the construction of such facilities.

History. 1975, c. 339.

§ 62.1-44.15:3. When application for permit considered complete.

  1. No application submitted to the Board for a new individual Virginia Pollutant Discharge Elimination permit authorizing a new discharge of sewage, industrial wastes, or other wastes shall be considered complete unless it contains notification from the county, city, or town in which the discharge is to take place that the location and operation of the discharging facility are consistent with applicable ordinances adopted pursuant to Chapter 22 (§ 15.2-2200 et seq.) of Title 15.2. The county, city, or town shall inform in writing the applicant and the Board of the discharging facility’s compliance or noncompliance not more than thirty days from receipt by the chief administrative officer, or his agent, of a request from the applicant. Should the county, city, or town fail to provide such written notification within thirty days, the requirement for such notification is waived. The provisions of this subsection shall not apply to any discharge for which a valid certificate had been issued prior to March 10, 2000.
  2. No application for a certificate to discharge sewage into or adjacent to state waters from a privately owned wastewater treatment system serving fifty or more residences shall be considered complete unless the applicant has provided the Executive Director with notification from the State Corporation Commission that the applicant is incorporated in the Commonwealth and is in compliance with all regulations and relevant orders of the State Corporation Commission.

History. 1987, c. 132; 1990, c. 14; 1993, c. 606; 1994, cc. 262, 549; 1995, c. 256; 2000, cc. 19, 98; 2001, c. 492.

The 2000 amendments.

The 2000 amendments by c. 19, effective July 1, 2000, and c. 98, effective March 10, 2000, are virtually identical, and added subsection A and designated the former paragraph as subsection B. The amendment by c. 98 referred to “the effective date of this act” at the end of subsection A, which was March 10, 2000, while the amendment by c. 19 referred to “July 1, 2000.” The section is set out above as directed by the Code Commission.

The 2001 amendments.

The 2001 amendment by c. 492, in subsection A, substituted “submitted to the Board for a new individual Virginia Pollutant Discharge Elimination permit authorizing a new discharge of sewage, industrial wastes, or other wastes” for “for a certificate to discharge sewage into any water impoundment located in the state,” and deleted “the governing body of” following “notification from” in the first sentence, and in the second and third sentences substituted “county, city, or town” for “governing body” in two places, and substituted “thirty days” for “forty-five days” in two places.

Law Review.

As to local veto of water permits, see 22 U. Rich. L. Rev. 587 (1988).

CASE NOTES

Principles favoring Burford abstention were present, where plaintiffs claimed that defendant-county’s rejection of an alternative discharging sewage system permit had resulted in state and federal constitutional and statutory violations, including a taking without compensation under the Fifth Amendment and a denial of equal protection under the Fourteenth Amendment; system set out in Virginia Code for regulating sewage disposal represents a “complex state regulatory scheme” held to warrant abstention, and resolution of plaintiffs’ claims, both state and federal, required analysis of state sewage disposal law and local zoning policies, with administrative and judicial review available for handling all appeals from denials of permits. Graham v. County of Albemarle, 826 F. Supp. 167, 1993 U.S. Dist. LEXIS 9713 (W.D. Va. 1993), aff'd, modified, dismissed without prejudice, 19 F.3d 11, 1994 U.S. App. LEXIS 11461 (4th Cir. 1994).

Pullman abstention principles shown. —

Where plaintiffs in suit alleging that defendant-county’s rejection of an alternative discharging sewage system permit resulted in state and federal constitutional and statutory violations, Pullman abstention principles were present, for plaintiffs raised issues requiring the interpretation of unsettled state law and policy in the area of sewage disposal and case can be disposed of by resolving plaintiffs’ state law questions without resort to adjudication of the federal constitutional issues. Graham v. County of Albemarle, 826 F. Supp. 167, 1993 U.S. Dist. LEXIS 9713 (W.D. Va. 1993), aff'd, modified, dismissed without prejudice, 19 F.3d 11, 1994 U.S. App. LEXIS 11461 (4th Cir. 1994).

§ 62.1-44.15:4. Notification of local governments and property owners.

  1. Upon determining that there has been a violation of a regulation promulgated under this chapter and such violation poses an imminent threat to the health, safety or welfare of the public, the Executive Director shall immediately notify the chief administrative officer of any potentially affected local government. Neither the Executive Director, the Commonwealth, nor any employee of the Commonwealth shall be liable for a failure to provide, or a delay in providing, the notification required by this subsection.
  2. Upon receiving a nomination of a waterway or segment of a waterway for designation as an exceptional state water pursuant to the Board’s antidegradation policy, as required by 40 C.F.R. § 131.12, the Board shall notify each locality in which the waterway or segment lies and shall make a good faith effort to provide notice to impacted riparian property owners. The written notice shall include, at a minimum: (i) a description of the location of the waterway or segment; (ii) the procedures and criteria for designation as well as the impact of designation; (iii) the name of the person making the nomination; and (iv) the name of a contact person at the Department of Environmental Quality who is knowledgeable about the nomination and the waterway or segment. Notice to property owners shall be based on names and addresses taken from local tax rolls. Such names and addresses shall be provided by the Commissioners of the Revenue or the tax assessor’s office of the affected jurisdictions upon request by the Board. After receipt of the notice of the nomination localities shall be provided sixty days to comment on the consistency of the nomination with the locality’s comprehensive plan.
  3. Upon determining that a waterway or any segment of a waterway does not meet its water quality standard use designation as set out in the Board’s regulations and as required by § 1313 (d) of the federal Clean Water Act (33 U.S.C. § 1251 et seq.) and 40 C.F.R. § 130.7 (b), the Board shall notify each locality in which the waterway or segment lies. The written notification shall include, at a minimum: (i) a description of the reasons the waters do not meet the water quality standard including specific parameters and criteria not met; (ii) a layman’s description of the location of the waters; (iii) the known sources of the pollution; and (iv) the name of a contact person at the Department of Environmental Quality who is knowledgeable about the failure of the waterway or segment to meet the standards. After receipt of the notification, local governments shall have thirty days to comment.
  4. Upon receipt of an application for the issuance of a new or modified permit other than those for agricultural production or aquacultural production activities, the Board shall notify, in writing, the locality wherein the discharge does or is proposed to take place of, at a minimum: (i) the name of the applicant; (ii) the nature of the application and proposed discharge; (iii) the availability and timing of any comment period; and (iv) upon request, any other information known to, or in the possession of, the Board or the Department regarding the applicant not required to be held confidential by this chapter. The Board shall make a good faith effort to provide this same notice and information to (i) each locality and riparian property owner to a distance one quarter mile downstream and one quarter mile upstream or to the fall line whichever is closer on tidal waters, and (ii) each locality and riparian property owner to a distance one half mile downstream on nontidal waters. Distances shall be measured from the point, or proposed point, of discharge. If the receiving river, at the point or proposed point of discharge, is two miles wide or greater, the riparian property owners on the opposite shore need not be notified. Notice to property owners shall be based on names and addresses taken from local tax rolls. Such names and addresses shall be provided by the Commissioners of the Revenue or the tax assessor’s office of the affected jurisdictions upon request by the Board.
  5. Upon the commencement of public notice of an enforcement action pursuant to this chapter, the Board shall notify, in writing, the locality where the alleged offense has or is taking place of: (i) the name of the alleged violator; (ii) the facts of the alleged violation; (iii) the statutory remedies for the alleged violation; (iv) the availability and timing of any comment period; and (v) the name of a contact person at the Department of Environmental Quality who is knowledgeable about the alleged violation.
  6. The comment periods established in subsections B and C shall in no way impact a locality’s ability to comment during any additional comment periods established by the Board.

History. 1988, c. 434; 1996, c. 160; 1997, c. 581.

Law Review.

For an article reviewing key environmental developments at the federal and state levels during the period from June 1996 to June 1998, see 32 U. Rich. L. Rev. 1217 (1998).

§ 62.1-44.15:4.1. Listing and notice of confirmed oil releases and discharges.

The Department of Environmental Quality shall notify the Department of Health of any confirmed release or discharge of oil, as defined in §§ 62.1-44.34:8 and 62.1-44.34:14 , respectively, which requires that a site characterization investigation be conducted. Monthly notification to the Department of Health shall occur within one week from the last day of the previous month and shall include information on the location of the site of each confirmed release or discharge during the monthly reporting period. The reporting of such information shall begin for releases or discharges of oil that have been confirmed on and after January 1, 1999.

History. 1998, c. 795.

Effective date.

This section became effective January 1, 1999.

§ 62.1-44.15:5. Repealed by Acts 2007, c. 659, cl. 3.

Cross references.

For current provisions as to Virginia water protection permits, see Article 2.2 (§ 62.1-44.15:20 et seq.) of Chapter 3.1 of Title 62.1.

Editor’s note.

Acts 2007, c. 659, cl. 2, provides: “That permits and regulations issued under the authority of § 62.1-44.15:5 of the Code of Virginia shall remain in effect until their specified expiration dates or until they are otherwise amended, modified, repealed, or revoked.”

§ 62.1-44.15:5.01. Coordinated review of water resources projects.

  1. Applications for water resources projects that require an individual Virginia Water Protection Permit and a Virginia Marine Resources permit under § 28.2-1205 shall be submitted and processed through a joint application and review process.
  2. The Director and the Commissioner of the Virginia Marine Resources Commission, in consultation with the Virginia Institute of Marine Science, the Department of Wildlife Resources, the Department of Historic Resources, the Department of Health, the Department of Conservation and Recreation, the Virginia Department of Agriculture and Consumer Services, and any other appropriate or interested state agency, shall coordinate the joint review process to ensure the orderly evaluation of projects requiring both permits.
  3. The joint review process shall include, but not be limited to, provisions to ensure that: (i) the initial application for the project shall be advertised simultaneously by the Department of Environmental Quality and the Virginia Marine Resources Commission; (ii) project reviews shall be completed by all state agencies that have been asked to review and provide comments within 45 days of project notification by the Department of Environmental Quality and the Virginia Marine Resources Commission; (iii) the Board and the Virginia Marine Resources Commission shall coordinate permit issuance and, to the extent practicable, shall take action on the permit application no later than one year after the agencies have received complete applications; (iv) to the extent practicable, the Board and the Virginia Marine Resources Commission shall take action concurrently, but no more than six months apart; and (v) upon taking its final action on each permit, the Board and the Virginia Marine Resources Commission shall provide each other with notification of their actions and any and all supporting information, including any background materials or exhibits used in the application. Any state agency asked to review and provide comments in accordance with clause (ii) shall provide such comments within 45 days of project notification by the Department of Environmental Quality and the Virginia Marine Resources Commission or be deemed to have waived its right to provide comment.
  4. If requested by the applicant, the Department of Environmental Quality shall convene a preapplication review panel to assist applicants for water resources projects in the early identification of issues related to the protection of beneficial instream and offstream uses of state waters. The Virginia Marine Resources Commission, the Virginia Institute of Marine Science, the Department of Wildlife Resources, the Department of Conservation and Recreation, and the Department of Environmental Quality shall participate in the preapplication review panel by providing information and guidance on the potential natural resource impacts and regulatory implications of the options being considered by the applicant. However, the participation by these agencies in such a review process shall not limit any authority they may exercise pursuant to state and federal laws or regulations.

History. 2005, c. 49; 2011, cc. 829, 842; 2020, c. 958.

The 2011 amendments.

The 2011 amendments by cc. 829 and 842 are identical, and added the last sentence in subsection C.

The 2020 amendments.

The 2020 amendment by c. 958, in subsection B and in subsection D, substituted “Department of Wildlife Resources” for “Department of Game and Inland Fisheries.”

§ 62.1-44.15:5.02. Low-flow protections in Potomac River.

  1. Virginia Water Protection Permits issued after July 1, 2007, authorizing withdrawal of water from the Potomac River or its tributaries between the West Virginia border and Little Falls for any purpose other than municipal water supply, shall incorporate low-flow protection requirements if the maximum consumptive use allowed by the permit exceeds 500,000 gallons per day. Such permits shall require that the permittee provide or secure sufficient offstream storage to augment instream flow during low-flow periods in an amount equal to the amount that the permittee’s consumptive use exceeds 500,000 gallons per day. The permit shall specify the instream flow volume at which low-flow protection is to be implemented.
  2. Permittees may comply with the requirements of this section by: (i) constructing or acquiring facilities for offstream storage of water that may be used to replace their consumptive use withdrawals exceeding 500,000 gallons per day during low-flow periods; (ii) purchasing storage capacity in facilities owned by another entity, sufficient to replace their consumptive use withdrawals exceeding 500,000 gallons per day during low-flow periods; or (iii) agreeing to a permit condition limiting consumptive use to not more than 500,000 gallons per day during low-flow periods as designated in the permit.
  3. No owner who holds a Virginia Water Protection Permit as described in this section shall withdraw water for consumptive use in excess of 500,000 gallons per day, except in compliance with permit requirements for low-flow augmentation.
  4. Should the implementation of emergency measures pursuant to applicable law, regulation, or interjurisdictional agreement require more stringent temporary restrictions on consumptive use, those requirements shall override the provisions of permits issued pursuant to this section during the period that such requirements are in effect.
  5. The requirements of this section shall not apply to the reissuance or amendment of any Virginia Water Protection Permit issued prior to July 1, 2007, unless such reissuance or amendment: (i) authorizes an increase in the permitted withdrawal in excess of 500,000 gallons per day for consumptive use; or (ii) authorizes a change from nonconsumptive to consumptive use, in excess of 500,000 gallons per day.

History. 2007, c. 656.

Law Review.

For 2007 annual survey article, “Environmental Law,” see 42 U. Rich. L. Rev. 383 (2007).

§ 62.1-44.15:5.1. General permit for certain water quality improvement activities.

  1. The Board shall coordinate the development of a general permit for activities such as bioengineered streambank stabilization projects and livestock stream crossings that: (i) are coverable by the Nationwide Permit Program (33 C.F.R. Part 330) of the United States Army Corps of Engineers and for which certification has not been waived by the Board; (ii) are conservation practices designed and supervised by a soil and water conservation district; (iii) meet the design standards of the Department of Conservation and Recreation and the United States Department of Agriculture’s Natural Resource Conservation Service; and (iv) are intended to improve water quality. The development of the general permit shall be exempt from Article 2 (§ 2.2-4006 et seq.) of the Administrative Process Act.
  2. The development of the general permit shall be a coordinated effort between the Department of Environmental Quality, the Virginia Marine Resources Commission and such other agencies as may be needed to develop a single, unified, process that will expedite the implementation of the projects described in subsection A and unify and streamline the permitting process for such projects.
  3. A general permit pursuant to this section shall be promulgated as final by July 1, 1998.

History. 1997, c. 845.

§ 62.1-44.15:5.2. General permits for ready-mix concrete plant discharges.

Any general permit issued by the Board for discharges of stormwater and process wastewater from industrial activities associated with the manufacture of ready-mix concrete shall apply to both permanent and portable plants. The general permit may include a requirement that settling basins for the treatment and control of process wastewater and commingled stormwater be lined with concrete or other impermeable materials for settling basins constructed on or before February 1, 1998, and shall include such a requirement for all settling basins constructed on or after February 2, 1998.

History. 1998, c. 28.

Law Review.

For 2000 survey of Virginia environmental law, see 34 U. Rich. L. Rev. 799 (2000).

Article 2.1. Permit Fees.

§ 62.1-44.15:6. Permit fee regulations.

  1. The Board shall promulgate regulations establishing a fee assessment and collection system to recover a portion of the State Water Control Board’s, the Department of Wildlife Resources’ and the Department of Conservation and Recreation’s direct and indirect costs associated with the processing of an application to issue, reissue, amend or modify any permit or certificate, which the Board has authority to issue under this chapter and Chapters 24 (§ 62.1-242 et seq.) and 25 (§ 62.1-254 et seq.) of this title, from the applicant for such permit or certificate for the purpose of more efficiently and expeditiously processing permits. The fees shall be exempt from statewide indirect costs charged and collected by the Department of Accounts. The Board shall have no authority to charge such fees where the authority to issue such permits has been delegated to another agency that imposes permit fees. Click to viewThe fee for the major modification of a permit or certificate that occurs between the permit issuance and expiration dates shall be 50 percent of the maximum amount established by this subsection. No fees shall be charged for minor modifications or minor amendments to such permits. For the purpose of this subdivision, “minor modifications” or “minor amendments” means specific types of changes defined by the Board that are made to keep the permit current with routine changes to the facility or its operation that do not require extensive review. A minor permit modification or amendment does not substantially alter permit conditions, increase the size of the operation, or reduce the capacity of the facility to protect human health or the environment. Click to viewAn additional permit maintenance fee of $1,000 shall be collected from facilities in a toxics management program and an additional permit maintenance fee shall be collected from facilities that have more than five process wastewater discharge outfalls. Permit maintenance fees shall be collected annually and shall be remitted by October 1 of each year. For a local government or public service authority with permits for multiple facilities in a single jurisdiction, the permit maintenance fees for permits held as of April 1, 2004, shall not exceed $20,000 per year. No permit maintenance fee shall be assessed for facilities operating under a general permit or for permits pertaining to a farming operation engaged in production for market. Click to viewNo fees shall be charged for minor modifications or minor amendments to such permits. For the purpose of this subdivision, “minor modifications” or “minor amendments” means specific types of changes defined by the Board that are made to keep the permit current with routine changes to the facility or its operation that do not require extensive review. A minor permit modification or amendment does not substantially alter permit conditions, increase the size of the operation, or reduce the capacity of the facility to protect human health or the environment.

B1. Permit fees charged an applicant for a Virginia Pollutant Discharge Elimination System permit or a Virginia Pollution Abatement permit shall reflect the average time and complexity of processing a permit in each of the various categories of permits and permit actions. However, notwithstanding any other provision of law, in no instance shall the Board charge a fee for a permit pertaining to a farming operation engaged in production for market or for a permit pertaining to maintenance dredging for federal navigation channels or other Corps of Engineers- or Department of the Navy-sponsored dredging projects or for the regularly scheduled renewal of an individual permit for an existing facility. Fees shall be charged for a major modification or reissuance of a permit initiated by the permittee that occurs between permit issuance and the stated expiration date. No fees shall be charged for a modification or amendment made at the Board’s initiative. In no instance shall the Board exceed the following amounts for the processing of each type of permit/certificate category:

Type of Permit/Certificate Category Maximum Amount 1. Virginia Pollutant Discharge Elimination System Major Industrial $24,000 Major Municipal $21,300 Minor Industrial with nonstandard limits $10,300 Minor Industrial with standard limits $ 6,600 Minor Municipal greater than 100,000 gallons per day $ 7,500 Minor Municipal 10,001-100,000 gallons per day $ 6,000 Minor Municipal 1,000-10,000 gallons per day $ 5,400 Minor Municipal less than 1,000 gallons per day $ 2,000 General-industrial stormwater management $ 500 General-stormwater management-phase I land clearing $ 500 General-stormwater management-phase II land clearing $ 300 General-other $ 600 2. Virginia Pollution Abatement Industrial/Wastewater 10 or more inches per year $15,000 Industrial/Wastewater less than 10 inches per year $10,500 Industrial/Sludge $ 7,500 Municipal/Wastewater $13,500 Municipal/Sludge $ 7,500 General Permit $ 600 Other $ 750

B2. Each permitted facility shall pay a permit maintenance fee to the Board by October 1 of each year, not to exceed the following amounts:

Type of Permit/Certificate Category Maximum Amount 1. Virginia Pollutant Discharge Elimination System Major Industrial $ 4,800 Major Municipal greater than 10 million gallons per day $ 4,750 Major Municipal 2-10 million gallons per day $ 4,350 Major Municipal less than 2 million gallons per day $ 3,850 Minor Industrial with nonstandard limits $ 2,040 Minor Industrial with standard limits $ 1,320 Minor Industrial water treatment system $ 1,200 Minor Municipal greater than 100,000 gallons per day $ 1,500 Minor Municipal 10,001-100,000 gallons per day $ 1,200 Minor Municipal 1,000-10,000 gallons per day $ 1,080 Minor Municipal less than 1,000 gallons per day $ 400 2. Virginia Pollution Abatement Industrial/Wastewater 10 or more inches per year $ 3,000 Industrial/Wastewater less than 10 inches per year $ 2,100 Industrial/Sludge $ 3,000 Municipal/Wastewater $ 2,700 Municipal/Sludge $ 1,500

B3. Permit application fees charged for Virginia Water Protection Permits, ground water withdrawal permits, and surface water withdrawal permits shall reflect the average time and complexity of processing a permit in each of the various categories of permits and permit actions and the size of the proposed impact. Only one permit fee shall be assessed for a water protection permit involving elements of more than one category of permit fees under this section. The fee shall be assessed based upon the primary purpose of the proposed activity. In no instance shall the Board charge a fee for a permit pertaining to maintenance dredging for federal navigation channels or other U.S. Army Corps of Engineers- or Department of the Navy-sponsored dredging projects, and in no instance shall the Board exceed the following amounts for the processing of each type of permit/certificate category:

Type of Permit Maximum Amount 1. Virginia Water Protection Individual-wetland impacts $2,400 plus $220 per 1/10 acre of impact over two acres, not to exceed $60,000 Individual-minimum instream flow Individual-reservoir $25,000 Individual-nonmetallic mineral mining General-less than 1/10 acre impact $0 General-1/10 to 1/2 acre impact $600 General-greater than 1/2 to one acre impact $1,200 General-greater than one acre to two acres of impact $120 per 1/10 acre of impact 2. Ground Water Withdrawal $9,000 3. Surface Water Withdrawal $12,000

C. When promulgating regulations establishing permit fees, the Board shall take into account the permit fees charged in neighboring states and the importance of not placing existing or prospective industries in the Commonwealth at a competitive disadvantage.

D. Beginning January 1, 1998, and January 1 of every even-numbered year thereafter, the Board shall make a report on the implementation of the water permit program to the Senate Committee on Agriculture, Conservation and Natural Resources, the Senate Committee on Finance and Appropriations, the House Committee on Appropriations, the House Committee on Agriculture, Chesapeake and Natural Resources and the House Committee on Finance. The report shall include the following: (i) the total costs, both direct and indirect, including the costs of overhead, water quality planning, water quality assessment, operations coordination, and surface water and ground water investigations, (ii) the total fees collected by permit category, (iii) the amount of general funds allocated to the Board, (iv) the amount of federal funds received, (v) the Board’s use of the fees, the general funds, and the federal funds, (vi) the number of permit applications received by category, (vii) the number of permits issued by category, (viii) the progress in eliminating permit backlogs, (ix) the timeliness of permit processing, and (x) the direct and indirect costs to neighboring states of administering their water permit programs, including what activities each state categorizes as direct and indirect costs, and the fees charged to the permit holders and applicants.

E. Fees collected pursuant to this section shall not supplant or reduce in any way the general fund appropriation to the Board.

F. Permit fee schedules shall apply to permit programs in existence on July 1, 1992, any additional permits that may be required by the federal government and administered by the Board, or any new permit required pursuant to any law of the Commonwealth.

G. The Board is authorized to promulgate regulations establishing a schedule of reduced permit fees for facilities that have established a record of compliance with the terms and requirements of their permits and shall establish criteria by regulation to provide for reductions in the annual fee amount assessed for facilities accepted into the Department’s programs to recognize excellent environmental performance.

History. 1992, cc. 621, 657; 1993, cc. 749, 756; 1995, c. 107; 1997, cc. 115, 154; 2002, c. 822; 2004, cc. 249, 324; 2011, cc. 87, 149; 2018, c. 424; 2020, c. 958.

Editor’s note.

Acts 2002, c. 822, cl. 3, which amended this section, provided for the expiration of the provisions of Acts 2002, c. 822, effective July 1, 2004. However, Acts 2002, c. 822, cl. 3, as amended by Acts 2004, cc. 249 and 324, cl. 2, provides: “That the provisions of § 10.1-1402.1 shall expire on July 1, 2004.” Therefore, this section is set out with the amendments by Acts 2002, c. 822.

Acts 2002, c. 822, cl. 2, provides: “That the Virginia Waste Management Board and the State Water Control Board shall promulgate regulations to implement the provisions of this act to be effective within 280 days of its enactment.”

Acts 2004, cc. 249 and 324, cls. 3 through 7 provide:

“3. That the regulations adopted by the State Air Pollution Control Board, the Virginia Waste Management Board, and the State Water Control Board to initially implement the provisions of this act shall be exempt from Article 2 (§ 2.2-4006 et seq.) of Chapter 40 of Title 2.2 of the Code of Virginia and shall become effective upon filing with the Registrar of Regulations. Thereafter, any amendments to the fee schedule shall not be exempted from Article 2 (§ 2.2-4006 et seq.).

“4. That it is the General Assembly’s intent that the Department of Environmental Quality (DEQ) shall evaluate and implement measures to improve the long-term effectiveness and efficiency of its programs in ensuring the Commonwealth’s air quality, water quality and land resources are protected and to ensure the maximum value from the funding provided for the Commonwealth’s environmental programs. To assist DEQ in accomplishing such goals, a management efficiency peer review shall be conducted of the Virginia Pollutant Discharge Elimination System permit programs and the air permit program implemented by the agency. The review shall evaluate (i) operational changes that would improve the efficiency and effectiveness of the agency’s operations, (ii) ways to reduce the costs of compliance, and (iii) the adequacy and appropriateness of staffing levels to meet state and federal requirements. The review shall be led by a consulting firm with expertise and previous experience in conducting similar reviews of state agencies and private firms and shall include a peer review team appointed by the Director of DEQ, consisting of individuals familiar with the permit program including, but not limited to, persons nominated by the Virginia Association of Counties, the Virginia Chemistry Council, the Virginia Manufacturers Association, the Virginia Municipal League, the Hampton Roads Planning District Commission, and the Virginia Association of Municipal Wastewater Agencies. All individuals serving on the peer review team shall have previous training and experience in preparing applications for permits issued under the Virginia Pollutant Discharge Elimination System Permit program or the air permitting program. The consulting firm shall be selected by agreement between the Director of DEQ and the peer review team members from the previously mentioned organizations and in accordance with the Virginia Procurement Act. The review shall be completed and a written report containing findings and recommendations for the implementation of any practices, procedures or other steps necessary to increase the efficiency of DEQ shall be forwarded to the members of the peer review team by September 15, 2006. The report shall include information, to the extent available, on whether or not the recommendations would change the level of environmental protection, the estimated savings to DEQ and the regulated community, and any barriers to implementation. The report and DEQ’s responses and plans for implementation of such recommendations shall be forwarded to the Chairmen of the House Committee on Agriculture, Chesapeake and Natural Resources, the House Committee on Appropriations, the Senate Committee on Agriculture, Conservation and Natural Resources, and the Senate Committee on Finance by October 15, 2006.

“5. That a review of DEQ’s solid waste permitting and inspection programs shall be conducted in order to ensure that those programs provide maximum efficiency consistent with protection of the environment and public health. The review shall be conducted by DEQ with the active participation of persons qualified by training and experience in the management and operation of solid waste facilities, who shall be recommended by the Virginia Waste Industries Association, the Solid Waste Association of North America and the Southwest Virginia Solid Waste Management Association. The review shall be completed and a written report containing findings and recommendations for the implementation of any practices, procedures or other steps necessary to increase the efficiency of DEQ shall be forwarded to the members of the peer review team by September 15, 2006. The report shall include information, to the extent available, on whether or not the recommendations would change the level of environmental protection, the estimated savings to DEQ and the regulated community, and any barriers to implementation. The report and DEQ’s responses and plans for implementation of such recommendations shall be forwarded to the Chairmen of the House Committee on Agriculture, Chesapeake and Natural Resources, the House Committee on Appropriations, the Senate Committee on Agriculture, Conservation and Natural Resources, and the Senate Committee on Finance by October 15, 2006.

“6. That in order to accomplish the intent of the General Assembly, DEQ shall:

“a. Implement a streamlined permit application to be used for renewals of previously granted environmental permits where there has been no significant change in the permitted activity or applicable statutory or regulatory requirements during the previous permit term. Such streamlined permit renewal application shall be designed, to the extent not prohibited by federal law or regulation, to avoid the submission and duplication of information that has previously been submitted by the applicant and achieve maximum efficiency and economy for both the permittee and DEQ, and DEQ shall work with the peer review team to develop these applications with the goal of minimizing the amount of duplicate, costly work on the part of the permit renewal applicants and DEQ;

“b. Expeditiously implement electronic permitting, filing and reporting procedures so as to improve access to information, reduce the costs of compliance, and reduce costs to DEQ;

“c. Explore ways to reduce compliance costs to the permittee and reduce DEQ’s oversight costs for ensuring compliance. The options to be explored shall include, but not be limited to, increased utilization of certified evaluations (i.e., by professional engineers) as a method of ensuring compliance while reducing the need for physical inspections; and

“d. Encourage efficient and effective environmental performance by deeming a facility’s demonstration of a proven environmental management system, such as ISO 14001, along with a commitment to pollution prevention, annual progress reporting, and a record of sustained compliance as meeting the criteria for acceptance into DEQ’s programs for environmental excellence.

“7. That if general fund revenues in excess of $500,000 per year over the Governor’s submitted budget for natural resources for the 2004-2006 biennium are appropriated by the 2004 Appropriation Act and are allocated for implementation of the water permit programs, the water permit fees set forth in or established pursuant to this act shall be reduced by a pro rata basis.” No appropriation over and above was made; therefore there will be no fee reduction.

Acts 2018, c. 424, cl. 2 provides: “That the State Water Control Board shall, by a regulation effective January 1, 2019, raise from $6,000 to $9,000 the permit fee applicable to new or reissued individual ground water withdrawal permits or certificates. The adoption of such regulation shall be exempt from the requirements of Article 2 (§ 2.2-4006 et seq.) of the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia).”

The Virginia Code Commission authorized the substitution of “Senate Committee on Finance and Appropriations” for “Senate Committee on Finance.” March 10, 2021.

Acts 2021, Sp. Sess. I, c. 275, cl. 1, § 2 provides: “The Director of the Department of Environmental Quality (the Director), or his designee, shall convene a working group for the purpose of developing a schedule of annual maintenance fees for water withdrawal permits including (i) Virginia Water Protection Individual-minimum instream flow permits, (ii) Virginia Water Protection Individual-reservoir permits, (iii) Ground Water Withdrawal permits, and (iv) Surface Water Withdrawal permits. The working group shall include representatives of (a) ground water with withdrawal permittees, including at least one representative each from the municipal, commercial, and industrial sectors; (b) Virginia Water Protection surface water withdrawal permittees, including at least one representative each from the municipal, commercial, and power generation sectors; (c) environmental organizations; (d) agricultural organizations; and (e) any others whom the Director determines would assist the group in its deliberations. The working group shall convene no later than August 1, 2021, and shall meet as necessary thereafter. The Department of Environmental Quality shall submit to the Governor and the General Assembly by December 1, 2021, a summary of the working group’s discussions and recommendations for a schedule of annual maintenance fees that shall, at a minimum, be sufficient to reflect no less than 40 percent of the direct costs required for the development, administration, compliance, and enforcement of such permits.”

The 2002 amendments.

The 2002 amendment by c. 822, in the table in subsection B, deleted the entry for “Waiver” under item 3., “401 Certification/Virginia Water Protection,” and tripled the maximum amount for all remaining entries in the table; deleted the former second paragraph of subsection D, which provided for the inclusion in the initial 1998 report of an analysis and estimate of annual costs of the program to permit holders and applicants at varying apportionment levels; and made stylistic changes.

The 2004 amendments.

The 2004 amendments by cc. 249 and 324 are identical, and rewrote former subsection B; and added the language beginning “and shall establish criteria” at the end of subsection G.

The 2011 amendments.

The 2011 amendments by cc. 87 and 149 are identical, and in the first paragraph in subsections B1 and B3, inserted “or Department of the Navy-.”

The 2018 amendments.

The 2018 amendment by c. 424 substituted “$9,000” for “$6,000” following “2. Ground Water Withdrawal” in the table in subsection B3.

The 2020 amendments.

The 2020 amendment by c. 958 substituted “Department of Wildlife Resources’ ” for “Department of Game and Inland Fisheries’ ” in subsection A in the first sentence.

Law Review.

For an article reviewing key environmental developments at the federal and state levels during the period from June 1996 to June 1998, see 32 U. Rich. L. Rev. 1217 (1998).

For 2003/2004 survey of environmental law, see 39 U. Rich. L. Rev. 203 (2004).

§ 62.1-44.15:7. Permit Program Fund established; use of moneys.

  1. There is hereby established a special, nonreverting fund in the state treasury to be known as the State Water Control Board Permit Program Fund, hereafter referred to as the Fund. Notwithstanding the provisions of § 2.2-1802 , all moneys collected pursuant to § 62.1-44.15:6 shall be paid into the state treasury to the credit of the Fund.
  2. Any moneys remaining in the Fund shall not revert to the general fund but shall remain in the Fund.  Interest earned on such moneys shall remain in the Fund and be credited to it.
  3. The Board is authorized and empowered to release moneys from the Fund, on warrants issued by the State Comptroller, for the purposes of recovering portions of the costs of processing applications under this chapter and Chapters 24 (§ 62.1-242 et seq.) and 25 (§ 62.1-254 et seq.) of this title under the direction of the Executive Director.
  4. An accounting of moneys received by and distributed from the Fund shall be kept by the State Comptroller and furnished upon request to the Governor or the General Assembly.

History. 1992, cc. 621, 657.

§ 62.1-44.15:8. Conformance with federal requirements.

Notwithstanding the provisions of this article, any fee system developed by the Board may be modified by regulation promulgated by the Board, as may be necessary to conform with the requirements of the federal Clean Water Act and any regulations promulgated thereunder. Any modification imposed under this section shall be submitted to the members of the Senate Committees on Agriculture, Conservation and Natural Resources, and on Finance and Appropriations; and the House Committees on Appropriations, Conservation and Natural Resources, and Finance.

History. 1992, cc. 621, 657.

Editor’s note.

The Virginia Code Commission authorized the substitution of “the Senate Committees on Agriculture, Conservation and Natural Resources, and on Finance and Appropriations” for “Senate Committees on Agriculture, Conservation and Natural Resources, and Finance.” March 10, 2021.

Article 2.2. Virginia Water Resources and Wetlands Protection Program.

§ 62.1-44.15:20. Virginia Water Protection Permit.

  1. Except in compliance with an individual or general Virginia Water Protection Permit issued in accordance with this article, it shall be unlawful to:
    1. Excavate in a wetland;
    2. On or after October 1, 2001, conduct the following in a wetland:
      1. New activities to cause draining that significantly alters or degrades existing wetland acreage or functions;
      2. Filling or dumping;
      3. Permanent flooding or impounding; or
      4. New activities that cause significant alteration or degradation of existing wetland acreage or functions; or
  2. The Board shall, after providing an opportunity for public comment, issue a Virginia Water Protection Permit if it has determined that the proposed activity is consistent with the provisions of the Clean Water Act and the State Water Control Law and will protect instream beneficial uses.
  3. Prior to the issuance of a Virginia Water Protection Permit, the Board shall consult with and give full consideration to any relevant information contained in the state water supply plan described in subsection A of § 62.1-44.38:1 as well as to the written recommendations of the following agencies: the Department of Wildlife Resources, the Department of Conservation and Recreation, the Virginia Marine Resources Commission, the Department of Health, the Department of Agriculture and Consumer Services, and any other interested and affected agencies. When considering the state water supply plan, nothing shall be construed to limit the operation or expansion of an electric generation facility located on a man-made lake or impoundment built for the purpose of providing cooling water to such facility. Such consultation shall include the need for balancing instream uses with offstream uses. Agencies may submit written comments on proposed permits within 45 days after notification by the Board. If written comments are not submitted by an agency within this time period, the Board shall assume that the agency has no comments on the proposed permit and deem that the agency has waived its right to comment. After the expiration of the 45-day period, any such agency shall have no further opportunity to comment.
  4. Issuance of a Virginia Water Protection Permit shall constitute the certification required under § 401 of the Clean Water Act, except for any applicant to the Federal Energy Regulatory Commission for a certificate of public convenience and necessity pursuant to § 7c of the federal Natural Gas Act (15 U.S.C. § 717f(c)) to construct any natural gas transmission pipeline greater than 36 inches inside diameter, in which case issuance of a Virginia Water Protection Permit pursuant to this article and a certification issued pursuant to Article 2.6 (§ 62.1-44.15:80 et seq.) shall together constitute the certification required under § 401 of the federal Clean Water Act.
  5. No locality may impose wetlands permit requirements duplicating state or federal wetlands permit requirements. In addition, no locality shall impose or establish by ordinance, policy, plan, or any other means provisions related to the location of wetlands or stream mitigation in satisfaction of aquatic resource impacts regulated under a Virginia Water Protection Permit or under a permit issued by the U.S. Army Corps of Engineers pursuant to § 404 of the Clean Water Act. However, a locality’s determination of allowed uses within zoning classifications or its approval of the siting or construction of wetlands or stream mitigation banks or other mitigation projects shall not be affected by the provisions of this subsection.
  6. The Board shall assess compensation implementation, inventory permitted wetland impacts, and work to prevent unpermitted impacts to wetlands.

3. Alter the physical, chemical, or biological properties of state waters and make them detrimental to the public health, animal or aquatic life, or to the uses of such waters for domestic or industrial consumption, or for recreation, or for other uses unless authorized by a certificate issued by the Board.

History. 2007, c. 659; 2010, c. 233; 2011, cc. 829, 842; 2012, c. 628; 2018, c. 636; 2020, c. 958.

Editor’s note.

Acts 2018, c. 636, cl. 2 provides: “That the provisions of this act shall apply to any application submitted on or after July 1, 2018, for a federal license or permit for construction of a natural gas transmission pipeline that has an inside diameter of greater than 36 inches pursuant to a certificate of public convenience and necessity under § 7c of the federal Natural Gas Act ( 15 U.S.C. § 717f(c)).”

The 2010 amendments.

The 2010 amendment by c. 233 added the last two sentences of subsection E.

The 2011 amendments.

The 2011 amendments by cc. 829 and 842 are identical, and in subsection C, added “and deem that the agency has waived its right to comment” in the next-to-last sentence, and added the last sentence.

The 2012 amendments.

The 2012 amendment by c. 628, in subsection C, inserted “to any relevant information contained in the state water supply plan described in subsection A of § 62.1-44.38:1 as well as” in the first sentence, and added the second sentence.

The 2018 amendments.

The 2018 amendment by c. 636 added the exception at the end of subsection D. For applicability, see Editor’s note.

The 2020 amendments.

The 2020 amendment by c. 958 substituted “Department of Wildlife Resources” for “Department of Game and Inland Fisheries” in subsection C in the first sentence.

Law Review.

For 2007 annual survey article, “Environmental Law,” see 42 U. Rich. L. Rev. 383 (2007).

CASE NOTES

Trial court properly affirmed State Water Control Board’s issuance of a water protection permit to county, where the permit protected existing instream uses and preserved or enhanced downstream water quality, habitat, fisheries resources, and recreational opportunities. Scheer v. Commonwealth ex rel. State Water Control Bd., 2001 Va. App. LEXIS 426 (Va. Ct. App. July 17, 2001) (decided under former § 62.1-44.15:5 ).

State Water Control Board properly reviewed evidence. —

State Water Control Board (SWCB) properly reviewed evidence presented with a city’s application for a permit to build a reservoir, including the fact that to create the reservoir, the project proposes to dam up a creek and flood about 437 acres of wetlands in the creek basin; however, a Native American tribe and a conservation group could not demonstrate the SWCB’s decision to be factually insupportable or in any way arbitrary and capricious. Mattaponi Indian Tribe v. Commonwealth Dep't of Envtl. Quality ex rel. State Water Control Bd., 43 Va. App. 690, 601 S.E.2d 667, 2004 Va. App. LEXIS 406 (2004), aff'd in part and rev'd in part, 270 Va. 423 , 621 S.E.2d 78, 2005 Va. LEXIS 100 (2005) (decided under former § 62.1-44.15:5 ).

No error attached by the Court of Appeals’ act in endorsing the State Water Control Board’s issuance of the permit to the city to build a reservoir, as the Board fulfilled its statutory mandates, did not abuse its discretion in approving certain scientific methodology or in determining to proceed with the permit decision, and reached a decision supported by substantial evidence. Alliance to Save the Mattaponi v. Commonwealth Dep't of Envtl. Quality ex rel. State Water Control Bd., 270 Va. 423 , 621 S.E.2d 78, 2005 Va. LEXIS 100 (2005), cert. denied, 547 U.S. 1192, 126 S. Ct. 2862, 165 L. Ed. 2d 895, 2006 U.S. LEXIS 4540 (2006) (decided under former § 62.1-44.15:5 ).

Standing. —

Pursuant to subsection A of § 62.1-44.15:20 , it was unlawful to excavate in a wetland without obtaining a Virginia Water Protection Permit. As a result, the environmental group had standing to challenge the granting of the city’s request for extension and modification of a permit that allowed for construction and operation of a county reservoir, as the extended permit allowed for limited construction activities that had the possibility of harming the wetlands, which the environmental group was trying to protect. Chesapeake Bay Found., Inc. v. Commonwealth ex rel. Va. State Water Control Bd., 52 Va. App. 807, 667 S.E.2d 844, 2008 Va. App. LEXIS 493 (2008) (decided under former § 62.1-44.15:5 ).

CIRCUIT COURT OPINIONS

Indian tribe’s water rights. —

Where an Indian tribe alleged that a proposed reservoir would infringe its reserved water rights, defendants’ demurrer was sustained because, although the tribe could invoke the Winters doctrine without federal recognition, riparian law did not guarantee a riparian owner sufficient water for a particular purpose, and the tribe did not sufficiently plead the element of necessity. Mattaponi Indian Tribe v. Commonwealth, 72 Va. Cir. 444, 2007 Va. Cir. LEXIS 155 (Newport News Feb. 5, 2007) (decided under former § 62.1-44.15:5 ).

OPINIONS OF THE ATTORNEY GENERAL

Mitigation requirements. —

Subsection E of this section prohibits a locality from instituting a policy or plan mandating that mitigation for impacts to wetlands or steams occurring within that locality be performed within the boundaries of the locality. This prohibition includes acceptance of a voluntary proffer from a zoning applicant relating to the location of compensatory mitigation. See opinion of Attorney General to The Honorable Thomas Davis Rust, Member, House of Delegates, No. 15-043, 2015 Va. AG LEXIS 28 (10/2/15).

§ 62.1-44.15:21. Impacts to wetlands.

  1. Permits shall address avoidance and minimization of wetland impacts to the maximum extent practicable. A permit shall be issued only if the Board finds that the effect of the impact, together with other existing or proposed impacts to wetlands, will not cause or contribute to a significant impairment of state waters or fish and wildlife resources.
  2. Permits shall contain requirements for compensating impacts on wetlands. Such compensation requirements shall be sufficient to achieve no net loss of existing wetland acreage and functions and may be met through (i) wetland creation or restoration, (ii) purchase or use of mitigation bank credits pursuant to § 62.1-44.15:23 , (iii) contribution to the Wetland and Stream Replacement Fund established pursuant to § 62.1-44.15:23.1 to provide compensation for impacts to wetlands, streams, or other state waters that occur in areas where neither mitigation bank credits nor credits from a Board-approved fund that have met the success criteria are available at the time of permit application, or (iv) contribution to a Board-approved fund dedicated to achieving no net loss of wetland acreage and functions. The Board shall evaluate the appropriate compensatory mitigation option on a case-by-case basis with consideration for which option is practicable and ecologically and environmentally preferable, including, in terms of replacement of acreage and functions, which option offers the greatest likelihood of success and avoidance of temporal loss of acreage and function. This evaluation shall be consistent with the U.S. Army Corps of Engineers Compensatory Mitigation for Losses of Aquatic Resources (33 C.F.R. Part 332). When utilized in conjunction with creation, restoration, or mitigation bank credits, compensation may incorporate (a) preservation or restoration of upland buffers adjacent to wetlands or other state waters or (b) preservation of wetlands.
  3. The Board shall utilize the U.S. Army Corps of Engineers’ “Wetlands Delineation Manual, Technical Report Y-87-1, January 1987, Final Report” as the approved method for delineating wetlands. The Board shall adopt appropriate guidance and regulations to ensure consistency with the U.S. Army Corps of Engineers’ implementation of delineation practices. The Board shall also adopt guidance and regulations for review and approval of the geographic area of a delineated wetland. Any such approval of a delineation shall remain effective for a period of five years; however, if the Board issues a permit pursuant to this article for an activity in the delineated wetland within the five-year period, the approval shall remain effective for the term of the permit. Any delineation accepted by the U.S. Army Corps of Engineers as sufficient for its exercise of jurisdiction pursuant to § 404 of the Clean Water Act shall be determinative of the geographic area of that delineated wetland.
  4. The Board shall develop general permits for such activities in wetlands as it deems appropriate. General permits shall include such terms and conditions as the Board deems necessary to protect state waters and fish and wildlife resources from significant impairment. The Board is authorized to waive the requirement for a general permit or deem an activity in compliance with a general permit when it determines that an isolated wetland is of minimal ecological value. The Board shall develop general permits for:
    1. Activities causing wetland impacts of less than one-half of an acre;
    2. Facilities and activities of utilities and public service companies regulated by the Federal Energy Regulatory Commission or State Corporation Commission, except for construction of any natural gas transmission pipeline that is greater than 36 inches inside diameter pursuant to a certificate of public convenience and necessity under § 7c of the federal Natural Gas Act (15 U.S.C. § 717f(c)). No Board action on an individual or general permit for such facilities shall alter the siting determination made through Federal Energy Regulatory Commission or State Corporation Commission approval. The Board and the State Corporation Commission shall develop a memorandum of agreement pursuant to §§ 56-46.1, 56-265.2, 56-265.2:1, and 56-580 to ensure that consultation on wetland impacts occurs prior to siting determinations;
    3. Coal, natural gas, and coalbed methane gas mining activities authorized by the Department of Energy, and sand mining;
    4. Virginia Department of Transportation or other linear transportation projects; and
    5. Activities governed by nationwide or regional permits approved by the Board and issued by the U.S. Army Corps of Engineers. Conditions contained in the general permits shall include, but not be limited to, filing with the Board any copies of preconstruction notification, postconstruction report, and certificate of compliance required by the U.S. Army Corps of Engineers.
  5. Within 15 days of receipt of an individual permit application, the Board shall review the application for completeness and either accept the application or request additional specific information from the applicant. Provided the application is not administratively withdrawn, the Board shall, within 120 days of receipt of a complete application, issue the permit, issue the permit with conditions, deny the permit, or decide to conduct a public meeting or hearing. If a public meeting or hearing is held, it shall be held within 60 days of the decision to conduct such a proceeding, and a final decision as to the permit shall be made within 90 days of completion of the public meeting or hearing. A permit application may be administratively withdrawn from processing by the Board if the application is incomplete or for failure by the applicant to provide the required information after 60 days from the date of the latest written information request made by the Board. Such administrative withdrawal shall occur after the Board has provided (i) notice to the applicant and (ii) an opportunity for an informal fact-finding proceeding pursuant to § 2.2-4019 . An applicant may request a suspension of application review by the Board. A submission by the applicant making such a request shall not preclude the Board from administratively withdrawing an application. Resubmittal of a permit application for the same or similar project, after such time that the original permit application was administratively withdrawn, shall require submittal of an additional permit application fee and may be subject to additional notice requirements. In addition, for an individual permit application related to an application to the Federal Energy Regulatory Commission for a certificate of public convenience and necessity pursuant to § 7c of the federal Natural Gas Act (15 U.S.C. § 717f(c)) for construction of any natural gas transmission pipeline greater than 36 inches inside diameter, the Board shall complete its consideration within the one-year period established under 33 U.S.C. § 1341(a).
  6. Within 15 days of receipt of a general permit coverage application, the Board shall review the application for completeness and either accept the application or request additional specific information from the applicant. Provided the application is not administratively withdrawn, the Board shall, within 45 days of receipt of a complete application, deny, approve, or approve with conditions any application for coverage under a general permit within 45 days of receipt of a complete preconstruction application. The application shall be deemed approved if the Board fails to act within 45 days. A permit coverage application may be administratively withdrawn from processing by the Board if the application is incomplete or for failure by the applicant to provide the required information after 60 days from the date of the latest written application request made by the Board. Such administrative withdrawal shall occur after the Board has provided (i) notice to the applicant and (ii) an opportunity for an informal fact-finding proceeding pursuant to § 2.2-4019 . An applicant may request suspension of an application review by the Board. A submission by the applicant making such a request shall not preclude the Board from administratively withdrawing an application. Resubmittal of a permit coverage application for the same or similar project, after such time that the original permit application was administratively withdrawn, shall require submittal of an additional permit application fee and may be subject to additional notice requirements.
  7. No Virginia Water Protection Permit shall be required for impacts to wetlands caused by activities governed under Chapter 13 (§ 28.2-1300 et seq.) of Title 28.2 or normal agricultural activities or normal silvicultural activities. This section shall also not apply to normal residential gardening, lawn and landscape maintenance, or other similar activities that are incidental to an occupant’s ongoing residential use of property and of minimal ecological impact. The Board shall develop criteria governing this exemption and shall specifically identify the activities meeting these criteria in its regulations.
  8. No Virginia Water Protection Permit shall be required for impacts caused by the construction or maintenance of farm or stock ponds, but other permits may be required pursuant to state and federal law. For purposes of this exclusion, farm or stock ponds shall include all ponds and impoundments that do not fall under the authority of the Virginia Soil and Water Conservation Board pursuant to Article 2 (§ 10.1-604 et seq.) of Chapter 6 pursuant to normal agricultural or silvicultural activities.
  9. No Virginia Water Protection Permit shall be required for wetland and open water impacts to a stormwater management facility that was created on dry land for the purpose of conveying, treating, or storing stormwater, but other permits may be required pursuant to local, state, or federal law. The Department shall adopt guidance to ensure that projects claiming this exemption create no more than minimal ecological impact.
  10. An individual Virginia Water Protection Permit shall be required for impacts to state waters for the construction of any natural gas transmission pipeline greater than 36 inches inside diameter pursuant to a certificate of public convenience and necessity under § 7c of the federal Natural Gas Act (15 U.S.C. § 717f(c)). For purposes of this subsection:
    1. Each wetland and stream crossing shall be considered as a single and complete project; however, only one individual Virginia Water Protection Permit addressing all such crossings shall be required for any such pipeline. Notwithstanding the requirement for only one such individual permit addressing all such crossings, individual review of each proposed water body crossing with an upstream drainage area of five square miles or greater shall be performed.
    2. All pipelines shall be constructed in a manner that minimizes temporary and permanent impacts to state waters and protects water quality to the maximum extent practicable, including by the use of applicable best management practices that the Board determines to be necessary to protect water quality.
    3. The Department shall assess an administrative charge to any applicant for such project to cover the direct costs of services rendered associated with its responsibilities pursuant to this subsection. This administrative charge shall be in addition to any fee assessed pursuant to § 62.1-44.15:6 .

History. 2007, c. 659; 2008, c. 244; 2013, c. 742; 2018, cc. 114, 636; 2019, c. 545; 2020, c. 622; 2021, Sp. Sess. I, c. 532.

Editor’s note.

Acts 2018, c. 636, cl. 2 provides: “That the provisions of this act shall apply to any application submitted on or after July 1, 2018, for a federal license or permit for construction of a natural gas transmission pipeline that has an inside diameter of greater than 36 inches pursuant to a certificate of public convenience and necessity under § 7c of the federal Natural Gas Act (15 U.S.C. § 717f(c)).”

Acts 2021, Sp. Sess. I, c. 532, cl. 2 provides: “That the provisions of this act shall become effective on October 1, 2021.”

The 2008 amendments.

The 2008 amendment by c. 244 added subsection H.

The 2013 amendments.

The 2013 amendment by c. 742, in subsection B, inserted the clause (i), (ii), and (iv) designators and clause (iii) in the first sentence, and substituted clause (a) and (b) designators for clause (i) and (ii) designators in the second sentence.

The 2018 amendments.

The 2018 amendment by c. 114 added subsection I.

The 2018 amendment by c. 636, in subdivision D 2, inserted “except for construction of any natural gas transmission pipeline that is greater than 36 inches inside diameter pursuant to a certificate of public convenience and necessity under § 7c of the federal Natural Gas Act (15 U.S.C. § 717f(c))”; in subsection E, added the fourth sentence; and added subsection J. For applicability, see Editor’s note.

The 2019 amendments.

The 2019 amendment by c. 545, in subsection B, substituted “The Board shall evaluate the appropriate compensatory mitigation option on a case-by-case basis with consideration for which option is practicable and ecologically and environmentally preferable, including, in terms of replacement of acreage and functions, which option offers the greatest likelihood of success and avoidance of temporal loss of acreage and function. This evaluation shall be consistent with the U.S. Army Corps of Engineers Compensatory Mitigation for Losses of Aquatic Resources (33 C.F.R. Part 332)” for “Preference shall be given first to mitigation bank credits, then to permittee-responsible mitigation under a watershed approach conducted before or concurrently with project impacts, over in-lieu fee program credits that have not met success criteria.”

The 2020 amendments.

The 2020 amendment by c. 622, in subsection E, substituted “Provided the application is not administratively withdrawn, the Board shall, within 120 days of receipt of a complete application, issue” for “Within 120 days of receipt of a complete application, the Board shall issue” in the second sentence and added the fourth through the eighth sentences; and in subsection F, inserted “coverage” in the first sentence, substituted “Provided the application is not administratively withdrawn, the Board shall, within 45 days of receipt of a complete application, deny” for “A determination that an application is complete shall not mean the Board will issue the permit but means only that the applicant has submitted sufficient information to process the application. The Board shall deny” and added the last five sentences.

The 2021 Sp. Sess. I amendments.

The 2021 amendment by Sp. Sess. I, c. 532, effective October 1, 2021, substituted “Department of Energy” for “Department of Mines, Minerals and Energy” in subdivision D 3.

Law Review.

For annual survey article, see “Environmental Law,” see 44 U. Rich. L. Rev. 423 (2009).

OPINIONS OF THE ATTORNEY GENERAL

Mitigation requirements. —

Subsection E of § 62.1-44.15:20 prohibits a locality from instituting a policy or plan mandating that mitigation for impacts to wetlands or steams occurring within that locality be performed within the boundaries of the locality. This prohibition includes acceptance of a voluntary proffer from a zoning applicant relating to the location of compensatory mitigation. See opinion of Attorney General to The Honorable Thomas Davis Rust, Member, House of Delegates, No. 15-043, 2015 Va. AG LEXIS 28 (10/2/15).

§ 62.1-44.15:22. (For contingent expiration date, see Acts 2021, Sp. Sess. I, c. 100) Water withdrawals and preservation of instream flow.

  1. Conditions contained in a Virginia Water Protection Permit may include but are not limited to the volume of water which may be withdrawn as a part of the permitted activity and conditions necessary to protect beneficial uses. Domestic and other existing beneficial uses shall be considered the highest priority uses.
  2. Notwithstanding any other provision, no Virginia Water Protection Permit shall be required for any water withdrawal in existence on July 1, 1989; however, a permit shall be required if a new § 401 certification is required to increase a withdrawal. No Virginia Water Protection Permit shall be required for any water withdrawal not in existence on July 1, 1989, if the person proposing to make the withdrawal received a § 401 certification before January 1, 1989, with respect to installation of any necessary withdrawal structures to make such withdrawal; however, a permit shall be required before any such withdrawal is increased beyond the amount authorized by the certification.
  3. The Board may issue an Emergency Virginia Water Protection Permit for a new or increased withdrawal when it finds that because of drought there is an insufficient public drinking water supply that may result in a substantial threat to human health or public safety. Such a permit may be issued to authorize the proposed activity only after conservation measures mandated by local or state authorities have failed to protect public health and safety and notification of the agencies designated in § 62.1-44.15:20 C and only for the amount of water necessary to protect public health and safety. These agencies shall have five days to provide comments or written recommendations on the issuance of the permit. Notwithstanding the provisions of § 62.1-44.15:20 B, no public comment shall be required prior to issuance of the emergency permit. Not later than 14 days after the issuance of the emergency permit, the permit holder shall apply for a Virginia Water Protection Permit authorized under the other provisions of this section. The application for the Virginia Water Protection Permit shall be subject to public comment for a period established by the Board. Any Emergency Virginia Water Protection Permit issued under this section shall be valid until the Board approves or denies the subsequent request for a Virginia Water Protection Permit or for a period of one year, whichever occurs sooner. The fee for the emergency permit shall be 50 percent of the fee charged for a comparable Virginia Water Protection Permit.

History. 2007, c. 659.

Section set out twice.

This section above is effective until amendments by Acts 2021, Sp. Sess. I, c. 100 take effect pursuant to Acts 2021, Sp. Sess. I, c. 100, cl. 3. For this section as amended by Acts 2021, Sp. Sess. I, c. 100, see the following section, also numbered 62.1-44.15:22 .

§ 62.1-44.15:22. (For contingent effective date, see Acts 2021, Sp. Sess. I, c. 100) Water withdrawals and preservation of instream flow.

    1. Conditions contained in a Virginia Water Protection Permit may include the volume of water that may be withdrawn as a part of the permitted activity and conditions necessary to protect beneficial uses. Domestic and other existing beneficial uses shall be considered the highest priority uses. A. 1. Conditions contained in a Virginia Water Protection Permit may include the volume of water that may be withdrawn as a part of the permitted activity and conditions necessary to protect beneficial uses. Domestic and other existing beneficial uses shall be considered the highest priority uses.
    2. Every application for a Virginia Water Protection Permit for a surface water withdrawal shall include a (i) water auditing plan and (ii) leak detection and repair plan. Both such plans shall comply with requirements established by the Board in regulations. The Board shall approve every water auditing plan and leak detection and repair plan that complies with such regulatory requirements. Once approved by the Board, such water auditing plan and leak detection and repair plan shall be incorporated by reference as a condition in the Virginia Water Protection Permit. The Board shall not issue a Virginia Water Protection Permit for a surface water withdrawal without an approved water auditing plan and an approved leak detection and repair plan.
  1. Notwithstanding any other provision of law, no Virginia Water Protection Permit shall be required for any water withdrawal in existence on July 1, 1989; however, a permit shall be required if a new § 401 certification is required to increase a withdrawal. No Virginia Water Protection Permit shall be required for any water withdrawal not in existence on July 1, 1989, if the person proposing to make the withdrawal received a § 401 certification before January 1, 1989, with respect to installation of any necessary withdrawal structures to make such withdrawal; however, a permit shall be required before any such withdrawal is increased beyond the amount authorized by the certification.
  2. The Board may issue an Emergency Virginia Water Protection Permit for a new or increased withdrawal when it finds that because of drought there is an insufficient public drinking water supply that may result in a substantial threat to human health or public safety. Such a permit may be issued to authorize the proposed activity only after conservation measures mandated by local or state authorities have failed to protect public health and safety and notification of the agencies designated in subsection C of § 62.1-44.15:20 and only for the amount of water necessary to protect public health and safety. Such agencies shall have five days to provide comments or written recommendations on the issuance of the permit. Notwithstanding the provisions of subsection B of § 62.1-44.15:20 , no public comment shall be required prior to issuance of the emergency permit. Not later than 14 days after the issuance of the emergency permit, the permit holder shall apply for a Virginia Water Protection Permit authorized under other provisions of this section. The application for such Virginia Water Protection Permit shall be subject to public comment for a period established by the Board. Any Emergency Virginia Water Protection Permit issued under this section shall be valid until the Board approves or denies the subsequent request for a Virginia Water Protection Permit or for a period of one year, whichever occurs sooner. The fee for the emergency permit shall be 50 percent of the fee charged for a comparable Virginia Water Protection Permit.

History. 2007, c. 659; 2021, Sp. Sess. I, c. 100.

Section set out twice.

This section above is set out as amended by Acts 2021, Sp. Sess. I, c. 100. For this section effective until the amendments by Acts 2021, Sp. Sess. I, c. 100 become effective, see the preceding section, also numbered 62.1-44.15:22 .

Editor’s note.

Acts 2021, Sp. Sess. I, c. 100, cl. 2 provides: “That the State Water Control Board (the Board) shall adopt regulations to implement the provisions of this act.”

Acts 2021, Sp. Sess. I, c. 100, cl. 3 provides: “That the provisions of the first enactment of this act shall become effective 30 days after the adoption by the State Water Control Board of the regulations required by the second enactment of this act.”

The 2021 Sp. Sess. I amendments.

The 2021 amendment by Sp. Sess. I, c. 100, in subsection A, deleted “but are not limited to” following “Virginia Water Protection Permit may include” in subdivision A 1, and added subdivision A 2; in subsection B, inserted “of law” following “Notwithstanding any other provision”; and made stylistic changes. For contingent effective date, see Editor’s note.

§ 62.1-44.15:23. Wetland and stream mitigation banks.

  1. For purposes of this section:“Physiographic province” means one of the five physiographic provinces of Virginia designated as the Appalachian Plateaus, Blue Ridge, Coastal Plain, Piedmont, and Ridge and Valley physiographic provinces as identified on Figure 2 in the Overview of the Physiography and Vegetation of Virginia prepared by the Department of Conservation and Recreation, Division of Natural Heritage and dated February 2016. The Department of Environmental Quality may adjust the boundaries of a physiographic province to reflect site-specific boundaries based on relative elevation, relief, geomorphology, and lithology provided by the bank sponsor.“Primary service area” means the fourth order subbasin in which the bank is located, as defined by the hydrologic unit boundaries of the National Watershed Boundary Dataset or the hydrologic unit system or dataset utilized and depicted or described in the bank’s approved mitigation banking instrument, and any adjacent fourth order subbasin within the same river watershed.“River watershed” means the Potomac River Basin; Shenandoah River Basin; James River Basin; Rappahannock River Basin; Roanoke and Yadkin Rivers Basin; Chowan River Basin, including the Dismal Swamp and Albemarle Sound; Tennessee River Basin/Big Sandy River Basin Complex; Chesapeake Bay and its Small Coastal Basins; Atlantic Ocean; York River Basin; and New River Basin.“Secondary service area” means the area outside the primary service area but within the same physiographic province in which the bank is located and any adjacent physiographic province within the same river watershed.“Tree canopy” includes all of the area of canopy coverage by self-supporting and healthy woody plant material exceeding five feet in height.
  2. When a Virginia Water Protection Permit is conditioned upon compensatory mitigation for adverse impacts to wetlands or streams, the applicant may be permitted to satisfy all or part of such mitigation requirements by the purchase or use of credits from any wetland or stream mitigation bank in the Commonwealth, or in Maryland on property wholly surrounded by and located in the Potomac River if the mitigation banking instrument provides that the Board shall have the right to enter and inspect the property and that the mitigation bank instrument and the contract for the purchase or use of such credits may be enforced in the courts of the Commonwealth, including any banks owned by the permit applicant, that has been approved and is operating in accordance with applicable federal and state guidance, laws, or regulations for the establishment, use, and operation of mitigation banks as long as (i) the impacted site is located in the bank’s primary or secondary service area as provided in subsection C or it meets all the conditions found in clauses (a) through (d) and either clause (e) or (f); (ii) the bank is ecologically preferable to practicable onsite and offsite individual mitigation options as defined by federal wetland regulations; and (iii) the banking instrument, if approved after July 1, 1996, has been approved by a process that included public review and comment. When the impacted site is not located in the bank’s primary or secondary service area, the purchase or use of credits shall not be allowed unless the applicant demonstrates to the satisfaction of the Department of Environmental Quality that (a) the impacts will occur as a result of a Virginia Department of Transportation linear project or as the result of a locality project for a locality whose jurisdiction encompasses multiple river watersheds; (b) there is no practical same river watershed mitigation alternative; (c) the impacts are less than one acre in a single and complete project within a subbasin; (d) there is no significant harm to water quality or fish and wildlife resources within the river watershed of the impacted site; and either (e) impacts within the Chesapeake Bay watershed are mitigated within the Chesapeake Bay watershed as close as possible to the impacted site or (f) impacts within subbasins 02080108, 02080208, and 03010205, as defined by the National Watershed Boundary Dataset, are mitigated in-kind within those subbasins, as close as possible to the impacted site. For the purposes of this subsection, the hydrologic unit boundaries of the National Watershed Boundary Dataset or other hydrologic unit system may be adjusted by the Department of Environmental Quality to reflect site-specific geographic or hydrologic information provided by the bank sponsor.
  3. For impacts to a site for which no credits are available to purchase (i) in the primary service area of any mitigation provider or (ii) at a price below 200 percent of the current price of credits applicable to that site from a Board-approved fund dedicated to achieving no net loss of wetland acreage and functions, a permit applicant may be permitted to purchase or use credits from the secondary service area of a mitigation provider to satisfy all or any part of such applicant’s mitigation requirements. For purposes of this subsection, the permit applicant shall provide a determination of credit availability and credit price no later than the time such applicant submits to the Department (a) its proof of credit acquisition or (b) a later change to such proof.If a permit applicant purchases or uses credits from a secondary service area, the permit applicant shall:
    1. Acquire three times the credits it would have had to acquire from a bank in the primary service area for wetland impacts and two times the number of credits it would have had to acquire in the primary service area for stream impacts;
    2. When submitting proof of acquisition of credits for a subdivision or development, provide to the Department a plan that the permit applicant will implement that is certified by a licensed professional engineer, surveyor, or landscape architect for the planting, preservation, or replacement of trees on the development site such that the minimum tree canopy percentage 20 years after development is projected to be as follows:
      1. Ten percent tree canopy for a site zoned for business, commercial, or industrial use;
      2. Ten percent tree canopy for a residential site zoned for 20 or more units per acre;
      3. Fifteen percent tree canopy for a residential site zoned for more than eight but fewer than 20 units per acre;
      4. Twenty percent tree canopy for a residential site zoned for more than four but not more than eight units per acre;
      5. Twenty-five percent tree canopy for a residential site zoned for more than two but not more than four units per acre; and
      6. Thirty percent tree canopy for a residential site zoned for two or fewer units per acre.For a mixed-use development, the tree canopy percentage required pursuant to this subdivision shall be that which is applicable to the predominant use.The tree canopy requirements established under this subsection shall not supersede any additional requirements imposed by a locality pursuant to § 15.2-961 or 15.2-961.1 .
  4. The Department is authorized to serve as a signatory to agreements governing the operation of mitigation banks. The Commonwealth and its officials, agencies, and employees shall not be liable for any action taken under any agreement developed pursuant to such authority.
  5. State agencies and localities are authorized to purchase credits from mitigation banks.
  6. A locality may establish, operate and sponsor wetland or stream single-user mitigation banks within the Commonwealth that have been approved and are operated in accordance with the requirements of subsection B, provided that such single-user banks may only be considered for compensatory mitigation for the sponsoring locality’s municipal, joint municipal or governmental projects. For the purposes of this subsection, the term “sponsoring locality’s municipal, joint municipal or governmental projects” means projects for which the locality is the named permittee, and for which there shall be no third-party leasing, sale, granting, transfer, or use of the projects or credits. Localities may enter into agreements with private third parties to facilitate the creation of privately sponsored wetland and stream mitigation banks having service areas developed through the procedures of subsection B.

History. 2007, c. 659; 2008, c. 173; 2011, c. 253; 2012, c. 631; 2014, c. 332; 2021, Sp. Sess. I, c. 265.

The 2008 amendments.

The 2008 amendment by c. 173 inserted “and localities” in subsection C and added subsection D.

The 2011 amendments.

The 2011 amendment by c. 253, in subsection C, substituted “subbasin” for “cataloging unit” throughout, “fourth order subbasin as defined by the hydrologic unit boundaries of the National Watershed Boundary Dataset as the impacted site, or in” for “U.S.G.S. cataloging unit as defined by the Hydrologic Unit Map of the United States (U.S.G.S. 1980), or” and added the last paragraph.

The 2012 amendments.

The 2012 amendment by c. 631 substituted “Tennessee River Basin/Big Sandy River Basin Complex” for “Tennessee River Basin, Sandy River Basin” near the end of the last paragraph of subsection A.

The 2014 amendments.

The 2014 amendment by c. 332, in subsection A, inserted “or by the hydrologic unit system or dataset utilized and depicted or described in the bank’s approved mitigation banking instrument” in the first sentence, added the last sentence, and redesignated clauses (1)-(3) as (i)-(iii) and clauses (i)-(vi) as (a)-(f).

The 2021 Sp. Sess. I amendments.

The 2021 amendment by Sp. Sess. I, c. 265, effective July 1, 2021, added subsections A and C and redesignated former subsection A as subsection B; in subsection B, in the first paragraph, substituted “impacted site, is located in the bank’s primary or secondary service area as provided in subsection C” for “bank is in the same fourth order subbasin, as defined by the hydrologic unit boundaries of the National Watershed Boundary Dataset or by the hydrologic unit system or dataset utilized and depicted or described in the bank’s approved mitigation banking instrument, as the impacted site, or in an adjacent subbasin within the same river watershed as the impacted site” in the first sentence, and substituted “impacted site is not located in the bank’s primary or secondary service area” for “bank is not located in the same subbasin or adjacent subbasin within the same river watershed as the impacted site” in the second sentence and deleted the second paragraph which defined “river watershed”; and made stylistic changes.

OPINIONS OF THE ATTORNEY GENERAL

Mitigation requirements. —

Subsection E of § 62.1-44.15:20 prohibits a locality from instituting a policy or plan mandating that mitigation for impacts to wetlands or steams occurring within that locality be performed within the boundaries of the locality. This prohibition includes acceptance of a voluntary proffer from a zoning applicant relating to the location of compensatory mitigation. See opinion of Attorney General to The Honorable Thomas Davis Rust, Member, House of Delegates, No. 15-043, 2015 Va. AG LEXIS 28 (10/2/15).

§ 62.1-44.15:23.1. Wetland and Stream Replacement Fund established.

There is hereby created in the state treasury a special nonreverting fund to be known as the Wetland and Stream Replacement Fund, hereafter referred to as “the Fund.” The Fund shall be established on the books of the Comptroller. All contributions to the Board pursuant to clause (iii) of subsection B of § 62.1-44.15:21 shall be paid into the state treasury and credited to the Fund. Interest earned on moneys in the Fund shall remain in the Fund and be credited to it. Any moneys remaining in the Fund, including interest thereon, at the end of each fiscal year shall not revert to the general fund but shall remain in the Fund. The Fund shall be administered and utilized by the Department of Environmental Quality. The Fund may be used as an additional mechanism for compensatory mitigation for impacts to aquatic resources (i) that result from activities authorized under (a) Section 404 and 401 of the Clean Water Act (33 U.S.C. § 1251 et seq.), (b) the Virginia Water Protection Permit Regulation (9 VAC 25-210 et seq.), or (c) Section 10 of the Rivers and Harbors Act (33 U.S.C. § 403); (ii) that result from unauthorized activities in waters of the United States or state waters; and (iii) in other cases, as the appropriate regulatory agencies deem acceptable. Moneys in the Fund shall be used for the purpose of purchasing mitigation bank credits in compliance with the provisions of subsection B of § 62.1-44.15:23 as soon as practicable if qualifying credits are available. If such credits are not available within three years of the collection of moneys for a specific impact, then funds shall be utilized either (1) to purchase credits from a Board-approved fund that have met the success criteria, if qualifying credits are available, (2) for the planning, construction, monitoring, and preservation of wetland and stream mitigation projects and preservation, enhancement, or restoration of upland buffers adjacent to wetlands or other state waters when used in conjunction with creation or restoration of wetlands and streams, or (3) for other water quality improvement projects as deemed acceptable by the Department of Environmental Quality. Such projects developed under clause (2) shall be developed in accordance with guidelines, responsibilities, and standards established by the Department of Environmental Quality for use, operation, and maintenance consistent with 33 CFR Part 332, governing compensatory mitigation for activities authorized by U.S. Army Corps of Engineer permits. Expenditures and disbursements from the Fund shall be made by the State Treasurer on warrants issued by the Comptroller upon written request signed by the Director of the Department of Environmental Quality. The Department may charge a reasonable fee to administer the Fund.

History. 2013, c. 742; 2021, Sp. Sess. I, c. 265.

The number of this section was assigned by the Virginia Code Commission, the number in the 2013 act having been § 62.1-44.15:24 .

The 2021 Sp. Sess. I amendments.

The 2021 amendment by Sp. Sess. I, c. 265, effective July 1, 2021, substituted “subsection B of § 62.1-44.15:23 ” for “subsection A of § 62.1-44.15:23 .”

OPINIONS OF THE ATTORNEY GENERAL

Mitigation requirements. —

Subsection E of § 62.1-44.15:20 prohibits a locality from instituting a policy or plan mandating that mitigation for impacts to wetlands or steams occurring within that locality be performed within the boundaries of the locality. This prohibition includes acceptance of a voluntary proffer from a zoning applicant relating to the location of compensatory mitigation. See opinion of Attorney General to The Honorable Thomas Davis Rust, Member, House of Delegates, No. 15-043, 2015 Va. AG LEXIS 28 (10/2/15).

Article 2.3. Stormwater Management Act.

Editor’s note.

This article head has been amended by 2016, cc. 68 and 758 to read “Virginia Erosion and Stormwater Management Act” effective on July 1, 2018, or 30 days after the adoption by the State Water Control Board of the regulations pursuant to Acts 2016, cc. 68 and 758, cl. 9, whichever occurs later.

§ 62.1-44.15:24. (For expiration date, see notes) Definitions.

As used in this article, unless the context requires a different meaning:

“Agreement in lieu of a stormwater management plan” means a contract between the VSMP authority and the owner or permittee that specifies methods that shall be implemented to comply with the requirements of a VSMP for the construction of a single-family residence; such contract may be executed by the VSMP authority in lieu of a stormwater management plan.

“Chesapeake Bay Preservation Act land-disturbing activity” means a land-disturbing activity including clearing, grading, or excavation that results in a land disturbance equal to or greater than 2,500 square feet and less than one acre in all areas of jurisdictions designated as subject to the regulations adopted pursuant to the Chesapeake Bay Preservation provisions of this chapter.

“CWA” means the federal Clean Water Act (33 U.S.C. § 1251 et seq.), formerly referred to as the Federal Water Pollution Control Act or Federal Water Pollution Control Act Amendments of 1972, P.L. 92-500, as amended by P.L. 95-217, P.L. 95-576, P.L. 96-483, and P.L. 97-117, or any subsequent revisions thereto.

“Department” means the Department of Environmental Quality.

“Director” means the Director of the Department of Environmental Quality.

“Flooding” means a volume of water that is too great to be confined within the banks or walls of the stream, water body, or conveyance system and that overflows onto adjacent lands, thereby causing or threatening damage.

“Land disturbance” or “land-disturbing activity” means a man-made change to the land surface that potentially changes its runoff characteristics including clearing, grading, or excavation, except that the term shall not include those exemptions specified in § 62.1-44.15:34 .

“Municipal separate storm sewer” means a conveyance or system of conveyances otherwise known as a municipal separate storm sewer system or “MS4,” including roads with drainage systems, municipal streets, catch basins, curbs, gutters, ditches, man-made channels, or storm drains:

  1. Owned or operated by a federal, state, city, town, county, district, association, or other public body, created by or pursuant to state law, having jurisdiction or delegated authority for erosion and sediment control and stormwater management, or a designated and approved management agency under § 208 of the CWA that discharges to surface waters;
  2. Designed or used for collecting or conveying stormwater;
  3. That is not a combined sewer; and
  4. That is not part of a publicly owned treatment works.“Municipal Separate Storm Sewer System Management Program” means a management program covering the duration of a state permit for a municipal separate storm sewer system that includes a comprehensive planning process that involves public participation and intergovernmental coordination, to reduce the discharge of pollutants to the maximum extent practicable, to protect water quality, and to satisfy the appropriate water quality requirements of the CWA and regulations, and this article and its attendant regulations, using management practices, control techniques, and system, design, and engineering methods, and such other provisions that are appropriate.“Nonpoint source pollution” means pollution such as sediment, nitrogen, phosphorus, hydrocarbons, heavy metals, and toxics whose sources cannot be pinpointed but rather are washed from the land surface in a diffuse manner by stormwater runoff.“Peak flow rate” means the maximum instantaneous flow from a prescribed design storm at a particular location.“Permit” or “VSMP authority permit” means an approval to conduct a land-disturbing activity issued by the VSMP authority for the initiation of a land-disturbing activity after evidence of state VSMP general permit coverage has been provided where applicable.“Permittee” means the person to which the permit or state permit is issued.“Runoff volume” means the volume of water that runs off the land development project from a prescribed storm event.“Rural Tidewater locality” means any locality that is (i) subject to the provisions of the Chesapeake Bay Preservation Act (§ 62.1-44.15:67 et seq.) and (ii) eligible to join the Rural Coastal Virginia Community Enhancement Authority established by Chapter 76 (§ 15.2-7600 et seq.) of Title 15.2.“State permit” means an approval to conduct a land-disturbing activity issued by the Board in the form of a state stormwater individual permit or coverage issued under a state general permit or an approval issued by the Board for stormwater discharges from an MS4. Under these permits, the Commonwealth imposes and enforces requirements pursuant to the federal Clean Water Act and regulations and this article and its attendant regulations.“Stormwater” means precipitation that is discharged across the land surface or through conveyances to one or more waterways and that may include stormwater runoff, snow melt runoff, and surface runoff and drainage.“Stormwater management plan” means a document containing material describing methods for complying with the requirements of a VSMP.“Subdivision” means the same as defined in § 15.2-2201 .“Virginia Stormwater Management Program” or “VSMP” means a program approved by the Soil and Water Conservation Board after September 13, 2011, and until June 30, 2013, or the State Water Control Board on and after June 30, 2013, that has been established by a VSMP authority to manage the quality and quantity of runoff resulting from land-disturbing activities and shall include such items as local ordinances, rules, permit requirements, annual standards and specifications, policies and guidelines, technical materials, and requirements for plan review, inspection, enforcement, where authorized in this article, and evaluation consistent with the requirements of this article and associated regulations.“Virginia Stormwater Management Program authority” or “VSMP authority” means an authority approved by the Board after September 13, 2011, to operate a Virginia Stormwater Management Program or the Department. An authority may include a locality; state entity, including the Department; federal entity; or, for linear projects subject to annual standards and specifications in accordance with subsection B of § 62.1-44.15:31 , electric, natural gas, and telephone utility companies, interstate and intrastate natural gas pipeline companies, railroad companies, or authorities created pursuant to § 15.2-5102 .“Water quality volume” means the volume equal to the first one-half inch of runoff multiplied by the impervious surface of the land development project.“Water quantity technical criteria” means standards set forth in regulations adopted pursuant to this article that establish minimum design criteria for measures to control localized flooding and stream channel erosion.“Watershed” means a defined land area drained by a river or stream, karst system, or system of connecting rivers or streams such that all surface water within the area flows through a single outlet. In karst areas, the karst feature to which water drains may be considered the single outlet for the watershed.

History. 1989, cc. 467, 499, § 10.1-603.2; 1991, c. 84; 1994, cc. 605, 898; 2004, c. 372; 2006, cc. 21, 171; 2012, cc. 785, 819; 2013, cc. 756, 793; 2014, cc. 303, 598; 2018, cc. 154, 155.

Section set out twice.

The section above is effective until July 1, 2018, or 30 days after the adoption by the State Water Control Board of the regulations pursuant to Acts 2016, cc. 68 and 758, cl. 9, whichever occurs later. For this section as in effect at that time, see the following section, also numbered 62.1-44.15:24 .

Editor’s note.

Acts 2013, cc. 756 and 793, cl. 5 provides: “That the transfer of the responsibility for administering the issuance and enforcement of national pollutant discharge elimination system permits for the control of stormwater discharges shall become effective on July 1, 2013, or upon the U.S. Environmental Protection Agency’s rescission of authorization for delegation of program authority to the Virginia Soil and Water Conservation Board, whichever occurs later.” Pursuant to a letter received from the Environmental Protection Agency on July 2, 2013, the transfer of responsibility from DCR to DEQ has been approved as required by this provision.

Acts 2013, cc. 756 and 793, cl. 6 provides: “Regulations of the regulatory boards served by (i) the Department of Labor and Industry pursuant to Title 40.1 and (ii) the Department of Professional and Occupational Regulation or the Department of Health Professions pursuant to Title 54.1 that are limited to reducing fees charged to regulants and applicants.”

Acts 2013, cc. 756 and 793, cl. 7 provides: “That the regulations adopted by the Virginia Soil and Water Conservation Board to administer and implement the Virginia Stormwater Management Act ( § 10.1-603.1 et seq. of the Code of Virginia), the Erosion and Sediment Control Law (§ 10.1- 560 et seq. of the Code of Virginia), and the Chesapeake Bay Preservation Act (§ 10.1- 2100 et seq. of the Code of Virginia) are transferred from the Virginia Soil and Water Conservation Board to the State Water Control Board, and the State Water Control Board may amend, modify, or delete provisions in these regulations in order to implement this act. Such regulations shall remain in full force and effect until altered, amended, or rescinded by the State Water Control Board.”

Acts 2013, cc. 756 and 793, cl. 8 provides: “That the initial actions of the State Water Control Board to adopt, with necessary amendments, the regulations implementing the programs being transferred by this act from the Virginia Soil and Water Conservation Board to the State Water Control Board shall be exempt from Article 2 ( § 2.2-4006 et seq.) of Chapter 40 of Title 2.2 of the Code of Virginia. After transfer of the programs, if the State Water Control Board determines that additional amendments to the regulations are necessary solely to enable implementation of the programs in accordance with this act, the regulatory actions necessary shall be exempt from Article 2 ( § 2.2-4006 et seq.) of Chapter 40 of Title 2.2 of the Code of Virginia, except that the Department of Environmental Quality shall provide an opportunity for public comment on the regulatory actions.”

Acts 2013, cc. 756 and 793, cl. 9 provides: “That any regulatory action initiated by the Virginia Soil and Water Conservation Board to amend the programs being transferred by this act may be continued by the State Water Control Board at the time of the program transfer and that the State Water Control Board shall act expeditiously to address all such actions.”

Acts 2013, cc. 756 and 793, cl. 10 provides: “That the full-time employees and the total maximum employment level employed in the administration of the programs being transferred by this act shall be transferred from the Department of Conservation and Recreation to the Department of Environmental Quality. The Department of Conservation and Recreation is directed to transfer to the Department of Environmental Quality all appropriations, including special funds, for programs identified for transfer by this act. The Department of Environmental Quality is authorized to hire additional staff to operate the programs transferred by this act.”

Acts 2013, cc. 756 and 793, cl. 11 provides: “That 30 days prior to (i) the transfer of any full-time employees and total maximum employment level employed in the administration of the programs being transferred by this act, the Secretary of Natural Resources shall report to the Chairs of the Senate Committee on Finance, the Senate Committee on Agriculture, Conservation and Natural Resources, the House Committee on Appropriations, and the House Committee on Agriculture, Chesapeake and Natural Resources on such transfers and (ii) the transfer of appropriations, including special funds, for programs identified for transfer in this act, the Secretary of Natural Resources shall report on such transfers. By December 1, 2013, the Secretary of Natural Resources shall also report on the process by which the Department of Environmental Quality will distribute funds to local soil and water conservation districts as provided for in § 319 of the federal Clean Water Act and § 6217 of the federal Coastal Zone Management Act.”

Acts 2013, cc. 756 and 793, cl. 12 provides: “That the Directors of the Departments of Environmental Quality and Conservation and Recreation, the Commissioner of Agriculture and Consumer Services, and members of the Senate Committee on Agriculture, Conservation and Natural Resources and the House Committee on Agriculture, Chesapeake and Natural Resources, appointed by their respective Chairs, shall convene public meetings throughout the Commonwealth to evaluate the role of soil and water conservation districts in providing effective delivery of water quality services and technical assistance. In their deliberations the representatives of the executive branch agencies and legislators shall:

“A. Discuss the provisions of this act and its implications and solicit comments from the public and affected parties;

“B. Determine the extent of the role soil and water conservation districts should play in providing assistance in delivery of water quality services for nonpoint source pollution management and providing technical assistance for such programs as erosion and sediment control and stormwater management; and

“C. Determine whether the mission of soil and water conservation districts is more effectively delivered under the current statutory framework or whether organizational changes would enhance the effectiveness and efficiency of the delivery of such services.”

Acts 2013, cc. 756 and 793, cl. 13 provides: “That guidance of the Department of Conservation and Recreation, the Virginia Soil and Water Conservation Board, and the former Chesapeake Bay Local Assistance Board relating to programs to be transferred by this act shall remain in effect until amended or repealed.”

Acts 2013, cc. 756 and 793, cl. 14 provides: “That the Secretary of Natural Resources, working with the Directors of the Departments of Environmental Quality and Conservation and Recreation, shall take steps to enhance collaboration and communication among the natural resources agencies to ensure the effective and efficient implementation of the Commonwealth’s water quality and soil and water conservation programs.”

Acts 2014, cc. 303 and 598, cl. 2 provides: “That amendments to regulations of the State Water Control Board necessary to implement the provisions of this act shall be exempt from the Administrative Process Act ( § 2.2-4000 et seq.), provided that there is a public comment period of at least 30 days on the proposed amendments prior to Board adoption.”

Acts 2014, cc. 303 and 598, cl. 3 provides: “That the consolidation into Virginia’s General Permit for Discharges of Stormwater from Construction Activities of state post-construction requirements exceeding minimum federal requirements shall not be construed to modify the scope of federal agency or citizen suit enforcement pursuant to the Clean Water Act ( 33 U.S.C. § 1251 et seq.).”

Acts 2016, cc. 68 and 758, cl. 10, as amended by Acts 2017, c. 345, cl. 2, provides: “That the provisions of this act shall become effective July 1, 2018, or 30 days after the adoption by the State Water Control Board of the regulations required by the ninth enactment of this act, whichever occurs later.”

The 2014 amendments.

The 2014 amendments by c. 303, effective March 24, 2014, and c. 598, effective April 4, 2014, are identical and added the definition of “Agreement in lieu of a stormwater management plan”; and deleted “until such approval is given” and made minor stylistic changes in the definition of “Virginia Stormwater Management Program authority.”

The 2018 amendments.

The 2018 amendment by c. 154 added the definitions for “Rural Tidewater locality” and “Water quantity technical criteria.”

The 2018 amendment by c. 155 added the definition for “Rural Tidewater locality.”

The 2018 amendments by cc. 154 and 155, added the definition for “Rural Tidewater locality.”

Research References.

Virginia Forms (Matthew Bender). No. 16-572. Storm Water Management Agreement, etc.

OPINIONS OF THE ATTORNEY GENERAL

Stormwater fee. —

The stormwater fee set forth in a city code to recoup costs associated with the National Pollutant Discharge Elimination System Permit program is a service fee rather than a tax, and the United States Navy is not constitutionally exempt from paying the fee. See opinion of Attorney General to Ronald S. Hallman, Esq., Chesapeake City Attorney, 09-098, 2010 Va. AG LEXIS 8 (3/4/10).

Restrictions on use of fertilizer. —

Virginia locality is authorized by § 10.1-603.7 and § 15.2-924.1 to adopt an ordinance regulating or prohibiting the use or application of fertilizers within its jurisdictional boundaries provided the locality makes the factual findings required by subsection A of § 10.1-603.7 and determines that the ordinance is necessary to prevent any further degradation to water resources or to address specific existing water pollution. The locality also must comply with the public hearing procedures required by subsection A of § 10.1-603.7. See opinion of Attorney General to James E. Barnett, Esq., York County Attorney, 09-035, 2009 Va. AG LEXIS 55 (9/1/09).

Riparian landowners. —

The provisions of the Virginia Scenic Rivers Act do not apply to riparian landowners constructing dams, docks, or other structures that could impede water flow along tributaries of designated waterways unless those tributaries are included within the scope of the designation. The Scenic Rivers Act does not impose any restrictions on a riparian landowner’s management of surface water on his land abutting a designated waterway, and accordingly that a riparian landowner may engage in grading, plowing, timbering, or otherwise develop his property in a manner that might impede the flow of surface water across his property into a designated scenic river. See opinion of Attorney General to C. Eric Young, Esquire, Tazewell County Attorney, 17-037, 2017 Va. AG LEXIS 28 (12/7/17).

§ 62.1-44.15:24. (For effective date, see notes) Definitions.

As used in this article, unless the context requires a different meaning:

“Agreement in lieu of a plan” means a contract between the VESMP authority or the Board acting as a VSMP authority and the owner or permittee that specifies methods that shall be implemented to comply with the requirements of this article for the construction of a single-family detached residential structure; such contract may be executed by the VESMP authority in lieu of a soil erosion control and stormwater management plan or by the Board acting as a VSMP authority in lieu of a stormwater management plan.

“Applicant” means any person submitting a soil erosion control and stormwater management plan to a VESMP authority, or a stormwater management plan to the Board when it is serving as a VSMP authority, for approval in order to obtain authorization to commence a land-disturbing activity.

“CWA” means the federal Clean Water Act (33 U.S.C. § 1251 et seq.), formerly referred to as the Federal Water Pollution Control Act or Federal Water Pollution Control Act Amendments of 1972, P.L. 92-500, as amended by P.L. 95-217, P.L. 95-576, P.L. 96-483, and P.L. 97-117, or any subsequent revisions thereto.

“Department” means the Department of Environmental Quality.

“Director” means the Director of the Department of Environmental Quality.

“Erosion impact area” means an area of land that is not associated with a current land-disturbing activity but is subject to persistent soil erosion resulting in the delivery of sediment onto neighboring properties or into state waters. This definition shall not apply to any lot or parcel of land of 10,000 square feet or less used for residential purposes or any shoreline where the erosion results from wave action or other coastal processes.

“Flooding” means a volume of water that is too great to be confined within the banks or walls of the stream, water body, or conveyance system and that overflows onto adjacent lands, thereby causing or threatening damage.

“Land disturbance” or “land-disturbing activity” means a man-made change to the land surface that may result in soil erosion or has the potential to change its runoff characteristics, including construction activity such as the clearing, grading, excavating, or filling of land.

“Land-disturbance approval” means the same as that term is defined in § 62.1-44.3 .

“Municipal separate storm sewer” or “MS4” means the same as that term is defined in § 62.1-44.3 .

“Municipal Separate Storm Sewer System Management Program” means a management program covering the duration of a permit for a municipal separate storm sewer system that includes a comprehensive planning process that involves public participation and intergovernmental coordination, to reduce the discharge of pollutants to the maximum extent practicable, to protect water quality, and to satisfy the appropriate water quality requirements of the CWA and regulations, and this article and its attendant regulations, using management practices, control techniques, and system, design, and engineering methods, and such other provisions that are appropriate.

“Natural channel design concepts” means the utilization of engineering analysis and fluvial geomorphic processes to create, rehabilitate, restore, or stabilize an open conveyance system for the purpose of creating or recreating a stream that conveys its bankfull storm event within its banks and allows larger flows to access its bankfull bench and its floodplain.

“Nonpoint source pollution” means pollution such as sediment, nitrogen, phosphorus, hydrocarbons, heavy metals, and toxics whose sources cannot be pinpointed but rather are washed from the land surface in a diffuse manner by stormwater.

“Owner” means the same as that term is defined in § 62.1-44.3 . For a regulated land-disturbing activity that does not require a permit, “owner” also means the owner or owners of the freehold of the premises or lesser estate therein, mortgagee or vendee in possession, assignee of rents, receiver, executor, trustee, lessee, or other person, firm, or corporation in control of a property.

“Peak flow rate” means the maximum instantaneous flow from a prescribed design storm at a particular location.

“Permit” means a Virginia Pollutant Discharge Elimination System (VPDES) permit issued by the Board pursuant to § 62.1-44.15 for stormwater discharges from a land-disturbing activity or MS4.

“Permittee” means the person to whom the permit is issued.

“Runoff volume” means the volume of water that runs off the land development project from a prescribed storm event.

“Rural Tidewater locality” means any locality that is (i) subject to the provisions of the Chesapeake Bay Preservation Act (§ 62.1-44.15:67 et seq.) and (ii) eligible to join the Rural Coastal Virginia Community Enhancement Authority established by Chapter 76 (§ 15.2-7600 et seq.) of Title 15.2.

“Soil erosion” means the movement of soil by wind or water into state waters or onto lands in the Commonwealth.

“Soil Erosion Control and Stormwater Management plan” or “plan” means a document describing methods for controlling soil erosion and managing stormwater in accordance with the requirements adopted pursuant to this article.

“Stormwater,” for the purposes of this article, means precipitation that is discharged across the land surface or through conveyances to one or more waterways and that may include stormwater runoff, snow melt runoff, and surface runoff and drainage.

“Stormwater management plan” means a document containing material describing methods for complying with the requirements of a VSMP.

“Subdivision” means the same as that term is defined in § 15.2-2201 .

“Virginia Erosion and Sediment Control Program” or “VESCP” means a program approved by the Board that is established by a VESCP authority pursuant to Article 2.4 (§ 62.1-44.15:51 et seq.) for the effective control of soil erosion, sediment deposition, and nonagricultural runoff associated with a land-disturbing activity to prevent the unreasonable degradation of properties, stream channels, waters, and other natural resources. The VESCP shall include, where applicable, such items as local ordinances, rules, policies and guidelines, technical materials, and requirements for plan review, inspection, and evaluation consistent with the requirements of Article 2.4 (§ 62.1-44.15:51 et seq.).

“Virginia Erosion and Sediment Control Program authority” or “VESCP authority” means a locality that is approved by the Board to operate a Virginia Erosion and Sediment Control Program in accordance with Article 2.4 (§ 62.1-44.15:51 et seq.). Only a locality for which the Department administered a Virginia Stormwater Management Program as of July 1, 2017, is authorized to choose to operate a VESCP pursuant to Article 2.4 (§ 62.1-44.15:51 et seq.).

“Virginia Erosion and Stormwater Management Program” or “VESMP” means a program established by a VESMP authority for the effective control of soil erosion and sediment deposition and the management of the quality and quantity of runoff resulting from land-disturbing activities to prevent the unreasonable degradation of properties, stream channels, waters, and other natural resources. The program shall include such items as local ordinances, rules, requirements for permits and land-disturbance approvals, policies and guidelines, technical materials, and requirements for plan review, inspection, and enforcement consistent with the requirements of this article.

“Virginia Erosion and Stormwater Management Program authority” or “VESMP authority” means the Board or a locality approved by the Board to operate a Virginia Erosion and Stormwater Management Program. For state agency or federal entity land-disturbing activities and land-disturbing activities subject to approved standards and specifications, the Board shall serve as the VESMP authority.

“Virginia Stormwater Management Program” or “VSMP” means a program established by the Board pursuant to § 62.1-44.15:27.1 on behalf of a locality on or after July 1, 2014, to manage the quality and quantity of runoff resulting from any land-disturbing activity that (i) disturbs one acre or more of land or (ii) disturbs less than one acre of land and is part of a larger common plan of development or sale that results in one acre or more of land disturbance.

“Virginia Stormwater Management Program authority” or “VSMP authority” means the Board when administering a VSMP on behalf of a locality that, pursuant to subdivision B 3 of § 62.1-44.15:27 , has chosen not to adopt and administer a VESMP.

“Water quality technical criteria” means standards set forth in regulations adopted pursuant to this article that establish minimum design criteria for measures to control nonpoint source pollution.

“Water quantity technical criteria” means standards set forth in regulations adopted pursuant to this article that establish minimum design criteria for measures to control localized flooding and stream channel erosion.

“Watershed” means a defined land area drained by a river or stream, karst system, or system of connecting rivers or streams such that all surface water within the area flows through a single outlet. In karst areas, the karst feature to which water drains may be considered the single outlet for the watershed.

History. 1989, cc. 467, 499, § 10.1-603.2; 1991, c. 84; 1994, cc. 605, 898; 2004, c. 372; 2006, cc. 21, 171; 2012, cc. 785, 819; 2013, cc. 756, 793; 2014, cc. 303, 598; 2016, cc. 68, 758; 2018, cc. 154, 155.

Section set out twice.

The section above is effective July 1, 2018, or 30 days after the adoption by the State Water Control Board of the regulations pursuant to Acts 2016, cc. 68 and 758, cl. 9, whichever occurs later. For this section as in effect until that time, see the preceding section, also numbered 62.1-44.15:24 .

Editor’s note.

The 2016 amendments by cc. 68 and 758 are identical, and substituted “Virginia Erosion and Stormwater Management Act (VESMA)” for “Stormwater Management Act” in the article heading. For effective date, see notes.

Acts 2016, cc. 68 and 758, cl. 9 provides: “That the State Water Control Board (the Board) shall adopt regulations to implement the requirements of this act. The adoption of such regulations shall be exempt from the requirements of Article 2 ( § 2.2-4006 et seq.) of the Administrative Process Act ( § 2.2-4000 et seq.) of the Code of Virginia. However, the Department shall (i) provide a Notice of Intended Regulatory Action, (ii) form a stakeholders advisory group, (iii) provide for a 60-day public comment period prior to the Board’s adoption of the regulations, and (iv) provide the Board with a written summary of comments received and responses to comments prior to the Board’s adoption of the regulations.”

The 2016 amendments.

The 2016 amendments by cc. 68 and 758 are identical, and rewrote the section. For effective date, see notes.

§ 62.1-44.15:25. (For expiration date — see notes) Further powers and duties of the State Water Control Board.

In addition to other powers and duties conferred upon the Board, it shall permit, regulate, and control stormwater runoff in the Commonwealth. The Board may issue, deny, revoke, terminate, or amend state stormwater individual permits or coverage issued under state general permits; adopt regulations; approve and periodically review Virginia Stormwater Management Programs and management programs developed in conjunction with a state municipal separate storm sewer permit; enforce the provisions of this article; and otherwise act to ensure the general health, safety, and welfare of the citizens of the Commonwealth as well as protect the quality and quantity of state waters from the potential harm of unmanaged stormwater. The Board may:

  1. Issue, deny, amend, revoke, terminate, and enforce state permits for the control of stormwater discharges from Municipal Separate Storm Sewer Systems and land-disturbing activities.
  2. Take administrative and legal actions to ensure compliance with the provisions of this article by any person subject to state or VSMP authority permit requirements under this article, and those entities with an approved Virginia Stormwater Management Program and management programs developed in conjunction with a state municipal separate storm sewer system permit, including the proper enforcement and implementation of, and continual compliance with, this article.
  3. In accordance with procedures of the Administrative Process Act (§ 2.2-4000 et seq.), amend or revoke any state permit issued under this article on the following grounds or for good cause as may be provided by the regulations of the Board:
    1. Any person subject to state permit requirements under this article has violated or failed, neglected, or refused to obey any order or regulation of the Board, any order, notice, or requirement of the Department, any condition of a state permit, any provision of this article, or any order of a court, where such violation results in the unreasonable degradation of properties, water quality, stream channels, and other natural resources, or the violation is representative of a pattern of serious or repeated violations, including the disregard for or inability to comply with applicable laws, regulations, permit conditions, orders, rules, or requirements;
    2. Any person subject to state permit requirements under this article has failed to disclose fully all relevant material facts or has misrepresented a material fact in applying for a state permit, or in any other report or document required under this law or under the regulations of the Board;
    3. The activity for which the state permit was issued causes unreasonable degradation of properties, water quality, stream channels, and other natural resources; or
    4. There exists a material change in the basis on which the state permit was issued that requires either a temporary or a permanent reduction or elimination of any discharge or land-disturbing activity controlled by the state permit necessary to prevent unreasonable degradation of properties, water quality, stream channels, and other natural resources.
  4. Cause investigations and inspections to ensure compliance with any state or VSMP authority permits, conditions, policies, rules, regulations, rulings, and orders which it may adopt, issue, or establish and to furnish advice, recommendations, or instructions for the purpose of obtaining such compliance.
  5. In accordance with procedures of the Administrative Process Act (§ 2.2-4000 et seq.), adopt rules governing (i) hearings, (ii) the filing of reports, (iii) the issuance of permits and special orders, and (iv) all other matters relating to procedure, and amend or cancel any rule adopted.
  6. Issue special orders to any person subject to state or VSMP authority permit requirements under this article (i) who is permitting or causing the unreasonable degradation of properties, water quality, stream channels, and other natural resources to cease and desist from such activities; (ii) who has failed to construct facilities in accordance with final approved plans and specifications to construct such facilities; (iii) who has violated the terms and provisions of a state or VSMP authority permit issued by the Board or VSMP authority to comply with the provisions of the state or VSMP authority permit, this article, and any decision of the VSMP authority, the Department, or the Board; or (iv) who has violated the terms of an order issued by the court, the VSMP authority, the Department, or the Board to comply with the terms of such order, and also to issue orders to require any person subject to state or VSMP authority permit requirements under this article to comply with the provisions of this article and any decision of the Board. Such special orders are to be issued in accordance with the procedures of the Administrative Process Act (§ 2.2-4000 et seq.) and shall become effective not less than 15 days after the date of mailing with confirmation of delivery of the notice to the last known address of any person subject to state or VSMP authority permit requirements under this article, provided that if the Board finds that any such person subject to state or VSMP authority permit requirements under this article is grossly affecting or presents an imminent and substantial danger to (i) the public health, safety, or welfare or the health of animals, fish, or aquatic life; (ii) a public water supply; or (iii) recreational, commercial, industrial, agricultural, or other reasonable uses, it may issue, without advance notice or hearing, an emergency special order directing any person subject to state or VSMP authority permit requirements under this article to cease such pollution or discharge immediately, and shall provide an opportunity for a hearing, after reasonable notice as to the time and place thereof to any person subject to state or VSMP authority permit requirements under this article, to affirm, modify, amend, or cancel such emergency special order. If any person subject to state or VSMP authority permit requirements under this article who has been issued such a special order or an emergency special order is not complying with the terms thereof, the Board may proceed in accordance with § 62.1-44.15:48 , and where the order is based on a finding of an imminent and substantial danger, the court shall issue an injunction compelling compliance with the emergency special order pending a hearing by the Board. If an emergency special order requires cessation of a discharge, the recipient of the order may appeal its issuance to the circuit court of the jurisdiction wherein the discharge was alleged to have occurred. The provisions of this section notwithstanding, the Board may proceed directly under § 62.1-44.15:48 for any past violation or violations of any provision of this article or any regulation duly adopted hereunder. With the consent of any person subject to state or VSMP authority permit requirements under this article who has violated or failed, neglected, or refused to obey any regulation or order of the Board, any order, notice, or requirement of the Department or VSMP authority, any condition of a state or VSMP authority permit, or any provision of this article, the Board may provide, in an order issued by the Board against such person, for the payment of civil charges for violations in specific sums not to exceed the limit specified in subsection A of § 62.1-44.15:48 . Such civil charges shall be collected in lieu of any appropriate civil penalty that could be imposed pursuant to subsection A of § 62.1-44.15:48 and shall not be subject to the provisions of § 2.2-514 . Such civil charges shall be paid into the state treasury and deposited by the State Treasurer into the Virginia Stormwater Management Fund established pursuant to § 62.1-44.15:29 .

History. 2004, c. 372, § 10.1-603.2:1; 2006, c. 171; 2012, cc. 785, 819; 2013, cc. 756, 793.

Section set out twice.

The section above is effective until July 1, 2018, or 30 days after the adoption by the State Water Control Board of the regulations pursuant to Acts 2016, cc. 68 and 758, cl. 9, whichever occurs later. For this section as in effect at that time, see the following section, also numbered 62.1-44.15:25 .

The section above is effective July 1, 2018, or 30 days after the adoption by the State Water Control Board of the regulations pursuant to Acts 2016, cc. 68 and 758, cl. 9, whichever occurs later. For this section as in effect until that time, see the preceding section, also numbered 62.1-44.15:25 .

Editor’s note.

Acts 2013, cc. 756 and 793, cl. 5 provides: “That the transfer of the responsibility for administering the issuance and enforcement of national pollutant discharge elimination system permits for the control of stormwater discharges shall become effective on July 1, 2013, or upon the U.S. Environmental Protection Agency’s rescission of authorization for delegation of program authority to the Virginia Soil and Water Conservation Board, whichever occurs later.” Pursuant to a letter received from the Environmental Protection Agency on July 2, 2013, the transfer of responsibility from DCR to DEQ has been approved as required by this provision.

Acts 2016, cc. 68 and 758, cl. 9 provides: “That the State Water Control Board (the Board) shall adopt regulations to implement the requirements of this act. The adoption of such regulations shall be exempt from the requirements of Article 2 ( § 2.2-4006 et seq.) of the Administrative Process Act ( § 2.2-4000 et seq.) of the Code of Virginia. However, the Department shall (i) provide a Notice of Intended Regulatory Action, (ii) form a stakeholders advisory group, (iii) provide for a 60-day public comment period prior to the Board’s adoption of the regulations, and (iv) provide the Board with a written summary of comments received and responses to comments prior to the Board’s adoption of the regulations.”

Acts 2016, cc. 68 and 758, cl. 10, as amended by Acts 2017, c. 345, cl. 2, provides: “That the provisions of this act shall become effective July 1, 2018, or 30 days after the adoption by the State Water Control Board of the regulations required by the ninth enactment of this act, whichever occurs later.”

The 2016 amendments.

The 2016 amendments by cc. 68 and 758 are identical, and rewrote the section. For effective date, see Editor’s note.

§ 62.1-44.15:25. (For effective date — see notes) Further powers and duties of the State Water Control Board.

In addition to other powers and duties conferred upon the Board by this chapter, it shall permit, regulate, and control soil erosion and stormwater runoff in the Commonwealth and may otherwise act to protect the quality and quantity of state waters from the potential harm of unmanaged stormwater and soil erosion. It shall be the duty of the Board and it shall have the authority to:

  1. Issue special orders pursuant to subdivision (8a) or (8b) of § 62.1-44.15 to any owner subject to requirements under this article, except that for any land-disturbing activity that disturbs an area measuring not less than 10,000 square feet but less than one acre in an area of a locality that is not designated as a Chesapeake Bay Preservation Area pursuant to the Chesapeake Bay Preservation Act (§ 62.1-44.15:67 et seq.) and that is not part of a larger common plan of development or sale that disturbs one acre or more of land, such special orders may include civil penalties of up to $5,000 per violation, not to exceed $50,000 per order. Such civil penalties shall be paid into the state treasury and deposited by the State Treasurer into the Stormwater Local Assistance Fund established pursuant to § 62.1-44.15:29.1 .The provisions of this section notwithstanding, the Board may proceed directly under § 62.1-44.15:48 or Article 5 (§ 62.1-44.20 et seq.) for any past violation or violations of any provision of this article or any regulation duly adopted hereunder.
  2. With the consent of any owner subject to requirements under this article, the Board may provide, in an order issued by the Board pursuant to subdivision (8d) of § 62.1-44.15 against such owner, for the payment of civil charges for violations in specific sums. Such sums shall not exceed the limit specified in subdivision A 1 or B 1, as applicable, of § 62.1-44.15:48 . Such civil charges shall be collected in lieu of any appropriate civil penalty that could be imposed pursuant to § 62.1-44.15:48 and shall not be subject to the provisions of § 2.2-514 . Such civil charges shall be paid into the state treasury and deposited by the State Treasurer into the Stormwater Local Assistance Fund established pursuant to § 62.1-44.15:29.1 .

History. 2004, c. 372, § 10.1-603.2:1; 2006, c. 171; 2012, cc. 785, 819; 2013, cc. 756, 793; 2016, cc. 68, 758.

§ 62.1-44.15:25.1. (For effective date — see notes) Additional local authority.

Any locality serving as a VESMP authority shall have the authority to:

  1. Issue orders in accordance with the procedures of subdivision 10 a of § 15.2-2122 to any owner subject to the requirements of this article. Such orders may include civil penalties in specific sums not to exceed the limit specified in subdivision A 2 or B 2, as applicable, of § 62.1-44.15:48 , and such civil penalties shall be paid into the treasury of the locality in accordance with subdivision A 2 of § 62.1-44.15:48 . The provisions of this section notwithstanding, the locality may proceed directly under § 62.1-44.15:48 for any past violation or violations of any provision of this article or any ordinance duly adopted hereunder.
  2. Issue consent orders with the consent of any person who has violated or failed, neglected, or refused to obey any ordinance adopted pursuant to the provisions of this article, any condition of a locality’s land-disturbance approval, or any order of a locality serving as a VESMP authority. Such consent order may provide for the payment of civil charges not to exceed the limits specified in subdivision A 2 or B 2, as applicable, of § 62.1-44.15:48 . Such civil charges shall be in lieu of any appropriate civil penalty that could be imposed under this article. Any civil charges collected shall be paid to the treasury of the locality in accordance with subdivision A 2 of § 62.1-44.15:48 .

History. 2016, cc. 68, 758.

Editor’s note.

Acts 2016, cc. 68 and 758, cl. 9 provides: “That the State Water Control Board (the Board) shall adopt regulations to implement the requirements of this act. The adoption of such regulations shall be exempt from the requirements of Article 2 (§ 2.2-4006 et seq.) of the Administrative Process Act (§ 2.2-4000 et seq.) of the Code of Virginia. However, the Department shall (i) provide a Notice of Intended Regulatory Action, (ii) form a stakeholders advisory group, (iii) provide for a 60-day public comment period prior to the Board’s adoption of the regulations, and (iv) provide the Board with a written summary of comments received and responses to comments prior to the Board’s adoption of the regulations.”

Acts 2016, cc. 68 and 758, cl. 10, as amended by Acts 2017, c. 345, cl. 2, provides: “That the provisions of this act shall become effective July 1, 2018, or 30 days after the adoption by the State Water Control Board of the regulations required by the ninth enactment of this act, whichever occurs later.”

§ 62.1-44.15:26. (For repeal date — see notes) State permits.

  1. All state permits issued by the Board under this article shall have fixed terms. The term of a state permit shall be based upon the projected duration of the project, the length of any required monitoring, or other project operations or permit conditions; however, the term shall not exceed five years. The term of a permit issued by the Board shall not be extended by modification beyond the maximum duration and the permit shall expire at the end of the term unless it is administratively continued in accordance with Board regulations.
  2. State individual construction permits shall be administered by the Department.

History. 2004, c. 372, § 10.1-603.2:2; 2006, c. 171; 2012, cc. 785, 819; 2013, cc. 756, 793.

Contingent repeal date. This section is repealed by Acts 2016, cc. 68 and 758, cl. 2, effective July 1, 2018, or 30 days after the adoption of regulations required by Acts 2016, cc. 68 and 758, cl. 9, whichever occurs later.

Editor’s note.

Acts 2013, cc. 756 and 793, cl. 5 provides: “That the transfer of the responsibility for administering the issuance and enforcement of national pollutant discharge elimination system permits for the control of stormwater discharges shall become effective on July 1, 2013, or upon the U.S. Environmental Protection Agency’s rescission of authorization for delegation of program authority to the Virginia Soil and Water Conservation Board, whichever occurs later.” Pursuant to a letter received from the Environmental Protection Agency on July 2, 2013, the transfer of responsibility from DCR to DEQ has been approved as required by this provision.

Acts 2016, cc. 68 and 758, cl. 9 provides: “That the State Water Control Board (the Board) shall adopt regulations to implement the requirements of this act. The adoption of such regulations shall be exempt from the requirements of Article 2 (§ 2.2-4006 et seq.) of the Administrative Process Act (§ 2.2-4000 et seq.) of the Code of Virginia. However, the Department shall (i) provide a Notice of Intended Regulatory Action, (ii) form a stakeholders advisory group, (iii) provide for a 60-day public comment period prior to the Board’s adoption of the regulations, and (iv) provide the Board with a written summary of comments received and responses to comments prior to the Board’s adoption of the regulations.”

Acts 2016, cc. 68 and 758, cl. 10, as amended by Acts 2017, c. 345, cl. 2, provides: “That the provisions of this act shall become effective July 1, 2018, or 30 days after the adoption by the State Water Control Board of the regulations required by the ninth enactment of this act, whichever occurs later.”

§ 62.1-44.15:26.1. Termination of Construction General Permit coverage.

  1. A VSMP authority shall recommend that the Department of Environmental Quality terminate coverage under a General Permit for Discharges of Stormwater from Construction Activities (Construction General Permit) within 60 days of receiving a complete notice of termination from the operator of the construction activity.
  2. Coverage under a Construction General Permit shall be deemed to be terminated 90 days after the receipt by the VSMP authority of a complete notice of termination from the operator of the construction activity.
  3. If a VSMP authority receives a notice of termination of a Construction General Permit that it determines to be incomplete, the VSMP authority shall, within a reasonable time, inform the operator of the construction activity of such incompleteness and provide the operator with a detailed list itemizing the elements of information that are missing from the notice.

History. 2018, c. 630.

§ 62.1-44.15:27. (For expiration date, see Acts 2016, cc. 68 and 758, as amended by Acts 2017, c. 345) Establishment of Virginia Stormwater Management Programs.

  1. Any locality that operates a regulated MS4 or that notifies the Department of its decision to participate in the establishment of a VSMP shall be required to adopt a VSMP for land-disturbing activities consistent with the provisions of this article according to a schedule set by the Department. Such schedule shall require implementation no later than July 1, 2014. Thereafter, the Department shall provide an annual schedule by which localities can submit applications to implement a VSMP. Localities subject to this subsection are authorized to coordinate plan review and inspections with other entities in accordance with subsection H. The Department shall operate a VSMP on behalf of any locality that does not operate a regulated MS4 and that does not notify the Department, according to a schedule set by the Department, of its decision to participate in the establishment of a VSMP. A locality that decides not to establish a VSMP shall still comply with the requirements set forth in this article and attendant regulations as required to satisfy the stormwater flow rate capacity and velocity requirements set forth in the Erosion and Sediment Control Law (§ 62.1-44.15:51 et seq.). A locality that is subject to the provisions of the Chesapeake Bay Preservation Act (§ 62.1-44.15:67 et seq.) also shall adopt requirements set forth in this article and attendant regulations as required to regulate Chesapeake Bay Preservation Act land-disturbing activities in accordance with § 62.1-44.15:28 . To comply with the water quantity technical criteria set forth in this article and attendant regulations, a rural Tidewater locality may adopt a tiered approach to water quantity management for Chesapeake Bay Preservation Act land-disturbing activities pursuant to § 62.1-44.15:27.2 . Notwithstanding any other provision of this subsection, any county that operates an MS4 that became a regulated MS4 on or after January 1, 2014 may elect, on a schedule set by the Department, to defer the implementation of the county’s VSMP until no later than January 1, 2015. During this deferral period, when such county thus lacks the legal authority to operate a VSMP, the Department shall operate a VSMP on behalf of the county and address post-construction stormwater runoff and the required design criteria for stormwater runoff controls. Any such county electing to defer the establishment of its VSMP shall still comply with the requirements set forth in this article and attendant regulations as required to satisfy the stormwater flow rate capacity and velocity requirements set forth in the Erosion and Sediment Control Law (§ 62.1-44.15:51 et seq.).
  2. Any town, including a town that operates a regulated MS4, lying within a county that has adopted a VSMP in accordance with subsection A may decide, but shall not be required, to become subject to the county’s VSMP. Any town lying within a county that operates an MS4 that became a regulated MS4 on or after January 1, 2014 may elect to become subject to the county’s VSMP according to the deferred schedule established in subsection A. During the county’s deferral period, the Department shall operate a VSMP on behalf of the town and address post-construction stormwater runoff and the required design criteria for stormwater runoff controls for the town as provided in subsection A. If a town lies within the boundaries of more than one county, the town shall be considered to be wholly within the county in which the larger portion of the town lies. Towns shall inform the Department of their decision according to a schedule established by the Department. Thereafter, the Department shall provide an annual schedule by which towns can submit applications to adopt a VSMP.
  3. In support of VSMP authorities, the Department shall:
    1. Provide assistance grants to localities not currently operating a local stormwater management program to help the localities to establish their VSMP.
    2. Provide technical assistance and training.
    3. Provide qualified services in specified geographic areas to a VSMP to assist localities in the administration of components of their programs. The Department shall actively assist localities in the establishment of their programs and in the selection of a contractor or other entity that may provide support to the locality or regional support to several localities.
  4. The Department shall develop a model ordinance for establishing a VSMP consistent with this article and its associated regulations, including the Virginia Stormwater Management Program (VSMP) General Permit for Discharges of Stormwater from Construction Activities.
  5. Each locality that administers an approved VSMP shall, by ordinance, establish a VSMP that shall be administered in conjunction with a local MS4 program and a local erosion and sediment control program if required pursuant to the Erosion and Sediment Control Law (§ 62.1-44.15:51 et seq.), and which shall include the following:
    1. Consistency with regulations adopted in accordance with provisions of this article;
    2. Provisions for long-term responsibility for and maintenance of stormwater management control devices and other techniques specified to manage the quality and quantity of runoff; and
    3. Provisions for the integration of the VSMP with local erosion and sediment control, flood insurance, flood plain management, and other programs requiring compliance prior to authorizing construction in order to make the submission and approval of plans, issuance of permits, payment of fees, and coordination of inspection and enforcement activities more convenient and efficient both for the local governments and those responsible for compliance with the programs.
  6. The Board may approve a state entity, including the Department, federal entity, or, for linear projects subject to annual standards and specifications, electric, natural gas, and telephone utility companies, interstate and intrastate natural gas pipeline companies, railroad companies, or authorities created pursuant to § 15.2-5102 to operate a Virginia Stormwater Management Program consistent with the requirements of this article and its associated regulations and the VSMP authority’s Department-approved annual standards and specifications. For these programs, enforcement shall be administered by the Department and the Board where applicable in accordance with the provisions of this article.
  7. The Board shall approve a VSMP when it deems a program consistent with this article and associated regulations, including the Virginia Stormwater Management Program (VSMP) General Permit for Discharges of Stormwater from Construction Activities.
  8. A VSMP authority may enter into agreements or contracts with soil and water conservation districts, adjacent localities, or other public or private entities to carry out or assist with the responsibilities of this article. A VSMP authority may enter into contracts with third-party professionals who hold certificates of competence in the appropriate subject areas, as provided in subsection A of § 62.1-44.15:30 , to carry out any or all of the responsibilities that this article requires of a VSMP authority, including plan review and inspection but not including enforcement.
  9. If a locality establishes a VSMP, it shall issue a consolidated stormwater management and erosion and sediment control permit that is consistent with the provisions of the Erosion and Sediment Control Law (§ 62.1-44.15:51 et seq.). When available in accordance with subsection J, such permit, where applicable, shall also include a copy of or reference to state VSMP permit coverage authorization to discharge.
  10. Upon the development of an online reporting system by the Department, but no later than July 1, 2014, a VSMP authority shall then be required to obtain evidence of state VSMP permit coverage where it is required prior to providing approval to begin land disturbance.
  11. Any VSMP adopted pursuant to and consistent with this article shall be considered to meet the stormwater management requirements under the Chesapeake Bay Preservation Act (§ 62.1-44.15:67 et seq.) and attendant regulations, and effective July 1, 2014, shall not be subject to local program review under the stormwater management provisions of the Chesapeake Bay Preservation Act.
  12. All VSMP authorities shall comply with the provisions of this article and the stormwater management provisions of the Erosion and Sediment Control Law (§ 62.1-44.15:51 et seq.) and related regulations. The VSMP authority responsible for regulating the land-disturbing activity shall require compliance with the issued permit, permit conditions, and plan specifications. The state shall enforce state permits.
  13. In the case of a land-disturbing activity located on property controlled by a regional industrial facility authority established pursuant to Chapter 64 (§ 15.2-6400 et seq.) of Title 15.2, if a participating local member of such an authority also administers a VSMP, such locality shall be authorized to administer the VSMP on authority property, in accordance with an agreement entered into with all relevant localities and the existing VSMP for the property.

History. 1989, cc. 467, 499, § 10.1-603.3; 2004, c. 372; 2006, c. 171; 2009, c. 18; 2012, cc. 785, 819; 2013, cc. 756, 793; 2014, cc. 303, 598; 2016, cc. 68, 758; 2017, c. 349; 2018, c. 154; 2022, c. 160.

Section set out twice.

The section above is effective until July 1, 2018, or 30 days after the adoption by the State Water Control Board of the regulations pursuant to Acts 2016, cc. 68 and 758, cl. 9, whichever occurs later. For this section as in effect at that time, see the following section, also numbered 62.1-44.15:27 .

Editor’s note.

Acts 2013, cc. 756 and 793, cl. 5 provides: “That the transfer of the responsibility for administering the issuance and enforcement of national pollutant discharge elimination system permits for the control of stormwater discharges shall become effective on July 1, 2013, or upon the U.S. Environmental Protection Agency’s rescission of authorization for delegation of program authority to the Virginia Soil and Water Conservation Board, whichever occurs later.” Pursuant to a letter received from the Environmental Protection Agency on July 2, 2013, the transfer of responsibility from DCR to DEQ has been approved as required by this provision.

Acts 2014, cc. 303 and 598, cl. 2 provides: “That amendments to regulations of the State Water Control Board necessary to implement the provisions of this act shall be exempt from the Administrative Process Act ( § 2.2-4000 et seq.), provided that there is a public comment period of at least 30 days on the proposed amendments prior to Board adoption.”

Acts 2014, cc. 303 and 598, cl. 3 provides: “That the consolidation into Virginia’s General Permit for Discharges of Stormwater from Construction Activities of state post-construction requirements exceeding minimum federal requirements shall not be construed to modify the scope of federal agency or citizen suit enforcement pursuant to the Clean Water Act ( 33 U.S.C. § 1251 et seq.).”

The 2014 amendments.

The 2014 amendments by c. 303, effective March 24, 2014, and c. 598, effective April 4, 2014, are identical, and rewrote subsection A; in subsection B inserted “including a town that operates a regulated MS4,” substituted “decide, but shall not be required to” for “adopt its own program or shall” and “county’s VSMP” for “county program” in the first sentence and added the second and third sentences; in subsections E and L substituted “the Erosion and Sediment Control Law” for “Article 2.4”; in subsection I substituted “If a locality establishes a VSMP, it” for “Localities”; in subsection L added the last sentence; and deleted subsection M, which read “VSMPs adopted in accordance with this section shall become effective July 1, 2014, unless otherwise specified by the Board.”

The 2017 amendments.

The 2017 amendment by c. 349 added the last sentence in subsection H.

The 2017 amendment by c. 349 added the last sentence in subsection I.

The 2018 amendments.

The 2018 amendment by c. 154 added the last sentence to the second paragraph of subsection A.

The 2018 amendment by c. 154 added subsection E and redesignated former subsections E through K as F through L.

OPINIONS OF THE ATTORNEY GENERAL

Stormwater fee. —

The stormwater fee set forth in a city code to recoup costs associated with the National Pollutant Discharge Elimination System Permit program is a service fee rather than a tax, and the United States Navy is not constitutionally exempt from paying the fee. See opinion of Attorney General to Ronald S. Hallman, Esq., Chesapeake City Attorney, 09-098, 2010 Va. AG LEXIS 8 (3/4/10).

Restrictions on use of fertilizer. —

Virginia locality is authorized by § 10.1-603.7 and § 15.2-924.1 to adopt an ordinance regulating or prohibiting the use or application of fertilizers within its jurisdictional boundaries provided the locality makes the factual findings required by subsection A of § 10.1-603.7 and determines that the ordinance is necessary to prevent any further degradation to water resources or to address specific existing water pollution. The locality also must comply with the public hearing procedures required by subsection A of § 10.1-603.7. See opinion of Attorney General to James E. Barnett, Esq., York County Attorney, 09-035, 2009 Va. AG LEXIS 55 (9/1/09).

§ 62.1-44.15:27. (For effective date, see Acts 2016, cc. 68 and 758, as amended by Acts 2017, c. 345) Virginia Programs for Erosion Control and Stormwater Management.

  1. Any locality that operates a regulated MS4 or that administers a Virginia Stormwater Management Program (VSMP) as of July 1, 2017, shall be required to adopt and administer a VESMP consistent with the provisions of this article that regulates any land-disturbing activity that (i) disturbs 10,000 square feet or more or (ii) disturbs 2,500 square feet or more in an area of a locality designated as a Chesapeake Bay Preservation Area pursuant to the Chesapeake Bay Preservation Act (§ 62.1-44.15:67 et seq.). The VESMP shall be adopted according to a process established by the Department.
  2. Any locality that does not operate a regulated MS4 and for which the Department administers a VSMP as of July 1, 2017, shall choose one of the following options and shall notify the Department of its choice according to a process established by the Department:
    1. Adopt and administer a VESMP consistent with the provisions of this article that regulates any land-disturbing activity that (i) disturbs 10,000 square feet or more or (ii) disturbs 2,500 square feet or more in an area of a locality designated as a Chesapeake Bay Preservation Area pursuant to the Chesapeake Bay Preservation Act (§ 62.1-44.15:67 et seq.);
    2. Adopt and administer a VESMP consistent with the provisions of this article that regulates any land-disturbing activity that (i) disturbs 10,000 square feet or more or (ii) disturbs 2,500 square feet or more in an area of a locality designated as a Chesapeake Bay Preservation Area pursuant to the Chesapeake Bay Preservation Act (§ 62.1-44.15:67 et seq.), except that the Department shall provide the locality with review of the plan required by § 62.1-44.15:34 and provide a recommendation to the locality on the plan’s compliance with the water quality and water quantity technical criteria; or
    3. Adopt and administer a VESCP pursuant to Article 2.4 (§ 62.1-44.15:51 et seq.) that regulates any land-disturbing activity that (i) disturbs 10,000 square feet or more or (ii) disturbs 2,500 square feet or more in an area of a locality designated as a Chesapeake Bay Preservation Area pursuant to the Chesapeake Bay Preservation Act (§ 62.1-44.15:67 et seq.). For such a land-disturbing activity in a Chesapeake Bay Preservation Area, the VESCP authority also shall adopt requirements set forth in this article and attendant regulations as required to regulate those activities in accordance with §§ 62.1-44.15:28 and 62.1-44.15:34 . The Board shall administer a VSMP on behalf of each VESCP authority for any land-disturbing activity that (a) disturbs one acre or more of land or (b) disturbs less than one acre of land and is part of a larger common plan of development or sale that results in one acre or greater of land disturbance.
  3. Any town that is required to or elects to adopt and administer a VESMP or VESCP, as applicable, may choose one of the following options and shall notify the Department of its choice according to a process established by the Department:
    1. Any town, including a town that operates a regulated MS4, lying within a county may enter into an agreement with the county to become subject to the county’s VESMP. If a town lies within the boundaries of more than one county, it may enter into an agreement with any of those counties that operates a VESMP.
    2. Any town that chooses not to adopt and administer a VESMP pursuant to subdivision B 3 and that lies within a county may enter into an agreement with the county to become subject to the county’s VESMP or VESCP, as applicable. If a town lies within the boundaries of more than one county, it may enter into an agreement with any of those counties.
    3. Any town that is subject to the provisions of the Chesapeake Bay Preservation Act (§ 62.1-44.15:67 et seq.) may enter into an agreement with a county pursuant to subdivision C 1 or 2 only if the county administers a VESMP for land-disturbing activities that disturb 2,500 square feet or more.
  4. Any locality that chooses not to implement a VESMP pursuant to subdivision B 3 may notify the Department at any time that it has chosen to implement a VESMP pursuant to subdivision B 1 or 2. Any locality that chooses to implement a VESMP pursuant to subdivision B 2 may notify the Department at any time that it has chosen to implement a VESMP pursuant to subdivision B 1. A locality may petition the Board at any time for approval to change from fully administering a VESMP pursuant to subdivision B 1 to administering a VESMP in coordination with the Department pursuant to subdivision B 2 due to a significant change in economic conditions or other fiscal emergency in the locality. The provisions of the Administrative Process Act (§ 2.2-4000 et seq.) shall govern any appeal of the Board’s decision.
  5. To comply with the water quantity technical criteria set forth in this article and attendant regulations for land-disturbing activities that disturb an area of 2,500 square feet or more but less than one acre, any rural Tidewater locality may adopt a tiered approach to water quantity management pursuant to § 62.1-44.15:27.2 .
  6. In support of VESMP authorities, the Department shall provide technical assistance and training and general assistance to localities in the establishment and administration of their individual or regional programs.
  7. The Department shall develop a model ordinance for establishing a VESMP consistent with this article.
  8. Each locality that operates a regulated MS4 or that chooses to administer a VESMP shall, by ordinance, establish a VESMP that shall be administered in conjunction with a local MS4 management program, if applicable, and which shall include the following:
    1. Ordinances, policies, and technical materials consistent with regulations adopted in accordance with this article;
    2. Requirements for land-disturbance approvals;
    3. Requirements for plan review, inspection, and enforcement consistent with the requirements of this article, including provisions requiring periodic inspections of the installation of stormwater management measures. A VESMP authority may require monitoring and reports from the person responsible for meeting the permit conditions to ensure compliance with the permit and to determine whether the measures required in the permit provide effective stormwater management;
    4. Provisions charging each applicant a reasonable fee to defray the cost of program administration for a regulated land-disturbing activity that does not require permit coverage. Such fee may be in addition to any fee charged pursuant to the statewide fee schedule established in accordance with subdivision 9 of § 62.1-44.15:28 , although payment of fees may be consolidated in order to provide greater convenience and efficiency for those responsible for compliance with the program. A VESMP authority shall hold a public hearing prior to establishing such fees. The fee shall not exceed an amount commensurate with the services rendered, taking into consideration the time, skill, and the VESMP authority’s expense involved;
    5. Provisions for long-term responsibility for and maintenance of stormwater management control devices and other techniques specified to manage the quality and quantity of runoff; and
    6. Provisions for the coordination of the VESMP with flood insurance, flood plain management, and other programs requiring compliance prior to authorizing land disturbance in order to make the submission and approval of plans, issuance of land-disturbance approvals, payment of fees, and coordination of inspection and enforcement activities more convenient and efficient both for the local governments and those responsible for compliance with the programs.
  9. The Board shall approve a VESMP when it deems a program consistent with this article and associated regulations.
  10. A VESMP authority may enter into agreements or contracts with the Department, soil and water conservation districts, adjacent localities, planning district commissions, or other public or private entities to carry out or assist with plan review and inspections. A VESMP authority may enter into contracts with third-party professionals who hold certifications in the appropriate subject areas, as provided in subsection A of § 62.1-44.15:30 , to carry out any or all of the responsibilities that this article requires of a VESMP authority, including plan review and inspection but not including enforcement.
  11. A VESMP authority shall be required to obtain evidence of permit coverage from the Department’s online reporting system, where such coverage is required, prior to providing land-disturbance approval.
  12. The VESMP authority responsible for regulating the land-disturbing activity shall require compliance with its applicable ordinances and the conditions of its land-disturbance approval and plan specifications. The Board shall enforce permits and require compliance with its applicable regulations, including when serving as a VSMP authority in a locality that chose not to adopt a VESMP in accordance with subdivision B 3.
  13. In the case of a land-disturbing activity located on property controlled by a regional industrial facility authority established pursuant to Chapter 64 (§ 15.2-6400 et seq.) of Title 15.2, if a participating local member of such an authority also administers a VESMP, such locality shall be authorized to administer the VESMP on authority property, in accordance with an agreement entered into with all relevant localities and the existing VSMP or VESMP for the property.

History. 1989, cc. 467, 499, § 10.1-603.3; 2004, c. 372; 2006, c. 171; 2009, c. 18; 2012, cc. 785, 819; 2013, cc. 756, 793; 2014, cc. 303, 598; 2016, cc. 68, 758; 2017, c. 349; 2018, c. 154; contingently amended by 2022, c. 160.

Section set out twice.

The section above is effective July 1, 2018, or 30 days after the adoption by the State Water Control Board of the regulations pursuant to Acts 2016, cc. 68 and 758, cl. 9, whichever occurs later. For this section as in effect until that time, see the preceding section, also numbered 62.1-44.15:27 .

§ 62.1-44.15:27.1. (For effective date — see notes) Virginia Stormwater Management Programs administered by the Board.

  1. The Board shall administer a Virginia Stormwater Management Program (VSMP) on behalf of any locality that notifies the Department pursuant to subsection B of § 62.1-44.15:27 that it has chosen to not administer a VESMP as provided by subdivision B 3 of § 62.1-44.15:27 . In such a locality:
    1. The Board shall implement a VSMP in order to manage the quality and quantity of stormwater runoff resulting from any land-disturbing activity that (i) disturbs one acre or more of land or (ii) disturbs less than one acre of land and is part of a larger common plan of development or sale that results in one acre or greater of land disturbance, as required by this article.
    2. No person shall conduct a land-disturbing activity until he has obtained land-disturbance approval from the VESCP authority and, if required, submitted to the Department an application that includes a permit registration statement and stormwater management plan, and the Department has issued permit coverage.
  2. The Board shall adopt regulations establishing specifications for the VSMP, including permit requirements and requirements for plan review, inspection, and enforcement that reflect the analogous stormwater management requirements for a VESMP set forth in applicable provisions of this article.

History. 2016, cc. 68, 758.

Editor’s note.

Acts 2016, cc. 68 and 758, cl. 9 provides: “That the State Water Control Board (the Board) shall adopt regulations to implement the requirements of this act. The adoption of such regulations shall be exempt from the requirements of Article 2 (§ 2.2-4006 et seq.) of the Administrative Process Act (§ 2.2-4000 et seq.) of the Code of Virginia. However, the Department shall (i) provide a Notice of Intended Regulatory Action, (ii) form a stakeholders advisory group, (iii) provide for a 60-day public comment period prior to the Board’s adoption of the regulations, and (iv) provide the Board with a written summary of comments received and responses to comments prior to the Board’s adoption of the regulations.”

Acts 2016, cc. 68 and 758, cl. 10, as amended by Acts 2017, c. 345, cl. 2, provides: “That the provisions of this act shall become effective July 1, 2018, or 30 days after the adoption by the State Water Control Board of the regulations required by the ninth enactment of this act, whichever occurs later.”

§ 62.1-44.15:27.2. Rural Tidewater localities; water quantity technical criteria; tiered approach.

  1. For determining the water quantity technical criteria applicable to a land disturbance equal to or greater than 2,500 square feet but less than one acre, any rural Tidewater locality may elect to use certain tiered water quantity control standards based on the percentage of impervious cover in the watershed as provided in this section. The establishment and conduct of the tiered approach by the locality pursuant to this section shall be subject to review by the Department. The Board shall adopt regulations to carry out provisions of this section.
    1. The local governing body shall make, or cause to be made, a watershed map showing the boundaries of the locality. The governing body shall use the most recent version of Virginia’s 6th order National Watershed Boundary Dataset to show the boundaries of each watershed located partially or wholly within the locality. The map shall indicate the percentage of impervious cover within each watershed. Data provided by the Virginia Geographic Information Network (VGIN) shall be sufficient for the initial determination of impervious cover percentage at the time of the initial adoption of the map. B. 1. The local governing body shall make, or cause to be made, a watershed map showing the boundaries of the locality. The governing body shall use the most recent version of Virginia’s 6th order National Watershed Boundary Dataset to show the boundaries of each watershed located partially or wholly within the locality. The map shall indicate the percentage of impervious cover within each watershed. Data provided by the Virginia Geographic Information Network (VGIN) shall be sufficient for the initial determination of impervious cover percentage at the time of the initial adoption of the map.
    2. The watershed map also shall show locations at which the governing body expects or proposes that development should occur and may indicate the projected future percentage of impervious cover based on proposed development. The governing body may designate certain areas within a watershed in which it proposes that denser-than-average development shall occur and may designate environmentally sensitive areas in which the energy balance method for water quantity management, as set forth in the regulations adopted by the Board pursuant to this article, shall apply.
    3. After the watershed map has been made, the governing body may then approve and adopt the map by a majority vote of its membership and publish it as the official watershed map of the locality. No official watershed map shall be adopted by the governing body or have any effect until it is approved by an ordinance duly passed by the governing body of the locality after a public hearing, preceded by public notice as required by § 15.2-2204 . Within 30 days after adoption of the official watershed map, the governing body shall cause the map to be filed in the office of the clerk of the circuit court.
    4. At least once each year, the local governing body shall by majority vote make additions to or modifications of the official watershed map to reflect actual development projects. The governing body shall change the indication on the map of the impervious cover percentage within a watershed where the percentage has changed and shall update the map and supporting datasets with actual development project information, including single-family housing projects and any projects covered by the General Permit for Discharges of Stormwater from Construction Activities and administered by the Department for opt-out localities pursuant to § 62.1-44.15:27 . The governing body may incorporate into the official watershed map the most recent VGIN data, including data on state and federal projects that are not reviewed or approved by the locality. The governing body shall keep current its impervious cover percentage for each watershed located within the locality, as reflected in the official watershed map, and shall make the map and such percentages available to the public.
    5. The locality shall notify the Department and update the official map within 12 months of the approval of the development plan for any project that exceeds the impervious cover percentage of the watershed in which it is located and causes the percentage for that watershed to rise such that the watershed steps up to the next higher tier pursuant to subsection C.
    6. No official watershed map or its adopting or amending ordinances shall take precedence over any duly adopted zoning ordinance, comprehensive plan, or other local land-use ordinance, and in the case of a conflict, the official watershed map or ordinance shall yield to such land-use ordinance.
  2. When the locality evaluates any development project in a watershed that is depicted on the official watershed map as having an impervious cover percentage of:
    1. Less than five percent, the locality shall apply the regulatory minimum standards and criteria adopted by the Board pursuant to Article 2.4 (§ 62.1-44.15:51 et seq.) and in effect prior to July 1, 2014, for the protection of downstream properties and waterways from sediment deposition, erosion, and damage due to increases in volume, velocity, and peak flow rate of stormwater runoff for the stated frequency storm of 24-hour duration.
    2. Five percent or more but less than 7.5 percent, the locality shall require practices designed to detain and release over a 24-hour period the expected rainfall resulting from the one year, 24-hour storm, which practices shall be exempt from any flow rate capacity and velocity requirements for natural or man-made channels.
    3. Seven and one-half percent or more, the locality shall apply the energy balance method as set forth in regulations adopted by the Board.
  3. The locality shall require that any project whose construction would cause the impervious cover percentage of the watershed in which it is located to rise, such that the watershed steps up to the next higher tier, shall meet the current water quantity technical criteria using the energy balance method or a more stringent alternative.

History. 2018, c. 154.

Editor’s note.

Acts 2018, c. 154, cl. 2 provides: “That the Department of Environmental Quality shall utilize an appropriate new or existing Regulatory Advisory Panel to assist in clarifying the interpretation and application of subdivision 19 of 9VAC25-840-40 (Minimum Standard 19).”

§ 62.1-44.15:27.3. Acceptance of signed and sealed plan in lieu of local plan review.

  1. Any rural Tidewater locality, whether or not it administers a VSMP or VESCP pursuant to § 62.1-44.15:27 , may require that a licensed professional retained by the applicant prepare and submit a set of plans and supporting calculations for a land-disturbing activity of 2,500 square feet or more but less than one acre in extent.
  2. Such professional shall be licensed to engage in practice in the Commonwealth under Chapter 4 (§ 54.1-400 et seq.) or 22 (§ 54.1-2200 et seq.) of Title 54.1 and shall hold a certificate of competence in the appropriate subject area, as provided in § 62.1-44.15:30 .
  3. Such plans and supporting calculations shall be appropriately signed and sealed by the professional with a certification that states: “This plan is designed in accordance with applicable state law and regulations.”
  4. The rural Tidewater locality is authorized to accept such signed and sealed plans in satisfaction of the requirement of this article that, for a land-disturbing activity of 2,500 square feet or more but less than one acre in extent, it retain a local certified plan reviewer or conduct a local plan review. This section shall not excuse any applicable performance bond requirement pursuant to § 62.1-44.15:34 or 62.1-44.15:57 .

History. 2018, c. 155.

The number of this section was assigned by the Virginia Code Commission, the number in the 2018 act having been § 62.1-44.15:27.2 .

Editor’s note.

Acts 2018, c. 155, cl. 2 provides: “That the Department of Environmental Quality shall examine the possibility of expanding the use of the agreement in lieu of a stormwater management plan, as defined in § 62.1-44.15:24 of the Code of Virginia, as amended by this act, and as authorized for use in the construction of certain single-family residences by the State Water Control Law (§ 62.1-44.2 et seq. of the Code of Virginia), to include any nonresidential development site of less than one acre in any rural Tidewater locality, as defined in § 62.1-44.15:24 of the Code of Virginia, as amended by this act.”

§ 62.1-44.15:27.4. Department acceptance of plans in lieu of plan review.

  1. Notwithstanding any other provision of this article, the Board, when administering a VSMP or VESMP pursuant to Article 2.3 (§ 62.1-44.15:24 et seq.), may choose to accept a set of plans and supporting calculations for any land-disturbing activity determined to be de minimis using a risk-based approach established by the Board.
  2. The Board is authorized to accept such plans and supporting calculations in satisfaction of the requirement of this article that it retain a certified plan reviewer or conduct a plan review. This section shall not excuse any applicable performance bond requirement pursuant to § 62.1-44.15:34 or § 62.1-44.15:57 .

History. 2020, c. 812.

Editor’s note.

At the direction of the Virginia Code Commission, “de minimis” was substituted for “de minimus” in subsection A.

Acts 2020, c. 812, cl. 2 provides: “That the State Water Control Board (the Board) shall adopt regulations to implement the requirements of §§ 62.1-44.15:27.4 and 62.1-44.15:56.1 of the Code of Virginia as created by this act. The initial adoption of such regulations shall be exempt from the requirements of Article 2 (§ 2.2-4006 et seq.) of Chapter 40 of Title 2.2 of the Code of Virginia. However, the Board shall (i) provide a Notice of Intended Regulatory Action, (ii) form a stakeholder advisory group, (iii) provide a 60-day public comment period prior to the Board’s adoption of the regulations, and (iv) provide a written summary of comments received and responses to comments prior to the Board’s adoption of the regulations.”

§ 62.1-44.15:28. (For expiration date, see Acts 2016, cc. 68 and 758, as amended by Acts 2017, c. 345) Development of regulations.

  1. The Board is authorized to adopt regulations that specify minimum technical criteria and administrative procedures for Virginia Stormwater Management Programs. The regulations shall:
    1. Establish standards and procedures for administering a VSMP;
    2. Establish minimum design criteria for measures to control nonpoint source pollution and localized flooding, and incorporate the stormwater management regulations adopted pursuant to the Erosion and Sediment Control Law (§ 62.1-44.15:51 et seq.), as they relate to the prevention of stream channel erosion. These criteria shall be periodically modified as required in order to reflect current engineering methods;
    3. Require the provision of long-term responsibility for and maintenance of stormwater management control devices and other techniques specified to manage the quality and quantity of runoff;
    4. Require as a minimum the inclusion in VSMPs of certain administrative procedures that include, but are not limited to, specifying the time period within which a VSMP authority shall grant land-disturbing activity approval, the conditions and processes under which approval shall be granted, the procedures for communicating disapproval, the conditions under which an approval may be changed, and requirements for inspection of approved projects;
    5. Establish by regulations a statewide permit fee schedule to cover all costs associated with the implementation of a VSMP related to land-disturbing activities of one acre or greater. Such fee attributes include the costs associated with plan review, VSMP registration statement review, permit issuance, state-coverage verification, inspections, reporting, and compliance activities associated with the land-disturbing activities as well as program oversight costs. The fee schedule shall also include a provision for a reduced fee for land-disturbing activities between 2,500 square feet and up to one acre in Chesapeake Bay Preservation Act (§ 62.1-44.15:67 et seq.) localities. The fee schedule shall be governed by the following:
      1. The revenue generated from the statewide stormwater permit fee shall be collected utilizing, where practicable, an online payment system, and the Department’s portion shall be remitted to the State Treasurer for deposit in the Virginia Stormwater Management Fund established pursuant to § 62.1-44.15:29 . However, whenever the Board has approved a VSMP, no more than 30 percent of the total revenue generated by the statewide stormwater permit fees collected shall be remitted to the State Treasurer for deposit in the Virginia Stormwater Management Fund, with the balance going to the VSMP authority.
      2. Fees collected pursuant to this section shall be in addition to any general fund appropriation made to the Department or other supporting revenue from a VSMP; however, the fees shall be set at a level sufficient for the Department and the VSMP to fully carry out their responsibilities under this article and its attendant regulations and local ordinances or standards and specifications where applicable. When establishing a VSMP, the VSMP authority shall assess the statewide fee schedule and shall have the authority to reduce or increase such fees, and to consolidate such fees with other program-related charges, but in no case shall such fee changes affect the amount established in the regulations as available to the Department for program oversight responsibilities pursuant to subdivision 5 a. A VSMP’s portion of the fees shall be used solely to carry out the VSMP’s responsibilities under this article and its attendant regulations, ordinances, or annual standards and specifications.
      3. Until July 1, 2014, the fee for coverage under the General Permit for Discharges of Stormwater from Construction Activities issued by the Board, or where the Board has issued an individual permit or coverage under the General Permit for Discharges of Stormwater from Construction Activities for an entity for which it has approved annual standards and specifications, shall be $750 for each large construction activity with sites or common plans of development equal to or greater than five acres and $450 for each small construction activity with sites or common plans of development equal to or greater than one acre and less than five acres. On and after July 1, 2014, such fees shall only apply where coverage has been issued under the Board’s General Permit for Discharges of Stormwater from Construction Activities to a state agency or federal entity for which it has approved annual standards and specifications. After establishment, such fees may be modified in the future through regulatory actions.
      4. Until July 1, 2014, the Department is authorized to assess a $125 reinspection fee for each visit to a project site that was necessary to check on the status of project site items noted to be in noncompliance and documented as such on a prior project inspection.
      5. In establishing the fee schedule under this subdivision, the Department shall ensure that the VSMP authority portion of the statewide permit fee for coverage under the General Permit for Discharges of Stormwater from Construction Activities for small construction activity involving a single family detached residential structure with a site or area, within or outside a common plan of development or sale, that is equal to or greater than one acre but less than five acres shall be no greater than the VSMP authority portion of the fee for coverage of sites or areas with a land-disturbance acreage of less than one acre within a common plan of development or sale.
      6. When any fees are collected pursuant to this section by credit cards, business transaction costs associated with processing such payments may be additionally assessed;
  2. The Board may integrate and consolidate components of the regulations implementing the Erosion and Sediment Control program and the Chesapeake Bay Preservation Area Designation and Management program with the regulations governing the Virginia Stormwater Management Program (VSMP) Permit program or repeal components so that these programs may be implemented in a consolidated manner that provides greater consistency, understanding, and efficiency for those regulated by and administering a VSMP.

6. Establish statewide standards for stormwater management from land-disturbing activities of one acre or greater, except as specified otherwise within this article, and allow for the consolidation in the permit of a comprehensive approach to addressing stormwater management and erosion and sediment control, consistent with the provisions of the Erosion and Sediment Control Law (§ 62.1-44.15:51 et seq.) and this article. However, such standards shall also apply to land-disturbing activity exceeding an area of 2,500 square feet in all areas of the jurisdictions designated as subject to the Chesapeake Bay Preservation Area Designation and Management Regulations;

7. Establish a procedure by which a stormwater management plan that is approved for a residential, commercial, or industrial subdivision shall govern the development of the individual parcels, including those parcels developed under subsequent owners;

8. Notwithstanding the provisions of subdivision 5, establish a procedure by which neither a registration statement nor payment of the Department’s portion of the statewide permit fee established pursuant to that subdivision shall be required for coverage under the General Permit for Discharges of Stormwater from Construction Activities for construction activity involving a single-family detached residential structure, within or outside a common plan of development or sale;

9. Provide for the certification and use of a proprietary best management practice only if another state, regional, or national program has verified its nutrient or sediment removal effectiveness and all of such program’s established test protocol requirements were met or exceeded. As used in this subdivision and any regulations or guidance adopted pursuant to this subdivision, “certification” means a determination by the Department that a proprietary best management practice is approved for use in accordance with this article;

10. Require that VSMPs maintain after-development runoff rate of flow and characteristics that replicate, as nearly as practicable, the existing predevelopment runoff characteristics and site hydrology, or improve upon the contributing share of the existing predevelopment runoff characteristics and site hydrology if stream channel erosion or localized flooding is an existing predevelopment condition. Except where more stringent requirements are necessary to address total maximum daily load requirements or to protect exceptional state waters, any land-disturbing activity that provides for stormwater management shall satisfy the conditions of this subsection if the practices are designed to (i) detain the water quality volume and to release it over 48 hours; (ii) detain and release over a 24-hour period the expected rainfall resulting from the one year, 24-hour storm; and (iii) reduce the allowable peak flow rate resulting from the 1.5-year, two-year, and 10-year, 24-hour storms to a level that is less than or equal to the peak flow rate from the site assuming it was in a good forested condition, achieved through multiplication of the forested peak flow rate by a reduction factor that is equal to the runoff volume from the site when it was in a good forested condition divided by the runoff volume from the site in its proposed condition, and shall be exempt from any flow rate capacity and velocity requirements for natural or man-made channels as defined in any regulations promulgated pursuant to this section or any ordinances adopted pursuant to § 62.1-44.15:27 or 62.1-44.15:33 ;

11. Encourage low-impact development designs, regional and watershed approaches, and nonstructural means for controlling stormwater;

12. Promote the reclamation and reuse of stormwater for uses other than potable water in order to protect state waters and the public health and to minimize the direct discharge of pollutants into state waters;

13. Establish procedures to be followed when a locality that operates a VSMP wishes to transfer administration of the VSMP to the Department;

14. Establish a statewide permit fee schedule for stormwater management related to municipal separate storm sewer system permits;

15. Provide for the evaluation and potential inclusion of emerging or innovative nonproprietary stormwater control technologies that may prove effective in reducing nonpoint source pollution;

16. Require the owner of property that is zoned for residential use and on which is located a privately owned stormwater management facility serving one or more residential properties to record the long-term maintenance and inspection requirements for such facility with the deed for the owner’s property; and

17. Require that all final plan elements, specifications, or calculations whose preparation requires a license under Chapter 4 (§ 54.1-400 et seq.) or 22 (§ 54.1-2200 et seq.) of Title 54.1 be appropriately signed and sealed by a professional who is licensed to engage in practice in the Commonwealth. Nothing in this subdivision shall authorize any person to engage in practice outside his area of professional competence.

History. 1989, cc. 467, 499, § 10.1-603.4; 1991, c. 84; 2004, c. 372; 2005, c. 102; 2006, c. 21; 2008, c. 405; 2009, c. 709; 2012, cc. 785, 819; 2013, cc. 756, 793; 2014, cc. 303, 598; 2016, cc. 68, 758; 2017, cc. 10, 163; 2020, cc. 313, 667; 2022, c. 32.

Section set out twice.

The section above is effective until July 1, 2018, or 30 days after the adoption by the State Water Control Board of the regulations pursuant to Acts 2016, cc. 68 and 758, cl. 9, whichever occurs later. For this section as in effect at that time, see the following section, also numbered 62.1-44.15:28 .

Editor's note.

Acts 2013, cc. 756 and 793, cl. 4 provides: “That § 62.1-44.15:36 as created by this act shall be repealed upon the effective date of a statewide permit fee schedule adopted pursuant to § 10.1-603.4 by the Virginia Soil and Water Conservation Board prior to July 1, 2013, or pursuant to § 62.1-44.15:28 , as added by this act, by the State Water Control Board on or after July 1, 2013, whichever occurs sooner.” The second contingency was met effective October 23, 2013.

Acts 2013, cc. 756 and 793, cl. 5 provides: “That the transfer of the responsibility for administering the issuance and enforcement of national pollutant discharge elimination system permits for the control of stormwater discharges shall become effective on July 1, 2013, or upon the U.S. Environmental Protection Agency’s rescission of authorization for delegation of program authority to the Virginia Soil and Water Conservation Board, whichever occurs later.” Pursuant to a letter received from the Environmental Protection Agency on July 2, 2013, the transfer of responsibility from DCR to DEQ has been approved as required by this provision.

Acts 2014, cc. 303 and 598, cl. 2 provides: “That amendments to regulations of the State Water Control Board necessary to implement the provisions of this act shall be exempt from the Administrative Process Act ( § 2.2-4000 et seq.), provided that there is a public comment period of at least 30 days on the proposed amendments prior to Board adoption.”

Acts 2014, cc. 303 and 598, cl. 3 provides: “That the consolidation into Virginia’s General Permit for Discharges of Stormwater from Construction Activities of state post-construction requirements exceeding minimum federal requirements shall not be construed to modify the scope of federal agency or citizen suit enforcement pursuant to the Clean Water Act ( 33 U.S.C. § 1251 et seq.).”

Acts 2017, cc. 10 and 163, cl. 2 provides: “That the State Water Control Board (the Board) shall adopt regulations to implement the requirements of this act to be effective no later than July 1, 2018. The adoption of such regulations shall be exempt from the requirements of Article 2 ( § 2.2-4006 et seq.) of the Administrative Process Act ( § 2.2-4000 et seq. of the Code of Virginia). However, the Department shall (i) provide a Notice of Intended Regulatory Action and (ii) provide for a 60-day public comment period prior to the Board’s adoption of the regulations.”

Acts 2020, c. 667, cl. 2 provides: “That any proprietary best management practice (BMP) that is included by the Department of Environmental Quality (the Department) on the Virginia Stormwater BMP Clearinghouse website prior to July 1, 2020, shall by December 31, 2021, provide documentation to the Department showing that another state, regional, or national certification program has verified and certified its nutrient or sediment removal effectiveness.”

Acts 2020, c. 667, cl. 3 provides: “That any proprietary best management practice (BMP) that fails to provide the Department of Environmental Quality (the Department) with the documentation required by the second enactment of this act shall not be approved for use in any stormwater management plan submitted on or after January 1, 2022, until such proprietary BMP provides the Department with such required documentation.”

Acts 2020, c. 1289, as amended by Acts 2020, Sp. Sess. I, c. 56, Item 377 L 2, as added by Acts 2021, Sp. Sess. I, c. 552, provides: “Notwithstanding § 62.1-44.15:28 , as it is currently effective and as it shall become effective, Code of Virginia, the permit fee regulations adopted by the State Water Control Board pursuant to § 62.1-44.15:28 , as it is currently effective and as it shall become effective, Code of Virginia, for the Virginia Pollutant Discharge Elimination System Permit for Discharges of Stormwater from Construction Activities and municipal separate storm sewer system permits shall be set at an amount representing no less than 60 percent, not to exceed 62 percent, of the direct costs for the administration, compliance and enforcement of Virginia Pollutant Discharge Elimination System Permit for Discharges of Stormwater from Construction Activities and municipal separate storm sewer system permits. To the extent practicable, the Board shall solicit input from affected stakeholders when establishing the new fee structure.”

Acts 2022, c. 32, effective April 1, 2022, provides: “That the Department of Environmental Quality shall prioritize review of any proprietary best management practice (BMP) that was on the Virginia Stormwater BMP Clearinghouse prior to December 31, 2021, and that submits documentation that another state, regional, or national program has verified its nutrient or sediment removal effectiveness and that it met or exceeded all of such program's established test protocol requirements.”

The 2014 amendments.

The 2014 amendments by c. 303, effective March 24, 2014, and c. 598, effective April 4, 2014, are identical and added subdivisions A 5 e, A 7, A 8, A 9, and A 13, and made related changes.

The 2017 amendments.

The 2017 amendment by c. 10 added subdivision A 16 and made related changes.

The 2017 amendments by cc. 10 and 163, are identical, and added subdivision 19 and made related changes.

The 2020 amendments.

The 2020 amendment by c. 313 inserted subdivision A 16 and renumbered former subdivision A 16 as subdivision A 17.

The 2020 amendment by c. 667, in subdivision A 8, substituted “subdivision 5” for “subdivision A 5”; rewrote subdivision A 9, which read: “Provide for reciprocity with programs in other states for the certification of proprietary best management practices”; and in subdivision A 15, inserted “nonproprietary.”

The 2020 amendment by c. 313 inserted subdivision 19, renumbered former subdivision 19 as subdivision 20, and made stylistic changes.

The 2020 amendment by c. 667 rewrote subdivision 12, which read: “Provide for reciprocity with programs in other states for the certification of proprietary best management practices”; and in subdivision 18, inserted “nonproprietary.”

The 2022 amendments.

The 2022 amendment by c. 32, effective April 1, 2022, in subdivision A 9, in the first sentence, inserted “certification and,” substituted “national program has verified” for “national certification program has verified and certified” and added “and all of such program's established test protocol requirements were met or exceeded” at the end and added the last sentence.

§ 62.1-44.15:28. (For effective date, see Acts 2016, cc. 68 and 758, as amended by Acts 2017, c. 345) Development of regulations.

The Board is authorized to adopt regulations that establish requirements for the effective control of soil erosion, sediment deposition, and stormwater, including nonagricultural runoff, that shall be met in any VESMP to prevent the unreasonable degradation of properties, stream channels, waters, and other natural resources, and that specify minimum technical criteria and administrative procedures for VESMPs. The regulations shall:

  1. Establish standards and procedures for administering a VESMP;
  2. Establish minimum standards of effectiveness of the VESMP and criteria and procedures for reviewing and evaluating its effectiveness. The minimum standards of program effectiveness established by the Board shall provide that (i) no soil erosion control and stormwater management plan shall be approved until it is reviewed by a plan reviewer certified pursuant to § 62.1-44.15:30 , (ii) each inspection of a land-disturbing activity shall be conducted by an inspector certified pursuant to § 62.1-44.15:30 , and (iii) each VESMP shall contain a program administrator, a plan reviewer, and an inspector, each of whom is certified pursuant to § 62.1-44.15:30 and all of whom may be the same person;
  3. Be based upon relevant physical and developmental information concerning the watersheds and drainage basins of the Commonwealth, including data relating to land use, soils, hydrology, geology, size of land area being disturbed, proximate water bodies and their characteristics, transportation, and public facilities and services;
  4. Include any survey of lands and waters as the Board deems appropriate or as any applicable law requires to identify areas, including multijurisdictional and watershed areas, with critical soil erosion and sediment problems;
  5. Contain conservation standards for various types of soils and land uses, which shall include criteria, techniques, and methods for the control of soil erosion and sediment resulting from land-disturbing activities;
  6. Establish water quality and water quantity technical criteria. These criteria shall be periodically modified as required in order to reflect current engineering methods;
  7. Require the provision of long-term responsibility for and maintenance of stormwater management control devices and other techniques specified to manage the quality and quantity of runoff;
  8. Require as a minimum the inclusion in VESMPs of certain administrative procedures that include, but are not limited to, specifying the time period within which a VESMP authority shall grant land-disturbance approval, the conditions and processes under which such approval shall be granted, the procedures for communicating disapproval, the conditions under which an approval may be changed, and requirements for inspection of approved projects;
  9. Establish a statewide fee schedule to cover all costs associated with the implementation of a VESMP related to land-disturbing activities where permit coverage is required, and for land-disturbing activities where the Board serves as a VESMP authority or VSMP authority. Such fee attributes include the costs associated with plan review, permit registration statement review, permit issuance, permit coverage verification, inspections, reporting, and compliance activities associated with the land-disturbing activities as well as program oversight costs. The fee schedule shall also include a provision for a reduced fee for a land-disturbing activity that disturbs 2,500 square feet or more but less than one acre in an area of a locality designated as a Chesapeake Bay Preservation Area pursuant to the Chesapeake Bay Preservation Act (§ 62.1-44.15:67 et seq.). The fee schedule shall be governed by the following:
    1. The revenue generated from the statewide fee shall be collected utilizing, where practicable, an online payment system, and the Department’s portion shall be remitted to the State Treasurer for deposit in the Virginia Stormwater Management Fund established pursuant to § 62.1-44.15:29 . However, whenever the Board has approved a VESMP, no more than 30 percent of the total revenue generated by the statewide fees collected shall be remitted to the State Treasurer for deposit in the Virginia Stormwater Management Fund, with the balance going to the VESMP authority;
    2. Fees collected pursuant to this section shall be in addition to any general fund appropriation made to the Department or other supporting revenue from a VESMP; however, the fees shall be set at a level sufficient for the Department, the Board, and the VESMP to fully carry out their responsibilities under this article and local ordinances or standards and specifications where applicable. When establishing a VESMP, the VESMP authority shall assess the statewide fees pursuant to the schedule and shall have the authority to reduce or increase such fees, and to consolidate such fees with other program-related charges, but in no case shall such fee changes affect the amount established in the regulations as available to the Department for program oversight responsibilities pursuant to subdivision a. A VESMP’s portion of the fees shall be used solely to carry out the VESMP’s responsibilities under this article and associated ordinances;
    3. In establishing the fee schedule under this subdivision, the Department shall ensure that the VESMP authority portion of the statewide fee for coverage under the General Permit for Discharges of Stormwater from Construction Activities for small construction activity involving a single-family detached residential structure with a site or area, within or outside a common plan of development or sale, that is equal to or greater than one acre but less than five acres shall be no greater than the VESMP authority portion of the fee for coverage of sites or areas with a land-disturbance acreage of less than one acre within a common plan of development or sale;
    4. When any fees are collected pursuant to this section by credit cards, business transaction costs associated with processing such payments may be additionally assessed;
    5. Notwithstanding the other provisions of this subdivision 9, establish a procedure by which neither a registration statement nor payment of the Department’s portion of the statewide fee established pursuant to this subdivision 9 shall be required for coverage under the General Permit for Discharges of Stormwater from Construction Activities for construction activity involving a single-family detached residential structure, within or outside a common plan of development or sale;
  10. Establish statewide standards for soil erosion control and stormwater management from land-disturbing activities;
  11. Establish a procedure by which a soil erosion control and stormwater management plan or stormwater management plan that is approved for a residential, commercial, or industrial subdivision shall govern the development of the individual parcels, including those parcels developed under subsequent owners;
  12. Provide for the certification and use of a proprietary best management practice only if another state, regional, or national program has verified its nutrient or sediment removal effectiveness and all of such program’s established test protocol requirements were met or exceeded. As used in this subdivision and any regulations or guidance adopted pursuant to this subdivision, “certification” means a determination by the Department that a proprietary best management practice is approved for use in accordance with this article;
  13. Require that VESMPs maintain after-development runoff rate of flow and characteristics that replicate, as nearly as practicable, the existing predevelopment runoff characteristics and site hydrology, or improve upon the contributing share of the existing predevelopment runoff characteristics and site hydrology if stream channel erosion or localized flooding is an existing predevelopment condition.
  14. Encourage low-impact development designs, regional and watershed approaches, and nonstructural means for controlling stormwater;
  15. Promote the reclamation and reuse of stormwater for uses other than potable water in order to protect state waters and the public health and to minimize the direct discharge of pollutants into state waters;
  16. Establish procedures to be followed when a locality chooses to change the type of program it administers pursuant to subsection D of § 62.1-44.15:27 ;
  17. Establish a statewide permit fee schedule for stormwater management related to MS4 permits;
  18. Provide for the evaluation and potential inclusion of emerging or innovative nonproprietary stormwater control technologies that may prove effective in reducing nonpoint source pollution;
  19. Require the owner of property that is zoned for residential use and on which is located a privately owned stormwater management facility serving one or more residential properties to record the long-term maintenance and inspection requirements for such facility with the deed for the owner’s property; and
  20. Require that all final plan elements, specifications, or calculations whose preparation requires a license under Chapter 4 (§ 54.1-400 et seq.) or 22 (§ 54.1-2200 et seq.) of Title 54.1 be appropriately signed and sealed by a professional who is licensed to engage in practice in the Commonwealth. Nothing in this subdivision shall authorize any person to engage in practice outside his area of professional competence.

a. Except where more stringent requirements are necessary to address total maximum daily load requirements or to protect exceptional state waters, any land-disturbing activity that was subject to the water quantity requirements that were in effect pursuant to this article prior to July 1, 2014, shall be deemed to satisfy the conditions of this subsection if the practices are designed to (i) detain the water volume equal to the first one-half inch of runoff multiplied by the impervious surface of the land development project and to release it over 48 hours; (ii) detain and release over a 24-hour period the expected rainfall resulting from the one year, 24-hour storm; and (iii) reduce the allowable peak flow rate resulting from the 1.5-year, two-year, and 10-year, 24-hour storms to a level that is less than or equal to the peak flow rate from the site assuming it was in a good forested condition, achieved through multiplication of the forested peak flow rate by a reduction factor that is equal to the runoff volume from the site when it was in a good forested condition divided by the runoff volume from the site in its proposed condition. Any land-disturbing activity that complies with these requirements shall be exempt from any flow rate capacity and velocity requirements for natural or man-made channels as defined in any regulations promulgated pursuant to this section or any ordinances adopted pursuant to § 62.1-44.15:27 or 62.1-44.15:33 ;

b. Any stream restoration or relocation project that incorporates natural channel design concepts is not a man-made channel and shall be exempt from any flow rate capacity and velocity requirements for natural or man-made channels as defined in any regulations promulgated pursuant to this article;

History. 1989, cc. 467, 499, § 10.1-603.4; 1991, c. 84; 2004, c. 372; 2005, c. 102; 2006, c. 21; 2008, c. 405; 2009, c. 709; 2012, cc. 785, 819; 2013, cc. 756, 793; 2014, cc. 303, 598; 2016, cc. 68, 758; 2017, cc. 10, 163; 2020, cc. 313, 667; contingently amended by 2022, c. 32.

Section set out twice.

The section above is effective July 1, 2018, or 30 days after the adoption by the State Water Control Board of the regulations pursuant to Acts 2016, cc. 68 and 758, cl. 9, whichever occurs later. For this section as in effect until that time, see the preceding section, also numbered 62.1-44.15:28 .

§ 62.1-44.15:28.1. Pollutant removal by dredging.

Upon approval by the Chesapeake Bay Program as a creditable practice for pollutant removal, the Board shall establish a procedure for the approval of dredging operations in the Chesapeake Bay Watershed as a method of meeting pollutant reduction and loading requirements. The dredging operation and disposal of dredged material shall be conducted in compliance with all applicable local, state, and federal laws and regulations. Any locality imposing a fee relating to stormwater pursuant to § 15.2-2114 may make funds available for stormwater maintenance dredging, including at the point of discharge, where stormwater has contributed to the deposition of sediment in state waters.

History. 2015, c. 753.

§ 62.1-44.15:29. (For expiration date — see notes) Virginia Stormwater Management Fund established.

There is hereby created in the state treasury a special nonreverting fund to be known as the Virginia Stormwater Management Fund, hereafter referred to as “the Fund.” The Fund shall be established on the books of the Comptroller. All moneys collected by the Department pursuant to §§ 62.1-44.15:28 , 62.1-44.15:38 , and 62.1-44.15:71 and all civil penalties collected pursuant to § 62.1-44.19:22 shall be paid into the state treasury and credited to the Fund. Interest earned on moneys in the Fund shall remain in the Fund and be credited to it. Any moneys remaining in the Fund, including interest thereon, at the end of each fiscal year shall not revert to the general fund but shall remain in the Fund. Moneys in the Fund shall be used solely for the purposes of carrying out the Department’s responsibilities under this article. Expenditures and disbursements from the Fund shall be made by the State Treasurer on warrants issued by the Comptroller upon written request signed by the Director.

An accounting of moneys received by and distributed from the Fund shall be kept by the State Comptroller.

History. 2004, c. 372, § 10.1-603.4:1; 2012, cc. 748, 785, 808, 819; 2013, cc. 756, 793.

Section set out twice.

The section above is effective until July 1, 2018, or 30 days after the adoption by the State Water Control Board of the regulations pursuant to Acts 2016, cc. 68 and 758, cl. 9, whichever occurs later. For this section as in effect at that time, see the following section, also numbered 62.1-44.15:29 .

Editor’s note.

Acts 2013, cc. 756 and 793, cl. 5 provides: “That the transfer of the responsibility for administering the issuance and enforcement of national pollutant discharge elimination system permits for the control of stormwater discharges shall become effective on July 1, 2013, or upon the U.S. Environmental Protection Agency’s rescission of authorization for delegation of program authority to the Virginia Soil and Water Conservation Board, whichever occurs later.” Pursuant to a letter received from the Environmental Protection Agency on July 2, 2013, the transfer of responsibility from DCR to DEQ has been approved as required by this provision.

§ 62.1-44.15:29. (For effective date — see notes) Virginia Stormwater Management Fund.

There is hereby created in the state treasury a special nonreverting fund to be known as the Virginia Stormwater Management Fund, hereafter referred to as “the Fund.” The Fund shall be established on the books of the Comptroller. All moneys collected by the Department pursuant to § 62.1-44.15:28 shall be paid into the state treasury and credited to the Fund. Interest earned on moneys in the Fund shall remain in the Fund and be credited to it. Any moneys remaining in the Fund, including interest thereon, at the end of each fiscal year shall not revert to the general fund but shall remain in the Fund. Moneys in the Fund shall be used solely for the purposes of carrying out the Department’s responsibilities under this article. Expenditures and disbursements from the Fund shall be made by the State Treasurer on warrants issued by the Comptroller upon written request signed by the Director.

An accounting of moneys received by and distributed from the Fund shall be kept by the State Comptroller.

History. 2004, c. 372, § 10.1-603.4:1; 2012, cc. 748, 785, 808, 819; 2013, cc. 756, 793; 2016, cc. 68, 758.

Section set out twice.

The section above is effective July 1, 2018, or 30 days after the adoption by the State Water Control Board of the regulations pursuant to Acts 2016, cc. 68 and 758, cl. 9, whichever occurs later. For this section as in effect until that time, see the preceding section, also numbered 62.1-44.15:29 .

Editor’s note.

Acts 2016, cc. 68 and 758, cl. 9 provides: “That the State Water Control Board (the Board) shall adopt regulations to implement the requirements of this act. The adoption of such regulations shall be exempt from the requirements of Article 2 ( § 2.2-4006 et seq.) of the Administrative Process Act ( § 2.2-4000 et seq.) of the Code of Virginia. However, the Department shall (i) provide a Notice of Intended Regulatory Action, (ii) form a stakeholders advisory group, (iii) provide for a 60-day public comment period prior to the Board’s adoption of the regulations, and (iv) provide the Board with a written summary of comments received and responses to comments prior to the Board’s adoption of the regulations.”

Acts 2016, cc. 68 and 758, cl. 10, as amended by Acts 2017, c. 345, cl. 2, provides: “That the provisions of this act shall become effective July 1, 2018, or 30 days after the adoption by the State Water Control Board of the regulations required by the ninth enactment of this act, whichever occurs later.”

The 2016 amendments.

The 2016 amendments by cc. 68 and 758 are identical, and deleted “62.1-44.15:38, and 62.1-44.15:71 and all civil penalties collected pursuant to § 62.1-44.19:22 ” following “62.1-44.15:28.” For effective date, see Editor’s note.

§ 62.1-44.15:29.1. (For contingent effective date, see Acts 2016, cc. 68 and 758, as amended by Acts 2017, c. 345) Stormwater Local Assistance Fund.

  1. The State Comptroller shall continue in the state treasury the Stormwater Local Assistance Fund (the Fund) established by Chapter 806 of the Acts of Assembly of 2013, which shall be administered by the Department. All civil penalties and civil charges collected by the Board pursuant to §§ 62.1-44.15:25 , 62.1-44.15 :48, 62.1-44.15:63 , and 62.1-44.15 :74, subdivision (19) of § 62.1-44.15, and § 62.1-44.19:22 shall be paid into the state treasury and credited to the Fund, together with such other funds as may be made available to the Fund, which shall also receive bond proceeds from bonds authorized by the General Assembly, sums appropriated to it by the General Assembly, and other grants, gifts, and moneys as may be made available to it from any other source, public or private. Interest earned on moneys in the Fund shall remain in the Fund and be credited to it. Any moneys remaining in the Fund, including interest thereon, at the end of each fiscal year shall not revert to the general fund but shall remain in the Fund.
  2. The purpose of the Fund is to provide matching grants to local governments for the planning, design, and implementation of stormwater best management practices that address cost efficiency and commitments related to reducing water quality pollutant loads. Moneys in the Fund shall be used to meet (i) obligations related to the Chesapeake Bay total maximum daily load (TMDL) requirements, (ii) requirements for local impaired stream TMDLs, (iii) water quality measures of the Chesapeake Bay Watershed Implementation Plan, and (iv) water quality requirements related to the permitting of small municipal separate storm sewer systems. The grants shall be used solely for stormwater capital projects, including (a) new stormwater best management practices, (b) stormwater best management practice retrofitting or maintenance, (c) stream restoration, (d) low-impact development projects, (e) buffer restoration, (f) pond retrofitting, and (g) wetlands restoration. Such grants shall be made in accordance with eligibility determinations made by the Department pursuant to criteria established by the Board. Grants awarded for projects related to Chesapeake Bay TMDL requirements may take into account total phosphorus reductions or total nitrogen reductions. Grants awarded for eligible projects in localities with high or above average fiscal stress as reported by the Commission on Local Government may account for more than 50 percent of the costs of a project.
  3. Moneys in the Fund shall be used solely for the purpose set forth herein and disbursements from it shall be made by the State Treasurer on warrants issued by the Comptroller upon written request signed by the Director.

History. 2016, cc. 68, 758; 2021, Sp. Sess. I, c. 385.

Editor’s note.

Acts 2016, cc. 68 and 758, cl. 9 provides: “That the State Water Control Board (the Board) shall adopt regulations to implement the requirements of this act. The adoption of such regulations shall be exempt from the requirements of Article 2 ( § 2.2-4006 et seq.) of the Administrative Process Act ( § 2.2-4000 et seq.) of the Code of Virginia. However, the Department shall (i) provide a Notice of Intended Regulatory Action, (ii) form a stakeholders advisory group, (iii) provide for a 60-day public comment period prior to the Board’s adoption of the regulations, and (iv) provide the Board with a written summary of comments received and responses to comments prior to the Board’s adoption of the regulations.”

Acts 2016, cc. 68 and 758, cl. 10, as amended by Acts 2017, c. 345, cl. 2, provides: “That the provisions of this act shall become effective July 1, 2018, or 30 days after the adoption by the State Water Control Board of the regulations required by the ninth enactment of this act, whichever occurs later.”

The 2021 Sp. Sess. I amendments.

The 2021 amendment by Sp. Sess. I, c. 385, effective July 1, 2021, added the last two sentences of subsection B.

§ 62.1-44.15:29.2. Stormwater Local Assistance Fund, estimate of requests.

The Department, in consultation with stakeholders, including representatives of the Virginia Municipal Stormwater Association, local governments, and conservation organizations, shall annually determine an estimate of the amount of stormwater local assistance matching grants expected to be requested by local governments for projects that are related to planning, designing, and implementing stormwater best management practices and are eligible for funding. The Department shall include such estimate in (i) the biennial funding report that is submitted to the Governor pursuant to the provisions of § 2.2-1504 and (ii) the annual progress report on the impaired waters clean-up plan that is submitted to legislative committees pursuant to the provisions of § 62.1-44.118 .

History. 2019, c. 533.

§ 62.1-44.15:30. (For expiration date — see notes) Education and training programs.

  1. The Board shall issue certificates of competence concerning the content and application of specified subject areas of this article and accompanying regulations, including program administration, plan review, and project inspection, to personnel of VSMP authorities and to any other persons who have completed training programs or in other ways demonstrated adequate knowledge to the satisfaction of the Board. As part of education and training programs authorized pursuant to subsection E of § 62.1-44.15:52 , the Department shall develop or certify expanded components to address program administration, plan review, and project inspection elements of this article and attendant regulations. Reasonable fees to cover the costs of these additional components may be charged.
  2. Effective July 1, 2014, personnel of VSMP authorities reviewing plans or conducting inspections pursuant to this chapter shall hold a certificate of competence as provided in subsection A. Professionals registered in the Commonwealth pursuant to Article 1 (§ 54.1-400 et seq.) of Chapter 4 of Title 54.1 shall be deemed to have met the provisions of this section for the purposes of renewals.

History. 2012, cc. 785, 819, § 10.1-603.4:2; 2013, cc. 756, 793.

Section set out twice.

The section above is effective until July 1, 2018, or 30 days after the adoption by the State Water Control Board of the regulations pursuant to Acts 2016, cc. 68 and 758, cl. 9, whichever occurs later. For this section as in effect at that time, see the following section, also numbered 62.1-44.15:30 .

Editor’s note.

Acts 2013, cc. 756 and 793, cl. 5 provides: “That the transfer of the responsibility for administering the issuance and enforcement of national pollutant discharge elimination system permits for the control of stormwater discharges shall become effective on July 1, 2013, or upon the U.S. Environmental Protection Agency’s rescission of authorization for delegation of program authority to the Virginia Soil and Water Conservation Board, whichever occurs later.” Pursuant to a letter received from the Environmental Protection Agency on July 2, 2013, the transfer of responsibility from DCR to DEQ has been approved as required by this provision.

§ 62.1-44.15:30. (For effective date — see notes) Training and certification.

  1. The Board shall issue separate or combined certifications concerning specified subject areas of this article, including program administration, plan review, and project inspection, to persons who have demonstrated adequate knowledge to the satisfaction of the Board. The Board also shall issue a Responsible Land Disturber certificate to personnel and contractors who have demonstrated adequate knowledge to the satisfaction of the Board.
  2. The Department shall administer education and training programs for specified subject areas of this article and is authorized to charge persons attending such programs reasonable fees to cover the costs of administering the programs.
  3. Personnel of VSMP or VESMP authorities who are administering programs, reviewing plans, or conducting inspections pursuant to this article shall hold a certification in the appropriate subject area as provided in subsection A. This requirement shall not apply to third-party individuals who prepare and submit plans to a VESMP or VSMP authority.
  4. The Department shall establish procedures and requirements for issuance and periodic renewal of certifications.
  5. Professionals registered in the Commonwealth pursuant to Article 1 (§ 54.1-400 et seq.) of Chapter 4 of Title 54.1 shall be deemed to have met the provisions of this section for the purposes of renewals of such certifications.

History. 2012, cc. 785, 819, § 10.1-603.4:2; 2013, cc. 756, 793; 2016, cc. 68, 758.

Section set out twice.

The section above is effective July 1, 2018, or 30 days after the adoption by the State Water Control Board of the regulations pursuant to Acts 2016, cc. 68 and 758, cl. 9, whichever occurs later. For this section as in effect until that time, see the preceding section, also numbered 62.1-44.15:30 .

Editor’s note.

Acts 2016, cc. 68 and 758, cl. 9 provides: “That the State Water Control Board (the Board) shall adopt regulations to implement the requirements of this act. The adoption of such regulations shall be exempt from the requirements of Article 2 ( § 2.2-4006 et seq.) of the Administrative Process Act ( § 2.2-4000 et seq.) of the Code of Virginia. However, the Department shall (i) provide a Notice of Intended Regulatory Action, (ii) form a stakeholders advisory group, (iii) provide for a 60-day public comment period prior to the Board’s adoption of the regulations, and (iv) provide the Board with a written summary of comments received and responses to comments prior to the Board’s adoption of the regulations.”

Acts 2016, cc. 68 and 758, cl. 10, as amended by Acts 2017, c. 345, cl. 2, provides: “That the provisions of this act shall become effective July 1, 2018, or 30 days after the adoption by the State Water Control Board of the regulations required by the ninth enactment of this act, whichever occurs later.”

The 2016 amendments.

The 2016 amendments by cc. 68 and 758 are identical, and rewrote the section. For effective date, see Editor’s note.

§ 62.1-44.15:31. (For expiration date — see notes) Annual standards and specifications for state agencies, federal entities, and other specified entities.

  1. State entities, including the Department of Transportation, and for linear projects set out in subsection B, electric, natural gas, and telephone utility companies, interstate and intrastate natural gas pipeline companies, and railroad companies shall, and federal entities and authorities created pursuant to § 15.2-5102 may, annually submit a single set of standards and specifications for Department approval that describes how land-disturbing activities shall be conducted. Such standards and specifications shall be consistent with the requirements of this article and associated regulations, including the regulations governing the General Virginia Stormwater Management Program (VSMP) Permit for Discharges of Stormwater from Construction Activities and the Erosion and Sediment Control Law (§ 62.1-44.15:51 et seq.) and associated regulations. Each project constructed in accordance with the requirements of this article, its attendant regulations, and where required standards and specifications shall obtain coverage issued under the state general permit prior to land disturbance. The standards and specifications shall include:
    1. Technical criteria to meet the requirements of this article and regulations developed under this article;
    2. Provisions for the long-term responsibility and maintenance of stormwater management control devices and other techniques specified to manage the quantity and quality of runoff;
    3. Provisions for erosion and sediment control and stormwater management program administration, plan design, review and approval, and construction inspection and enforcement;
    4. Provisions for ensuring that responsible personnel and contractors obtain certifications or qualifications for erosion and sediment control and stormwater management comparable to those required for local government;
    5. Implementation of a project tracking and notification system to the Department of all land-disturbing activities covered under this article; and
    6. Requirements for documenting onsite changes as they occur to ensure compliance with the requirements of the article.
  2. Linear projects subject to annual standards and specifications include:
    1. Construction, installation, or maintenance of electric transmission, natural gas, and telephone utility lines and pipelines, and water and sewer lines; and
    2. Construction of the tracks, rights-of-way, bridges, communication facilities, and other related structures and facilities of a railroad company.Linear projects not included in subdivisions 1 and 2 shall comply with the requirements of the local or state VSMP in the locality within which the project is located.
  3. The Department shall perform random site inspections or inspections in response to a complaint to assure compliance with this article, the Erosion and Sediment Control Law (§ 62.1-44.15:51 et seq.), and regulations adopted thereunder. The Department may take enforcement actions in accordance with this article and related regulations.
  4. The Department shall assess an administrative charge to cover the costs of services rendered associated with its responsibilities pursuant to this section.

History. 1989, cc. 467, 499, § 10.1-603.5; 2004, c. 372; 2012, cc. 785, 819; 2013, cc. 756, 793.

Section set out twice.

The section above is effective until July 1, 2018, or 30 days after the adoption by the State Water Control Board of the regulations pursuant to Acts 2016, cc. 68 and 758, cl. 9, whichever occurs later. For this section as in effect at that time, see the following section, also numbered 62.1-44.15:31 .

Editor’s note.

Acts 2013, cc. 756 and 793, cl. 5 provides: “That the transfer of the responsibility for administering the issuance and enforcement of national pollutant discharge elimination system permits for the control of stormwater discharges shall become effective on July 1, 2013, or upon the U.S. Environmental Protection Agency’s rescission of authorization for delegation of program authority to the Virginia Soil and Water Conservation Board, whichever occurs later.” Pursuant to a letter received from the Environmental Protection Agency on July 2, 2013, the transfer of responsibility from DCR to DEQ has been approved as required by this provision.

The 2018 amendments.

The 2018 amendment by c. 627 inserted “(i)” and “or (ii) a stream restoration project for purposes of reducing nutrients or sediment entering state waters” in subsection C.

§ 62.1-44.15:31. (For effective date, see Acts 2016, cc. 68 and 758, as amended by Acts 2017, c. 345) Standards and specifications for state agencies, federal entities, and other specified entities.

  1. As an alternative to submitting soil erosion control and stormwater management plans for its land-disturbing activities pursuant to § 62.1-44.15:34 , the Virginia Department of Transportation shall, and any other state agency or federal entity may, submit standards and specifications for its conduct of land-disturbing activities for Department of Environmental Quality approval. Approved standards and specifications shall be consistent with this article. The Department of Environmental Quality shall have 60 days after receipt in which to act on any standards and specifications submitted or resubmitted to it for approval.
  2. As an alternative to submitting soil erosion control and stormwater management plans pursuant to § 62.1-44.15:34 , electric, natural gas, and telephone utility companies, interstate and intrastate natural gas pipeline companies, railroad companies, and authorities created pursuant to § 15.2-5102 may submit standards and specifications for Department approval that describe how land-disturbing activities shall be conducted. Such standards and specifications may be submitted for the following types of projects:
    1. Construction, installation, or maintenance of electric transmission and distribution lines, oil or gas transmission and distribution pipelines, communication utility lines, and water and sewer lines; and
    2. Construction of the tracks, rights-of-way, bridges, communication facilities, and other related structures and facilities of a railroad company.The Department shall have 60 days after receipt in which to act on any standards and specifications submitted or resubmitted to it for approval. A linear project not included in subdivision 1 or 2, or for which the owner chooses not to submit standards and specifications, shall comply with the requirements of the VESMP or the VESCP and VSMP, as appropriate, in any locality within which the project is located.
  3. As an alternative to submitting soil erosion control and stormwater management plans pursuant to § 62.1-44.15:34 , any person engaging in more than one jurisdiction in the creation and operation of a wetland mitigation or stream restoration bank that has been approved and is operated in accordance with applicable federal and state guidance, laws, or regulations for the establishment, use, and operation of (i) a wetlands mitigation or stream restoration bank, pursuant to a mitigation banking instrument signed by the Department, the Marine Resources Commission, or the U.S. Army Corps of Engineers, or (ii) a stream restoration project for purposes of reducing nutrients or sediment entering state waters may submit standards and specifications for Department approval that describe how land-disturbing activities shall be conducted. The Department shall have 60 days after receipt in which to act on standards and specifications submitted to it or resubmitted to it for approval.
  4. All standards and specifications submitted to the Department shall be periodically updated according to a schedule to be established by the Department and shall be consistent with the requirements of this article. Approval of standards and specifications by the Department does not relieve the owner or operator of the duty to comply with any other applicable local ordinances or regulations. Standards and specifications shall include:
    1. Technical criteria to meet the requirements of this article and regulations developed under this article;
    2. Provisions for the long-term responsibility and maintenance of any stormwater management control devices and other techniques specified to manage the quantity and quality of runoff;
    3. Provisions for administration of the standards and specifications program, project-specific plan design, plan review and plan approval, and construction inspection and compliance;
    4. Provisions for ensuring that personnel and contractors assisting the owner in carrying out the land-disturbing activity obtain training or qualifications for soil erosion control and stormwater management as set forth in regulations adopted pursuant to this article;
    5. Provisions for ensuring that personnel implementing approved standards and specifications pursuant to this section obtain certifications or qualifications comparable to those required for VESMP personnel pursuant to subsection C of § 62.1-44.15:30 ;
    6. Implementation of a project tracking system that ensures notification to the Department of all land-disturbing activities covered under this article; and
    7. Requirements for documenting onsite changes as they occur to ensure compliance with the requirements of this article.
  5. The Department shall perform random site inspections or inspections in response to a complaint to ensure compliance with this article and regulations adopted thereunder.
  6. The Department shall assess an administrative charge to cover the costs of services rendered associated with its responsibilities pursuant to this section, including standards and specifications review and approval, project inspections, and compliance. The Board may take enforcement actions in accordance with this article and related regulations.

History. 1989, cc. 467, 499, § 10.1-603.5; 2004, c. 372; 2012, cc. 785, 819; 2013, cc. 756, 793; 2016, cc. 68, 758; 2018, c. 627.

Section set out twice.

The section above is effective July 1, 2018, or 30 days after the adoption by the State Water Control Board of the regulations pursuant to Acts 2016, cc. 68 and 758, cl. 9, whichever occurs later. For this section as in effect until that time, see the preceding section, also numbered 62.1-44.15:31 .

Editor’s note.

Acts 2016, cc. 68 and 758, cl. 9 provides: “That the State Water Control Board (the Board) shall adopt regulations to implement the requirements of this act. The adoption of such regulations shall be exempt from the requirements of Article 2 ( § 2.2-4006 et seq.) of the Administrative Process Act ( § 2.2-4000 et seq.) of the Code of Virginia. However, the Department shall (i) provide a Notice of Intended Regulatory Action, (ii) form a stakeholders advisory group, (iii) provide for a 60-day public comment period prior to the Board’s adoption of the regulations, and (iv) provide the Board with a written summary of comments received and responses to comments prior to the Board’s adoption of the regulations.”

Acts 2016, cc. 68 and 758, cl. 10, as amended by Acts 2017, c. 345, cl. 2, provides: “That the provisions of this act shall become effective July 1, 2018, or 30 days after the adoption by the State Water Control Board of the regulations required by the ninth enactment of this act, whichever occurs later.”

The 2016 amendments.

The 2016 amendments by cc. 68 and 758 are identical, and rewrote the section. For effective date, see Editor’s note.

§ 62.1-44.15:32. (For repeal date — see notes) Duties of the Department.

  1. The Department shall provide technical assistance, training, research, and coordination in stormwater management technology to VSMP authorities consistent with the purposes of this article.
  2. The Department is authorized to review the stormwater management plan for any project with real or potential interjurisdictional impacts upon the request of one or all of the involved localities to determine that the plan is consistent with the provisions of this article. Any such review shall be completed and a report submitted to each locality involved within 90 days of such request being accepted. The Department may charge a fee of the requesting locality to cover its costs for providing such services.
  3. The Department shall be responsible for the implementation of this article.

History. 1989, cc. 467, 499, § 10.1-603.6; 2004, c. 372; 2012, cc. 785, 819; 2013, cc. 756, 793.

Contingent repeal date. This section is repealed by Acts 2016, cc. 68 and 758, cl. 2, effective July 1, 2018, or 30 days after the adoption of regulations required by Acts 2016, cc. 68 and 758, cl. 9, whichever occurs later.

Editor’s note.

Acts 2013, cc. 756 and 793, cl. 5 provides: “That the transfer of the responsibility for administering the issuance and enforcement of national pollutant discharge elimination system permits for the control of stormwater discharges shall become effective on July 1, 2013, or upon the U.S. Environmental Protection Agency’s rescission of authorization for delegation of program authority to the Virginia Soil and Water Conservation Board, whichever occurs later.” Pursuant to a letter received from the Environmental Protection Agency on July 2, 2013, the transfer of responsibility from DCR to DEQ has been approved as required by this provision.

Acts 2016, cc. 68 and 758, cl. 9 provides: “That the State Water Control Board (the Board) shall adopt regulations to implement the requirements of this act. The adoption of such regulations shall be exempt from the requirements of Article 2 (§ 2.2-4006 et seq.) of the Administrative Process Act (§ 2.2-4000 et seq.) of the Code of Virginia. However, the Department shall (i) provide a Notice of Intended Regulatory Action, (ii) form a stakeholders advisory group, (iii) provide for a 60-day public comment period prior to the Board’s adoption of the regulations, and (iv) provide the Board with a written summary of comments received and responses to comments prior to the Board’s adoption of the regulations.”

Acts 2016, cc. 68 and 758, cl. 10, as amended by Acts 2017, c. 345, cl. 2, provides: “That the provisions of this act shall become effective July 1, 2018, or 30 days after the adoption by the State Water Control Board of the regulations required by the ninth enactment of this act, whichever occurs later.”

§ 62.1-44.15:33. (For expiration date — see notes) Authorization for more stringent ordinances.

  1. Localities that are VSMP authorities are authorized to adopt more stringent stormwater management ordinances than those necessary to ensure compliance with the Board’s minimum regulations, provided that the more stringent ordinances are based upon factual findings of local or regional comprehensive watershed management studies or findings developed through the implementation of a MS4 permit or a locally adopted watershed management study and are determined by the locality to be necessary to prevent any further degradation to water resources, to address TMDL requirements, to 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 and that prior to adopting more stringent ordinances a public hearing is held after giving due notice.
  2. Localities that are VSMP authorities shall submit a letter report to the Department when more stringent stormwater management ordinances or more stringent requirements authorized by such ordinances, such as may be set forth in design manuals, policies, or guidance documents developed by the localities, are determined to be necessary pursuant to this section within 30 days after adoption thereof. Any such letter report shall include a summary explanation as to why the more stringent ordinance or requirement has been determined to be necessary pursuant to this section. Upon the request of an affected landowner or his agent submitted to the Department with a copy to be sent to the locality, within 90 days after adoption of any such ordinance or derivative requirement, localities shall submit the ordinance or requirement and all other supporting materials to the Department for a determination of whether the requirements of this section have been met and whether any determination made by the locality pursuant to this section is supported by the evidence. The Department shall issue a written determination setting forth its rationale within 90 days of submission. Such a determination, or a failure by the Department to make such a determination within the 90-day period, may be appealed to the Board.
  3. Localities shall not prohibit or otherwise limit the use of any best management practice (BMP) approved for use by the Director or the Board except as follows:
    1. When the Director or the Board approves the use of any BMP in accordance with its stated conditions, the locality serving as a VSMP authority shall have authority to preclude the onsite use of the approved BMP, or to require more stringent conditions upon its use, for a specific land-disturbing project based on a review of the stormwater management plan and project site conditions. Such limitations shall be based on site-specific concerns. Any project or site-specific determination purportedly authorized pursuant to this subsection may be appealed to the Department and the Department shall issue a written determination regarding compliance with this section to the requesting party within 90 days of submission. Any such determination, or a failure by the Department to make any such determination within the 90-day period, may be appealed to the Board.
    2. When a locality is seeking to uniformly preclude jurisdiction-wide or otherwise limit geographically the use of a BMP approved by the Director or Board, or to apply more stringent conditions to the use of a BMP approved by the Director or Board, upon the request of an affected landowner or his agent submitted to the Department, with a copy submitted to the locality, within 90 days after adoption, such authorizing ordinances, design manuals, policies, or guidance documents developed by the locality that set forth the BMP use policy shall be provided to the Department in such manner as may be prescribed by the Department that includes a written justification and explanation as to why such more stringent limitation or conditions are determined to be necessary. The Department shall review all supporting materials provided by the locality to determine whether the requirements of this section have been met and that any determination made by the locality pursuant to this section is reasonable under the circumstances. The Department shall issue its determination to the locality in writing within 90 days of submission. Such a determination, or a failure by the Department to make such a determination within the 90-day period, may be appealed to the Board.
  4. Based on a determination made in accordance with subsection B or C, any ordinance or other requirement enacted or established by a locality that is found to not comply with this section shall be null and void, replaced with state minimum standards, and remanded to the locality for revision to ensure compliance with this section. Any such ordinance or other requirement that has been proposed but neither enacted nor established shall be remanded to the locality for revision to ensure compliance with this section.
  5. Any provisions of a local stormwater management program in existence before January 1, 2013, that contains more stringent provisions than this article shall be exempt from the requirements of this section. However, such provisions shall be reported to the Board at the time of the locality’s VSMP approval package.

History. 1989, cc. 467, 499, § 10.1-603.7; 1991, c. 84; 2004, c. 372; 2011, cc. 341, 353; 2012, cc. 785, 819; 2013, cc. 591, 756, 793; 2014, cc. 303, 598.

Section set out twice.

The section above is effective until July 1, 2018, or 30 days after the adoption by the State Water Control Board of the regulations pursuant to Acts 2016, cc. 68 and 758, cl. 9, whichever occurs later. For this section as in effect at that time, see the following section, also numbered 62.1-44.15:33 .

Editor’s note.

Acts 2013, c. 591 amended § 10.1-603.7, from which this section is derived. Pursuant to § 30-152, Acts 2013, c. 591 has been given effect in this section as set out above by inserting the subsection B designation and substituting subsections B through D for the last sentence in former subsection A which read “Localities shall report to the Board when more stringent stormwater management ordinances are determined to be necessary pursuant to this section”; renumbered former subsection B as subsection E and substituted “2013” for “2005” and “this section” for “subsection A” in the first sentence and “at the time of” for “as part of” in the second sentence.

Acts 2013, cc. 756 and 793, cl. 5 provides: “That the transfer of the responsibility for administering the issuance and enforcement of national pollutant discharge elimination system permits for the control of stormwater discharges shall become effective on July 1, 2013, or upon the U.S. Environmental Protection Agency’s rescission of authorization for delegation of program authority to the Virginia Soil and Water Conservation Board, whichever occurs later.” Pursuant to a letter received from the Environmental Protection Agency on July 2, 2013, the transfer of responsibility from DCR to DEQ has been approved as required by this provision.

Acts 2014, cc. 303 and 598, cl. 2 provides: “That amendments to regulations of the State Water Control Board necessary to implement the provisions of this act shall be exempt from the Administrative Process Act ( § 2.2-4000 et seq.), provided that there is a public comment period of at least 30 days on the proposed amendments prior to Board adoption.”

Acts 2014, cc. 303 and 598, cl. 3 provides: “That the consolidation into Virginia’s General Permit for Discharges of Stormwater from Construction Activities of state post-construction requirements exceeding minimum federal requirements shall not be construed to modify the scope of federal agency or citizen suit enforcement pursuant to the Clean Water Act ( 33 U.S.C. § 1251 et seq.).”

The 2014 amendments.

The 2014 amendments by c. 303, effective March 24, 2014, and c. 598, effective April 4, 2014, are identical, and in subsections A and B inserted “that are VSMP authorities” following “Localities” at the beginning.

OPINIONS OF THE ATTORNEY GENERAL

Stormwater fee. —

The stormwater fee set forth in a city code to recoup costs associated with the National Pollutant Discharge Elimination System Permit program is a service fee rather than a tax, and the United States Navy is not constitutionally exempt from paying the fee. See opinion of Attorney General to Ronald S. Hallman, Esq., Chesapeake City Attorney, 09-098, 2010 Va. AG LEXIS 8 (3/4/10).

Restrictions on use of fertilizer. —

Virginia locality is authorized by § 10.1-603.7 and § 15.2-924.1 to adopt an ordinance regulating or prohibiting the use or application of fertilizers within its jurisdictional boundaries provided the locality makes the factual findings required by subsection A of § 10.1-603.7 and determines that the ordinance is necessary to prevent any further degradation to water resources or to address specific existing water pollution. The locality also must comply with the public hearing procedures required by subsection A of § 10.1-603.7. See opinion of Attorney General to James E. Barnett, Esq., York County Attorney, 09-035, 2009 Va. AG LEXIS 55 (9/1/09).

§ 62.1-44.15:33. (For effective date — see notes) Authorization for more stringent ordinances.

  1. Localities that are serving as VESMP authorities are authorized to adopt more stringent soil erosion control or stormwater management ordinances than those necessary to ensure compliance with the Board’s minimum regulations, provided that the more stringent ordinances are based upon factual findings of local or regional comprehensive watershed management studies or findings developed through the implementation of an MS4 permit or a locally adopted watershed management study and are determined by the locality to be necessary to prevent any further degradation to water resources, to address total maximum daily load requirements, to 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 and that prior to adopting more stringent ordinances a public hearing is held after giving due notice. This process shall not be required when a VESMP authority chooses to reduce the threshold for regulating land-disturbing activities to a smaller area of disturbed land pursuant to § 62.1-44.15:34 . However, this section shall not be construed to authorize a VESMP authority to impose a more stringent timeframe for land-disturbance review and approval than those provided in this article.
  2. Localities that are serving as VESMP authorities shall submit a letter report to the Department when more stringent stormwater management ordinances or more stringent requirements authorized by such stormwater management ordinances, such as may be set forth in design manuals, policies, or guidance documents developed by the localities, are determined to be necessary pursuant to this section within 30 days after adoption thereof. Any such letter report shall include a summary explanation as to why the more stringent ordinance or requirement has been determined to be necessary pursuant to this section. Upon the request of an affected landowner or his agent submitted to the Department with a copy to be sent to the locality, within 90 days after adoption of any such ordinance or derivative requirement, localities shall submit the ordinance or requirement and all other supporting materials to the Department for a determination of whether the requirements of this section have been met and whether any determination made by the locality pursuant to this section is supported by the evidence. The Department shall issue a written determination setting forth its rationale within 90 days of submission. Such a determination, or a failure by the Department to make such a determination within the 90-day period, may be appealed to the Board.
  3. Localities shall not prohibit or otherwise limit the use of any best management practice (BMP) approved for use by the Director or the Board except as follows:
    1. When the Director or the Board approves the use of any BMP in accordance with its stated conditions, the locality serving as a VESMP authority shall have authority to preclude the onsite use of the approved BMP, or to require more stringent conditions upon its use, for a specific land-disturbing project based on a review of the stormwater management plan and project site conditions. Such limitations shall be based on site-specific concerns. Any project or site-specific determination purportedly authorized pursuant to this subsection may be appealed to the Department and the Department shall issue a written determination regarding compliance with this section to the requesting party within 90 days of submission. Any such determination, or a failure by the Department to make any such determination within the 90-day period, may be appealed to the Board.
    2. When a locality is seeking to uniformly preclude jurisdiction-wide or otherwise limit geographically the use of a BMP approved by the Director or Board, or to apply more stringent conditions to the use of a BMP approved by the Director or Board, upon the request of an affected landowner or his agent submitted to the Department, with a copy submitted to the locality, within 90 days after adoption, such authorizing ordinances, design manuals, policies, or guidance documents developed by the locality that set forth the BMP use policy shall be provided to the Department in such manner as may be prescribed by the Department that includes a written justification and explanation as to why such more stringent limitation or conditions are determined to be necessary. The Department shall review all supporting materials provided by the locality to determine whether the requirements of this section have been met and that any determination made by the locality pursuant to this section is reasonable under the circumstances. The Department shall issue its determination to the locality in writing within 90 days of submission. Such a determination, or a failure by the Department to make such a determination within the 90-day period, may be appealed to the Board.
  4. Based on a determination made in accordance with subsection B or C, any ordinance or other requirement enacted or established by a locality that is found to not comply with this section shall be null and void, replaced with state minimum standards, and remanded to the locality for revision to ensure compliance with this section. Any such ordinance or other requirement that has been proposed but neither enacted nor established shall be remanded to the locality for revision to ensure compliance with this section.
  5. Any provisions of a local erosion and sediment control or stormwater management program in existence before January 1, 2016, that contains more stringent provisions than this article shall be exempt from the requirements of this section if the locality chooses to retain such provisions when it becomes a VESMP authority. However, such provisions shall be reported to the Board at the time of submission of the locality’s VESMP approval package.

History. 1989, cc. 467, 499, § 10.1-603.7; 1991, c. 84; 2004, c. 372; 2011, cc. 341, 353; 2012, cc. 785, 819; 2013, cc. 591, 756, 793; 2014, cc. 303, 598; 2016, cc. 68, 758.

Section set out twice.

The section above is effective July 1, 2018, or 30 days after the adoption by the State Water Control Board of the regulations pursuant to Acts 2016, cc. 68 and 758, cl. 9, whichever occurs later. For this section as in effect until that time, see the preceding section, also numbered 62.1-44.15:33 .

Editor’s note.

Acts 2016, cc. 68 and 758, cl. 9 provides: “That the State Water Control Board (the Board) shall adopt regulations to implement the requirements of this act. The adoption of such regulations shall be exempt from the requirements of Article 2 ( § 2.2-4006 et seq.) of the Administrative Process Act ( § 2.2-4000 et seq.) of the Code of Virginia. However, the Department shall (i) provide a Notice of Intended Regulatory Action, (ii) form a stakeholders advisory group, (iii) provide for a 60-day public comment period prior to the Board’s adoption of the regulations, and (iv) provide the Board with a written summary of comments received and responses to comments prior to the Board’s adoption of the regulations.”

Acts 2016, cc. 68 and 758, cl. 10, as amended by Acts 2017, c. 345, cl. 2, provides: “That the provisions of this act shall become effective July 1, 2018, or 30 days after the adoption by the State Water Control Board of the regulations required by the ninth enactment of this act, whichever occurs later.”

The 2016 amendments.

The 2016 amendments by cc. 68 and 758 are identical, and in subsection A, substituted “serving as VESMP” for “VSMP” following “Localities that are,” and “total maximum daily load” for “TMDL” and added the last two sentences; in subsection B, substituted “serving as VESMP” for “VSMP,” inserted “stormwater management” preceding “ordinances” in the first sentence; in subdivision C 1, substituted “VESMP” for “VSMP”; in subsection E, inserted “erosion and sediment control or,” substituted “2016” for “2013,” inserted “if the locality chooses to retain such provisions when it becomes a VESMP authority,” in the first sentence and inserted “submission of” and substituted “VESMP” for “VSMP” in the last sentence. For effective date, see Editor’s note.

§ 62.1-44.15:34. (For expiration date — see notes) Regulated activities; submission and approval of a permit application; security for performance; exemptions.

  1. A person shall not conduct any land-disturbing activity until he has submitted a permit application to the VSMP authority that includes a state VSMP permit registration statement, if such statement is required, and, after July 1, 2014, a stormwater management plan or an executed agreement in lieu of a stormwater management plan, and has obtained VSMP authority approval to begin land disturbance. A locality that is not a VSMP authority shall provide a general notice to applicants of the state permit coverage requirement and report all approvals pursuant to the Erosion and Sediment Control Law (§ 62.1-44.15:51 et seq.) to begin land disturbance of one acre or greater to the Department at least monthly. Upon the development of an online reporting system by the Department, but no later than July 1, 2014, a VSMP authority shall be required to obtain evidence of state VSMP permit coverage where it is required prior to providing approval to begin land disturbance. The VSMP authority shall act on any permit application within 60 days after it has been determined by the VSMP authority to be a complete application. The VSMP authority may either issue project approval or denial and shall provide written rationale for the denial. The VSMP authority shall act on any permit application that has been previously disapproved within 45 days after the application has been revised, resubmitted for approval, and deemed complete. Prior to issuance of any approval, the VSMP authority may also require an applicant, excluding state and federal entities, to submit a reasonable performance bond with surety, cash escrow, letter of credit, any combination thereof, or such other legal arrangement acceptable to the VSMP authority, to ensure that measures could be taken by the VSMP authority at the applicant’s expense should he fail, after proper notice, within the time specified to initiate or maintain appropriate actions that may be required of him by the permit conditions as a result of his land-disturbing activity. If the VSMP authority takes such action upon such failure by the applicant, the VSMP authority may collect from the applicant the difference should the amount of the reasonable cost of such action exceed the amount of the security held. Within 60 days of the completion of the requirements of the permit conditions, such bond, cash escrow, letter of credit, or other legal arrangement, or the unexpended or unobligated portion thereof, shall be refunded to the applicant or terminated. These requirements are in addition to all other provisions of law relating to the issuance of permits and are not intended to otherwise affect the requirements for such permits.
  2. A Chesapeake Bay Preservation Act Land-Disturbing Activity shall be subject to coverage under the Virginia Stormwater Management Program (VSMP) General Permit for Discharges of Stormwater from Construction Activities until July 1, 2014, at which time it shall no longer be considered a small construction activity but shall be then regulated under the requirements of this article.
  3. Notwithstanding any other provisions of this article, the following activities are exempt, unless otherwise required by federal law:
    1. Permitted surface or deep mining operations and projects, or oil and gas operations and projects conducted under the provisions of Title 45.2;
    2. Clearing of lands specifically for agricultural purposes and the management, tilling, planting, or harvesting of agricultural, horticultural, or forest crops, livestock feedlot operations, or as additionally set forth by the Board in regulations, including engineering operations as follows: construction of terraces, terrace outlets, check dams, desilting basins, dikes, ponds, ditches, strip cropping, lister furrowing, contour cultivating, contour furrowing, land drainage, and land irrigation; however, this exception shall not apply to harvesting of forest crops unless the area on which harvesting occurs is reforested artificially or naturally in accordance with the provisions of Chapter 11 (§ 10.1-1100 et seq.) or is converted to bona fide agricultural or improved pasture use as described in subsection B of § 10.1-1163;
    3. Single-family residences separately built and disturbing less than one acre and not part of a larger common plan of development or sale, including additions or modifications to existing single-family detached residential structures. However, localities subject to the provisions of the Chesapeake Bay Preservation Act (§ 62.1-44.15:67 et seq.) may regulate these single-family residences where land disturbance exceeds 2,500 square feet;
    4. Land-disturbing activities that disturb less than one acre of land area except for land-disturbing activity exceeding an area of 2,500 square feet in all areas of the jurisdictions designated as subject to the Chesapeake Bay Preservation Area Designation and Management Regulations adopted pursuant to the provisions of the Chesapeake Bay Preservation Act (§ 62.1-44.15:67 et seq.) or activities that are part of a larger common plan of development or sale that is one acre or greater of disturbance; however, the governing body of any locality that administers a VSMP may reduce this exception to a smaller area of disturbed land or qualify the conditions under which this exception shall apply;
    5. Discharges to a sanitary sewer or a combined sewer system;
    6. Activities under a state or federal reclamation program to return an abandoned property to an agricultural or open land use;
    7. Routine maintenance that is performed to maintain the original line and grade, hydraulic capacity, or original construction of the project. The paving of an existing road with a compacted or impervious surface and reestablishment of existing associated ditches and shoulders shall be deemed routine maintenance if performed in accordance with this subsection; and
    8. Conducting land-disturbing activities in response to a public emergency where the related work requires immediate authorization to avoid imminent endangerment to human health or the environment. In such situations, the VSMP authority shall be advised of the disturbance within seven days of commencing the land-disturbing activity, and compliance with the administrative requirements of subsection A is required within 30 days of commencing the land-disturbing activity.

History. 1989, cc. 467, 499, § 10.1-603.8; 1994, cc. 605, 898; 2004, c. 372; 2011, c. 400; 2012, cc. 785, 819; 2013, cc. 756, 793; 2014, cc. 303, 598.

Section set out twice.

The section above is effective until 30 days after the adoption by the State Water Control Board of the regulations pursuant to Acts 2016, cc. 68 and 758, cl. 9. For this section as in effect at that time, see the following section, also numbered 62.1-44.15:34 .

Editor’s note.

Acts 2013, cc. 756 and 793, cl. 5 provides: “That the transfer of the responsibility for administering the issuance and enforcement of national pollutant discharge elimination system permits for the control of stormwater discharges shall become effective on July 1, 2013, or upon the U.S. Environmental Protection Agency’s rescission of authorization for delegation of program authority to the Virginia Soil and Water Conservation Board, whichever occurs later.” Pursuant to a letter received from the Environmental Protection Agency on July 2, 2013, the transfer of responsibility from DCR to DEQ has been approved as required by this provision.

Acts 2014, cc. 303 and 598, cl. 2 provides: “That amendments to regulations of the State Water Control Board necessary to implement the provisions of this act shall be exempt from the Administrative Process Act ( § 2.2-4000 et seq.), provided that there is a public comment period of at least 30 days on the proposed amendments prior to Board adoption.”

Acts 2014, cc. 303 and 598, cl. 3 provides: “That the consolidation into Virginia’s General Permit for Discharges of Stormwater from Construction Activities of state post-construction requirements exceeding minimum federal requirements shall not be construed to modify the scope of federal agency or citizen suit enforcement pursuant to the Clean Water Act ( 33 U.S.C. § 1251 et seq.).”

The 2014 amendments.

The 2014 amendments by c. 303, effective March 24, 2014, and c. 598, effective April 4, 2014, are identical, and in subsection A, inserted “if such statement is required” and “or an executed agreement in lieu of a stormwater management plan” in the first sentence, added the second sentence and inserted “state” in the third sentence; and deleted “by a VSMP authority” at the end of subsection B.

§ 62.1-44.15:34. (For effective date — see notes) Regulated activities; submission and approval of a permit application; security for performance; exemptions.

  1. A person shall not conduct any land-disturbing activity until (i) he has submitted to the appropriate VESMP authority an application that includes a permit registration statement, if required, a soil erosion control and stormwater management plan or an executed agreement in lieu of a plan, if required, and (ii) the VESMP authority has issued its land-disturbance approval. In addition, as a prerequisite to engaging in an approved land-disturbing activity, the name of the individual who will be assisting the owner in carrying out the activity and holds a Responsible Land Disturber certificate pursuant to § 62.1-44.15:30 shall be submitted to the VESMP authority. Any VESMP authority may waive the Responsible Land Disturber certificate requirement for an agreement in lieu of a plan for construction of a single-family detached residential structure; however, if a violation occurs during the land-disturbing activity for the single-family detached residential structure, then the owner shall correct the violation and provide the name of the individual holding a Responsible Land Disturber certificate as provided by § 62.1-14:30. Failure to provide the name of an individual holding a Responsible Land Disturber certificate prior to engaging in land-disturbing activities may result in revocation of the land-disturbance approval and shall subject the owner to the penalties provided in this article.
    1. A VESMP authority that is implementing its program pursuant to subsection A of § 62.1-44.15:27 or subdivision B 1 of § 62.1-44.15:27 shall determine the completeness of any application within 15 days after receipt, and shall act on any application within 60 days after it has been determined by the VESMP authority to be complete. The VESMP authority shall issue either land-disturbance approval or denial and provide written rationale for any denial. Prior to issuing a land-disturbance approval, a VESMP authority shall be required to obtain evidence of permit coverage when such coverage is required. The VESMP authority also shall determine whether any resubmittal of a previously disapproved application is complete within 15 days after receipt and shall act on the resubmitted application within 45 days after receipt.
    2. A VESMP authority implementing its program in coordination with the Department pursuant to subdivision B 2 of § 62.1-44.15:27 shall determine the completeness of any application within 15 days after receipt, and shall act on any application within 60 days after it has been determined by the VESMP authority to be complete. The VESMP authority shall forward a soil erosion control and stormwater management plan to the Department for review within five days of receipt. If the plan is incomplete, the Department shall return the plan to the locality immediately and the application process shall start over. If the plan is complete, the Department shall review it for compliance with the water quality and water quantity technical criteria and provide its recommendation to the VESMP authority. The VESMP authority shall either (i) issue the land-disturbance approval or (ii) issue a denial and provide a written rationale for the denial. In no case shall a locality have more than 60 days for its decision on an application after it has been determined to be complete. Prior to issuing a land-disturbance approval, a VESMP authority shall be required to obtain evidence of permit coverage when such coverage is required.The VESMP authority also shall forward to the Department any resubmittal of a previously disapproved application within five days after receipt, and the VESMP authority shall determine whether the plan is complete within 15 days of its receipt of the plan. The Department shall review the plan for compliance with the water quality and water quantity technical criteria and provide its recommendation to the VESMP authority, and the VESMP authority shall act on the resubmitted application within 45 days after receipt.
    3. When a state agency or federal entity submits a soil erosion control and stormwater management plan for a project, land disturbance shall not commence until the Board has reviewed and approved the plan and has issued permit coverage when it is required.
      1. The Board shall not approve a soil erosion control and stormwater management plan submitted by a state agency or federal entity for a project involving a land-disturbing activity (i) in any locality that has not adopted a local program with more stringent ordinances than those of the state program or (ii) in multiple jurisdictions with separate local programs, unless the plan is consistent with the requirements of the state program.
      2. The Board shall not approve a soil erosion control and stormwater management plan submitted by a state agency or federal entity for a project involving a land-disturbing activity in one locality with a local program with more stringent ordinances than those of the state program, unless the plan is consistent with the requirements of the local program.
      3. If onsite changes occur, the state agency or federal entity shall submit an amended soil erosion control and stormwater management plan to the Department.
      4. The state agency or federal entity responsible for the land-disturbing activity shall ensure compliance with the approved plan. As necessary, the Board shall provide project oversight and enforcement.
  2. The VESMP authority may require changes to an approved soil erosion control and stormwater management plan in the following cases:
    1. Where inspection has revealed that the plan is inadequate to satisfy applicable regulations or ordinances; or
    2. Where the owner finds that because of changed circumstances or for other reasons the plan cannot be effectively carried out, and proposed amendments to the plan, consistent with the requirements of this article, are agreed to by the VESMP authority and the owner.
  3. In order to prevent further erosion, a VESMP authority may require approval of a soil erosion control and stormwater management plan for any land identified as an erosion impact area by the VESMP authority.
  4. A VESMP authority may enter into an agreement with an adjacent VESMP authority regarding the administration of multijurisdictional projects, specifying who shall be responsible for all or part of the administrative procedures. Should adjacent VESMP authorities fail to reach such an agreement, each shall be responsible for administering the area of the multijurisdictional project that lies within its jurisdiction.
  5. The following requirements shall apply to land-disturbing activities in the Commonwealth:
    1. Any land-disturbing activity that (i) disturbs one acre or more of land or (ii) disturbs less than one acre of land and is part of a larger common plan of development or sale that results in one acre or greater of land disturbance may, in accordance with regulations adopted by the Board, be required to obtain permit coverage.
    2. For a land-disturbing activity occurring in an area not designated as a Chesapeake Bay Preservation Area subject to the Chesapeake Bay Preservation Act (§ 62.1-44.15:67 et seq.):
      1. Soil erosion control requirements and water quantity technical criteria adopted pursuant to this article shall apply to any activity that disturbs 10,000 square feet or more, although the locality may reduce this regulatory threshold to a smaller area of disturbed land. A plan addressing these requirements shall be submitted to the VESMP authority in accordance with subsection A. This subdivision shall also apply to additions or modifications to existing single-family detached residential structures.
      2. Soil erosion control requirements and water quantity and water quality technical criteria shall apply to any activity that (i) disturbs one acre or more of land or (ii) disturbs less than one acre of land and is part of a larger common plan of development or sale that results in one acre or greater of land disturbance, although the locality may reduce this regulatory threshold to a smaller area of disturbed land. A plan addressing these requirements shall be submitted to the VESMP authority in accordance with subsection A.
  6. Notwithstanding any other provisions of this article, the following activities are not required to comply with the requirements of this article unless otherwise required by federal law:
    1. Minor land-disturbing activities, including home gardens and individual home landscaping, repairs, and maintenance work;
    2. Installation, maintenance, or repair of any individual service connection;
    3. Installation, maintenance, or repair of any underground utility line when such activity occurs on an existing hard surfaced road, street, or sidewalk, provided the land-disturbing activity is confined to the area of the road, street, or sidewalk that is hard surfaced;
    4. Installation, maintenance, or repair of any septic tank line or drainage field unless included in an overall plan for land-disturbing activity relating to construction of the building to be served by the septic tank system;
    5. Permitted surface or deep mining operations and projects, or oil and gas operations and projects conducted pursuant to Title 45.2;
    6. Clearing of lands specifically for bona fide agricultural purposes; the management, tilling, planting, or harvesting of agricultural, horticultural, or forest crops; livestock feedlot operations; agricultural engineering operations, including construction of terraces, terrace outlets, check dams, desilting basins, dikes, ponds, ditches, strip cropping, lister furrowing, contour cultivating, contour furrowing, land drainage, and land irrigation; or as additionally set forth by the Board in regulations. However, this exception shall not apply to harvesting of forest crops unless the area on which harvesting occurs is reforested artificially or naturally in accordance with the provisions of Chapter 11 (§ 10.1-1100 et seq.) or is converted to bona fide agricultural or improved pasture use as described in subsection B of § 10.1-1163;
    7. Installation of fence and sign posts or telephone and electric poles and other kinds of posts or poles;
    8. Shoreline erosion control projects on tidal waters when all of the land-disturbing activities are within the regulatory authority of and approved by local wetlands boards, the Marine Resources Commission, or the United States Army Corps of Engineers; however, any associated land that is disturbed outside of this exempted area shall remain subject to this article and the regulations adopted pursuant thereto;
    9. Repair or rebuilding of the tracks, rights-of-way, bridges, communication facilities, and other related structures and facilities of a railroad company;
    10. Land-disturbing activities in response to a public emergency where the related work requires immediate authorization to avoid imminent endangerment to human health or the environment. In such situations, the VESMP authority shall be advised of the disturbance within seven days of commencing the land-disturbing activity, and compliance with the administrative requirements of subsection A is required within 30 days of commencing the land-disturbing activity; and
    11. Discharges to a sanitary sewer or a combined sewer system that are not from a land-disturbing activity.
  7. Notwithstanding any other provision of this article, the following activities are required to comply with the soil erosion control requirements but are not required to comply with the water quantity and water quality technical criteria, unless otherwise required by federal law:
    1. Activities under a state or federal reclamation program to return an abandoned property to an agricultural or open land use;
    2. Routine maintenance that is performed to maintain the original line and grade, hydraulic capacity, or original construction of the project. The paving of an existing road with a compacted or impervious surface and reestablishment of existing associated ditches and shoulders shall be deemed routine maintenance if performed in accordance with this subsection; and
    3. Discharges from a land-disturbing activity to a sanitary sewer or a combined sewer system.

4. Prior to issuance of any land-disturbance approval, the VESMP authority may also require an applicant, excluding state agencies and federal entities, to submit a reasonable performance bond with surety, cash escrow, letter of credit, any combination thereof, or such other legal arrangement acceptable to the VESMP authority, to ensure that measures could be taken by the VESMP authority at the applicant’s expense should he fail, after proper notice, within the time specified to comply with the conditions imposed by the VESMP authority as a result of his land-disturbing activity. If the VESMP authority takes such action upon such failure by the applicant, the VESMP authority may collect from the applicant the difference should the amount of the reasonable cost of such action exceed the amount of the security held. Within 60 days of the completion of the VESMP authority’s conditions, such bond, cash escrow, letter of credit, or other legal arrangement, or the unexpended or unobligated portion thereof, shall be refunded to the applicant or terminated.

3. For a land-disturbing activity occurring in an area designated as a Chesapeake Bay Preservation Area subject to the Chesapeake Bay Preservation Act (§ 62.1-44.15:67 et seq.):

a. Soil erosion control and water quantity and water quality technical criteria shall apply to any land-disturbing activity that disturbs 2,500 square feet or more of land, other than a single-family detached residential structure. However, the governing body of any affected locality may reduce this regulatory threshold to a smaller area of disturbed land. A plan addressing these requirements shall be submitted to the VESMP authority in accordance with subsection A.

b. For land-disturbing activities for single-family detached residential structures, soil erosion control and water quantity technical criteria shall apply to any land-disturbing activity that disturbs 2,500 square feet or more of land, and the locality also may require compliance with the water quality technical criteria. A plan addressing these requirements shall be submitted to the VESMP authority in accordance with subsection A.

History. 1989, cc. 467, 499, § 10.1-603.8; 1994, cc. 605, 898; 2004, c. 372; 2011, c. 400; 2012, cc. 785, 819; 2013, cc. 756, 793; 2014, cc. 303, 598; 2016, cc. 68, 758.

Section set out twice.

The section above is effective 30 days after the adoption by the State Water Control Board of the regulations pursuant to Acts 2016, cc. 68 and 758, cl. 9. For this section as in effect until that time, see the preceding section, also numbered 62.1-44.15:34 .

Editor’s note.

Acts 2016, cc. 68 and 758, cl. 9 provides: “That the State Water Control Board (the Board) shall adopt regulations to implement the requirements of this act. The adoption of such regulations shall be exempt from the requirements of Article 2 ( § 2.2-4006 et seq.) of the Administrative Process Act ( § 2.2-4000 et seq.) of the Code of Virginia. However, the Department shall (i) provide a Notice of Intended Regulatory Action, (ii) form a stakeholders advisory group, (iii) provide for a 60-day public comment period prior to the Board’s adoption of the regulations, and (iv) provide the Board with a written summary of comments received and responses to comments prior to the Board’s adoption of the regulations.”

Acts 2016, cc. 68 and 758, cl. 10, as amended by Acts 2017 c. 345, cl. 2, provides: “That the provisions of this act shall become effective July 1, 2018, or 30 days after the adoption by the State Water Control Board of the regulations required by the ninth enactment of this act, whichever occurs later.”

Effective October 1, 2021, “Title 45.2” was substituted for “Title 45.1” in subdivision F 5 to conform to the recodification of Title 45.1 by Acts 2021, Sp. Sess. I, c. 387, at the direction of the Virginia Code Commission.

The 2016 amendments.

The 2016 amendments by cc. 68 and 758 are identical, and rewrote the section. For effective date, see Editor’s note.

§ 62.1-44.15:35. (For expiration date — see notes) Nutrient credit use and additional offsite options for construction activities.

  1. As used in this section:“Nutrient credit” or “credit” means a nutrient credit certified pursuant to Article 4.02 (§ 62.1-44.19:12 et seq.).“Tributary,” within the Chesapeake Bay watershed, has the same meaning as in § 62.1-44.19:13 . For areas outside of the Chesapeake Bay watershed, “tributary” includes the following watersheds: Albemarle Sound, Coastal; Atlantic Ocean, Coastal; Big Sandy; Chowan; Clinch-Powell; New Holston (Upper Tennessee); New River; Roanoke; and Yadkin.“Virginia Stormwater Management Program Authority” or “VSMP authority” has the same meaning as in § 62.1-44.15:24 and includes, until July 1, 2014, any locality that has adopted a local stormwater management program.
  2. A VSMP authority is authorized to allow compliance with stormwater nonpoint nutrient runoff water quality criteria established pursuant to § 62.1-44.15:28 , in whole or in part, through the use of the applicant’s acquisition of nutrient credits in the same tributary.
  3. No applicant shall use nutrient credits to address water quantity control requirements. No applicant shall use nutrient credits or other offsite options in contravention of local water quality-based limitations (i) determined pursuant to subsection B of § 62.1-44.19:14 , (ii) adopted pursuant to § 62.1-44.15:33 or other applicable authority, (iii) deemed necessary to protect public water supplies from demonstrated adverse nutrient impacts, or (iv) as otherwise may be established or approved by the Board. Where such a limitation exists, offsite options may be used provided that such options do not preclude or impair compliance with the local limitation.
  4. A VSMP authority shall allow offsite options in accordance with subsection I when:
    1. Less than five acres of land will be disturbed;
    2. The postconstruction phosphorous control requirement is less than 10 pounds per year; or
    3. The state permit applicant demonstrates to the satisfaction of the VSMP authority that (i) alternative site designs have been considered that may accommodate onsite best management practices, (ii) onsite best management practices have been considered in alternative site designs to the maximum extent practicable, (iii) appropriate onsite best management practices will be implemented, and (iv) full compliance with postdevelopment nonpoint nutrient runoff compliance requirements cannot practicably be met onsite. For purposes of this subdivision, if an applicant demonstrates onsite control of at least 75 percent of the required phosphorous nutrient reductions, the applicant shall be deemed to have met the requirements of clauses (i) through (iv).
  5. Documentation of the applicant’s acquisition of nutrient credits shall be provided to the VSMP authority and the Department in a certification from the credit provider documenting the number of phosphorus nutrient credits acquired and the associated ratio of nitrogen nutrient credits at the credit-generating entity. Until the effective date of regulations establishing application fees in accordance with § 62.1-44.19:20 , the credit provider shall pay the Department a water quality enhancement fee equal to six percent of the amount paid by the applicant for the credits. Such fee shall be deposited into the Virginia Stormwater Management Fund established by § 62.1-44.15:29 .
  6. Nutrient credits used pursuant to subsection B shall be generated in the same or adjacent eight-digit hydrologic unit code as defined by the United States Geological Survey as the permitted site except as otherwise limited in subsection C. Nutrient credits outside the same or adjacent eight-digit hydrologic unit code may only be used if it is determined by the VSMP authority that no credits are available within the same or adjacent eight-digit hydrologic unit code when the VSMP authority accepts the final site design. In such cases, and subject to other limitations imposed in this section, credits available within the same tributary may be used. In no case shall credits from another tributary be used.
  7. For that portion of a site’s compliance with stormwater nonpoint nutrient runoff water quality criteria being obtained through nutrient credits, the applicant shall (i) comply with a 1:1 ratio of the nutrient credits to the site’s remaining postdevelopment nonpoint nutrient runoff compliance requirement being met by credit use and (ii) use credits certified as perpetual credits pursuant to Article 4.02 (§ 62.1-44.19:12 et seq.).
  8. No VSMP authority may grant an exception to, or waiver of, postdevelopment nonpoint nutrient runoff compliance requirements unless offsite options have been considered and found not available.
  9. The VSMP authority shall require that nutrient credits and other offsite options approved by the Department or applicable state board, including locality pollutant loading pro rata share programs established pursuant to § 15.2-2243 , achieve the necessary nutrient reductions prior to the commencement of the applicant’s land-disturbing activity. A pollutant loading pro rata share program established by a locality pursuant to § 15.2-2243 and approved by the Department or applicable state board prior to January 1, 2011, including those that may achieve nutrient reductions after the commencement of the land-disturbing activity, may continue to operate in the approved manner for a transition period ending July 1, 2014. The applicant shall have the right to select between the use of nutrient credits or other offsite options, except during the transition period in those localities to which the transition period applies. The locality may use funds collected for nutrient reductions pursuant to a locality pollutant loading pro rata share program under § 15.2-2243 for nutrient reductions in the same tributary within the same locality as the land-disturbing activity or for the acquisition of nutrient credits. In the case of a phased project, the applicant may acquire or achieve the offsite nutrient reductions prior to the commencement of each phase of the land-disturbing activity in an amount sufficient for each such phase.
  10. Nutrient reductions obtained through nutrient credits shall be credited toward compliance with any nutrient allocation assigned to a municipal separate storm sewer system in a Virginia Stormwater Management Program Permit or Total Maximum Daily Load applicable to the location where the activity for which the nutrient credits are used takes place. If the activity for which the nutrient credits are used does not discharge to a municipal separate storm sewer system, the nutrient reductions shall be credited toward compliance with the applicable nutrient allocation.
  11. A VSMP authority shall allow the full or partial substitution of perpetual nutrient credits for existing onsite nutrient controls when (i) the nutrient credits will compensate for 10 or fewer pounds of the annual phosphorous requirement associated with the original land-disturbing activity or (ii) existing onsite controls are not functioning as anticipated after reasonable attempts to comply with applicable maintenance agreements or requirements and the use of nutrient credits will account for the deficiency. Upon determination by the VSMP authority that the conditions established by clause (i) or (ii) have been met, the party responsible for maintenance shall be released from maintenance obligations related to the onsite phosphorous controls for which the nutrient credits are substituted.
  12. To the extent available, with the consent of the applicant, the VSMP authority, the Board or the Department may include the use of nutrient credits or other offsite measures in resolving enforcement actions to compensate for (i) nutrient control deficiencies occurring during the period of noncompliance and (ii) permanent nutrient control deficiencies.
  13. This section shall not be construed as limiting the authority established under § 15.2-2243 ; however, under any pollutant loading pro rata share program established thereunder, the subdivider or developer shall be given appropriate credit for nutrient reductions achieved through nutrient credits or other offsite options.
  14. In order to properly account for allowed nonpoint nutrient offsite reductions, an applicant shall report to the Department, in accordance with Department procedures, information regarding all offsite reductions that have been authorized to meet stormwater postdevelopment nonpoint nutrient runoff compliance requirements.
  15. An applicant or a permittee found to be in noncompliance with the requirements of this section shall be subject to the enforcement and penalty provisions of this article.

History. 2009, c. 364, § 10.1-603.8:1; 2010, c. 686; 2011, c. 523; 2012, cc. 748, 785, 808, 819; 2013, cc. 756, 793; 2015, c. 164.

Section set out twice.

The section above is effective 30 days after the adoption by the State Water Control Board of the regulations pursuant to Acts 2016, cc. 68 and 758, cl. 9. For this section as in effect at that time, see the following section, also numbered 62.1-44.15:35 .

Editor’s note.

Acts 2013, cc. 756 and 793, cl. 5 provides: “That the transfer of the responsibility for administering the issuance and enforcement of national pollutant discharge elimination system permits for the control of stormwater discharges shall become effective on July 1, 2013, or upon the U.S. Environmental Protection Agency’s rescission of authorization for delegation of program authority to the Virginia Soil and Water Conservation Board, whichever occurs later.” Pursuant to a letter received from the Environmental Protection Agency on July 2, 2013, the transfer of responsibility from DCR to DEQ has been approved as required by this provision.

The 2015 amendments.

The 2015 amendment by c. 164 in subsection A, inserted “within the Chesapeake Bay watershed” and substituted “watershed” for “Watershed” in the definition of “Tributary.”

§ 62.1-44.15:35. (For effective date — see notes) Nutrient credit use and additional offsite options for construction activities.

  1. As used in this section:“Nutrient credit” or “credit” means a type of offsite option that is a nutrient credit certified pursuant to Article 4.02 (§ 62.1-44.19:12 et seq.).“Offsite option” means an alternative available, away from the real property where land disturbance is occurring, to address water quality or water quantity technical criteria established pursuant to § 62.1-44.15:28 .“Tributary,” within the Chesapeake Bay watershed, has the same meaning as in § 62.1-44.19:13 . For areas outside of the Chesapeake Bay watershed, “tributary” includes the following watersheds: Albemarle Sound, Coastal; Atlantic Ocean, Coastal; Big Sandy; Chowan; Clinch-Powell; New Holston (Upper Tennessee); New River; Roanoke; and Yadkin.
  2. No offsite option shall be used in contravention of local water quality-based limitations (i) determined pursuant to subsection B of § 62.1-44.19:14 , (ii) adopted pursuant to § 62.1-44.15:33 or other applicable authority, (iii) deemed necessary to protect public water supplies from demonstrated adverse nutrient impacts, or (iv) as otherwise may be established or approved by the Board. Where such a limitation exists, offsite options may be used provided that such options do not preclude or impair compliance with the local limitation.
  3. Unless prohibited by subsection B, a VESMP authority or a VSMP authority:
    1. May allow the use of offsite options for compliance with water quality and water quantity technical criteria established pursuant to § 62.1-44.15:28 , in whole or in part; and
    2. Shall allow the use of nutrient credits for compliance with the water quality technical criteria when:
      1. Less than five acres of land will be disturbed;
      2. The phosphorous water quality reduction requirement is less than 10 pounds per year; or
      3. It is demonstrated to the satisfaction of the VESMP or VSMP authority that (i) alternative site designs have been considered that may accommodate onsite best management practices, (ii) onsite best management practices have been considered in alternative site designs to the maximum extent practicable, (iii) appropriate onsite best management practices will be implemented, and (iv) compliance with water quality technical criteria cannot practicably be met onsite. The requirements of clauses (i) through (iv) shall be deemed to have been met if it is demonstrated that onsite control of at least 75 percent of the required phosphorous water quality reduction will be achieved.
  4. No VSMP or VESMP authority may grant an exception to, or waiver of, post-development nonpoint nutrient runoff compliance requirements unless offsite options have been considered and found not available.
  5. The VSMP or VESMP authority shall require that offsite options approved by the Department or applicable state board achieve the necessary phosphorous water quality reductions prior to the commencement of the land-disturbing activity. A pollutant loading pro rata share program established by a locality pursuant to § 15.2-2243 and approved by the Department or applicable state board prior to January 1, 2011, including those that may achieve nutrient reductions after the commencement of the land-disturbing activity, may continue to operate in the approved manner for a transition period ending July 1, 2014. In the case of a phased project, the land disturber may acquire or achieve the offsite nutrient reductions prior to the commencement of each phase of the land-disturbing activity in an amount sufficient for each such phase. The land disturber shall have the right to select between the use of nutrient credits or other offsite options, except during the transition period in those localities to which the transition period applies.
  6. With the consent of the land disturber, in resolving enforcement actions, the VESMP authority or the Board may include the use of offsite options to compensate for (i) nutrient control deficiencies occurring during the period of noncompliance and (ii) permanent nutrient control deficiencies.
  7. This section shall not be construed as limiting the authority established under § 15.2-2243 ; however, under any pollutant loading pro rata share program established thereunder, the subdivider or developer shall be given appropriate credit for nutrient reductions achieved through offsite options. The locality may use funds collected for nutrient reductions pursuant to a locality pollutant loading pro rata share program for nutrient reductions in the same tributary within the same locality as the land-disturbing activity, or for the acquisition of nutrient credits.
  8. Nutrient credits shall not be used to address water quantity technical criteria. Nutrient credits shall be generated in the same or adjacent fourth order subbasin, as defined by the hydrologic unit boundaries of the National Watershed Boundary Dataset, as the land-disturbing activity. If no credits are available within these subbasins when the VESMP or VSMP authority accepts the final site design, credits available within the same tributary may be used. The following requirements apply to the use of nutrient credits:
    1. Documentation of the acquisition of nutrient credits shall be provided to the VESMP authority and the Department or the VSMP authority in a certification from the credit provider documenting the number of phosphorus nutrient credits acquired and the associated ratio of nitrogen nutrient credits at the credit-generating entity.
    2. Until the effective date of regulations establishing application fees in accordance with § 62.1-44.19:20 , the credit provider shall pay the Department a water quality enhancement fee equal to six percent of the amount paid for the credits. Such fee shall be deposited into the Virginia Stormwater Management Fund established by § 62.1-44.15:29 .
    3. For that portion of a site’s compliance with water quality technical criteria being obtained through nutrient credits, the land disturber shall (i) comply with a 1:1 ratio of the nutrient credits to the site’s remaining post-development nonpoint nutrient runoff compliance requirement being met by credit use and (ii) use credits certified as perpetual credits pursuant to Article 4.02 (§ 62.1-44.19:12 et seq.).
    4. A VESMP or VSMP authority shall allow the full or partial substitution of perpetual nutrient credits for existing onsite nutrient controls when (i) the nutrient credits will compensate for 10 or fewer pounds of the annual phosphorous requirement associated with the original land-disturbing activity or (ii) existing onsite controls are not functioning as anticipated after reasonable attempts to comply with applicable maintenance agreements or requirements and the use of nutrient credits will account for the deficiency. Upon determination by the VESMP or VSMP authority that the conditions established by clause (i) or (ii) have been met, the party responsible for maintenance shall be released from maintenance obligations related to the onsite phosphorous controls for which the nutrient credits are substituted.
  9. The use of nutrient credits to meet post-construction nutrient control requirements shall be accounted for in the implementation of total maximum daily loads and MS4 permits as specified in subdivisions 1, 2, and 3. In order to ensure that the nutrient reduction benefits of nutrient credits used to meet post-construction nutrient control requirements are attributed to the location of the land-disturbing activity where the credit is used, the following account method shall be used:
    1. Chesapeake Bay TMDL.
      1. Where nutrient credits are used to meet nutrient reduction requirements applicable to redevelopment projects, a 1:1 credit shall be applied toward MS4 compliance with the Chesapeake Bay TMDL waste load allocation or related MS4 permit requirement applicable to the MS4 service area, including the site of the land-disturbing activity, such that the nutrient reductions of redevelopment projects are counted as part of the MS4 nutrient reductions to the same extent as when land-disturbing activities use onsite measures to comply.
      2. Where nutrient credits are used to meet post-construction requirements applicable to new development projects, the nutrient reduction benefits represented by such credits shall be attributed to the location of the land-disturbing activity where the credit is used to the same extent as when land-disturbing activities use onsite measures to comply.
      3. A 1:1 credit shall be applied toward compliance by a locality that operates a regulated MS4 with its Chesapeake Bay TMDL waste load allocation or related MS4 permit requirement to the extent that nutrient credits are obtained by the MS4 jurisdiction from a nutrient credit-generating entity as defined in § 62.1-44.19:13 independent of or in excess of those required to meet the post-construction requirements.

2. Local nutrient-related TMDLs adopted prior to the land-disturbing activity.

a. Where nutrient credits are used to meet nutrient reduction requirements applicable to redevelopment projects, a 1:1 credit shall be applied toward MS4 compliance with any local TMDL waste load allocation or related MS4 permit requirement applicable to the MS4 service area, including the site of the land-disturbing activity, such that the nutrient reductions of redevelopment projects are counted as part of the MS4 nutrient reductions to the same extent as when land-disturbing activities use onsite measures to comply, provided the nutrient credits are generated upstream of where the land-disturbing activity discharges to the water body segment that is subject to the TMDL.

b. Where nutrient credits are used to meet post-construction requirements applicable to new development projects, the nutrient reduction benefits represented by such credits shall be attributed to the location of the land-disturbing activity where the credit is used to the same extent as when land-disturbing activities use onsite measures to comply, provided the nutrient credits are generated upstream of where the land-disturbing activity discharges to the water body segment that is subject to the TMDL.

c. A 1:1 credit shall be applied toward MS4 compliance with any local TMDL waste load allocation or related MS4 permit requirement to the extent that nutrient credits are obtained by the MS4 jurisdiction from a nutrient credit-generating entity as defined in § 62.1-44.19:13 independent of or in excess of those required to meet the post-construction requirements. However, such credits shall be generated upstream of where the land-disturbing activity discharges to the water body segment that is subject to the TMDL.

3. Future local nutrient-related TMDLs.This subdivision applies only to areas where there has been a documented prior use of nutrient credits to meet nutrient control requirements in an MS4 service area that flows to or is upstream of a water body segment for which a nutrient-related TMDL is being developed. For a TMDL waste load allocation applicable to the MS4, the Board shall develop the TMDL waste load allocation with the nutrient reduction benefits represented by the nutrient credit use being attributed to the MS4, except when the Board determines during the TMDL development process that reasonable assurance of implementation cannot be provided for nonpoint source load allocations due to the nutrient reduction benefits being attributed in this manner. The Board shall have no obligation to account for nutrient reduction benefits in this manner if the MS4 does not provide the Board with adequate documentation of (i) the location of the land-disturbing activities, (ii) the number of nutrient credits, and (iii) the generation of the nutrient credits upstream of the site at which the land-disturbing activity discharges to the water body segment addressed by the TMDL. Such attribution shall not be interpreted as amending the requirement that the TMDL be established at a level necessary to meet the applicable water quality standard.

History. 2009, c. 364, § 10.1-603.8:1; 2010, c. 686; 2011, c. 523; 2012, cc. 748, 785, 808, 819; 2013, cc. 756, 793; 2015, c. 164; 2016, cc. 68, 758.

Section set out twice.

The section above is effective 30 days after the adoption by the State Water Control Board of the regulations pursuant to Acts 2016, cc. 68 and 758, cl. 9. For this section as in effect until that time, see the preceding section, also numbered 62.1-44.15:35 .

Editor’s note.

Acts 2016, cc. 68 and 758, cl. 9 provides: “That the State Water Control Board (the Board) shall adopt regulations to implement the requirements of this act. The adoption of such regulations shall be exempt from the requirements of Article 2 ( § 2.2-4006 et seq.) of the Administrative Process Act ( § 2.2-4000 et seq.) of the Code of Virginia. However, the Department shall (i) provide a Notice of Intended Regulatory Action, (ii) form a stakeholders advisory group, (iii) provide for a 60-day public comment period prior to the Board’s adoption of the regulations, and (iv) provide the Board with a written summary of comments received and responses to comments prior to the Board’s adoption of the regulations.”

Acts 2016, cc. 68 and 758, cl. 10, as amended by Acts 2017, c. 345, cl. 2, provides: “That the provisions of this act shall become effective July 1, 2018, or 30 days after the adoption by the State Water Control Board of the regulations required by the ninth enactment of this act, whichever occurs later.”

The 2016 amendments.

The 2016 amendments by cc. 68 and 758 are identical, and rewrote the section. For effective date, see Editor’s note.

§ 62.1-44.15:36. Repealed by Acts 2013, cc. 756 and 793, cl. 4.

Editor’s note.

Acts 2013, cc. 756 and 793, cl. 4 provides: “That § 62.1-44.15:36 as created by this act shall be repealed upon the effective date of a statewide permit fee schedule adopted pursuant to § 10.1-603.4 by the Virginia Soil and Water Conservation Board prior to July 1, 2013, or pursuant to § 62.1-44.15:28 , as added by this act, by the State Water Control Board on or after July 1, 2013, whichever occurs sooner.” The second contingency was met effective October 23, 2013.

Former § 62.1-44.15:36 , pertaining to recovery of administrative costs, derived from 1989, cc. 467, 499, § 10.1-603.10; 2013, cc. 756, 793.

This section was also repealed by Acts 2016, cc. 68 and 758, cl. 2, effective July 1, 2018, or 30 days after the adoption of regulations required by Acts 2016, cc. 68 and 758, cl. 9, whichever occurs later.

§ 62.1-44.15:37. (For expiration date — see notes) Monitoring, reports, investigations, inspections, and stop work orders.

  1. The VSMP authority (i) shall provide for periodic inspections of the installation of stormwater management measures, (ii) may require monitoring and reports from the person responsible for meeting the permit conditions to ensure compliance with the permit and to determine whether the measures required in the permit provide effective stormwater management, and (iii) shall conduct such investigations and perform such other actions as are necessary to carry out the provisions of this article. If the VSMP authority, where authorized to enforce this article, or the Department determines that there is a failure to comply with the permit conditions, notice shall be served upon the permittee or person responsible for carrying out the permit conditions by mailing with confirmation of delivery to the address specified in the permit application, or by delivery at the site of the development activities to the agent or employee supervising such activities. The notice shall specify the measures needed to comply with the permit conditions and shall specify the time within which such measures shall be completed. Upon failure to comply within the time specified, a stop work order may be issued in accordance with subsection B by the VSMP authority, where authorized to enforce this article, or by the Board, or the permit may be revoked by the VSMP authority, or the state permit may be revoked by the Board. The Board or the VSMP authority, where authorized to enforce this article, may pursue enforcement in accordance with § 62.1-44.15:48 .
  2. If a permittee fails to comply with a notice issued in accordance with subsection A within the time specified, the VSMP authority, where authorized to enforce this article, or the Department may issue an order requiring the owner, permittee, person responsible for carrying out an approved plan, or person conducting the land-disturbing activities without an approved plan or required permit to cease all land-disturbing activities until the violation of the permit has ceased, or an approved plan and required permits are obtained, and specified corrective measures have been completed.Such orders shall be issued (i) in accordance with local procedures if issued by a locality serving as a VSMP authority or (ii) after a hearing held in accordance with the requirements of the Administrative Process Act (§ 2.2-4000 et seq.) if issued by the Department. Such orders shall become effective upon service on the person by mailing, with confirmation of delivery, sent to his address specified in the land records of the locality, or by personal delivery by an agent of the VSMP authority or Department. However, if the VSMP authority or the Department finds that any such violation is grossly affecting or presents an imminent and substantial danger of causing harmful erosion of lands or sediment deposition in waters within the watersheds of the Commonwealth or otherwise substantially impacting water quality, it may issue, without advance notice or hearing, an emergency order directing such person to cease immediately all land-disturbing activities on the site and shall provide an opportunity for a hearing, after reasonable notice as to the time and place thereof, to such person, to affirm, modify, amend, or cancel such emergency order.If a person who has been issued an order is not complying with the terms thereof, the VSMP authority or the Department may institute a proceeding in accordance with § 62.1-44.15:42 .

History. 1989, cc. 467, 499, § 10.1-603.11; 2004, c. 372; 2012, cc. 785, 819. 2013, cc. 756, 793.

Section set out twice.

The section above is effective until July 1, 2018, or 30 days after the adoption by the State Water Control Board of the regulations pursuant to Acts 2016, cc. 68 and 758, cl. 9, whichever occurs later. For this section as in effect at that time, see the following section, also numbered 62.1-44.15:37 .

Editor’s note.

Acts 2013, cc. 756 and 793, cl. 5 provides: “That the transfer of the responsibility for administering the issuance and enforcement of national pollutant discharge elimination system permits for the control of stormwater discharges shall become effective on July 1, 2013, or upon the U.S. Environmental Protection Agency’s rescission of authorization for delegation of program authority to the Virginia Soil and Water Conservation Board, whichever occurs later.” Pursuant to a letter received from the Environmental Protection Agency on July 2, 2013, the transfer of responsibility from DCR to DEQ has been approved as required by this provision.

§ 62.1-44.15:37. (For effective date — see notes) Notices to comply and stop work orders.

  1. When the VESMP authority or the Board determines that there is a failure to comply with the permit conditions or conditions of land-disturbance approval, or to obtain an approved plan, permit, or land-disturbance approval prior to commencing land-disturbing activities, the VESMP authority or the Board may serve a notice to comply upon the owner, permittee, or person conducting land-disturbing activities without an approved plan, permit, or approval. Such notice to comply shall be served by delivery by facsimile, email, or other technology; by mailing with confirmation of delivery to the address specified in the permit or land-disturbance application, if available, or in the land records of the locality; or by delivery at the site to a person previously identified to the VESMP authority by the permittee or owner. The notice to comply shall specify the measures needed to comply with the permit or land-disturbance approval conditions, or shall identify the plan approval or permit or land-disturbance approval needed to comply with this article, and shall specify a reasonable time within which such measures shall be completed. In any instance in which a required permit or land-disturbance approval has not been obtained, the VESMP authority or the Board may require immediate compliance. In any other case, the VESMP authority or the Board may establish the time for compliance by taking into account the risk of damage to natural resources and other relevant factors. Notwithstanding any other provision in this subsection, a VESMP authority or the Board may count any days of noncompliance as days of violation should the VESMP authority or the Board take an enforcement action. The issuance of a notice to comply by the Board shall not be considered a case decision as defined in § 2.2-4001 .
  2. Upon failure to comply within the time specified in a notice to comply issued in accordance with subsection A, a locality serving as the VESMP authority or the Board may issue a stop work order requiring the owner, permittee, or person conducting the land-disturbing activities without an approved plan or required permit or land-disturbance approval to cease all land-disturbing activities until the violation has ceased, or an approved plan and required permits and approvals are obtained, and specified corrective measures have been completed. The VESMP authority or the Board shall lift the order immediately upon completion and approval of corrective action or upon obtaining an approved plan or any required permits or approvals.
  3. When such an order is issued by the Board, it shall be issued in accordance with the procedures of the Administrative Process Act (§ 2.2-4000 et seq.). Such orders shall become effective upon service on the person in the manner set forth in subsection A. However, where the alleged noncompliance is causing or presents an imminent and substantial danger of causing harmful erosion of lands or sediment deposition in waters within the watersheds of the Commonwealth or otherwise substantially impacting water quality, the locality serving as the VESMP authority or the Board may issue, without advance notice or procedures, an emergency order directing such person to cease immediately all land-disturbing activities on the site and shall provide an opportunity for a hearing, after reasonable notice as to the time and place thereof, to such person, to affirm, modify, amend, or cancel such emergency order.
  4. The owner, permittee, or person conducting a land-disturbing activity may appeal the issuance of any order to the circuit court of the jurisdiction wherein the violation was alleged to occur or other appropriate court.
  5. An aggrieved owner of property sustaining pecuniary damage from soil erosion or sediment deposition resulting from a violation of an approved plan or required land-disturbance approval, or from the conduct of a land-disturbing activity commenced without an approved plan or required land-disturbance approval, may give written notice of an alleged violation to the locality serving as the VESMP authority and to the Board.
    1. If the VESMP authority has not responded to the alleged violation in a manner that causes the violation to cease and abates the damage to the aggrieved owner’s property within 30 days following receipt of the notice from the aggrieved owner, the aggrieved owner may request that the Board conduct an investigation and, if necessary, require the violator to stop the alleged violation and abate the damage to the property of the aggrieved owner.
    2. Upon receipt of the request, the Board shall conduct an investigation of the aggrieved owner’s complaint. If the Board’s investigation of the complaint indicates that (i) there is a violation and the VESMP authority has not responded to the violation as required by the VESMP and (ii) the VESMP authority has not responded to the alleged violation in a manner that causes the violation to cease and abates the damage to the aggrieved owner’s property within 30 days from receipt of the notice from the aggrieved owner, then the Board shall give written notice to the VESMP authority that the Board intends to issue an order pursuant to subdivision 3.
    3. If the VESMP authority has not instituted action to stop the violation and abate the damage to the aggrieved owner’s property within 10 days following receipt of the notice from the Board, the Board is authorized to issue an order requiring the owner, person responsible for carrying out an approved plan, or person conducting the land-disturbing activity without an approved plan or required land-disturbance approval to cease all land-disturbing activities until the violation of the plan has ceased or an approved plan and required land-disturbance approval are obtained, as appropriate, and specified corrective measures have been completed. The Board also may immediately initiate a program review of the VESMP.
    4. Such orders are to be issued in accordance with the procedures of the Administrative Process Act (§ 2.2-4000 et seq.) and they shall become effective upon service on the person by mailing, with confirmation of delivery, sent to his address specified in the land records of the locality, or by personal delivery by an agent of the Board. Any subsequent identical mail or notice that is sent by the Board may be sent by regular mail. However, if the Board finds that any such violation is grossly affecting or presents an imminent and substantial danger of causing harmful erosion of lands or sediment deposition in waters within the watersheds of the Commonwealth, it may issue, without advance notice or hearing, an emergency order directing such person to cease all land-disturbing activities on the site immediately and shall provide an opportunity for a hearing, after reasonable notice as to the time and place thereof, to such person, to affirm, modify, amend, or cancel such emergency order.
    5. If a person who has been issued an order or an emergency order is not complying with the terms thereof, the Board may institute a proceeding in the appropriate circuit court for an injunction, mandamus, or other appropriate remedy compelling the person to comply with such order. Any person violating or failing, neglecting, or refusing to obey any injunction, mandamus, or other remedy obtained pursuant to this section shall be subject, in the discretion of the court, to a civil penalty in accordance with the provisions of § 62.1-44.15:48 . Any civil penalties assessed by a court shall be paid into the state treasury and deposited by the State Treasurer into the Stormwater Local Assistance Fund established pursuant to § 62.1-44.15:29.1 .

History. 1989, cc. 467, 499, § 10.1-603.11; 2004, c. 372; 2012, cc. 785, 819. 2013, cc. 756, 793, 2016, cc. 68, 758.

Section set out twice.

The section above is effective July 1, 2018, or 30 days after the adoption by the State Water Control Board of the regulations pursuant to Acts 2016, cc. 68 and 758, cl. 9, whichever occurs later. For this section as in effect until that time, see the preceding section, also numbered 62.1-44.15:37 .

Editor’s note.

Acts 2016, cc. 68 and 758, cl. 9 provides: “That the State Water Control Board (the Board) shall adopt regulations to implement the requirements of this act. The adoption of such regulations shall be exempt from the requirements of Article 2 ( § 2.2-4006 et seq.) of the Administrative Process Act ( § 2.2-4000 et seq.) of the Code of Virginia. However, the Department shall (i) provide a Notice of Intended Regulatory Action, (ii) form a stakeholders advisory group, (iii) provide for a 60-day public comment period prior to the Board’s adoption of the regulations, and (iv) provide the Board with a written summary of comments received and responses to comments prior to the Board’s adoption of the regulations.”

Acts 2016, cc. 68 and 758, cl. 10, as amended by Acts 2017, c. 345, cl. 2, provides: “That the provisions of this act shall become effective July 1, 2018, or 30 days after the adoption by the State Water Control Board of the regulations required by the ninth enactment of this act, whichever occurs later.”

The 2016 amendments.

The 2016 amendments by cc. 68 and 758 are identical, and rewrote the section. For effective date, see Editor’s note.

§ 62.1-44.15:37.1. Inspections; land-disturbing activities of natural gas pipelines; stop work instructions.

  1. The Department is authorized to conduct inspections of the land-disturbing activities of interstate and intrastate natural gas pipeline companies that have approved annual standards and specifications pursuant to § 62.1-44.15:31 as such land-disturbing activities relate to construction of any natural gas transmission pipeline equal to or greater than 24 inches inside diameter to determine (i) compliance with such annual standards and specifications, (ii) compliance with any site-specific plans, and (iii) if there have been or are likely to be adverse impacts to water quality as a result of such land-disturbing activities, including instances where (a) there has been a violation of any water quality standard adopted pursuant to the State Water Control Law (§ 62.1-44.2 et seq.), (b) sediment has been deposited in significant amounts in areas where those deposits are not contained by best management practices, (c) there are repeated instances of adverse impacts or likely adverse impacts within a 30-day period, or (d) there have been widespread and repeated instances of adverse impacts or likely impacts. When the Department determines that there has been a substantial adverse impact to water quality or that an imminent and substantial adverse impact to water quality is likely to occur as a result of such land-disturbing activities, the Department may issue a stop work instruction, without advance notice or hearing, requiring that all or part of such land-disturbing activities on the part of the site that caused the substantial adverse impacts to water quality or are likely to cause imminent and substantial adverse impacts to water quality be stopped until corrective measures specified in the stop work instruction have been completed and approved by the Department. Where substantial adverse impacts or likely adverse impacts are found on a repeated, frequent, and widespread basis, the Department may issue a stop work instruction for every work area in Virginia until the Department determines that any systemic cause that contributed to such occurrences has been corrected.Such stop work instruction shall become effective upon service on the company by email or other technology agreed to in writing by the Department and the company, by mailing with confirmation of delivery to the address specified in the annual standards and specifications, if available, or by delivery at the site to a person previously identified to the Department by the company. Upon request by the company, the Director or his designee shall review such stop work instruction within 48 hours of issuance.
  2. Within 10 business days of issuance of a stop work instruction, the Department shall promptly provide to such company an opportunity for an informal fact-finding proceeding concerning the stop work instruction and any review by the Director or his designee. Reasonable notice as to the time and place of the informal fact-finding proceeding shall be provided to such company. Within 10 business days of the informal fact-finding proceeding, the Department shall affirm, modify, amend, or cancel such stop work instruction. Upon written documentation from the company of the completion and approval by the Department in writing of the corrective measures specified in the stop work instruction, the instruction shall be immediately lifted.
  3. The company may appeal such stop work instruction or preliminary decision rendered by the Director or his designee to the circuit court of the jurisdiction wherein the land-disturbing activities subject to the stop work instruction occurred, or to another appropriate court, in accordance with the requirements of the Administrative Process Act (§ 2.2-4000 et seq.). Any person violating or failing, neglecting, or refusing to obey a stop work instruction issued by the Department may be compelled in a proceeding instituted in the circuit court of the jurisdiction wherein the violation was alleged to have occurred or other appropriate court to obey same and to comply therewith by injunction, mandamus, or other appropriate remedy. Nothing in this section shall prevent the Board or the Department from taking any other action authorized by this chapter.

History. 2018, c. 298; 2021, Sp. Sess. I, c. 277.

Effective date.

This section is effective March 10, 2018, by emergency clause.

The 2021 Sp. Sess. I amendments.

The 2021 amendment by Sp. Sess. I, c. 277, effective July 1, 2021, in subsection A, substituted “transmission pipeline equal to or greater than 24 inches” for “transmission pipeline greater than 36 inches,” inserted “including instances where (a) there has been a violation of any water quality standard adopted pursuant to the State Water Control Law (§ 62.1-44.2 et seq.), (b) sediment has been deposited in significant amounts in areas where those deposits are not contained by best management practices, (c) there are repeated instances of adverse impacts or likely adverse impacts within a 30-day period, or (d) there have been widespread and repeated instances of adverse impacts or likely impacts” and added the last sentence in the first paragraph.

§ 62.1-44.15:38. (For repeal date — see notes) Department to review VSMPs.

  1. The Department shall develop and implement a review and evaluation schedule so that the effectiveness of each VSMP authority, Municipal Separate Storm Sewer System Management Program, and other MS4 permit requirements is evaluated no less than every five years. The review shall include an assessment of the extent to which the program has reduced nonpoint source pollution and mitigated the detrimental effects of localized flooding. Such reviews shall be coordinated with those being implemented in accordance with the Erosion and Sediment Control Law (§ 62.1-44.15:51 et seq.) and associated regulations and, where applicable, the Chesapeake Bay Preservation Act (§ 62.1-44.15:67 et seq.) and associated regulations.
  2. Following completion of a compliance review of a VSMP, the Department shall provide results and compliance recommendations to the Board in the form of a corrective action agreement if deficiencies are found; otherwise, the Board may find the program compliant. If, after such a review and evaluation, a VSMP is found to have a program that does not comply with the provisions of this article or regulations adopted thereunder, the Board shall establish a schedule for the VSMP authority to come into compliance. The Board shall provide a copy of its decision to the VSMP authority that specifies the deficiencies, actions needed to be taken, and the approved compliance schedule. If the VSMP has not implemented the necessary compliance actions identified by the Board within 30 days following receipt of the corrective action agreement, or such additional period as is granted to complete the implementation of the corrective action, then the Board shall have the authority to (i) issue a special order to any VSMP imposing a civil penalty not to exceed $5,000 per day with the maximum amount not to exceed $20,000 per violation for noncompliance with the requirements of this article and its regulations, to be paid into the state treasury and deposited in the Virginia Stormwater Management Fund established by § 62.1-44.15:29 or (ii) revoke its approval of the VSMP. The Administrative Process Act (§ 2.2-4000 et seq.) shall govern the activities and proceedings of the Board under this article and the judicial review thereof.If the Board revokes its approval of a VSMP, the Board shall find the VSMP authority provisional and shall have the Department assist with the administration of the program until the VSMP authority is deemed compliant with the requirements of this article and associated regulations. Assisting with administration includes the ability to review and comment on plans to the VSMP authority, to conduct inspections with the VSMP authority, and to conduct enforcement in accordance with this article and associated regulations.In lieu of issuing a special order or revoking the program, the Board may take legal action against a VSMP pursuant to § 62.1-44.15:48 to ensure compliance.

History. 1989, cc. 467, 499, § 10.1-603.12; 2004, c. 372; 2012, cc. 785, 819; 2013, cc. 756, 793.

Contingent repeal date. This section is repealed by Acts 2016, cc. 68 and 758, cl. 2, effective July 1, 2018, or 30 days after the adoption of regulations required by Acts 2016, cc. 68 and 758, cl. 9, whichever occurs later.

Editor’s note.

Acts 2013, cc. 756 and 793, cl. 5 provides: “That the transfer of the responsibility for administering the issuance and enforcement of national pollutant discharge elimination system permits for the control of stormwater discharges shall become effective on July 1, 2013, or upon the U.S. Environmental Protection Agency’s rescission of authorization for delegation of program authority to the Virginia Soil and Water Conservation Board, whichever occurs later.” Pursuant to a letter received from the Environmental Protection Agency on July 2, 2013, the transfer of responsibility from DCR to DEQ has been approved as required by this provision.

Acts 2016, cc. 68 and 758, cl. 9 provides: “That the State Water Control Board (the Board) shall adopt regulations to implement the requirements of this act. The adoption of such regulations shall be exempt from the requirements of Article 2 (§ 2.2-4006 et seq.) of the Administrative Process Act (§ 2.2-4000 et seq.) of the Code of Virginia. However, the Department shall (i) provide a Notice of Intended Regulatory Action, (ii) form a stakeholders advisory group, (iii) provide for a 60-day public comment period prior to the Board’s adoption of the regulations, and (iv) provide the Board with a written summary of comments received and responses to comments prior to the Board’s adoption of the regulations.”

Acts 2016, cc. 68 and 758, cl. 10, as amended by Acts 2017, c. 345, cl. 2, provides: “That the provisions of this act shall become effective July 1, 2018, or 30 days after the adoption by the State Water Control Board of the regulations required by the ninth enactment of this act, whichever occurs later.”

§ 62.1-44.15:39. (For expiration date — see notes) Right of entry.

The Department, the VSMP authority, where authorized to enforce this article, any duly authorized agent of the Department or VSMP authority, or any locality that is the operator of a regulated municipal separate storm sewer system may, at reasonable times and under reasonable circumstances, enter any establishment or upon any property, public or private, for the purpose of obtaining information or conducting surveys or investigations necessary in the enforcement of the provisions of this article. For operators of municipal separate storm sewer systems, this authority shall apply only to those properties from which a discharge enters their municipal separate storm sewer systems.

In accordance with a performance bond with surety, cash escrow, letter of credit, any combination thereof, or such other legal arrangement, a VSMP authority may also enter any establishment or upon any property, public or private, for the purpose of initiating or maintaining appropriate actions that are required by the permit conditions associated with a land-disturbing activity when a permittee, after proper notice, has failed to take acceptable action within the time specified.

History. 2004, c. 372, § 10.1-603.12:1; 2011, c. 453; 2012, cc. 785, 819; 2013, cc. 756, 793.

Section set out twice.

The section above is effective until July 1, 2018, or 30 days after the adoption by the State Water Control Board of the regulations pursuant to Acts 2016, cc. 68 and 758, cl. 9, whichever occurs later. For this section as in effect at that time, see the following section, also numbered 62.1-44.15:39 .

Editor’s note.

Acts 2013, cc. 756 and 793, cl. 5 provides: “That the transfer of the responsibility for administering the issuance and enforcement of national pollutant discharge elimination system permits for the control of stormwater discharges shall become effective on July 1, 2013, or upon the U.S. Environmental Protection Agency’s rescission of authorization for delegation of program authority to the Virginia Soil and Water Conservation Board, whichever occurs later.” Pursuant to a letter received from the Environmental Protection Agency on July 2, 2013, the transfer of responsibility from DCR to DEQ has been approved as required by this provision.

§ 62.1-44.15:39. (For effective date — see notes) Right of entry.

In addition to the Board’s authority set forth in § 62.1-44.20 , a locality serving as a VESMP authority or any duly authorized agent thereof may, at reasonable times and under reasonable circumstances, enter any establishment or upon any property, public or private, for the purpose of obtaining information or conducting surveys or investigations necessary in the enforcement of the provisions of this article. For localities that operate regulated municipal separate storm sewer systems, this authority shall apply only to those properties from which a discharge enters their municipal separate storm sewer systems.

In accordance with a performance bond with surety, cash escrow, letter of credit, any combination thereof, or such other legal arrangement, a VESMP authority may also enter any establishment or upon any property, public or private, for the purpose of initiating or maintaining appropriate actions that are required by conditions imposed by the VESMP authority on a land-disturbing activity when an owner, after proper notice, has failed to take acceptable action within the time specified.

History. 2004, c. 372, § 10.1-603.12:1; 2011, c. 453; 2012, cc. 785, 819; 2013, cc. 756, 793; 2016, cc. 68, 758.

Section set out twice.

The section above is effective July 1, 2018, or 30 days after the adoption by the State Water Control Board of the regulations pursuant to Acts 2016, cc. 68 and 758, cl. 9, whichever occurs later. For this section as in effect until that time, see the preceding section, also numbered 62.1-44.15:39 .

Editor’s note.

Acts 2016, cc. 68 and 758, cl. 9 provides: “That the State Water Control Board (the Board) shall adopt regulations to implement the requirements of this act. The adoption of such regulations shall be exempt from the requirements of Article 2 ( § 2.2-4006 et seq.) of the Administrative Process Act ( § 2.2-4000 et seq.) of the Code of Virginia. However, the Department shall (i) provide a Notice of Intended Regulatory Action, (ii) form a stakeholders advisory group, (iii) provide for a 60-day public comment period prior to the Board’s adoption of the regulations, and (iv) provide the Board with a written summary of comments received and responses to comments prior to the Board’s adoption of the regulations.”

Acts 2016, cc. 68 and 758, cl. 10, as amended by Acts 2017, c. 345, cl. 2, provides: “That the provisions of this act shall become effective July 1, 2018, or 30 days after the adoption by the State Water Control Board of the regulations required by the ninth enactment of this act, whichever occurs later.”

The 2016 amendments.

The 2016 amendments by cc. 68 and 758 are identical, and substituted “In addition to the Board’s authority set forth in § 62.1-44.20 , a locality serving as a VESMP authority or any duly authorized agent thereof” for “The Department, the VSMP authority, where authorized to enforce this article, any duly authorized agent of the Department or VSMP authority, or any locality that is the operator of a regulated municipal separate storm sewer system” in the first sentence and “localities that operate regulated” for “operators of,” in the second sentence; and in the second paragraph, substituted “VESMP” for “VSMP,” “conditions imposed by the VESMP authority on” for “the permit conditions associated with,” and “an owner” for “a permittee.” For effective date, see Editor’s note.

§ 62.1-44.15:40. (For expiration date — see notes) Information to be furnished.

The Board, the Department, or the VSMP authority, where authorized to enforce this article, may require every permit applicant, every permittee, or any person subject to state permit requirements under this article to furnish when requested such application materials, plans, specifications, and other pertinent information as may be necessary to determine the effect of his discharge on the quality of state waters, or such other information as may be necessary to accomplish the purposes of this article. Any personal information shall not be disclosed except to an appropriate official of the Board, Department, U.S. Environmental Protection Agency, or VSMP authority or as may be authorized pursuant to the Virginia Freedom of Information Act (§ 2.2-3700 et seq.). However, disclosure of records of the Department, the Board, or the VSMP authority relating to (i) active federal environmental enforcement actions that are considered confidential under federal law, (ii) enforcement strategies, including proposed sanctions for enforcement actions, and (iii) any secret formulae, secret processes, or secret methods other than effluent data used by any permittee or under that permittee’s direction is prohibited. Upon request, such enforcement records shall be disclosed after a proposed sanction resulting from the investigation has been determined by the Department, the Board, or the VSMP authority. This section shall not be construed to prohibit the disclosure of records related to inspection reports, notices of violation, and documents detailing the nature of any land-disturbing activity that may have occurred, or similar documents.

History. 2004, c. 372, § 10.1-603.12:2; 2005, c. 102; 2012, cc. 785, 819; 2013, cc. 756, 793.

Section set out twice.

The section above is effective until July 1, 2018, or 30 days after the adoption by the State Water Control Board of the regulations pursuant to Acts 2016, cc. 68 and 758, cl. 9, whichever occurs later. For this section as in effect at that time, see the following section, also numbered 62.1-44.15:40 .

Editor’s note.

Acts 2013, cc. 756 and 793, cl. 5 provides: “That the transfer of the responsibility for administering the issuance and enforcement of national pollutant discharge elimination system permits for the control of stormwater discharges shall become effective on July 1, 2013, or upon the U.S. Environmental Protection Agency’s rescission of authorization for delegation of program authority to the Virginia Soil and Water Conservation Board, whichever occurs later.” Pursuant to a letter received from the Environmental Protection Agency on July 2, 2013, the transfer of responsibility from DCR to DEQ has been approved as required by this provision.

§ 62.1-44.15:40. (For effective date — see notes) Information to be furnished.

The Board, the Department, or a locality serving as a VESMP authority may require every owner, including every applicant for a permit or land-disturbance approval, to furnish when requested such application materials, plans, specifications, and other pertinent information as may be necessary to determine the effect of his discharge on the quality of state waters, or such other information as may be necessary to accomplish the purposes of this article. The Board or Department also may require any locality that is a VESMP authority to furnish when requested any information as may be required to accomplish the purposes of this article. Any personal information shall not be disclosed except to an appropriate official of the Board, Department, U.S. Environmental Protection Agency, or VESMP authority or as may be authorized pursuant to the Virginia Freedom of Information Act (§ 2.2-3700 et seq.). However, disclosure of records of the Department, the Board, or the VESMP authority relating to (i) active federal environmental enforcement actions that are considered confidential under federal law, (ii) enforcement strategies, including proposed sanctions for enforcement actions, and (iii) any secret formulae, secret processes, or secret methods other than effluent data used by any owner or under that owner’s direction is prohibited. Upon request, such enforcement records shall be disclosed after a proposed sanction resulting from the investigation has been determined by the Board or the locality serving as a VESMP authority. This section shall not be construed to prohibit the disclosure of records related to inspection reports, notices of violation, and documents detailing the nature of any land-disturbing activity that may have occurred, or similar documents.

History. 2004, c. 372, § 10.1-603.12:2; 2005, c. 102; 2012, cc. 785, 819; 2013, cc. 756, 793; 2016, cc. 68, 758.

Section set out twice.

The section above is effective July 1, 2018, or 30 days after the adoption by the State Water Control Board of the regulations pursuant to Acts 2016, cc. 68 and 758, cl. 9, whichever occurs later. For this section as in effect until that time, see the preceding section, also numbered 62.1-44.15:40 .

Editor’s note.

Acts 2016, cc. 68 and 758, cl. 9 provides: “That the State Water Control Board (the Board) shall adopt regulations to implement the requirements of this act. The adoption of such regulations shall be exempt from the requirements of Article 2 ( § 2.2-4006 et seq.) of the Administrative Process Act ( § 2.2-4000 et seq.) of the Code of Virginia. However, the Department shall (i) provide a Notice of Intended Regulatory Action, (ii) form a stakeholders advisory group, (iii) provide for a 60-day public comment period prior to the Board’s adoption of the regulations, and (iv) provide the Board with a written summary of comments received and responses to comments prior to the Board’s adoption of the regulations.”

Acts 2016, cc. 68 and 758, cl. 10, as amended by Acts 2017, c. 345, cl. 2, provides: “That the provisions of this act shall become effective July 1, 2018, or 30 days after the adoption by the State Water Control Board of the regulations required by the ninth enactment of this act, whichever occurs later.”

The 2016 amendments.

The 2016 amendments by cc. 68 and 758 are identical, and substituted “a locality serving as a VESMP authority may require every owner, including every applicant for a permit or land-disturbance approval” for “the VSMP authority, where authorized to enforce this article, may require every permit applicant, every permittee, or any person subject to state permit requirements under this article” in the first sentence, added the second sentence, substituted “VESMP” for “VSMP” in the third and fourth sentences, substituted “owner” for “permittee” or a variant twice in the fourth sentence, and substituted “the Board or the locality serving as a VESMP authority” for “the Department, the Board, or the VSMP authority” in the fifth sentence. For effective date, see Editor’s note.

§ 62.1-44.15:41. (For expiration date — see notes) Private rights; liability.

  1. Whenever a common interest community cedes responsibility for the maintenance, repair, and replacement of a stormwater management facility on its real property to the Commonwealth or political subdivision thereof, such common interest community shall be immune from civil liability in relation to such stormwater management facility. In order for the immunity established by this subsection to apply, (i) the common interest community must cede such responsibility by contract or other instrument executed by both parties and (ii) the Commonwealth or the governing body of the political subdivision shall have accepted the responsibility ceded by the common interest community in writing or by resolution. As used in this section, maintenance, repair, and replacement shall include, without limitation, cleaning of the facility, maintenance of adjacent grounds that are part of the facility, maintenance and replacement of fencing where the facility is fenced, and posting of signage indicating the identity of the governmental entity that maintains the facility. Acceptance or approval of an easement, subdivision plat, site plan, or other plan of development shall not constitute the acceptance by the Commonwealth or the governing body of the political subdivision required to satisfy clause (ii). The immunity granted by this section shall not apply to actions or omissions by the common interest community constituting intentional or willful misconduct or gross negligence. For the purposes of this section, “common interest community” means the same as that term is defined in § 54.1-2345 .
  2. Except as provided in subsection A, the fact that any permittee holds or has held a permit or state permit issued under this article shall not constitute a defense in any civil action involving private rights.

History. 2004, c. 372, § 10.1-603.12:3; 2010, c. 853; 2012, cc. 785, 819; 2013, cc. 756, 793.

Section set out twice.

The section above is effective until July 1, 2018, or 30 days after the adoption by the State Water Control Board of the regulations pursuant to Acts 2016, cc. 68 and 758, cl. 9, whichever occurs later. For this section as in effect at that time, see the following section, also numbered 62.1-44.15:41 .

Editor’s note.

Acts 2013, cc. 756 and 793, cl. 5 provides: “That the transfer of the responsibility for administering the issuance and enforcement of national pollutant discharge elimination system permits for the control of stormwater discharges shall become effective on July 1, 2013, or upon the U.S. Environmental Protection Agency’s rescission of authorization for delegation of program authority to the Virginia Soil and Water Conservation Board, whichever occurs later.” Pursuant to a letter received from the Environmental Protection Agency on July 2, 2013, the transfer of responsibility from DCR to DEQ has been approved as required by this provision.

To conform to the recodification of Title 55 by Acts 2019, c. 712, effective October 1, 2019, the following substitution was made at the direction of the Virginia Code Commission: substituted “54.1-2345” for “55-528.”

Research References.

Virginia Forms (Matthew Bender). No. 16-819 Hazardous Materials.

§ 62.1-44.15:41. (For effective date — see notes) Liability of common interest communities.

Whenever a common interest community cedes responsibility for the maintenance, repair, and replacement of a stormwater management facility on its real property to the Commonwealth or political subdivision thereof, such common interest community shall be immune from civil liability in relation to such stormwater management facility. In order for the immunity established by this subsection to apply, (i) the common interest community must cede such responsibility by contract or other instrument executed by both parties and (ii) the Commonwealth or the governing body of the political subdivision shall have accepted the responsibility ceded by the common interest community in writing or by resolution. As used in this section, maintenance, repair, and replacement shall include, without limitation, cleaning of the facility, maintenance of adjacent grounds that are part of the facility, maintenance and replacement of fencing where the facility is fenced, and posting of signage indicating the identity of the governmental entity that maintains the facility. Acceptance or approval of an easement, subdivision plat, site plan, or other plan of development shall not constitute the acceptance by the Commonwealth or the governing body of the political subdivision required to satisfy clause (ii). The immunity granted by this section shall not apply to actions or omissions by the common interest community constituting intentional or willful misconduct or gross negligence. For the purposes of this section, “common interest community” means the same as that term is defined in § 54.1-2345 .

History. 2004, c. 372, § 10.1-603.12:3; 2010, c. 853; 2012, cc. 785, 819; 2013, cc. 756, 793; 2016, cc. 68, 758.

Section set out twice.

The section above is effective July 1, 2018, or 30 days after the adoption by the State Water Control Board of the regulations pursuant to Acts 2016, cc. 68 and 758, cl. 9, whichever occurs later. For this section as in effect until that time, see the preceding section, also numbered 62.1-44.15:41 .

Editor’s note.

Acts 2016, cc. 68 and 758, cl. 9 provides: “That the State Water Control Board (the Board) shall adopt regulations to implement the requirements of this act. The adoption of such regulations shall be exempt from the requirements of Article 2 ( § 2.2-4006 et seq.) of the Administrative Process Act ( § 2.2-4000 et seq.) of the Code of Virginia. However, the Department shall (i) provide a Notice of Intended Regulatory Action, (ii) form a stakeholders advisory group, (iii) provide for a 60-day public comment period prior to the Board’s adoption of the regulations, and (iv) provide the Board with a written summary of comments received and responses to comments prior to the Board’s adoption of the regulations.”

Acts 2016, cc. 68 and 758, cl. 10, as amended by Acts 2017, c. 345, cl. 2, provides: “That the provisions of this act shall become effective July 1, 2018, or 30 days after the adoption by the State Water Control Board of the regulations required by the ninth enactment of this act, whichever occurs later.”

The 2016 amendments.

The 2016 amendments by cc. 68 and 758 are identical, and deleted the subsection A designation and deleted subsection B, which read “Except as provided in subsection A, the fact that any permittee holds or has held a permit or state permit issued under this article shall not constitute a defense in any civil action involving private rights.” For effective date, see Editor’s note.

§ 62.1-44.15:42. (For repeal date — see notes) Enforcement by injunction, etc.

  1. It is unlawful for any person to fail to comply with any stop work order, emergency order issued in accordance with § 62.1-44.15:37 , or a special order or emergency special order issued in accordance with § 62.1-44.15:25 that has become final under the provisions of this article. Any person violating or failing, neglecting, or refusing to obey any rule, regulation, ordinance, approved standard and specification, order, or permit condition issued by the Board, Department, or VSMP authority as authorized to do such, or any provisions of this article, may be compelled in a proceeding instituted in any appropriate court by the Board, Department, or VSMP authority where authorized to enforce this article to obey same and to comply therewith by injunction, mandamus, or other appropriate remedy.
  2. Any person violating or failing, neglecting, or refusing to obey any injunction, mandamus, or other remedy obtained pursuant to this section shall be subject, in the discretion of the court, to a civil penalty in accordance with the provisions of § 62.1-44.15:48 .

History. 2004, c. 372, § 10.1-603.12:4; 2012, cc. 785, 819; 2013, cc. 756, 793.

Contingent repeal date. This section is repealed by Acts 2016, cc. 68 and 758, cl. 2, effective July 1, 2018, or 30 days after the adoption of regulations required by Acts 2016, cc. 68 and 758, cl. 9, whichever occurs later.

Editor’s note.

Acts 2013, cc. 756 and 793, cl. 5 provides: “That the transfer of the responsibility for administering the issuance and enforcement of national pollutant discharge elimination system permits for the control of stormwater discharges shall become effective on July 1, 2013, or upon the U.S. Environmental Protection Agency’s rescission of authorization for delegation of program authority to the Virginia Soil and Water Conservation Board, whichever occurs later.” Pursuant to a letter received from the Environmental Protection Agency on July 2, 2013, the transfer of responsibility from DCR to DEQ has been approved as required by this provision.

Acts 2016, cc. 68 and 758, cl. 9 provides: “That the State Water Control Board (the Board) shall adopt regulations to implement the requirements of this act. The adoption of such regulations shall be exempt from the requirements of Article 2 (§ 2.2-4006 et seq.) of the Administrative Process Act (§ 2.2-4000 et seq.) of the Code of Virginia. However, the Department shall (i) provide a Notice of Intended Regulatory Action, (ii) form a stakeholders advisory group, (iii) provide for a 60-day public comment period prior to the Board’s adoption of the regulations, and (iv) provide the Board with a written summary of comments received and responses to comments prior to the Board’s adoption of the regulations.”

Acts 2016, cc. 68 and 758, cl. 10, as amended by Acts 2017, c. 345, cl. 2, provides: “That the provisions of this act shall become effective July 1, 2018, or 30 days after the adoption by the State Water Control Board of the regulations required by the ninth enactment of this act, whichever occurs later.”

§ 62.1-44.15:43. (For repeal date — see notes) Testing validity of regulations; judicial review.

  1. The validity of any regulation adopted by the Board pursuant to this article may be determined through judicial review in accordance with the provisions of the Administrative Process Act (§ 2.2-4000 et seq.).
  2. An appeal may be taken from the decision of the court to the Court of Appeals as provided by law.

History. 2004, c. 372, § 10.1-603.12:5; 2013, cc. 756, 793.

Contingent repeal date. This section is repealed by Acts 2016, cc. 68 and 758, cl. 2, effective July 1, 2018, or 30 days after the adoption of regulations required by Acts 2016, cc. 68 and 758, cl. 9, whichever occurs later.

Editor’s note.

Acts 2013, cc. 756 and 793, cl. 5 provides: “That the transfer of the responsibility for administering the issuance and enforcement of national pollutant discharge elimination system permits for the control of stormwater discharges shall become effective on July 1, 2013, or upon the U.S. Environmental Protection Agency’s rescission of authorization for delegation of program authority to the Virginia Soil and Water Conservation Board, whichever occurs later.” Pursuant to a letter received from the Environmental Protection Agency on July 2, 2013, the transfer of responsibility from DCR to DEQ has been approved as required by this provision.

Acts 2016, cc. 68 and 758, cl. 9 provides: “That the State Water Control Board (the Board) shall adopt regulations to implement the requirements of this act. The adoption of such regulations shall be exempt from the requirements of Article 2 (§ 2.2-4006 et seq.) of the Administrative Process Act (§ 2.2-4000 et seq.) of the Code of Virginia. However, the Department shall (i) provide a Notice of Intended Regulatory Action, (ii) form a stakeholders advisory group, (iii) provide for a 60-day public comment period prior to the Board’s adoption of the regulations, and (iv) provide the Board with a written summary of comments received and responses to comments prior to the Board’s adoption of the regulations.”

Acts 2016, cc. 68 and 758, cl. 10, as amended by Acts 2017, c. 345, cl. 2, provides: “That the provisions of this act shall become effective July 1, 2018, or 30 days after the adoption by the State Water Control Board of the regulations required by the ninth enactment of this act, whichever occurs later.”

§ 62.1-44.15:44. (For repeal date — see notes) Right to hearing.

Any permit applicant, permittee, or person subject to state permit requirements under this article aggrieved by any action of the Department or Board taken without a formal hearing, or by inaction of the Department or Board, may demand in writing a formal hearing by the Board, provided a petition requesting such hearing is filed with the Board within 30 days after notice of such action.

History. 2004, c. 372, § 10.1-603.12:6; 2012, cc. 785, 819; 2013, cc. 756, 793; 2014, cc. 303, 598.

Contingent repeal date. This section is repealed by Acts 2016, cc. 68 and 758, cl. 2, effective July 1, 2018, or 30 days after the adoption of regulations required by Acts 2016, cc. 68 and 758, cl. 9, whichever occurs later.

Editor’s note.

Acts 2013, cc. 756 and 793, cl. 5 provides: “That the transfer of the responsibility for administering the issuance and enforcement of national pollutant discharge elimination system permits for the control of stormwater discharges shall become effective on July 1, 2013, or upon the U.S. Environmental Protection Agency’s rescission of authorization for delegation of program authority to the Virginia Soil and Water Conservation Board, whichever occurs later.” Pursuant to a letter received from the Environmental Protection Agency on July 2, 2013, the transfer of responsibility from DCR to DEQ has been approved as required by this provision.

Acts 2014, cc. 303 and 598, cl. 2 provides: “That amendments to regulations of the State Water Control Board necessary to implement the provisions of this act shall be exempt from the Administrative Process Act (§ 2.2-4000 et seq.), provided that there is a public comment period of at least 30 days on the proposed amendments prior to Board adoption.”

Acts 2014, cc. 303 and 598, cl. 3 provides: “That the consolidation into Virginia’s General Permit for Discharges of Stormwater from Construction Activities of state post-construction requirements exceeding minimum federal requirements shall not be construed to modify the scope of federal agency or citizen suit enforcement pursuant to the Clean Water Act (33 U.S.C. § 1251 et seq.).”

Acts 2016, cc. 68 and 758, cl. 9 provides: “That the State Water Control Board (the Board) shall adopt regulations to implement the requirements of this act. The adoption of such regulations shall be exempt from the requirements of Article 2 (§ 2.2-4006 et seq.) of the Administrative Process Act (§ 2.2-4000 et seq.) of the Code of Virginia. However, the Department shall (i) provide a Notice of Intended Regulatory Action, (ii) form a stakeholders advisory group, (iii) provide for a 60-day public comment period prior to the Board’s adoption of the regulations, and (iv) provide the Board with a written summary of comments received and responses to comments prior to the Board’s adoption of the regulations.”

Acts 2016, cc. 68 and 758, cl. 10, as amended by Acts 2017, c. 345, cl. 2, provides: “That the provisions of this act shall become effective July 1, 2018, or 30 days after the adoption by the State Water Control Board of the regulations required by the ninth enactment of this act, whichever occurs later.”

The 2014 amendments.

The 2014 amendments by c. 303, effective March 24, 2014, and c. 598, effective April 4, 2014, deleted “VSMP authority” twice preceding “Department or Board” and “or VSMP authority causing such grievance” following “by the Board,” and “or the VSMP authority” following “with the Board.”

§ 62.1-44.15:45. (For repeal date — see notes) Hearings.

When holding hearings under this article, the Board shall do so in a manner consistent with § 62.1-44.26 . A locality holding hearings under this article shall do so in a manner consistent with local hearing procedures.

History. 2004, c. 372, § 10.1-603.12:7; 2012, cc. 785, 819; 2013, cc. 756, 793; 2014, cc. 303, 598.

Contingent repeal date. This section is repealed by Acts 2016, cc. 68 and 758, cl. 2, effective July 1, 2018, or 30 days after the adoption of regulations required by Acts 2016, cc. 68 and 758, cl. 9, whichever occurs later.

Editor’s note.

Acts 2013, cc. 756 and 793, cl. 5 provides: “That the transfer of the responsibility for administering the issuance and enforcement of national pollutant discharge elimination system permits for the control of stormwater discharges shall become effective on July 1, 2013, or upon the U.S. Environmental Protection Agency’s rescission of authorization for delegation of program authority to the Virginia Soil and Water Conservation Board, whichever occurs later.” Pursuant to a letter received from the Environmental Protection Agency on July 2, 2013, the transfer of responsibility from DCR to DEQ has been approved as required by this provision.

Acts 2014, cc. 303 and 598, cl. 2 provides: “That amendments to regulations of the State Water Control Board necessary to implement the provisions of this act shall be exempt from the Administrative Process Act (§ 2.2-4000 et seq.), provided that there is a public comment period of at least 30 days on the proposed amendments prior to Board adoption.”

Acts 2014, cc. 303 and 598, cl. 3 provides: “That the consolidation into Virginia’s General Permit for Discharges of Stormwater from Construction Activities of state post-construction requirements exceeding minimum federal requirements shall not be construed to modify the scope of federal agency or citizen suit enforcement pursuant to the Clean Water Act (33 U.S.C. § 1251 et seq.).”

Acts 2016, cc. 68 and 758, cl. 9 provides: “That the State Water Control Board (the Board) shall adopt regulations to implement the requirements of this act. The adoption of such regulations shall be exempt from the requirements of Article 2 (§ 2.2-4006 et seq.) of the Administrative Process Act (§ 2.2-4000 et seq.) of the Code of Virginia. However, the Department shall (i) provide a Notice of Intended Regulatory Action, (ii) form a stakeholders advisory group, (iii) provide for a 60-day public comment period prior to the Board’s adoption of the regulations, and (iv) provide the Board with a written summary of comments received and responses to comments prior to the Board’s adoption of the regulations.”

Acts 2016, cc. 68 and 758, cl. 10, as amended by Acts 2017, c. 345, cl. 2, provides: “That the provisions of this act shall become effective July 1, 2018, or 30 days after the adoption by the State Water Control Board of the regulations required by the ninth enactment of this act, whichever occurs later.”

The 2014 amendments.

The 2014 amendments by cc. 303, effective March 24, 2014, and 598, effective April 4, 2014, are identical, and substituted “When” for “VSMP authorities,” inserted “the Board,” and added the last sentence.

§ 62.1-44.15:46. (For expiration date — see notes) Appeals.

Any permittee or party aggrieved by a state permit or enforcement decision of the Department or Board under this article, or any person who has participated, in person or by submittal of written comments, in the public comment process related to a final decision of the Department or Board under this article, whether such decision is affirmative or negative, is entitled to judicial review thereof in accordance with the provisions of the Administrative Process Act (§ 2.2-4000 et seq.) if such person meets the standard for obtaining judicial review of a case or controversy pursuant to Article III of the Constitution of the United States. A person shall be deemed to meet such standard if (i) such person has suffered an actual or imminent injury that is an invasion of a legally protected interest and that is concrete and particularized; (ii) such injury is fairly traceable to the decision of the Department or the Board and not the result of the independent action of some third party not before the court; and (iii) such injury will likely be redressed by a favorable decision by the court.

The provisions of the Administrative Process Act (§ 2.2-4000 et seq.) shall not apply to decisions rendered by localities. Appeals of decisions rendered by localities shall be conducted in accordance with local appeal procedures and shall include an opportunity for judicial review in the circuit court of the locality in which the land disturbance occurs or is proposed to occur. Unless otherwise provided by law, the circuit court shall conduct such review in accordance with the standards established in § 2.2-4027 , and the decisions of the circuit court shall be subject to review by the Court of Appeals, as in other cases under this article.

History. 1989, cc. 467, 499, § 10.1-603.13; 2004, c. 372; 2012, cc. 785, 819; 2013, cc. 756, 793; 2014, cc. 303, 598.

Section set out twice.

The section above is effective until July 1, 2018, or 30 days after the adoption by the State Water Control Board of the regulations pursuant to Acts 2016, cc. 68 and 758, cl. 9, whichever occurs later. For this section as in effect at that time, see the following section, also numbered 62.1-44.15:46 .

Editor’s note.

Acts 2013, cc. 756 and 793, cl. 5 provides: “That the transfer of the responsibility for administering the issuance and enforcement of national pollutant discharge elimination system permits for the control of stormwater discharges shall become effective on July 1, 2013, or upon the U.S. Environmental Protection Agency’s rescission of authorization for delegation of program authority to the Virginia Soil and Water Conservation Board, whichever occurs later.” Pursuant to a letter received from the Environmental Protection Agency on July 2, 2013, the transfer of responsibility from DCR to DEQ has been approved as required by this provision.

Acts 2014, cc. 303 and 598, cl. 2 provides: “That amendments to regulations of the State Water Control Board necessary to implement the provisions of this act shall be exempt from the Administrative Process Act ( § 2.2-4000 et seq.), provided that there is a public comment period of at least 30 days on the proposed amendments prior to Board adoption.”

Acts 2014, cc. 303 and 598, cl. 3 provides: “That the consolidation into Virginia’s General Permit for Discharges of Stormwater from Construction Activities of state post-construction requirements exceeding minimum federal requirements shall not be construed to modify the scope of federal agency or citizen suit enforcement pursuant to the Clean Water Act ( 33 U.S.C. § 1251 et seq.).”

The 2014 amendments.

The 2014 amendments by c. 303, effective March 24, 2014, and c. 598, effective April 4, 2014, are identical, and in the second paragraph substituted “Appeals of decisions rendered by localities” for “but appeals” and inserted the language beginning “and shall include an opportunity” to the end of the paragraph.

§ 62.1-44.15:46. (For effective date — see notes) Appeals.

Any permittee or party aggrieved by (i) a permit or permit enforcement decision of the Board under this article or (ii) a decision of the Board under this article concerning a land-disturbing activity in a locality subject to the Chesapeake Bay Preservation Act (§ 62.1-44.15:67 et seq.), or any person who has participated, in person or by submittal of written comments, in the public comment process related to such decision of the Board under this article, whether such decision is affirmative or negative, is entitled to judicial review thereof in accordance with § 62.1-44.29 . Appeals of other final decisions of the Board under this article shall be subject to judicial review in accordance with the provisions of the Administrative Process Act (§ 2.2-4000 et seq.).

A final decision by a locality, when serving as a VESMP authority, shall be subject to judicial review, provided that an appeal is filed in the appropriate court within 30 days from the date of any written decision adversely affecting the rights, duties, or privileges of the person engaging in or proposing to engage in a land-disturbing activity.

History. 1989, cc. 467, 499, § 10.1-603.13; 2004, c. 372; 2012, cc. 785, 819; 2013, cc. 756, 793; 2014, cc. 303, 598; 2016, cc. 68, 758.

Section set out twice.

The section above is effective July 1, 2018, or 30 days after the adoption by the State Water Control Board of the regulations pursuant to Acts 2016, cc. 68 and 758, cl. 9, whichever occurs later. For this section as in effect until that time, see the preceding section, also numbered 62.1-44.15:46 .

Editor’s note.

Acts 2016, cc. 68 and 758, cl. 9 provides: “That the State Water Control Board (the Board) shall adopt regulations to implement the requirements of this act. The adoption of such regulations shall be exempt from the requirements of Article 2 ( § 2.2-4006 et seq.) of the Administrative Process Act ( § 2.2-4000 et seq.) of the Code of Virginia. However, the Department shall (i) provide a Notice of Intended Regulatory Action, (ii) form a stakeholders advisory group, (iii) provide for a 60-day public comment period prior to the Board’s adoption of the regulations, and (iv) provide the Board with a written summary of comments received and responses to comments prior to the Board’s adoption of the regulations.”

Acts 2016, cc. 68 and 758, cl. 10, as amended by Acts 2017, c. 345, cl. 2, provides: “That the provisions of this act shall become effective July 1, 2018, or 30 days after the adoption by the State Water Control Board of the regulations required by the ninth enactment of this act, whichever occurs later.”

The 2016 amendments.

The 2016 amendments by cc. 68 and 758 are identical, and rewrote the section. For effective date, see Editor’s note.

§ 62.1-44.15:47. (For repeal date — see notes) Appeal to Court of Appeals.

From the final decision of the circuit court an appeal may be taken to the Court of Appeals as provided in § 17.1-405 .

History. 2004, c. 372, § 10.1-603.13:1; 2013, cc. 756, 793.

Contingent repeal date. This section is repealed by Acts 2016, cc. 68 and 758, cl. 2, effective July 1, 2018, or 30 days after the adoption of regulations required by Acts 2016, cc. 68 and 758, cl. 9, whichever occurs later.

Editor’s note.

Acts 2013, cc. 756 and 793, cl. 5 provides: “That the transfer of the responsibility for administering the issuance and enforcement of national pollutant discharge elimination system permits for the control of stormwater discharges shall become effective on July 1, 2013, or upon the U.S. Environmental Protection Agency’s rescission of authorization for delegation of program authority to the Virginia Soil and Water Conservation Board, whichever occurs later.” Pursuant to a letter received from the Environmental Protection Agency on July 2, 2013, the transfer of responsibility from DCR to DEQ has been approved as required by this provision.

Acts 2016, cc. 68 and 758, cl. 9 provides: “That the State Water Control Board (the Board) shall adopt regulations to implement the requirements of this act. The adoption of such regulations shall be exempt from the requirements of Article 2 (§ 2.2-4006 et seq.) of the Administrative Process Act (§ 2.2-4000 et seq.) of the Code of Virginia. However, the Department shall (i) provide a Notice of Intended Regulatory Action, (ii) form a stakeholders advisory group, (iii) provide for a 60-day public comment period prior to the Board’s adoption of the regulations, and (iv) provide the Board with a written summary of comments received and responses to comments prior to the Board’s adoption of the regulations.”

Acts 2016, cc. 68 and 758, cl. 10, as amended by Acts 2017, c. 345, cl. 2, provides: “That the provisions of this act shall become effective July 1, 2018, or 30 days after the adoption by the State Water Control Board of the regulations required by the ninth enactment of this act, whichever occurs later.”

§ 62.1-44.15:48. (For expiration date — see notes) Penalties, injunctions, and other legal actions.

  1. Any person who violates any provision of this article or of any regulation, ordinance, or standard and specification adopted or approved hereunder, including those adopted pursuant to the conditions of an MS4 permit, or who fails, neglects, or refuses to comply with any order of a VSMP authority authorized to enforce this article, the Department, the Board, or a court, issued as herein provided, shall be subject to a civil penalty not to exceed $32,500 for each violation within the discretion of the court. Each day of violation of each requirement shall constitute a separate offense. The Board shall adopt a regulation establishing a schedule of civil penalties to be utilized by the VSMP authority in enforcing the provisions of this article. The Board, Department, or VSMP authority may issue a summons for collection of the civil penalty and the action may be prosecuted in the appropriate court. Any civil penalties assessed by a court as a result of a summons issued by a locality as an approved VSMP authority shall be paid into the treasury of the locality wherein the land lies, except where the violator is the locality itself, or its agent. When the penalties are assessed by the court as a result of a summons issued by the Board or Department, or where the violator is the locality itself, or its agent, the court shall direct the penalty to be paid into the state treasury and deposited by the State Treasurer into the Virginia Stormwater Management Fund established pursuant to § 62.1-44.15:29 . Such civil penalties paid into the treasury of the locality in which the violation occurred are to be used for the purpose of minimizing, preventing, managing, or mitigating pollution of the waters of the locality and abating environmental pollution therein in such manner as the court may, by order, direct.
  2. Any person who willfully or negligently violates any provision of this article, any regulation or order of the Board, any order of a VSMP authority authorized to enforce this article or the Department, any ordinance of any locality approved as a VSMP authority, any condition of a permit or state permit, or any order of a court shall be guilty of a misdemeanor punishable by confinement in jail for not more than 12 months and a fine of not less than $2,500 nor more than $32,500, either or both. Any person who knowingly violates any provision of this article, any regulation or order of the Board, any order of the VSMP authority or the Department, any ordinance of any locality approved as a VSMP authority, any condition of a permit or state permit, or any order of a court issued as herein provided, or who knowingly makes any false statement in any form required to be submitted under this article or knowingly renders inaccurate any monitoring device or method required to be maintained under this article, shall be guilty of a felony punishable by a term of imprisonment of not less than one year nor more than three years, or in the discretion of the jury or the court trying the case without a jury, confinement in jail for not more than 12 months and a fine of not less than $5,000 nor more than $50,000 for each violation. Any defendant that is not an individual shall, upon conviction of a violation under this subsection, be sentenced to pay a fine of not less than $10,000. Each day of violation of each requirement shall constitute a separate offense.
  3. Any person who knowingly violates any provision of this article, and who knows at that time that he thereby places another person in imminent danger of death or serious bodily harm, shall, upon conviction, be guilty of a felony punishable by a term of imprisonment of not less than two years nor more than 15 years and a fine of not more than $250,000, either or both. A defendant that is not an individual shall, upon conviction of a violation under this subsection, be sentenced to pay a fine not exceeding the greater of $1 million or an amount that is three times the economic benefit realized by the defendant as a result of the offense. The maximum penalty shall be doubled with respect to both fine and imprisonment for any subsequent conviction of the same person under this subsection.
  4. Violation of any provision of this article may also include the following sanctions:
    1. The Board, Department, or the VSMP authority, where authorized to enforce this article, may apply to the appropriate court in any jurisdiction wherein the land lies to enjoin a violation or a threatened violation of the provisions of this article or of the local ordinance without the necessity of showing that an adequate remedy at law does not exist.
    2. With the consent of any person who has violated or failed, neglected, or refused to obey any ordinance, any condition of a permit or state permit, any regulation or order of the Board, any order of the VSMP authority or the Department, or any provision of this article, the Board, Department, or VSMP authority may provide, in an order issued against such person, for the payment of civil charges for violations in specific sums, not to exceed the limit specified in this section. Such civil charges shall be instead of any appropriate civil penalty that could be imposed under this section. Any civil charges collected shall be paid to the locality or state treasury pursuant to subsection A.

History. 1989, cc. 467, 499, § 10.1-603.14; 2004, c. 372; 2006, c. 171; 2012, cc. 785, 819; 2013, cc. 756, 793.

Section set out twice.

The section above is effective until July 1, 2018, or 30 days after the adoption by the State Water Control Board of the regulations pursuant to Acts 2016, cc. 68 and 758, cl. 9, whichever occurs later. For this section as in effect at that time, see the following section, also numbered 62.1-44.15:48 .

Editor’s note.

Acts 2013, cc. 756 and 793, cl. 5 provides: “That the transfer of the responsibility for administering the issuance and enforcement of national pollutant discharge elimination system permits for the control of stormwater discharges shall become effective on July 1, 2013, or upon the U.S. Environmental Protection Agency’s rescission of authorization for delegation of program authority to the Virginia Soil and Water Conservation Board, whichever occurs later.” Pursuant to a letter received from the Environmental Protection Agency on July 2, 2013, the transfer of responsibility from DCR to DEQ has been approved as required by this provision.

§ 62.1-44.15:48. (For effective date — see notes) Penalties, injunctions, and other legal actions.

  1. For a land-disturbing activity that disturbs 2,500 square feet or more of land in an area of a locality that is designated as a Chesapeake Bay Preservation Area pursuant to the Chesapeake Bay Preservation Act (§ 62.1-44.15:67 et seq.), or that disturbs one acre or more of land or is part of a larger common plan of development or sale that disturbs one acre or more of land anywhere else in the Commonwealth:
    1. Any person who violates any applicable provision of this article or of any regulation, permit, or standard and specification adopted or approved by the Board hereunder, or who fails, neglects, or refuses to comply with any order of the Board, or a court, issued as herein provided, shall be subject to a civil penalty pursuant to § 62.1-44.32 . The court shall direct that any penalty be paid into the state treasury and deposited by the State Treasurer into the Stormwater Local Assistance Fund established pursuant to § 62.1-44.15:29.1 .
    2. Any person who violates any applicable provision of this article, or any ordinance adopted pursuant to this article, including those adopted pursuant to the conditions of an MS4 permit, or any condition of a local land-disturbance approval, or who fails, neglects, or refuses to comply with any order of a locality serving as a VESMP authority or a court, issued as herein provided, shall be subject to a civil penalty not to exceed $32,500 for each violation within the discretion of the court. Each day of violation of each requirement shall constitute a separate offense. Such civil penalties shall be paid into the treasury of the locality in which the violation occurred and are to be used solely for stormwater management capital projects, including (i) new stormwater best management practices; (ii) stormwater best management practice maintenance, inspection, or retrofitting; (iii) stream restoration; (iv) low-impact development projects; (v) buffer restoration; (vi) pond retrofitting; and (vii) wetlands restoration.Where the violator is the locality itself, or its agent, the court shall direct the penalty to be paid into the state treasury and deposited by the State Treasurer into the Stormwater Local Assistance Fund established pursuant to § 62.1-44.15:29.1 .
  2. For a land-disturbing activity that disturbs an area measuring not less than 10,000 square feet but less than one acre in an area that is not designated as a Chesapeake Bay Preservation Area pursuant to the Chesapeake Bay Preservation Act (§ 62.1-44.15:67 et seq.) and is not part of a larger common plan of development or sale that disturbs one acre or more of land:
    1. Any person who violates any applicable provision of this article or of any regulation or order of the Board issued pursuant to this article, or any condition of a land-disturbance approval issued by the Board, or fails to obtain a required land-disturbance approval, shall be subject to a civil penalty not to exceed $5,000 for each violation with a limit of $50,000 within the discretion of the court in a civil action initiated by the Board. Each day during which the violation is found to have existed shall constitute a separate offense. In no event shall a series of specified violations arising from the same operative set of facts result in civil penalties that exceed a total of $50,000. The court shall direct the penalty to be paid into the state treasury and deposited by the State Treasurer into the Stormwater Local Assistance Fund established pursuant to § 62.1-44.15:29.1 .
    2. Any locality serving as a VESMP authority shall adopt an ordinance providing that a violation of any ordinance or provision of its program adopted pursuant to this article, or any condition of a land-disturbance approval, shall be subject to a civil penalty. Such ordinance shall provide that any person who violates any applicable provision of this article or any ordinance or order of a locality issued pursuant to this article, or any condition of a land-disturbance approval issued by the locality, or fails to obtain a required land-disturbance approval, shall be subject to a civil penalty not to exceed $5,000 for each violation with a limit of $50,000 within the discretion of the court in a civil action initiated by the locality. Each day during which the violation is found to have existed shall constitute a separate offense. In no event shall a series of specified violations arising from the same operative set of facts result in civil penalties that exceed a total of $50,000. Any civil penalties assessed by a court shall be paid into the treasury of the locality wherein the land lies and used pursuant to subdivision A 2, except that where the violator is the locality itself, or its agent, the court shall direct the penalty to be paid into the state treasury and deposited by the State Treasurer into the Stormwater Local Assistance Fund established pursuant to § 62.1-44.15:29.1 .
  3. The violation of any provision of this article may also result in the following sanctions:
    1. The Board may seek an injunction, mandamus, or other appropriate remedy pursuant to § 62.1-44.23 . A locality serving as a VESMP authority may apply to the appropriate court in any jurisdiction wherein the land lies to enjoin a violation or a threatened violation of the provisions of a local ordinance or order or the conditions of a local land-disturbance approval. Any person violating or failing, neglecting, or refusing to obey any injunction, mandamus, or other remedy obtained pursuant to this article shall be subject, in the discretion of the court, to a civil penalty that shall be assessed and used in accordance with the provisions of subsection A or B, as applicable.
    2. The Board or a locality serving as a VESMP authority may use the criminal provisions provided in § 62.1-44.32 .

History. 1989, cc. 467, 499, § 10.1-603.14; 2004, c. 372; 2006, c. 171; 2012, cc. 785, 819; 2013, cc. 756, 793; 2016, cc. 68, 758.

Section set out twice.

The section above is effective July 1, 2018, or 30 days after the adoption by the State Water Control Board of the regulations pursuant to Acts 2016, cc. 68 and 758, cl. 9, whichever occurs later. For this section as in effect until that time, see the preceding section, also numbered 62.1-44.15:48 .

Editor’s note.

Acts 2016, cc. 68 and 758, cl. 9 provides: “That the State Water Control Board (the Board) shall adopt regulations to implement the requirements of this act. The adoption of such regulations shall be exempt from the requirements of Article 2 ( § 2.2-4006 et seq.) of the Administrative Process Act ( § 2.2-4000 et seq.) of the Code of Virginia. However, the Department shall (i) provide a Notice of Intended Regulatory Action, (ii) form a stakeholders advisory group, (iii) provide for a 60-day public comment period prior to the Board’s adoption of the regulations, and (iv) provide the Board with a written summary of comments received and responses to comments prior to the Board’s adoption of the regulations.”

Acts 2016, cc. 68 and 758, cl. 10, as amended by Acts 2017, c. 345, cl. 2, provides: “That the provisions of this act shall become effective July 1, 2018, or 30 days after the adoption by the State Water Control Board of the regulations required by the ninth enactment of this act, whichever occurs later.”

The 2016 amendments.

The 2016 amendments by cc. 68 and 758 are identical, and rewrote section. For effective date, see Editor’s note.

§ 62.1-44.15:49. (For expiration date — see notes) Enforcement authority of MS4 localities.

  1. Localities shall adopt a stormwater ordinance pursuant to the conditions of a MS4 permit that is consistent with this article and its associated regulations and that contains provisions including the Virginia Stormwater Management Program (VSMP) General Permit for Discharges of Stormwater from Construction Activities and shall include additional provisions as required to comply with a state MS4 permit. Such locality may utilize the civil penalty provisions in subsection A of § 62.1-44.15:48 , the injunctive authority as provided for in subdivision D 1 of § 62.1-44.15:48 , and the civil charges as authorized in subdivision D 2 of § 62.1-44.15:48, to enforce the ordinance. At the request of another MS4, the locality may apply the penalties provided for in this section to direct or indirect discharges to any MS4 located within its jurisdiction.
  2. Any person who willfully and knowingly violates any provision of such an ordinance is guilty of a Class 1 misdemeanor.
  3. The local ordinance authorized by this section shall remain in full force and effect until the locality has been approved as a VSMP authority.

History. 2008, c. 13, § 10.1-603.14:1; 2012, cc. 785, 819; 2013, cc. 756, 793.

Section set out twice.

The section above is effective until July 1, 2018, or 30 days after the adoption by the State Water Control Board of the regulations pursuant to Acts 2016, cc. 68 and 758, cl. 9, whichever occurs later. For this section as in effect at that time, see the following section, also numbered 62.1-44.15:49 .

Editor’s note.

Acts 2013, cc. 756 and 793, cl. 5 provides: “That the transfer of the responsibility for administering the issuance and enforcement of national pollutant discharge elimination system permits for the control of stormwater discharges shall become effective on July 1, 2013, or upon the U.S. Environmental Protection Agency’s rescission of authorization for delegation of program authority to the Virginia Soil and Water Conservation Board, whichever occurs later.” Pursuant to a letter received from the Environmental Protection Agency on July 2, 2013, the transfer of responsibility from DCR to DEQ has been approved as required by this provision.

At the direction of the Virginia Code Commission, substituted “until the locality” for “at the locality” in subsection C.

Cross references.

As to punishment for Class 1 misdemeanors, see § 18.2-11 .

§ 62.1-44.15:49. (For effective date — see notes) Enforcement authority of MS4 localities.

Each locality subject to an MS4 permit shall adopt an ordinance to implement a municipal separate storm sewer system management program that is consistent with this chapter and that contains provisions as required to comply with an MS4 permit. Such locality may utilize the civil penalty provisions in subdivision A 2 of § 62.1-44.15:48 , the injunctive authority as provided for in subsection C of § 62.1-44.15:48 , the civil charges as authorized in § 62.1-44.15:25.1 , and the criminal provisions in § 62.1-44.32 , to enforce the ordinance. At the request of another MS4, the locality may apply the penalties provided for in this section to direct or indirect discharges to any MS4 located within its jurisdiction.

History. 2008, c. 13, § 10.1-603.14:1; 2012, cc. 785, 819; 2013, cc. 756, 793; 2016, cc. 68, 758.

Section set out twice.

The section above is effective July 1, 2018, or 30 days after the adoption by the State Water Control Board of the regulations pursuant to Acts 2016, cc. 68 and 758, cl. 9, whichever occurs later. For this section as in effect until that time, see the preceding section, also numbered 62.1-44.15:49 .

For this section as in effect until July 1, 2018, or 30 days after the adoption by the State Water Control Board of the regulations pursuant to Acts 2016, cc. 68 and 758, cl. 9, whichever occurs later, see the bound volume.

Editor’s note.

Acts 2016, cc. 68 and 758, cl. 9 provides: “That the State Water Control Board (the Board) shall adopt regulations to implement the requirements of this act. The adoption of such regulations shall be exempt from the requirements of Article 2 ( § 2.2-4006 et seq.) of the Administrative Process Act ( § 2.2-4000 et seq.) of the Code of Virginia. However, the Department shall (i) provide a Notice of Intended Regulatory Action, (ii) form a stakeholders advisory group, (iii) provide for a 60-day public comment period prior to the Board’s adoption of the regulations, and (iv) provide the Board with a written summary of comments received and responses to comments prior to the Board’s adoption of the regulations.”

Acts 2016, cc. 68 and 758, cl. 10, as amended by Acts 2017, c. 345, cl. 2, provides: “That the provisions of this act shall become effective July 1, 2018, or 30 days after the adoption by the State Water Control Board of the regulations required by the ninth enactment of this act, whichever occurs later.”

The 2016 amendments.

The 2016 amendments by cc. 68 and 758 are identical, and rewrote the section. For effective date, see Editor’s note.

§ 62.1-44.15:49.1. MS4 industrial and high-risk programs.

  1. Any locality that owns or operates a municipal separate storm sewer system that is subject to a discharge permit issued pursuant to this chapter shall have the authority to adopt and administer an industrial and high-risk runoff program for industrial and commercial facilities as part of its municipal separate storm sewer system management program.
  2. The Board shall not delegate to the locality the Board’s authority or responsibilities under the federal Clean Water Act (33 U.S.C. § 1251 et seq.) as to such industrial and commercial facilities.
  3. Unless it is required to do so by the adoption on or after January 1, 2018, of a federal regulation or an amendment to the federal Clean Water Act (33 U.S.C. § 1251 et seq.), the Board shall not impose upon the locality, by permit issuance or reissuance, any municipal separate storm sewer system permit condition requiring that (i) an industrial or commercial facility also subject to a permit issued by the Board under this chapter be included in the locality’s industrial and high-risk runoff program, (ii) any state discharge monitoring reports or other required reports submitted by such a facility to the Department also be reviewed or enforced by the locality, or (iii) the locality impose additional monitoring requirements on a facility that exceed or conflict with the requirements of any permit issued by the Board under this chapter. The limitation contained in this subsection shall not be cause for the Board or the locality to initiate a major or minor modification of any municipal separate storm sewer system permit that is in effect as of January 1, 2018, during the term of that permit.
  4. Notwithstanding the provisions of this section, the Board may, through a municipal separate storm sewer system permit that is issued to the locality, require a locality to refer any industrial or commercial facility to the Board or the Department if the locality becomes aware of a violation of any industrial stormwater management requirement contained in an individual or general Virginia Pollutant Discharge Elimination System permit issued to the facility pursuant to this chapter.

History. 2018, c. 152.

§ 62.1-44.15:50. (For expiration date — see notes) Cooperation with federal and state agencies.

A VSMP authority and the Department are authorized to cooperate and enter into agreements with any federal or state agency in connection with the requirements for land-disturbing activities for stormwater management.

History. 1989, cc. 467, 499, § 10.1-603.15; 2004, c. 372; 2012, cc. 785, 819; 2013, cc. 756, 793.

Section set out twice.

The section above is effective until July 1, 2018, or 30 days after the adoption by the State Water Control Board of the regulations pursuant to Acts 2016, cc. 68 and 758, cl. 9, whichever occurs later. For this section as in effect at that time, see the following section, also numbered 62.1-44.15:50 .

Editor’s note.

Acts 2013, cc. 756 and 793, cl. 5 provides: “That the transfer of the responsibility for administering the issuance and enforcement of national pollutant discharge elimination system permits for the control of stormwater discharges shall become effective on July 1, 2013, or upon the U.S. Environmental Protection Agency’s rescission of authorization for delegation of program authority to the Virginia Soil and Water Conservation Board, whichever occurs later.” Pursuant to a letter received from the Environmental Protection Agency on July 2, 2013, the transfer of responsibility from DCR to DEQ has been approved as required by this provision.

§ 62.1-44.15:50. (For effective date — see notes) Cooperation with federal and state agencies.

A VESMP authority and the Department are authorized to cooperate and enter into agreements with any federal or state agency in connection with the requirements for land-disturbing activities.

History. 1989, cc. 467, 499, § 10.1-603.15; 2004, c. 372; 2012, cc. 785, 819; 2013, cc. 756, 793; 2016, cc. 68, 758.

Section set out twice.

The section above is effective July 1, 2018, or 30 days after the adoption by the State Water Control Board of the regulations pursuant to Acts 2016, cc. 68 and 758, cl. 9, whichever occurs later. For this section as in effect until that time, see the preceding section, also numbered 62.1-44.15:50 .

Editor’s note.

Acts 2016, cc. 68 and 758, cl. 9 provides: “That the State Water Control Board (the Board) shall adopt regulations to implement the requirements of this act. The adoption of such regulations shall be exempt from the requirements of Article 2 ( § 2.2-4006 et seq.) of the Administrative Process Act ( § 2.2-4000 et seq.) of the Code of Virginia. However, the Department shall (i) provide a Notice of Intended Regulatory Action, (ii) form a stakeholders advisory group, (iii) provide for a 60-day public comment period prior to the Board’s adoption of the regulations, and (iv) provide the Board with a written summary of comments received and responses to comments prior to the Board’s adoption of the regulations.”

Acts 2016, cc. 68 and 758, cl. 10, as amended by Acts 2017, c. 345, cl. 2, provides: “That the provisions of this act shall become effective July 1, 2018, or 30 days after the adoption by the State Water Control Board of the regulations required by the ninth enactment of this act, whichever occurs later.”

The 2016 amendments.

The 2016 amendments by cc. 68 and 758 are identical, and substituted “VESMP” for “VSMP” and deleted “for stormwater management” from the end of the section. For effective date, see Editor’s note.

Article 2.4. Erosion and Sediment Control Law.

Editor’s note.

This article head has been amended by 2016, cc. 68 and 758 to read “Erosion and Sediment Control Law for Localities Not Administering a Virginia Erosion and Stormwater Management Program” effective on July 1, 2018, or 30 days after the adoption by the State Water Control Board of the regulations pursuant to Acts 2016, cc. 68 and 758, cl. 9, whichever occurs later.

§ 62.1-44.15:51. (For expiration date — see notes) Definitions.

As used in this article, unless the context requires a different meaning:

“Agreement in lieu of a plan” means a contract between the plan-approving authority and the owner that specifies conservation measures that must be implemented in the construction of a single-family residence; this contract may be executed by the plan-approving authority in lieu of a formal site plan.

“Applicant” means any person submitting an erosion and sediment control plan for approval or requesting the issuance of a permit, when required, authorizing land-disturbing activities to commence.

“Certified inspector” means an employee or agent of a VESCP authority who (i) holds a certificate of competence from the Board in the area of project inspection or (ii) is enrolled in the Board’s training program for project inspection and successfully completes such program within one year after enrollment.

“Certified plan reviewer” means an employee or agent of a VESCP authority who (i) holds a certificate of competence from the Board in the area of plan review, (ii) is enrolled in the Board’s training program for plan review and successfully completes such program within one year after enrollment, or (iii) is licensed as a professional engineer, architect, landscape architect, land surveyor pursuant to Article 1 (§ 54.1-400 et seq.) of Chapter 4 of Title 54.1, or professional soil scientist as defined in § 54.1-2200 .

“Certified program administrator” means an employee or agent of a VESCP authority who (i) holds a certificate of competence from the Board in the area of program administration or (ii) is enrolled in the Board’s training program for program administration and successfully completes such program within one year after enrollment.

“Department” means the Department of Environmental Quality.

“Director” means the Director of the Department of Environmental Quality.

“District” or “soil and water conservation district” means a political subdivision of the Commonwealth organized in accordance with the provisions of Article 3 (§ 10.1-506 et seq.) of Chapter 5 of Title 10.1.

“Erosion and sediment control plan” or “plan” means a document containing material for the conservation of soil and water resources of a unit or group of units of land. It may include appropriate maps, an appropriate soil and water plan inventory and management information with needed interpretations, and a record of decisions contributing to conservation treatment. The plan shall contain all major conservation decisions to ensure that the entire unit or units of land will be so treated to achieve the conservation objectives.

“Erosion impact area” means an area of land not associated with current land-disturbing activity but subject to persistent soil erosion resulting in the delivery of sediment onto neighboring properties or into state waters. This definition shall not apply to any lot or parcel of land of 10,000 square feet or less used for residential purposes or to shorelines where the erosion results from wave action or other coastal processes.

“Land-disturbing activity” means any man-made change to the land surface that may result in soil erosion from water or wind and the movement of sediments into state waters or onto lands in the Commonwealth, including, but not limited to, clearing, grading, excavating, transporting, and filling of land, except that the term shall not include:

  1. Minor land-disturbing activities such as home gardens and individual home landscaping, repairs, and maintenance work;
  2. Individual service connections;
  3. Installation, maintenance, or repair of any underground public utility lines when such activity occurs on an existing hard surfaced road, street, or sidewalk, provided the land-disturbing activity is confined to the area of the road, street, or sidewalk that is hard surfaced;
  4. Septic tank lines or drainage fields unless included in an overall plan for land-disturbing activity relating to construction of the building to be served by the septic tank system;
  5. Permitted surface or deep mining operations and projects, or oil and gas operations and projects conducted pursuant to Title 45.2;
  6. Tilling, planting, or harvesting of agricultural, horticultural, or forest crops, livestock feedlot operations, or as additionally set forth by the Board in regulation, including engineering operations as follows: construction of terraces, terrace outlets, check dams, desilting basins, dikes, ponds, ditches, strip cropping, lister furrowing, contour cultivating, contour furrowing, land drainage, and land irrigation; however, this exception shall not apply to harvesting of forest crops unless the area on which harvesting occurs is reforested artificially or naturally in accordance with the provisions of Chapter 11 (§ 10.1-1100 et seq.) of Title 10.1 or is converted to bona fide agricultural or improved pasture use as described in subsection B of § 10.1-1163;
  7. Repair or rebuilding of the tracks, rights-of-way, bridges, communication facilities, and other related structures and facilities of a railroad company;
  8. Agricultural engineering operations, including but not limited to the construction of terraces, terrace outlets, check dams, desilting basins, dikes, ponds not required to comply with the provisions of the Dam Safety Act (§ 10.1-604 et seq.), ditches, strip cropping, lister furrowing, contour cultivating, contour furrowing, land drainage, and land irrigation;
  9. Disturbed land areas of less than 10,000 square feet in size or 2,500 square feet in all areas of the jurisdictions designated as subject to the Chesapeake Bay Preservation Area Designation and Management Regulations; however, the governing body of the program authority may reduce this exception to a smaller area of disturbed land or qualify the conditions under which this exception shall apply;
  10. Installation of fence and sign posts or telephone and electric poles and other kinds of posts or poles;
  11. Shoreline erosion control projects on tidal waters when all of the land-disturbing activities are within the regulatory authority of and approved by local wetlands boards, the Marine Resources Commission, or the United States Army Corps of Engineers; however, any associated land that is disturbed outside of this exempted area shall remain subject to this article and the regulations adopted pursuant thereto; and
  12. Emergency work to protect life, limb, or property, and emergency repairs; however, if the land-disturbing activity would have required an approved erosion and sediment control plan, if the activity were not an emergency, then the land area disturbed shall be shaped and stabilized in accordance with the requirements of the VESCP authority. “Natural channel design concepts” means the utilization of engineering analysis and fluvial geomorphic processes to create, rehabilitate, restore, or stabilize an open conveyance system for the purpose of creating or recreating a stream that conveys its bankfull storm event within its banks and allows larger flows to access its bankfull bench and its floodplain. “Owner” means the owner or owners of the freehold of the premises or lesser estate therein, mortgagee or vendee in possession, assignee of rents, receiver, executor, trustee, lessee, or other person, firm, or corporation in control of a property. “Peak flow rate” means the maximum instantaneous flow from a given storm condition at a particular location. “Permittee” means the person to whom the local permit authorizing land-disturbing activities is issued or the person who certifies that the approved erosion and sediment control plan will be followed. “Person” means any individual, partnership, firm, association, joint venture, public or private corporation, trust, estate, commission, board, public or private institution, utility, cooperative, county, city, town, or other political subdivision of the Commonwealth, governmental body, including a federal or state entity as applicable, any interstate body, or any other legal entity. “Runoff volume” means the volume of water that runs off the land development project from a prescribed storm event. “Town” means an incorporated town. “Virginia Erosion and Sediment Control Program” or “VESCP” means a program approved by the Board that has been established by a VESCP authority for the effective control of soil erosion, sediment deposition, and nonagricultural runoff associated with a land-disturbing activity to prevent the unreasonable degradation of properties, stream channels, waters, and other natural resources and shall include such items where applicable as local ordinances, rules, permit requirements, annual standards and specifications, policies and guidelines, technical materials, and requirements for plan review, inspection, enforcement where authorized in this article, and evaluation consistent with the requirements of this article and its associated regulations.

    “Virginia Erosion and Sediment Control Program authority” or “VESCP authority” means an authority approved by the Board to operate a Virginia Erosion and Sediment Control Program. An authority may include a state entity, including the Department; a federal entity; a district, county, city, or town; or for linear projects subject to annual standards and specifications, electric, natural gas, and telephone utility companies, interstate and intrastate natural gas pipeline companies, railroad companies, or authorities created pursuant to § 15.2-5102 .

    “Water quality volume” means the volume equal to the first one-half inch of runoff multiplied by the impervious surface of the land development project.

History. 1973, c. 486, § 21-89.3; 1974, c. 265; 1977, c. 149; 1980, c. 305; 1988, cc. 690, 732, 891, § 10.1-560; 1990, c. 491; 1991, c. 469; 1992, c. 184; 1993, c. 925; 1994, c. 703; 2003, c. 423; 2004, c. 476; 2005, c. 107; 2006, c. 21; 2009, c. 309; 2012, cc. 785, 819; 2013, cc. 756, 793.

Section set out twice.

The section above is effective 30 days after the adoption by the State Water Control Board of the regulations pursuant to Acts 2016, cc. 68 and 758, cl. 9. For this section as in effect at that time, see the following section, also numbered 62.1-44.15:51 .

Editor’s note.

Acts 2013, cc. 756 and 793, recodified Article 4 ( § 10.1-560 et seq.) of Chapter 5 of Title 10.1, as Article 2.4 ( § 62.1-44.15:51 et seq.) of Chapter 3.1 of Title 62.1. In addition to revision by Acts 2013, cc. 756 and 793, Article 4 was also amended by other acts passed at the 2013 Session. As required by § 30-152, the Code Commission has incorporated the majority of these amendments into the new sections. Where appropriate, the historical citations to former sections have been added to corresponding new sections. Furthermore, annotations appearing under new sections were decided under corresponding former sections or under prior law where relevant. For tables of corresponding former and new sections, see the tables in Volume 10.

Acts 2013, cc. 756 and 793, cl. 5 provides: “That the transfer of the responsibility for administering the issuance and enforcement of national pollutant discharge elimination system permits for the control of stormwater discharges shall become effective on July 1, 2013, or upon the U.S. Environmental Protection Agency’s rescission of authorization for delegation of program authority to the Virginia Soil and Water Conservation Board, whichever occurs later.” Pursuant to a letter received from the Environmental Protection Agency on July 2, 2013, the transfer of responsibility from DCR to DEQ has been approved as required by this provision.

Acts 2013, cc. 756 and 793, cl. 6 provides: “Regulations of the regulatory boards served by (i) the Department of Labor and Industry pursuant to Title 40.1 and (ii) the Department of Professional and Occupational Regulation or the Department of Health Professions pursuant to Title 54.1 that are limited to reducing fees charged to regulants and applicants.”

Acts 2013, cc. 756 and 793, cl. 7 provides: “That the regulations adopted by the Virginia Soil and Water Conservation Board to administer and implement the Virginia Stormwater Management Act ( § 10.1-603.1 et seq. of the Code of Virginia), the Erosion and Sediment Control Law (§ 10.1- 560 et seq. of the Code of Virginia), and the Chesapeake Bay Preservation Act (§ 10.1- 2100 et seq. of the Code of Virginia) are transferred from the Virginia Soil and Water Conservation Board to the State Water Control Board, and the State Water Control Board may amend, modify, or delete provisions in these regulations in order to implement this act. Such regulations shall remain in full force and effect until altered, amended, or rescinded by the State Water Control Board.”

Acts 2013, cc. 756 and 793, cl. 8 provides: “That the initial actions of the State Water Control Board to adopt, with necessary amendments, the regulations implementing the programs being transferred by this act from the Virginia Soil and Water Conservation Board to the State Water Control Board shall be exempt from Article 2 ( § 2.2-4006 et seq.) of Chapter 40 of Title 2.2 of the Code of Virginia. After transfer of the programs, if the State Water Control Board determines that additional amendments to the regulations are necessary solely to enable implementation of the programs in accordance with this act, the regulatory actions necessary shall be exempt from Article 2 ( § 2.2-4006 et seq.) of Chapter 40 of Title 2.2 of the Code of Virginia, except that the Department of Environmental Quality shall provide an opportunity for public comment on the regulatory actions.”

Acts 2013, cc. 756 and 793, cl. 9 provides: “That any regulatory action initiated by the Virginia Soil and Water Conservation Board to amend the programs being transferred by this act may be continued by the State Water Control Board at the time of the program transfer and that the State Water Control Board shall act expeditiously to address all such actions.”

Acts 2013, cc. 756 and 793, cl. 10 provides: “That the full-time employees and the total maximum employment level employed in the administration of the programs being transferred by this act shall be transferred from the Department of Conservation and Recreation to the Department of Environmental Quality. The Department of Conservation and Recreation is directed to transfer to the Department of Environmental Quality all appropriations, including special funds, for programs identified for transfer by this act. The Department of Environmental Quality is authorized to hire additional staff to operate the programs transferred by this act.”

Acts 2013, cc. 756 and 793, cl. 11 provides: “That 30 days prior to (i) the transfer of any full-time employees and total maximum employment level employed in the administration of the programs being transferred by this act, the Secretary of Natural Resources shall report to the Chairs of the Senate Committee on Finance, the Senate Committee on Agriculture, Conservation and Natural Resources, the House Committee on Appropriations, and the House Committee on Agriculture, Chesapeake and Natural Resources on such transfers and (ii) the transfer of appropriations, including special funds, for programs identified for transfer in this act, the Secretary of Natural Resources shall report on such transfers. By December 1, 2013, the Secretary of Natural Resources shall also report on the process by which the Department of Environmental Quality will distribute funds to local soil and water conservation districts as provided for in § 319 of the federal Clean Water Act and § 6217 of the federal Coastal Zone Management Act.”

Acts 2013, cc. 756 and 793, cl. 12 provides: “That the Directors of the Departments of Environmental Quality and Conservation and Recreation, the Commissioner of Agriculture and Consumer Services, and members of the Senate Committee on Agriculture, Conservation and Natural Resources and the House Committee on Agriculture, Chesapeake and Natural Resources, appointed by their respective Chairs, shall convene public meetings throughout the Commonwealth to evaluate the role of soil and water conservation districts in providing effective delivery of water quality services and technical assistance. In their deliberations the representatives of the executive branch agencies and legislators shall:

“A. Discuss the provisions of this act and its implications and solicit comments from the public and affected parties;

“B. Determine the extent of the role soil and water conservation districts should play in providing assistance in delivery of water quality services for nonpoint source pollution management and providing technical assistance for such programs as erosion and sediment control and stormwater management; and

“C. Determine whether the mission of soil and water conservation districts is more effectively delivered under the current statutory framework or whether organizational changes would enhance the effectiveness and efficiency of the delivery of such services.”

Acts 2013, cc. 756 and 793, cl. 13 provides: “That guidance of the Department of Conservation and Recreation, the Virginia Soil and Water Conservation Board, and the former Chesapeake Bay Local Assistance Board relating to programs to be transferred by this act shall remain in effect until amended or repealed.”

Acts 2013, cc. 756 and 793, cl. 14 provides: “That the Secretary of Natural Resources, working with the Directors of the Departments of Environmental Quality and Conservation and Recreation, shall take steps to enhance collaboration and communication among the natural resources agencies to ensure the effective and efficient implementation of the Commonwealth’s water quality and soil and water conservation programs.”

Effective October 1, 2021, “Title 45.2” was substituted for “Title 45.1” to conform to the recodification of Title 45.1 by Acts 2021, Sp. Sess. I, c. 387, at the direction of the Virginia Code Commission.

Law Review.

For 2003/2004 survey of environmental law, see 39 U. Rich. L. Rev. 203 (2004).

OPINIONS OF THE ATTORNEY GENERAL

Stop work orders. —

Subsection C of § 10.1-566 provides for two distinct orders that may be issued to compel compliance with permit and plan approval requirements: (1) an initial order that applies only to land disturbing activities; and (2) a more restrictive second order encompassing all construction activities that may be issued for noncompliance with the first order. Further, building official lacks the authority to limit the scope of the second order once it is issued. See opinion of Attorney General to The Honorable James E. Edmunds, II, Member, House of Delegates, 10-052, 2010 Va. AG LEXIS 39 (7/30/10).

§ 62.1-44.15:51. (For effective date — see notes) Definitions.

As used in this article, unless the context requires a different meaning:

“Agreement in lieu of a plan” means a contract between the VESCP authority and the owner that specifies conservation measures that must be implemented in the construction of a single-family detached residential structure; this contract may be executed by the VESCP authority in lieu of a formal site plan.

“Applicant” means any person submitting an erosion and sediment control plan for approval in order to obtain authorization for land-disturbing activities to commence.

“Certified inspector” means an employee or agent of a VESCP authority who (i) holds a certification from the Board in the area of project inspection or (ii) is enrolled in the Board’s training program for project inspection and successfully completes such program within one year after enrollment.

“Certified plan reviewer” means an employee or agent of a VESCP authority who (i) holds a certification from the Board in the area of plan review, (ii) is enrolled in the Board’s training program for plan review and successfully completes such program within one year after enrollment, or (iii) is licensed as a professional engineer, architect, landscape architect, land surveyor pursuant to Article 1 (§ 54.1-400 et seq.) of Chapter 4 of Title 54.1, or professional soil scientist as defined in § 54.1-2200 .

“Certified program administrator” means an employee or agent of a VESCP authority who (i) holds a certification from the Board in the area of program administration or (ii) is enrolled in the Board’s training program for program administration and successfully completes such program within one year after enrollment.

“Department” means the Department of Environmental Quality.

“Director” means the Director of the Department of Environmental Quality.

“District” or “soil and water conservation district” means a political subdivision of the Commonwealth organized in accordance with the provisions of Article 3 (§ 10.1-506 et seq.) of Chapter 5 of Title 10.1.

“Erosion and sediment control plan” or “plan” means a document containing material for the conservation of soil and water resources of a unit or group of units of land. It may include appropriate maps, an appropriate soil and water plan inventory and management information with needed interpretations, and a record of decisions contributing to conservation treatment. The plan shall contain all major conservation decisions to ensure that the entire unit or units of land will be so treated to achieve the conservation objectives.

“Erosion impact area” means an area of land that is not associated with a current land-disturbing activity but is subject to persistent soil erosion resulting in the delivery of sediment onto neighboring properties or into state waters. This definition shall not apply to any lot or parcel of land of 10,000 square feet or less used for residential purposes or to shorelines where the erosion results from wave action or other coastal processes.

“Land disturbance” or “land-disturbing activity” means any man-made change to the land surface that may result in soil erosion or has the potential to change its runoff characteristics, including the clearing, grading, excavating, transporting, and filling of land.

“Natural channel design concepts” means the utilization of engineering analysis and fluvial geomorphic processes to create, rehabilitate, restore, or stabilize an open conveyance system for the purpose of creating or recreating a stream that conveys its bankfull storm event within its banks and allows larger flows to access its bankfull bench and its floodplain.

“Owner” means the same as provided in § 62.1-44.3 . For a land-disturbing activity that is regulated under this article, “owner” also includes the owner or owners of the freehold of the premises or lesser estate therein, mortgagee or vendee in possession, assignee of rents, receiver, executor, trustee, lessee, or other person, firm, or corporation in control of a property.

“Peak flow rate” means the maximum instantaneous flow from a given storm condition at a particular location.

“Person” means any individual, partnership, firm, association, joint venture, public or private corporation, trust, estate, commission, board, public or private institution, utility, cooperative, county, city, town, or other political subdivision of the Commonwealth, governmental body, including a federal or state entity as applicable, any interstate body, or any other legal entity.

“Runoff volume” means the volume of water that runs off the land development project from a prescribed storm event.

“Soil erosion” means the movement of soil by wind or water into state waters or onto lands in the Commonwealth.

“Town” means an incorporated town.

“Virginia Erosion and Sediment Control Program” or “VESCP” means a program approved by the Board that has been established by a VESCP authority for the effective control of soil erosion, sediment deposition, and nonagricultural runoff associated with a land-disturbing activity to prevent the unreasonable degradation of properties, stream channels, waters, and other natural resources and shall include such items where applicable as local ordinances, rules, policies and guidelines, technical materials, and requirements for plan review, inspection, and evaluation consistent with the requirements of this article.

“Virginia Erosion and Sediment Control Program authority” or “VESCP authority” means a locality approved by the Board to operate a Virginia Erosion and Sediment Control Program. A locality that has chosen not to establish a Virginia Erosion and Stormwater Management Program pursuant to subdivision B 3 of § 62.1-44.15:27 is required to become a VESCP authority in accordance with this article.

“Virginia Stormwater Management Program” or “VSMP” means a program established by the Board pursuant to § 62.1-44.15:27.1 on behalf of a locality on or after July 1, 2014, to manage the quality and quantity of runoff resulting from any land-disturbing activity that (i) disturbs one acre or more of land or (ii) disturbs less than one acre of land and is part of a larger common plan of development or sale that results in one acre or greater of land disturbance.

History. 1973, c. 486, § 21-89.3; 1974, c. 265; 1977, c. 149; 1980, c. 305; 1988, cc. 690, 732, 891, § 10.1-560; 1990, c. 491; 1991, c. 469; 1992, c. 184; 1993, c. 925; 1994, c. 703; 2003, c. 423; 2004, c. 476; 2005, c. 107; 2006, c. 21; 2009, c. 309; 2012, cc. 785, 819; 2013, cc. 756, 793; 2016, cc. 68, 758.

Section set out twice.

The section above is effective 30 days after the adoption by the State Water Control Board of the regulations pursuant to Acts 2016, cc. 68 and 758, cl. 9. For this section as in effect until that time, see the preceding section, also numbered 62.1-44.15:51 .

Editor’s note.

Acts 2016, cc. 68 and 758, cl. 9 provides: “That the State Water Control Board (the Board) shall adopt regulations to implement the requirements of this act. The adoption of such regulations shall be exempt from the requirements of Article 2 ( § 2.2-4006 et seq.) of the Administrative Process Act ( § 2.2-4000 et seq.) of the Code of Virginia. However, the Department shall (i) provide a Notice of Intended Regulatory Action, (ii) form a stakeholders advisory group, (iii) provide for a 60-day public comment period prior to the Board’s adoption of the regulations, and (iv) provide the Board with a written summary of comments received and responses to comments prior to the Board’s adoption of the regulations.”

Acts 2016, cc. 68 and 758, cl. 10, as amended by Acts 2017, c. 345, cl. 2, provides: “That the provisions of this act shall become effective July 1, 2018, or 30 days after the adoption by the State Water Control Board of the regulations required by the ninth enactment of this act, whichever occurs later.”

The 2016 amendments.

The 2016 amendments by cc. 68 and 758 are identical, and rewrote the section. For effective date, see Editor’s note.

§ 62.1-44.15:51.1. (For effective date — see notes) Applicability.

The requirements of this article shall apply in any locality that has chosen not to establish a Virginia Erosion and Stormwater Management Program (VESMP) pursuant to subdivision B 3 of § 62.1-44.15:27 . Each such locality shall be required to adopt and administer a Board-approved VESCP.

History. 2016, cc. 68, 758.

Editor’s note.

Acts 2016, cc. 68 and 758, cl. 9 provides: “That the State Water Control Board (the Board) shall adopt regulations to implement the requirements of this act. The adoption of such regulations shall be exempt from the requirements of Article 2 (§ 2.2-4006 et seq.) of the Administrative Process Act (§ 2.2-4000 et seq.) of the Code of Virginia. However, the Department shall (i) provide a Notice of Intended Regulatory Action, (ii) form a stakeholders advisory group, (iii) provide for a 60-day public comment period prior to the Board’s adoption of the regulations, and (iv) provide the Board with a written summary of comments received and responses to comments prior to the Board’s adoption of the regulations.”

Acts 2016, cc. 68 and 758, cl. 10, as amended by Acts 2017, c. 345, cl. 2, provides: “That the provisions of this act shall become effective July 1, 2018, or 30 days after the adoption by the State Water Control Board of the regulations required by the ninth enactment of this act, whichever occurs later.”

§ 62.1-44.15:52. (For expiration date — see notes) Virginia Erosion and Sediment Control Program.

  1. The Board shall develop a program and adopt regulations in accordance with the Administrative Process Act (§ 2.2-4000 et seq.) for the effective control of soil erosion, sediment deposition, and nonagricultural runoff that shall be met in any control program to prevent the unreasonable degradation of properties, stream channels, waters, and other natural resources. Stream restoration and relocation projects that incorporate natural channel design concepts are not man-made channels and shall be exempt from any flow rate capacity and velocity requirements for natural or man-made channels as defined in any regulations promulgated pursuant to this section or § 62.1-44.15:54 or 62.1-44.15:65 . Any plan approved prior to July 1, 2014, that provides for stormwater management that addresses any flow rate capacity and velocity requirements for natural or man-made channels shall satisfy the flow rate capacity and velocity requirements for natural or man-made channels if the practices are designed to (i) detain the water quality volume and to release it over 48 hours; (ii) detain and release over a 24-hour period the expected rainfall resulting from the one-year, 24-hour storm; and (iii) reduce the allowable peak flow rate resulting from the 1.5-year, two-year, and 10-year, 24-hour storms to a level that is less than or equal to the peak flow rate from the site assuming it was in a good forested condition, achieved through multiplication of the forested peak flow rate by a reduction factor that is equal to the runoff volume from the site when it was in a good forested condition divided by the runoff volume from the site in its proposed condition, and shall be exempt from any flow rate capacity and velocity requirement for natural or man-made channels as defined in regulations promulgated pursuant to § 62.1-44.15:54 or 62.1-44.15:65 . For plans approved on and after July 1, 2014, the flow rate capacity and velocity requirements of this subsection shall be satisfied by compliance with water quantity requirements in the Stormwater Management Act (§ 62.1-44.15:24 et seq.) and attendant regulations, unless such land-disturbing activities (a) are in accordance with the grandfathering or time limits on applicability of approved design criteria provisions of the Virginia Stormwater Management Program (VSMP) Regulations, in which case the flow rate capacity and velocity requirements of this subsection shall apply, or (b) are exempt pursuant to subdivision C 7 of § 62.1-44.15:34 .The regulations shall:
    1. Be based upon relevant physical and developmental information concerning the watersheds and drainage basins of the Commonwealth, including, but not limited to, data relating to land use, soils, hydrology, geology, size of land area being disturbed, proximate water bodies and their characteristics, transportation, and public facilities and services;
    2. Include such survey of lands and waters as may be deemed appropriate by the Board or required by any applicable law to identify areas, including multijurisdictional and watershed areas, with critical erosion and sediment problems; and
    3. Contain conservation standards for various types of soils and land uses, which shall include criteria, techniques, and methods for the control of erosion and sediment resulting from land-disturbing activities.
  2. The Board shall provide technical assistance and advice to, and conduct and supervise educational programs for VESCP authorities.
  3. The Board shall adopt regulations establishing minimum standards of effectiveness of erosion and sediment control programs, and criteria and procedures for reviewing and evaluating the effectiveness of VESCPs. In developing minimum standards for program effectiveness, the Board shall consider information and standards on which the regulations promulgated pursuant to subsection A are based.
  4. The Board shall approve VESCP authorities and shall periodically conduct a comprehensive program compliance review and evaluation to ensure that all VESCPs operating under the jurisdiction of this article meet minimum standards of effectiveness in controlling soil erosion, sediment deposition, and nonagricultural runoff. The Department shall develop a schedule for conducting periodic reviews and evaluations of the effectiveness of VESCPs unless otherwise directed by the Board. Such reviews where applicable shall be coordinated with those being implemented in accordance with the Stormwater Management Act (§ 62.1-44.15:24 et seq.) and associated regulations and the Chesapeake Bay Preservation Act (§ 62.1-44.15:67 et seq.) and associated regulations. The Department may also conduct a comprehensive or partial program compliance review and evaluation of a VESCP at a greater frequency than the standard schedule.
  5. The Board shall issue certificates of competence concerning the content, application, and intent of specified subject areas of this article and accompanying regulations, including program administration, plan review, and project inspection, to personnel of program authorities and to any other persons who have completed training programs or in other ways demonstrated adequate knowledge. The Department shall administer education and training programs for specified subject areas of this article and accompanying regulations, and is authorized to charge persons attending such programs reasonable fees to cover the costs of administering the programs. Such education and training programs shall also contain expanded components to address plan review and project inspection elements of the Stormwater Management Act (§ 62.1-44.15:24 et seq.) and attendant regulations in accordance with § 62.1-44.15:30 .
  6. Department personnel conducting inspections pursuant to this article shall hold a certificate of competence as provided in subsection E.

History. 1973, c. 486, § 21-89.4; 1988, cc. 732, 891, § 10.1-561; 1993, c. 925; 2004, c. 431; 2005, c. 107; 2006, c. 21; 2012, cc. 785, 819; 2013, cc. 756, 793; 2015, c. 497; 2016, c. 66.

Section set out twice.

The section above is effective until July 1, 2018, or 30 days after the adoption by the State Water Control Board of the regulations pursuant to Acts 2016, cc. 68 and 758, cl. 9, whichever occurs later. For this section as in effect at that time, see the following section, also numbered 62.1-44.15:52 .

The 2015 amendments.

The 2015 amendment by c. 497 inserted “or exempt pursuant to subdivision C 7 of § 62.1-44.15:34 ” at the end of the first paragraph of subsection A.

The 2016 amendments.

The 2016 amendment by c. 66, in the introductory paragraph of subsection A, inserted “(a)” and “or time limits on applicability of approved design criteria” and substituted “Regulations, in which case the flow rate capacity and velocity requirements of this subsection shall apply, or (b) are” for “Permit Regulations or” in the last sentence.

OPINIONS OF THE ATTORNEY GENERAL

Stop work orders. —

Subsection C of § 10.1-566 provides for two distinct orders that may be issued to compel compliance with permit and plan approval requirements: (1) an initial order that applies only to land disturbing activities, and (2) a more restrictive second order encompassing all construction activities that may be issued for noncompliance with the first order. Further, building official lacks the authority to limit the scope of the second order once it is issued. See opinion of Attorney General to The Honorable James E. Edmunds, II, Member, House of Delegates, 10-052, 2010 Va. AG LEXIS 39 (7/30/10).

§ 62.1-44.15:52. (For effective date — see notes) Virginia Erosion and Sediment Control Program.

  1. The Board shall develop a program and adopt regulations in accordance with the Administrative Process Act (§ 2.2-4000 et seq.) for the effective control of soil erosion, sediment deposition, and nonagricultural runoff that shall be met in any control program to prevent the unreasonable degradation of properties, stream channels, waters, and other natural resources. Stream restoration and relocation projects that incorporate natural channel design concepts are not man-made channels and shall be exempt from any flow rate capacity and velocity requirements for natural or man-made channels as defined in any regulations promulgated pursuant to this section or § 62.1-44.15:54 or 62.1-44.15:65 . Any plan approved prior to July 1, 2014, that provides for stormwater management that addresses any flow rate capacity and velocity requirements for natural or man-made channels shall satisfy the flow rate capacity and velocity requirements for natural or man-made channels if the practices are designed to (i) detain the water volume equal to the first one-half inch of runoff multiplied by the impervious surface of the land development project and to release it over 48 hours; (ii) detain and release over a 24-hour period the expected rainfall resulting from the one-year, 24-hour storm; and (iii) reduce the allowable peak flow rate resulting from the 1.5-year, two-year, and 10-year, 24-hour storms to a level that is less than or equal to the peak flow rate from the site assuming it was in a good forested condition, achieved through multiplication of the forested peak flow rate by a reduction factor that is equal to the runoff volume from the site when it was in a good forested condition divided by the runoff volume from the site in its proposed condition, and shall be exempt from any flow rate capacity and velocity requirement for natural or man-made channels as defined in regulations promulgated pursuant to § 62.1-44.15:54 or 62.1-44.15:65 . For plans approved on and after July 1, 2014, the flow rate capacity and velocity requirements of this subsection shall be satisfied by compliance with water quantity requirements in the Virginia Erosion and Stormwater Management Act (§ 62.1-44.15:24 et seq.) and attendant regulations unless such land-disturbing activities (a) are in accordance with the grandfathering or time limits on applicability of approved design criteria provisions of the Virginia Erosion and Stormwater Management Program (VESMP) Regulations, in which case the flow rate capacity and velocity requirements of this subsection shall apply, or (b) are exempt pursuant to subdivision G 2 of § 62.1-44.15:34 .The regulations shall:
    1. Be based upon relevant physical and developmental information concerning the watersheds and drainage basins of the Commonwealth, including, but not limited to, data relating to land use, soils, hydrology, geology, size of land area being disturbed, proximate water bodies and their characteristics, transportation, and public facilities and services;
    2. Include such survey of lands and waters as may be deemed appropriate by the Board or required by any applicable law to identify areas, including multijurisdictional and watershed areas, with critical erosion and sediment problems; and
    3. Contain conservation standards for various types of soils and land uses, which shall include criteria, techniques, and methods for the control of erosion and sediment resulting from land-disturbing activities.
  2. The Board shall provide technical assistance and advice to, and conduct and supervise educational programs for VESCP authorities.
  3. The Board shall adopt regulations establishing minimum standards of effectiveness of erosion and sediment control programs, and criteria and procedures for reviewing and evaluating the effectiveness of VESCPs. In developing minimum standards for program effectiveness, the Board shall consider information and standards on which the regulations promulgated pursuant to subsection A are based.
  4. The Board shall approve VESCP authorities and shall periodically conduct a comprehensive program compliance review and evaluation pursuant to subdivision (19) of § 62.1-44.15 .
  5. The Board shall issue certifications concerning the content, application, and intent of specified subject areas of this article and accompanying regulations, including program administration, plan review, and project inspection, to personnel of program authorities and to any other persons who have completed training programs or in other ways demonstrated adequate knowledge. The Department shall administer education and training programs for specified subject areas of this article and accompanying regulations, and is authorized to charge persons attending such programs reasonable fees to cover the costs of administering the programs. Such education and training programs shall also contain expanded components to address plan review and project inspection elements of the Virginia Erosion and Stormwater Management Act (§ 62.1-44.15:24 et seq.) in accordance with § 62.1-44.15:30 .
  6. Department personnel conducting inspections pursuant to this article shall hold a certification as provided in subsection E.

History. 1973, c. 486, § 21-89.4; 1988, cc. 732, 891, § 10.1-561; 1993, c. 925; 2004, c. 431; 2005, c. 107; 2006, c. 21; 2012, cc. 785, 819; 2013, cc. 756, 793; 2015, c. 497; 2016, cc. 66, 68, 758.

Section set out twice.

The section above is effective July 1, 2018, or 30 days after the adoption by the State Water Control Board of the regulations pursuant to Acts 2016, cc. 68 and 758, cl. 9, whichever occurs later. For this section as in effect until that time, see the preceding section, also numbered 62.1-44.15:52 .

Editor’s note.

Acts 2016, cc. 68 and 758, cl. 9 provides: “That the State Water Control Board (the Board) shall adopt regulations to implement the requirements of this act. The adoption of such regulations shall be exempt from the requirements of Article 2 ( § 2.2-4006 et seq.) of the Administrative Process Act ( § 2.2-4000 et seq.) of the Code of Virginia. However, the Department shall (i) provide a Notice of Intended Regulatory Action, (ii) form a stakeholders advisory group, (iii) provide for a 60-day public comment period prior to the Board’s adoption of the regulations, and (iv) provide the Board with a written summary of comments received and responses to comments prior to the Board’s adoption of the regulations.”

Acts 2016, cc. 68 and 758, cl. 10, as amended by Acts 2017, c. 345, cl. 2, provides: “That the provisions of this act shall become effective July 1, 2018, or 30 days after the adoption by the State Water Control Board of the regulations required by the ninth enactment of this act, whichever occurs later.”

The 2016 amendments.

The 2016 amendments by cc. 68 and 758 are identical, and in subsection A, deleted “quality” following “detain the water”; substituted “volume equal to the first one-half inch of runoff multiplied by the impervious surface of the land development project” for “quality volume” in clause (i); inserted “Virginia Erosion and” preceding “Stormwater Management Act,” “Erosion and” before “Stormwater Management Program” and substituted “(VESMP)” for “(VSMP) Permit,” and “G 2” for “C 7”; in subsection D, substituted “pursuant to subdivision (19) of § 62.1-44.15 ” for “to ensure that all VESCPs operating under the jurisdiction of this article meet minimum standards of effectiveness in controlling soil erosion, sediment deposition, and nonagricultural runoff. The Department shall develop a schedule for conducting periodic reviews and evaluations of the effectiveness of VESCPs unless otherwise directed by the Board. Such reviews where applicable shall be coordinated with those being implemented in accordance with the Stormwater Management Act (§ 62.1-44.15:24 et seq.) and associated regulations and the Chesapeake Bay Preservation Act (§ 62.1-44.15:67 et seq.) and associated regulations. The Department may also conduct a comprehensive or partial program compliance review and evaluation of a VESCP at a greater frequency than the standard schedule”; in subsection E, substituted “certifications” for “certificates of competence,” inserted “Virginia Erosion and” and deleted “and attendant regulations” preceding “in accordance with § 62.1-44.15 :30”; and in subsection F, substituted “certification” for “certificate of competence.” For effective date, see Editor’s note.

§ 62.1-44.15:53. Certification of program personnel.

  1. The minimum standards of VESCP effectiveness established by the Board pursuant to subsection C of § 62.1-44.15:52 shall provide that (i) an erosion and sediment control plan shall not be approved until it is reviewed by a certified plan reviewer; (ii) inspections of land-disturbing activities shall be conducted by a certified inspector; and (iii) a VESCP shall contain a certified program administrator, a certified plan reviewer, and a certified project inspector, who may be the same person.
  2. Any person who holds a certificate of competence from the Board in the area of plan review, project inspection, or program administration that was attained prior to the adoption of the mandatory certification provisions of subsection A shall be deemed to satisfy the requirements of that area of certification.
  3. (For expiration date — see note)  Professionals registered in the Commonwealth pursuant to Article 1 (§ 54.1-400 et seq.) of Chapter 4 of Title 54.1 or a professional soil scientist as defined in § 54.1-2200 shall be deemed to satisfy the certification requirements for the purposes of renewals.

C. (For effective date — see notes) Professionals registered in the Commonwealth pursuant to Article 1 (§ 54.1-400 et seq.) of Chapter 4 of Title 54.1 or a professional soil scientist as defined in § 54.1-2200 shall be deemed to have met the provisions of this section for the purposes of renewals of certifications.

History. 1993, c. 925, § 10.1-561.1; 2012, cc. 785, 819; 2013, cc. 756, 793; 2016, cc. 68, 758.

Subsection C set out twice.

The first version of subsection C above is effective until July 1, 2018, or 30 days after the adoption by the State Water Control Board of the regulations pursuant to Acts 2016, cc. 68 and 758, cl. 9, whichever occurs later. The second version of subsection C, is effective July 1, 2018, or 30 days after the adoption by the State Water Control Board of the regulations pursuant to Acts 2016, cc. 68 and 758, cl. 9, whichever occurs later.

Editor’s note.

Acts 2016, cc. 68 and 758, cl. 9 provides: “That the State Water Control Board (the Board) shall adopt regulations to implement the requirements of this act. The adoption of such regulations shall be exempt from the requirements of Article 2 (§ 2.2-4006 et seq.) of the Administrative Process Act (§ 2.2-4000 et seq.) of the Code of Virginia. However, the Department shall (i) provide a Notice of Intended Regulatory Action, (ii) form a stakeholders advisory group, (iii) provide for a 60-day public comment period prior to the Board’s adoption of the regulations, and (iv) provide the Board with a written summary of comments received and responses to comments prior to the Board’s adoption of the regulations.”

Acts 2016, cc. 68 and 758, cl. 10, as amended by Acts 2017, c. 345, cl. 2, provides: “That the provisions of this act shall become effective July 1, 2018, or 30 days after the adoption by the State Water Control Board of the regulations required by the ninth enactment of this act, whichever occurs later.”

The 2016 amendments.

The 2016 amendments by cc. 68 and 758, in subsection C, substituted “have met the provisions of this section” for “satisfy the certification requirements”; and added “of certifications” to the end of the subsection. For effective date, see Editor’s note.

§ 62.1-44.15:54. (For expiration date — see notes) Establishment of Virginia Erosion and Sediment Control Program.

  1. Counties and cities shall adopt and administer a VESCP.Any town lying within a county that has adopted its own VESCP may adopt its own program or shall become subject to the county program. If a town lies within the boundaries of more than one county, the town shall be considered for the purposes of this article to be wholly within the county in which the larger portion of the town lies.
  2. A VESCP authority may enter into agreements or contracts with soil and water conservation districts, adjacent localities, or other public or private entities to assist with carrying out the provisions of this article, including the review and determination of adequacy of erosion and sediment control plans submitted for land-disturbing activities on a unit or units of land as well as for monitoring, reports, inspections, and enforcement where authorized in this article, of such land-disturbing activities.
  3. Any VESCP adopted by a county, city, or town shall be approved by the Board if it establishes by ordinance requirements that are consistent with this article and associated regulations.
  4. Each approved VESCP operated by a county, city, or town shall include provisions for the integration of the VESCP with Virginia stormwater management, flood insurance, flood plain management, and other programs requiring compliance prior to authorizing a land-disturbing activity in order to make the submission and approval of plans, issuance of permits, payment of fees, and coordination of inspection and enforcement activities more convenient and efficient both for the local governments and those responsible for compliance with the programs.
  5. The Board may approve a state entity, federal entity, or, for linear projects subject to annual standards and specifications, electric, natural gas, and telephone utility companies, interstate and intrastate natural gas pipeline companies, railroad companies, or authorities created pursuant to § 15.2-5102 to operate a VESCP consistent with the requirements of this article and its associated regulations and the VESCP authority’s Department-approved annual standards and specifications. For these programs, enforcement shall be administered by the Department and the Board where applicable in accordance with the provisions of this article.
  6. Following completion of a compliance review of a VESCP in accordance with subsection D of § 62.1-44.15:52 , the Department shall provide results and compliance recommendations to the Board in the form of a corrective action agreement if deficiencies are found; otherwise, the Board may find the program compliant. If a comprehensive or partial program compliance review conducted by the Department of a VESCP indicates that the VESCP authority has not administered, enforced where authorized to do so, or conducted its VESCP in a manner that satisfies the minimum standards of effectiveness established pursuant to subsection C of § 62.1-44.15:52 , the Board shall establish a schedule for the VESCP authority to come into compliance. The Board shall provide a copy of its decision to the VESCP authority that specifies the deficiencies, actions needed to be taken, and the approved compliance schedule required to attain the minimum standard of effectiveness and shall include an offer to provide technical assistance to implement the corrective action. If the VESCP authority has not implemented the necessary compliance actions identified by the Board within 30 days following receipt of the corrective action agreement, or such additional period as is granted to complete the implementation of the corrective action, then the Board shall have the authority to (i) issue a special order to any VESCP, imposing a civil penalty not to exceed $5,000 per day with the maximum amount not to exceed $20,000 per violation for noncompliance with the state program, to be paid into the state treasury and deposited in the Virginia Stormwater Management Fund established by § 62.1-44.15:29 or (ii) revoke its approval of the VESCP. The Administrative Process Act (§ 2.2-4000 et seq.) shall govern the activities and proceedings of the Board and the judicial review thereof.In lieu of issuing a special order or revoking the program, the Board is authorized to take legal action against a VESCP to ensure compliance.
  7. If the Board revokes its approval of the VESCP of a county, city, or town, and the locality is in a district, the district, upon approval of the Board, shall adopt and administer a VESCP for the locality. To carry out its program, the district shall adopt regulations in accordance with the Administrative Process Act (§ 2.2-4000 et seq.) consistent with this article and associated regulations. The regulations may be revised from time to time as necessary. The program and regulations shall be available for public inspection at the principal office of the district.
  8. If the Board (i) revokes its approval of a VESCP of a district, or of a county, city, or town not in a district, or (ii) finds that a local program consistent with this article and associated regulations has not been adopted by a district or a county, city, or town that is required to adopt and administer a VESCP, the Board shall find the VESCP authority provisional, and have the Department assist with the administration of the program until the Board finds the VESCP authority compliant with the requirements of this article and associated regulations. “Assisting with administration” includes but is not limited to the ability to review and comment on plans to the VESCP authority, to conduct inspections with the VESCP authority, and to conduct enforcement in accordance with this article and associated regulations.
  9. If the Board revokes its approval of a state entity, federal entity, or, for linear projects subject to annual standards and specifications, electric, natural gas, and telephone utility companies, interstate and intrastate natural gas pipeline companies, railroad companies, or authorities created pursuant to § 15.2-5102 , the Board shall find the VESCP authority provisional, and have the Department assist with the administration of the program until the Board finds the VESCP authority compliant with the requirements of this article and associated regulations. “Assisting with administration” includes the ability to review and comment on plans to the VESCP authority and to conduct inspections with the VESCP authority in accordance with this article and associated regulations.
  10. Any VESCP authority that administers an erosion and sediment control program may charge applicants a reasonable fee to defray the cost of program administration. Such fee may be in addition to any fee charged for administration of a Virginia Stormwater Management Program, although payment of fees may be consolidated in order to provide greater convenience and efficiency for those responsible for compliance with the programs. A VESCP authority shall hold a public hearing prior to establishing a schedule of fees. The fee shall not exceed an amount commensurate with the services rendered, taking into consideration the time, skill, and the VESCP authority’s expense involved.
  11. The governing body of any county, city, or town, or a district board that is authorized to administer a VESCP, may adopt an ordinance or regulation where applicable providing that violations of any regulation or order of the Board, any provision of its program, any condition of a permit, or any provision of this article shall be subject to a civil penalty. The civil penalty for any one violation shall be not less than $100 nor more than $1,000. Each day during which the violation is found to have existed shall constitute a separate offense. In no event shall a series of specified violations arising from the same operative set of facts result in civil penalties that exceed a total of $10,000, except that a series of violations arising from the commencement of land-disturbing activities without an approved plan for any site shall not result in civil penalties that exceed a total of $10,000. Adoption of such an ordinance providing that violations are subject to a civil penalty shall be in lieu of criminal sanctions and shall preclude the prosecution of such violation as a misdemeanor under subsection A of § 62.1-44.15:63 . The penalties set out in this subsection are also available to the Board in its enforcement actions.

History. 1973, c. 486, § 21-89.5; 1976, c. 653; 1978, c. 450; 1980, c. 35; 1983, c. 189; 1988, cc. 732, 891, § 10.1-562; 1992, c. 298; 1993, c. 925; 2005, c. 129; 2007, cc. 51, 204; 2010, c. 275; 2012, cc. 785, 819.2013, cc. 756, 793.

Section set out twice.

The section above is effective until July 1, 2018, or 30 days after the adoption by the State Water Control Board of the regulations pursuant to Acts 2016, cc. 68 and 758, cl. 9, whichever occurs later. For this section as in effect at that time, see the following section, also numbered 62.1-44.15:54 .

§ 62.1-44.15:54. (For effective date — see notes) Virginia Erosion and Sediment Control Program.

  1. Any locality that has chosen not to establish a Virginia Erosion and Stormwater Management Program (VESMP) pursuant to subdivision B 3 of § 62.1-44.15:27 shall administer a VESCP in accordance with this article; however, a town may enter into an agreement with a county to administer the town’s VESCP pursuant to subsection C of § 62.1-44.15:27 .
  2. A VESCP authority may enter into agreements or contracts with soil and water conservation districts, adjacent localities, or other public or private entities to assist with carrying out the provisions of this article, including the review and determination of adequacy of erosion and sediment control plans submitted for land-disturbing activities on a unit or units of land as well as for monitoring, reports, inspections, and enforcement of such land-disturbing activities.
  3. Any VESCP adopted by a county, city, or town shall be approved by the Board if it establishes by ordinance requirements that are consistent with this article and associated regulations.
  4. Each approved VESCP operated by a county, city, or town shall include provisions for the coordination of the VESCP with flood insurance, flood plain management, and other programs requiring compliance prior to authorizing a land-disturbing activity in order to make the submission and approval of plans, payment of fees, and coordination of inspection and enforcement activities more convenient and efficient both for the local governments and those responsible for compliance with the programs.
  5. The Board shall conduct compliance reviews of VESCPs in accordance with subdivision (19) of § 62.1-44.15 . The Board or Department also may require any locality that is a VESCP authority to furnish when requested any information as may be required to accomplish the purposes of this article.
  6. Any VESCP authority that administers an erosion and sediment control program may charge applicants a reasonable fee to defray the cost of program administration. A VESCP authority shall hold a public hearing prior to establishing a schedule of fees. The fee shall not exceed an amount commensurate with the services rendered, taking into consideration the time, skill, and the VESCP authority’s expense involved.
  7. Any locality that is authorized to administer a VESCP may adopt an ordinance or regulation where applicable providing that violations of any regulation or order of the Board, any provision of its program, any condition of a land-disturbance approval, or any provision of this article shall be subject to a civil penalty. The civil penalty for any one violation shall be not less than $100 nor more than $1,000. Each day during which the violation is found to have existed shall constitute a separate offense. In no event shall a series of specified violations arising from the same operative set of facts result in civil penalties that exceed a total of $10,000, except that a series of violations arising from the commencement of land-disturbing activities without an approved plan for any site shall not result in civil penalties that exceed a total of $10,000. The penalties set out in this subsection are also available to the Board in its enforcement actions.

History. 1973, c. 486, § 21-89.5; 1976, c. 653; 1978, c. 450; 1980, c. 35; 1983, c. 189; 1988, cc. 732, 891, § 10.1-562; 1992, c. 298; 1993, c. 925; 2005, c. 129; 2007, cc. 51, 204; 2010, c. 275; 2012, cc. 785, 819.2013, cc. 756, 793; 2016, cc. 68, 758.

Section set out twice.

The section above is effective July 1, 2018, or 30 days after the adoption by the State Water Control Board of the regulations pursuant to Acts 2016, cc. 68 and 758, cl. 9, whichever occurs later. For this section as in effect until that time, see the preceding section, also numbered 62.1-44.15:54 .

Editor’s note.

Acts 2016, cc. 68 and 758, cl. 9 provides: “That the State Water Control Board (the Board) shall adopt regulations to implement the requirements of this act. The adoption of such regulations shall be exempt from the requirements of Article 2 ( § 2.2-4006 et seq.) of the Administrative Process Act ( § 2.2-4000 et seq.) of the Code of Virginia. However, the Department shall (i) provide a Notice of Intended Regulatory Action, (ii) form a stakeholders advisory group, (iii) provide for a 60-day public comment period prior to the Board’s adoption of the regulations, and (iv) provide the Board with a written summary of comments received and responses to comments prior to the Board’s adoption of the regulations.”

Acts 2016, cc. 68 and 758, cl. 10, as amended by Acts 2017, c. 345, cl. 2, provides: “That the provisions of this act shall become effective July 1, 2018, or 30 days after the adoption by the State Water Control Board of the regulations required by the ninth enactment of this act, whichever occurs later.”

The 2016 amendments.

The 2016 amendments by cc. 68 and 758 are identical, and rewrote the section. For effective date, see Editor’s note.

§ 62.1-44.15:55. (For expiration date, see Acts 2016, cc. 68 and 758, as amended by Acts 2017, c. 345) Regulated land-disturbing activities; submission and approval of erosion and sediment control plan.

  1. Except as provided in § 62.1-44.15:56 for state agency and federal entity land-disturbing activities, no person shall engage in any land-disturbing activity until he has submitted to the VESCP authority an erosion and sediment control plan for the land-disturbing activity and the plan has been reviewed and approved. Upon the development of an online reporting system by the Department, but no later than July 1, 2014, a VESCP authority shall then be required to obtain evidence of Virginia Stormwater Management Program permit coverage where it is required prior to providing approval to begin land disturbance. Where land-disturbing activities involve lands under the jurisdiction of more than one VESCP, an erosion and sediment control plan may, at the request of one or all of the VESCP authorities, be submitted to the Department for review and approval rather than to each jurisdiction concerned. The Department may charge the jurisdictions requesting the review a fee sufficient to cover the cost associated with conducting the review. A VESCP may enter into an agreement with an adjacent VESCP regarding the administration of multijurisdictional projects whereby the jurisdiction that contains the greater portion of the project shall be responsible for all or part of the administrative procedures. Where the land-disturbing activity results from the construction of a single-family residence, an agreement in lieu of a plan may be substituted for an erosion and sediment control plan if executed by the VESCP authority.
  2. The VESCP authority shall review erosion and sediment control plans submitted to it and grant written approval within 60 days of the receipt of the plan if it determines that the plan meets the requirements of this article and the Board’s regulations and if the person responsible for carrying out the plan certifies that he will properly perform the erosion and sediment control measures included in the plan and shall comply with the provisions of this article. In addition, as a prerequisite to engaging in the land-disturbing activities shown on the approved plan, the person responsible for carrying out the plan shall provide the name of an individual holding a certificate of competence to the VESCP authority, as provided by § 62.1-44.15:52 , who will be in charge of and responsible for carrying out the land-disturbing activity. However, any VESCP authority may waive the certificate of competence requirement for an agreement in lieu of a plan for construction of a single-family residence. If a violation occurs during the land-disturbing activity, then the person responsible for carrying out the agreement in lieu of a plan shall correct the violation and provide the name of an individual holding a certificate of competence, as provided by § 62.1-44.15:52 . Failure to provide the name of an individual holding a certificate of competence prior to engaging in land-disturbing activities may result in revocation of the approval of the plan and the person responsible for carrying out the plan shall be subject to the penalties provided in this article.When a plan is determined to be inadequate, written notice of disapproval stating the specific reasons for disapproval shall be communicated to the applicant within 45 days. The notice shall specify the modifications, terms, and conditions that will permit approval of the plan. If no action is taken by the VESCP authority within the time specified in this subsection, the plan shall be deemed approved and the person authorized to proceed with the proposed activity. The VESCP authority shall act on any erosion and sediment control plan that has been previously disapproved within 45 days after the plan has been revised, resubmitted for approval, and deemed adequate.
  3. The VESCP authority may require changes to an approved plan in the following cases:
    1. Where inspection has revealed that the plan is inadequate to satisfy applicable regulations; or
    2. Where the person responsible for carrying out the approved plan finds that because of changed circumstances or for other reasons the approved plan cannot be effectively carried out, and proposed amendments to the plan, consistent with the requirements of this article and associated regulations, are agreed to by the VESCP authority and the person responsible for carrying out the plan.
  4. Electric, natural gas, and telephone utility companies, interstate and intrastate natural gas pipeline companies, and railroad companies shall, and authorities created pursuant to § 15.2-5102 may, file general erosion and sediment control standards and specifications annually with the Department for review and approval. Such standards and specifications shall be consistent with the requirements of this article and associated regulations and the Stormwater Management Act (§ 62.1-44.15:24 et seq.) and associated regulations where applicable. The specifications shall apply to:
    1. Construction, installation, or maintenance of electric transmission, natural gas, and telephone utility lines and pipelines, and water and sewer lines; and
    2. Construction of the tracks, rights-of-way, bridges, communication facilities, and other related structures and facilities of the railroad company.The Department shall have 60 days in which to approve the standards and specifications. If no action is taken by the Department within 60 days, the standards and specifications shall be deemed approved. Individual approval of separate projects within subdivisions 1 and 2 is not necessary when approved specifications are followed. Projects not included in subdivisions 1 and 2 shall comply with the requirements of the appropriate VESCP. The Board shall have the authority to enforce approved specifications and charge fees equal to the lower of (i) $1,000 or (ii) an amount sufficient to cover the costs associated with standard and specification review and approval, project inspections, and compliance.
  5. Any person engaging, in more than one jurisdiction, in the creation and operation of a wetland mitigation or stream restoration bank or banks, which have been approved and are operated in accordance with applicable federal and state guidance, laws, or regulations for the establishment, use, and operation of (i) wetlands mitigation or stream restoration banks, pursuant to a mitigation banking instrument signed by the Department of Environmental Quality, the Marine Resources Commission, or the U.S. Army Corps of Engineers, or (ii) a stream restoration project for purposes of reducing nutrients or sediment entering state waters may, at the option of that person, file general erosion and sediment control standards and specifications for wetland mitigation or stream restoration banks annually with the Department for review and approval consistent with guidelines established by the Board.The Department shall have 60 days in which to approve the specifications. If no action is taken by the Department within 60 days, the specifications shall be deemed approved. Individual approval of separate projects under this subsection is not necessary when approved specifications are implemented through a project-specific erosion and sediment control plan. Projects not included in this subsection shall comply with the requirements of the appropriate local erosion and sediment control program. The Board shall have the authority to enforce approved specifications and charge fees equal to the lower of (i) $1,000 or (ii) an amount sufficient to cover the costs associated with standard and specification review and approval, projection inspections, and compliance. Approval of general erosion and sediment control specifications by the Department does not relieve the owner or operator from compliance with any other local ordinances and regulations including requirements to submit plans and obtain permits as may be required by such ordinances and regulations.
  6. In order to prevent further erosion, a VESCP authority may require approval of an erosion and sediment control plan for any land identified by the VESCP authority as an erosion impact area.
  7. For the purposes of subsections A and B, when land-disturbing activity will be required of a contractor performing construction work pursuant to a construction contract, the preparation, submission, and approval of an erosion and sediment control plan shall be the responsibility of the owner.

History. 1973, c. 486, § 21-89.6; 1979, c. 432; 1988, cc. 732, 891, § 10.1-563; 1993, c. 925; 1999, c. 555; 2001, c. 490; 2003, cc. 827, 966; 2006, c. 466; 2008, c. 23; 2011, cc. 720, 721; 2012, cc. 785, 819; 2013, cc. 756, 793; 2018, c. 627.

Section set out twice.

The section above is effective until 30 days after the adoption by the State Water Control Board of the regulations pursuant to Acts 2016, cc. 68 and 758, cl. 9. For this section as in effect at that time, see the following section, also numbered 62.1-44.15:55 .

Editor’s note.

Acts 2018, c. 155, cl. 2 provides: “That the Department of Environmental Quality shall examine the possibility of expanding the use of the agreement in lieu of a stormwater management plan, as defined in § 62.1-44.15:24 of the Code of Virginia, as amended by this act, and as authorized for use in the construction of certain single-family residences by the State Water Control Law ( § 62.1-44.2 et seq. of the Code of Virginia), to include any nonresidential development site of less than one acre in any rural Tidewater locality, as defined in § 62.1-44.15:24 of the Code of Virginia, as amended by this act.”

Effective October 1, 2021, “Title 45.2” was substituted for “Title 45.1” to conform to the recodification of Title 45.1 by Acts 2021, Sp. Sess. I, c. 387, at the direction of the Virginia Code Commission.

The 2018 amendments.

The 2018 amendment by c. 627 inserted “(i)” and “or (ii) a stream restoration project for purposes of reducing nutrients or sediment entering state waters” in the first paragraph of subsection E.

CASE NOTES

Relation to other laws. —

Virginia’s certification under the Clean Water Act (CWA) that it had reasonable assurance that certain activities regarding construction of the natural gas pipeline would not degrade the state’s water was not arbitrary and capricious; the state agencies segmented approach to the December section 401 Certification was proper as the monitoring plan protected against any degradation of water quality from project, without regard to what particular activities (or combination of activities) was the cause. Sierra Club v. State Water Control Bd., 898 F.3d 383, 2018 U.S. App. LEXIS 21344 (4th Cir. 2018).

§ 62.1-44.15:55. (For effective date — see notes) Regulated land-disturbing activities; submission and approval of erosion and sediment control plan.

  1. Except as provided in § 62.1-44.15:31 for a land-disturbing activity conducted by a state agency, federal entity, or other specified entity, no person shall engage in any land-disturbing activity until he has submitted to the VESCP authority an erosion and sediment control plan for the land-disturbing activity and the plan has been reviewed and approved. Where Virginia Pollutant Discharge Elimination System permit coverage is required, a VESCP authority shall be required to obtain evidence of such coverage from the Department’s online reporting system prior to approving the erosion and sediment control plan. A VESCP authority may enter into an agreement with an adjacent VESCP or VESMP authority regarding the administration of multijurisdictional projects specifying who shall be responsible for all or part of the administrative procedures. Should adjacent authorities fail to come to such an agreement, each shall be responsible for administering the area of the multijurisdictional project that lies within its jurisdiction. Where the land-disturbing activity results from the construction of a single-family residence, an agreement in lieu of a plan may be substituted for an erosion and sediment control plan if executed by the VESCP authority.
  2. The VESCP authority shall review erosion and sediment control plans submitted to it and grant written approval within 60 days of the receipt of the plan if it determines that the plan meets the requirements of this article and the Board’s regulations and if the person responsible for carrying out the plan certifies that he will properly perform the erosion and sediment control measures included in the plan and shall comply with the provisions of this article. In addition, as a prerequisite to engaging in the land-disturbing activities shown on the approved plan, the person responsible for carrying out the plan shall provide the name of an individual holding a certificate to the VESCP authority, as provided by § 62.1-44.15:52 , who will be in charge of and responsible for carrying out the land-disturbing activity. However, any VESCP authority may waive the certificate requirement for an agreement in lieu of a plan for construction of a single-family residence. If a violation occurs during the land-disturbing activity, then the person responsible for carrying out the agreement in lieu of a plan shall correct the violation and provide the name of an individual holding a certificate, as provided by § 62.1-44.15:52 . Failure to provide the name of an individual holding a certificate prior to engaging in land-disturbing activities may result in revocation of the approval of the plan and the person responsible for carrying out the plan shall be subject to the penalties provided in this article.When a plan is determined to be inadequate, written notice of disapproval stating the specific reasons for disapproval shall be communicated to the applicant within 45 days. The notice shall specify the modifications, terms, and conditions that will permit approval of the plan. If no action is taken by the VESCP authority within the time specified in this subsection, the plan shall be deemed approved and the person authorized to proceed with the proposed activity. The VESCP authority shall act on any erosion and sediment control plan that has been previously disapproved within 45 days after the plan has been revised, resubmitted for approval, and deemed adequate.
  3. The VESCP authority may require changes to an approved plan in the following cases:
    1. Where inspection has revealed that the plan is inadequate to satisfy applicable regulations; or
    2. Where the person responsible for carrying out the approved plan finds that because of changed circumstances or for other reasons the approved plan cannot be effectively carried out, and proposed amendments to the plan, consistent with the requirements of this article and associated regulations, are agreed to by the VESCP authority and the person responsible for carrying out the plan.
  4. In order to prevent further erosion, a VESCP authority may require approval of an erosion and sediment control plan for any land identified by the VESCP authority as an erosion impact area.
  5. For the purposes of subsections A and B, when land-disturbing activity will be required of a contractor performing construction work pursuant to a construction contract, the preparation, submission, and approval of an erosion and sediment control plan shall be the responsibility of the owner.
  6. Notwithstanding any other provisions of this article, the following activities are not required to comply with the requirements of this article unless otherwise required by federal law:
    1. Disturbance of a land area of less than 10,000 square feet in size or less than 2,500 square feet in an area designated as a Chesapeake Bay Preservation Area pursuant to the Chesapeake Bay Preservation Act (§ 62.1-44.15:67 et seq.). However, the governing body of the program authority may reduce this exception to a smaller area of disturbed land or qualify the conditions under which this exception shall apply;
    2. Minor land-disturbing activities such as home gardens and individual home landscaping, repairs, and maintenance work;
    3. Installation, maintenance, or repair of any individual service connection;
    4. Installation, maintenance, or repair of any underground utility line when such activity occurs on an existing hard surfaced road, street, or sidewalk, provided the land-disturbing activity is confined to the area of the road, street, or sidewalk that is hard surfaced;
    5. Installation, maintenance, or repair of any septic tank line or drainage field unless included in an overall plan for land-disturbing activity relating to construction of the building to be served by the septic tank system;
    6. Permitted surface or deep mining operations and projects, or oil and gas operations and projects conducted pursuant to Title 45.2;
    7. Clearing of lands specifically for bona fide agricultural purposes; the management, tilling, planting, or harvesting of agricultural, horticultural, or forest crops; livestock feedlot operations; agricultural engineering operations, including construction of terraces, terrace outlets, check dams, desilting basins, dikes, ponds, ditches, strip cropping, lister furrowing, contour cultivating, contour furrowing, land drainage, and land irrigation; or as additionally set forth by the Board in regulations. However, this exception shall not apply to harvesting of forest crops unless the area on which harvesting occurs is reforested artificially or naturally in accordance with the provisions of Chapter 11 (§ 10.1-1100 et seq.) of Title 10.1 or is converted to bona fide agricultural or improved pasture use as described in subsection B of § 10.1-1163;
    8. Installation of fence and sign posts or telephone and electric poles and other kinds of posts or poles;
    9. Shoreline erosion control projects on tidal waters when all of the land-disturbing activities are within the regulatory authority of and approved by local wetlands boards, the Marine Resources Commission, or the United States Army Corps of Engineers; however, any associated land that is disturbed outside of this exempted area shall remain subject to this article and the regulations adopted pursuant thereto;
    10. Land-disturbing activities in response to a public emergency where the related work requires immediate authorization to avoid imminent endangerment to human health or the environment. In such situations, the VESMP authority shall be advised of the disturbance within seven days of commencing the land-disturbing activity, and compliance with the administrative requirements of subsection A is required within 30 days of commencing the land-disturbing activity;
    11. Discharges to a sanitary sewer or a combined sewer system that are not from a land-disturbing activity; and
    12. Repair or rebuilding of the tracks, rights-of-way, bridges, communication facilities, and other related structures and facilities of a railroad company.

History. 1973, c. 486, § 21-89.6; 1979, c. 432; 1988, cc. 732, 891, § 10.1-563; 1993, c. 925; 1999, c. 555; 2001, c. 490; 2003, cc. 827, 966; 2006, c. 466; 2008, c. 23; 2011, cc. 720, 721; 2012, cc. 785, 819; 2013, cc. 756, 793; 2016, cc. 68, 758.

Section set out twice.

The section above is effective 30 days after the adoption by the State Water Control Board of the regulations pursuant to Acts 2016, cc. 68 and 758, cl. 9. For this section as in effect until that time, see the preceding section, also numbered 62.1-44.15:55 .

Editor’s note.

Acts 2016, cc. 68 and 758, cl. 9 provides: “That the State Water Control Board (the Board) shall adopt regulations to implement the requirements of this act. The adoption of such regulations shall be exempt from the requirements of Article 2 ( § 2.2-4006 et seq.) of the Administrative Process Act ( § 2.2-4000 et seq.) of the Code of Virginia. However, the Department shall (i) provide a Notice of Intended Regulatory Action, (ii) form a stakeholders advisory group, (iii) provide for a 60-day public comment period prior to the Board’s adoption of the regulations, and (iv) provide the Board with a written summary of comments received and responses to comments prior to the Board’s adoption of the regulations.”

Acts 2016, cc. 68 and 758, cl. 10, as amended by Acts 2017, c. 345, cl. 2, provides: “That the provisions of this act shall become effective July 1, 2018, or 30 days after the adoption by the State Water Control Board of the regulations required by the ninth enactment of this act, whichever occurs later.”

The 2016 amendments.

The 2016 amendments by cc. 68 and 758 are identical, and in subsection A, substituted “§ 62.1-44.15:31 for a land-disturbing activity conducted by a state agency, federal entity, or other specified entity” for “§ 62.1-44.15:56 for state agency and federal entity land-disturbing activities,” and substituted the second through fourth sentences for “Upon the development of an online reporting system by the Department, but no later than July 1, 2014, a VESCP authority shall then be required to obtain evidence of Virginia Stormwater Management Program permit coverage where it is required prior to providing approval to begin land disturbance. Where land-disturbing activities involve lands under the jurisdiction of more than one VESCP, an erosion and sediment control plan may, at the request of one or all of the VESCP authorities, be submitted to the Department for review and approval rather than to each jurisdiction concerned. The Department may charge the jurisdictions requesting the review a fee sufficient to cover the cost associated with conducting the review. A VESCP may enter into an agreement with an adjacent VESCP regarding the administration of multijurisdictional projects whereby the jurisdiction that contains the greater portion of the project shall be responsible for all or part of the administrative procedures”; in subsection B, deleted “of competence” following “a certificate” four times; deleted subsections D and E, and renumbered subsequent subsections; and added subsection F. For effective date, see Editor’s note.

§ 62.1-44.15:55.1. Department review of erosion and sediment control plans for solar projects.

  1. Any locality that does not operate a regulated MS4 and for which the Department did not administer a VSMP as of July 1, 2020, shall notify the Department if it decides to have the Department provide the locality with (i) review of the erosion and sediment control plan required by subsection A of § 62.1-44.15:55 and (ii) a recommendation on the plan’s compliance with the requirements of this article and the Board’s regulations, for any solar project and its associated infrastructure with a rated electrical generation capacity exceeding five megawatts.
  2. The VESCP authority for a locality that notifies the Department pursuant to subsection A shall, within five days of receiving an erosion and sediment control plan, forward such plan to the Department for review. If a plan forwarded to the Department is incomplete, the Department shall return the plan to the VESCP authority immediately and the application process shall start over. If a plan forwarded to the Department is complete, the Department shall review it for compliance with the requirements of this article and the Board’s regulations and provide a recommendation to the VESCP authority. The VESCP authority shall then (i) grant written approval of the plan or (ii) provide written notice of disapproval of the plan in accordance with subsection B of § 62.1-44.15:55 .
  3. The VESCP authority for a locality that notifies the Department pursuant to subsection A shall, within five days of receiving any resubmittal of a previously disapproved erosion and sediment control plan, forward such resubmitted plan to the Department. The Department shall review a resubmittal of a previously disapproved erosion and sediment control plan for compliance with the requirements of this article and the Board’s regulations and provide a recommendation to the VESCP authority. The VESCP authority shall then (i) grant written approval of the plan or (ii) provide written notice of disapproval of the plan in accordance with subsection B of § 62.1-44.15:55 .
  4. The Department shall adopt a fee schedule and charge fees for conducting reviews pursuant to this section. The fees shall be charged to applicants and not to any VESCP authority. Such fees shall be remitted to the State Treasurer for deposit in the Fund established by subsection E. The amount of the fees shall be set at an amount representing no less than 60 percent, but not to exceed 62 percent, of the administrative and other costs to the Department of conducting such reviews.
  5. There is hereby created in the state treasury a special nonreverting fund to be known as the Virginia Erosion and Sediment Control Fund, referred to in this section as “the Fund.” The Fund shall be established on the books of the Comptroller. All moneys collected by the Department pursuant to this section and all other funds appropriated for such purpose and any gifts, donations, grants, bequests, and other funds received on its behalf shall be paid into the state treasury and credited to the Fund. Interest earned on moneys in the Fund shall remain in the Fund and be credited to it. Any moneys remaining in the Fund, including interest thereon, at the end of each fiscal year shall not revert to the general fund but shall remain in the Fund. Moneys in the Fund shall be used solely for the purposes of carrying out the Department’s responsibilities pursuant to this section. Expenditures and disbursements from the Fund shall be made by the State Treasurer on warrants issued by the Comptroller upon written request signed by the Director.An accounting of moneys received by and distributed from the Fund shall be kept by the State Comptroller.

History. 2021, Sp. Sess. I, c. 497.

Effective date.

This section is effective July 1, 2021.

§ 62.1-44.15:56. (For repeal date — see notes) State agency and federal entity projects.

  1. A state agency shall not undertake a project involving a land-disturbing activity unless (i) the state agency has submitted annual standards and specifications for its conduct of land-disturbing activities that have been reviewed and approved by the Department as being consistent with this article and associated regulations or (ii) the state agency has submitted an erosion and sediment control plan for the project that has been reviewed and approved by the Department. When a federal entity submits an erosion and sediment control plan for a project, land disturbance shall not commence until the Department has reviewed and approved the plan.
  2. The Department shall not approve an erosion and sediment control plan submitted by a state agency or federal entity for a project involving a land-disturbing activity (i) in any locality that has not adopted a local program with more stringent regulations than those of the state program or (ii) in multiple jurisdictions with separate local programs, unless the erosion and sediment control plan is consistent with the requirements of the state program.
  3. The Department shall not approve an erosion and sediment control plan submitted by a state agency or federal entity for a project involving a land-disturbing activity in one locality with a local program with more stringent ordinances than those of the state program unless the erosion and sediment control plan is consistent with the requirements of the local program. If a locality has not submitted a copy of its local program regulations to the Department, the provisions of subsection B shall apply.
  4. The Department shall have 60 days in which to comment on any standards and specifications or erosion and sediment control plan submitted to it for review, and its comments shall be binding on the state agency and any private business hired by the state agency.
  5. As onsite changes occur, the state agency shall submit changes in an erosion and sediment control plan to the Department.
  6. The state agency responsible for the land-disturbing activity shall ensure compliance with an approved plan, and the Department and Board, where applicable, shall provide project oversight and enforcement as necessary.
  7. If the state agency or federal entity has developed, and the Department has approved, annual standards and specifications, and the state agency or federal entity has been approved by the Board to operate a VESCP as a VESCP authority, erosion and sediment control plan review and approval and land-disturbing activity inspections shall be conducted by such entity. The Department and the Board, where applicable, shall provide project oversight and enforcement as necessary and comprehensive program compliance review and evaluation. Such standards and specifications shall be consistent with the requirements of this article and associated regulations and the Stormwater Management Act (§ 62.1-44.15:24 et seq.) and associated regulations when applicable.

History. 1973, c. 486, § 21-89.6; 1979, c. 432; 1988, c. 891, § 10.1-564; 1993, c. 925; 2012, cc. 785, 819; 2013, cc. 756, 793.

Contingent repeal date. This section is repealed by Acts 2016, cc. 68 and 758, cl. 2, effective July 1, 2018, or 30 days after the adoption of regulations required by Acts 2016, cc. 68 and 758, cl. 9, whichever occurs later.

Editor’s note.

Acts 2016, cc. 68 and 758, cl. 9 provides: “That the State Water Control Board (the Board) shall adopt regulations to implement the requirements of this act. The adoption of such regulations shall be exempt from the requirements of Article 2 (§ 2.2-4006 et seq.) of the Administrative Process Act (§ 2.2-4000 et seq.) of the Code of Virginia. However, the Department shall (i) provide a Notice of Intended Regulatory Action, (ii) form a stakeholders advisory group, (iii) provide for a 60-day public comment period prior to the Board’s adoption of the regulations, and (iv) provide the Board with a written summary of comments received and responses to comments prior to the Board’s adoption of the regulations.”

Acts 2016, cc. 68 and 758, cl. 10, as amended by Acts 2017, c. 345, cl. 2, provides: “That the provisions of this act shall become effective July 1, 2018, or 30 days after the adoption by the State Water Control Board of the regulations required by the ninth enactment of this act, whichever occurs later.”

Acts 2020, c. 1289, as amended by Acts 2021, Sp. Sess. I, c. 552, Item 377 D, effective for the biennium ending June 30, 2022, provides: “1. Notwithstanding § 62.1-44.15:56 , Code of Virginia, public institutions of higher education, including community colleges, colleges, and universities, shall be subject to project review and compliance for state erosion and sediment control requirements by the local program authority of the locality within which the land disturbing activity is located, unless such institution submits annual specifications to the Department of Environmental Quality, in accordance with § 62.1-44.15:56 A (i), Code of Virginia.

“2. The State Water Control Board is authorized to amend the Erosion and Sediment Control Regulations (9 VAC 25-840 et seq.) to conform such regulations with this project review requirement and to clarify the process. These amendments shall be exempt from Article 2 (§ 2.2-4006 et seq.) of the Administrative Process Act.”

§ 62.1-44.15:56.1. Department acceptance of plans in lieu of plan review.

  1. Notwithstanding any other provision of this article, the Department, when administering a VESCP pursuant to Article 2.4 (§ 62.1-44.15:51 et seq.), may choose to accept a set of plans and supporting calculations for any land-disturbing activity determined to be de minimis using a risk-based approach established by the Board.
  2. The Department is authorized to accept such plans and supporting calculations in satisfaction of the requirement of this article that it retain a certified plan reviewer or conduct a plan review. This section shall not excuse any applicable performance bond requirement pursuant to § 62.1-44.15:57 .

History. 2020, c. 812.

Editor’s note.

At the direction of the Virginia Code Commission, “de minimis” was substituted for “de minimus” in subsection A.

Acts 2020, c. 812, cl. 2 provides: “That the State Water Control Board (the Board) shall adopt regulations to implement the requirements of §§ 62.1-44.15:27.4 and 62.1-44.15:56.1 of the Code of Virginia as created by this act. The initial adoption of such regulations shall be exempt from the requirements of Article 2 (§ 2.2-4006 et seq.) of Chapter 40 of Title 2.2 of the Code of Virginia. However, the Board shall (i) provide a Notice of Intended Regulatory Action, (ii) form a stakeholder advisory group, (iii) provide a 60-day public comment period prior to the Board’s adoption of the regulations, and (iv) provide a written summary of comments received and responses to comments prior to the Board’s adoption of the regulations.”

§ 62.1-44.15:57. (For expiration date — see notes) Approved plan required for issuance of grading, building, or other permits; security for performance.

Agencies authorized under any other law to issue grading, building, or other permits for activities involving land-disturbing activities regulated under this article shall not issue any such permit unless the applicant submits with his application an approved erosion and sediment control plan and certification that the plan will be followed and, upon the development of an online reporting system by the Department but no later than July 1, 2014, evidence of Virginia Stormwater Management Program permit coverage where it is required. Prior to issuance of any permit, the agency may also require an applicant to submit a reasonable performance bond with surety, cash escrow, letter of credit, any combination thereof, or such other legal arrangement acceptable to the agency, to ensure that measures could be taken by the agency at the applicant’s expense should he fail, after proper notice, within the time specified to initiate or maintain appropriate conservation action that may be required of him by the approved plan as a result of his land-disturbing activity. The amount of the bond or other security for performance shall not exceed the total of the estimated cost to initiate and maintain appropriate conservation action based on unit price for new public or private sector construction in the locality and a reasonable allowance for estimated administrative costs and inflation, which shall not exceed 25 percent of the estimated cost of the conservation action. If the agency takes such conservation action upon such failure by the permittee, the agency may collect from the permittee the difference should the amount of the reasonable cost of such action exceed the amount of the security held. Within 60 days of the achievement of adequate stabilization of the land-disturbing activity in any project or section thereof, the bond, cash escrow, letter of credit, or other legal arrangement, or the unexpended or unobligated portion thereof, shall be refunded to the applicant or terminated based upon the percentage of stabilization accomplished in the project or section thereof. These requirements are in addition to all other provisions of law relating to the issuance of such permits and are not intended to otherwise affect the requirements for such permits.

History. 1973, c. 486, § 21-89.7; 1980, c. 35; 1988, cc. 694, 891, § 10.1-565; 1996, c. 275; 2012, cc. 785, 819; 2013, cc. 756, 793.

Section set out twice.

The section above is effective until July 1, 2018, or 30 days after the adoption by the State Water Control Board of the regulations pursuant to Acts 2016, cc. 68 and 758, cl. 9, whichever occurs later. For this section as in effect at that time, see the following section, also numbered 62.1-44.15:57 .

Editor’s note.

Acts 2018, c. 155, cl. 2 provides: “That the Department of Environmental Quality shall examine the possibility of expanding the use of the agreement in lieu of a stormwater management plan, as defined in § 62.1-44.15:24 of the Code of Virginia, as amended by this act, and as authorized for use in the construction of certain single-family residences by the State Water Control Law ( § 62.1-44.2 et seq. of the Code of Virginia), to include any nonresidential development site of less than one acre in any rural Tidewater locality, as defined in § 62.1-44.15:24 of the Code of Virginia, as amended by this act.”

§ 62.1-44.15:57. (For effective date — see notes) Approved plan required for issuance of grading, building, or other permits; security for performance.

Agencies authorized under any other law to issue grading, building, or other permits for activities involving land-disturbing activities regulated under this article shall not issue any such permit unless the applicant submits with his application an approved erosion and sediment control plan, certification that the plan will be followed, and evidence of Virginia Pollutant Discharge Elimination System permit coverage where it is required. Prior to issuance of any permit, the agency may also require an applicant to submit a reasonable performance bond with surety, cash escrow, letter of credit, any combination thereof, or such other legal arrangement acceptable to the agency, to ensure that measures could be taken by the agency at the applicant’s expense should he fail, after proper notice, within the time specified to initiate or maintain appropriate conservation action that may be required of him by the approved plan as a result of his land-disturbing activity. The amount of the bond or other security for performance shall not exceed the total of the estimated cost to initiate and maintain appropriate conservation action based on unit price for new public or private sector construction in the locality and a reasonable allowance for estimated administrative costs and inflation, which shall not exceed 25 percent of the estimated cost of the conservation action. If the agency takes such conservation action upon such failure by the permittee, the agency may collect from the permittee the difference should the amount of the reasonable cost of such action exceed the amount of the security held. Within 60 days of the achievement of adequate stabilization of the land-disturbing activity in any project or section thereof, the bond, cash escrow, letter of credit, or other legal arrangement, or the unexpended or unobligated portion thereof, shall be refunded to the applicant or terminated based upon the percentage of stabilization accomplished in the project or section thereof. These requirements are in addition to all other provisions of law relating to the issuance of such permits and are not intended to otherwise affect the requirements for such permits.

History. 1973, c. 486, § 21-89.7; 1980, c. 35; 1988, cc. 694, 891, § 10.1-565; 1996, c. 275; 2012, cc. 785, 819; 2013, cc. 756, 793; 2016, cc. 68, 758.

Section set out twice.

The section above is effective July 1, 2018, or 30 days after the adoption by the State Water Control Board of the regulations pursuant to Acts 2016, cc. 68 and 758, cl. 9, whichever occurs later. For this section as in effect until that time, see the preceding section, also numbered 62.1-44.15:57 .

Editor’s note.

Acts 2016, cc. 68 and 758, cl. 9 provides: “That the State Water Control Board (the Board) shall adopt regulations to implement the requirements of this act. The adoption of such regulations shall be exempt from the requirements of Article 2 ( § 2.2-4006 et seq.) of the Administrative Process Act ( § 2.2-4000 et seq.) of the Code of Virginia. However, the Department shall (i) provide a Notice of Intended Regulatory Action, (ii) form a stakeholders advisory group, (iii) provide for a 60-day public comment period prior to the Board’s adoption of the regulations, and (iv) provide the Board with a written summary of comments received and responses to comments prior to the Board’s adoption of the regulations.”

Acts 2016, cc. 68 and 758, cl. 10, as amended by Acts 2017, c. 345, cl. 2, provides: “That the provisions of this act shall become effective July 1, 2018, or 30 days after the adoption by the State Water Control Board of the regulations required by the ninth enactment of this act, whichever occurs later.”

The 2016 amendments.

The 2016 amendments by cc. 68 and 758 are identical, and deleted “upon the development of an online reporting system by the Department but no later than July 1, 2014” following “will be followed and” and substituted “Pollutant Discharge Elimination System” for “Stormwater Management Program”; and made minor stylistic changes. For effective date, see Editor’s note.

§ 62.1-44.15:58. (For expiration date — see notes) Monitoring, reports, and inspections.

  1. The VESCP authority (i) shall provide for periodic inspections of the land-disturbing activity and require that an individual holding a certificate of competence, as provided by § 62.1-44.15:52 , who will be in charge of and responsible for carrying out the land-disturbing activity and (ii) may require monitoring and reports from the person responsible for carrying out the erosion and sediment control plan, to ensure compliance with the approved plan and to determine whether the measures required in the plan are effective in controlling erosion and sediment. However, any VESCP authority may waive the certificate of competence requirement for an agreement in lieu of a plan for construction of a single-family residence. The owner, permittee, or person responsible for carrying out the plan shall be given notice of the inspection. If the VESCP authority, where authorized to enforce this article, or the Department determines that there is a failure to comply with the plan following an inspection, notice shall be served upon the permittee or person responsible for carrying out the plan by mailing with confirmation of delivery to the address specified in the permit application or in the plan certification, or by delivery at the site of the land-disturbing activities to the agent or employee supervising such activities. The notice shall specify the measures needed to comply with the plan and shall specify the time within which such measures shall be completed. Upon failure to comply within the time specified, the permit may be revoked and the VESCP authority, where authorized to enforce this article, the Department, or the Board may pursue enforcement as provided by § 62.1-44.15:63 .
  2. Notwithstanding the provisions of subsection A, a VESCP authority is authorized to enter into agreements or contracts with districts, adjacent localities, or other public or private entities to assist with the responsibilities of this article, including but not limited to the review and determination of adequacy of erosion and sediment control plans submitted for land-disturbing activities as well as monitoring, reports, inspections, and enforcement where an authority is granted such powers by this article.
  3. Upon issuance of an inspection report denoting a violation of this section, § 62.1-44.15:55 or 62.1-44.15:56 , in conjunction with or subsequent to a notice to comply as specified in subsection A, a VESCP authority, where authorized to enforce this article, or the Department may issue an order requiring that all or part of the land-disturbing activities permitted on the site be stopped until the specified corrective measures have been taken or, if land-disturbing activities have commenced without an approved plan as provided in § 62.1-44.15:55 , requiring that all of the land-disturbing activities be stopped until an approved plan or any required permits are obtained. Where the alleged noncompliance is causing or is in imminent danger of causing harmful erosion of lands or sediment deposition in waters within the watersheds of the Commonwealth, or where the land-disturbing activities have commenced without an approved erosion and sediment control plan or any required permits, such an order may be issued whether or not the alleged violator has been issued a notice to comply as specified in subsection A. Otherwise, such an order may be issued only after the alleged violator has failed to comply with a notice to comply. The order for noncompliance with a plan shall be served in the same manner as a notice to comply, and shall remain in effect for seven days from the date of service pending application by the VESCP authority, the Department, or alleged violator for appropriate relief to the circuit court of the jurisdiction wherein the violation was alleged to have occurred or other appropriate court. The order for disturbance without an approved plan or permits shall be served upon the owner by mailing with confirmation of delivery to the address specified in the land records of the locality, shall be posted on the site where the disturbance is occurring, and shall remain in effect until such time as permits and plan approvals are secured, except in such situations where an agricultural exemption applies. If the alleged violator has not obtained an approved erosion and sediment control plan or any required permit within seven days from the date of service of the order, the Department or the chief administrative officer or his designee on behalf of the VESCP authority may issue a subsequent order to the owner requiring that all construction and other work on the site, other than corrective measures, be stopped until an approved erosion and sediment control plan and any required permits have been obtained. The subsequent order shall be served upon the owner by mailing with confirmation of delivery to the address specified in the permit application or the land records of the locality in which the site is located. The owner may appeal the issuance of any order to the circuit court of the jurisdiction wherein the violation was alleged to have occurred or other appropriate court. Any person violating or failing, neglecting, or refusing to obey an order issued by the Department or the chief administrative officer or his designee on behalf of the VESCP authority may be compelled in a proceeding instituted in the circuit court of the jurisdiction wherein the violation was alleged to have occurred or other appropriate court to obey same and to comply therewith by injunction, mandamus, or other appropriate remedy. Upon completion and approval of corrective action or obtaining an approved plan or any required permits, the order shall immediately be lifted. Nothing in this section shall prevent the Department, the Board, or the chief administrative officer or his designee on behalf of the VESCP authority from taking any other action specified in § 62.1-44.15:63 .

History. 1973, c. 486, § 21-89.8; 1986, c. 328; 1988, cc. 694, 891, § 10.1-566; 1992, c. 298; 1993, c. 925; 2001, c. 490; 2003, c. 827; 2012, cc. 249, 785, 819; 2013, cc. 756, 793.

Section set out twice.

The section above is effective until July 1, 2018, or 30 days after the adoption by the State Water Control Board of the regulations pursuant to Acts 2016, cc. 68 and 758, cl. 9, whichever occurs later. For this section as in effect at that time, see the following section, also numbered 62.1-44.15:58 .

Editor’s note.

Acts 2018, c. 155, cl. 2 provides: “That the Department of Environmental Quality shall examine the possibility of expanding the use of the agreement in lieu of a stormwater management plan, as defined in § 62.1-44.15:24 of the Code of Virginia, as amended by this act, and as authorized for use in the construction of certain single-family residences by the State Water Control Law ( § 62.1-44.2 et seq. of the Code of Virginia), to include any nonresidential development site of less than one acre in any rural Tidewater locality, as defined in § 62.1-44.15:24 of the Code of Virginia, as amended by this act.”

OPINIONS OF THE ATTORNEY GENERAL

Stop work orders. —

Subsection C of § 10.1-566 provides for two distinct orders that may be issued to compel compliance with permit and plan approval requirements: (1) an initial order that applies only to land disturbing activities, and (2) a more restrictive second order encompassing all construction activities that may be issued for noncompliance with the first order. Further, building official lacks the authority to limit the scope of the second order once it is issued. See opinion of Attorney General to The Honorable James E. Edmunds, II, Member, House of Delegates, 10-052, 2010 Va. AG LEXIS 39 (7/30/10).

§ 62.1-44.15:58. (For effective date — see notes) Monitoring, reports, and inspections.

  1. The VESCP authority (i) shall provide for periodic inspections of the land-disturbing activity and require that an individual holding a certificate, as provided by § 62.1-44.15:52 , will be in charge of and responsible for carrying out the land-disturbing activity and (ii) may require monitoring and reports from the person responsible for carrying out the erosion and sediment control plan, to ensure compliance with the approved plan and to determine whether the measures required in the plan are effective in controlling erosion and sediment. However, any VESCP authority may waive the certificate requirement for an agreement in lieu of a plan for construction of a single-family detached residential structure. The owner shall be given notice of the inspection. When the VESCP authority or the Board determines that there is a failure to comply with the conditions of land-disturbance approval or to obtain an approved plan or a land-disturbance approval prior to commencing land-disturbing activity, the VESCP authority or the Board may serve a notice to comply upon the owner or person responsible for carrying out the land-disturbing activity. Such notice to comply shall be served by delivery by facsimile, e-mail, or other technology; by mailing with confirmation of delivery to the address specified in the plan or land-disturbance application, if available, or in the land records of the locality; or by delivery at the site to a person previously identified to the VESCP authority by the owner. The notice to comply shall specify the measures needed to comply with the land-disturbance approval conditions or shall identify the plan approval or land-disturbance approval needed to comply with this article and shall specify a reasonable time within which such measures shall be completed. In any instance in which a required land-disturbance approval has not been obtained, the VESCP authority or the Board may require immediate compliance. In any other case, the VESCP authority or the Board may establish the time for compliance by taking into account the risk of damage to natural resources and other relevant factors. Notwithstanding any other provision in this subsection, a VESCP authority or the Board may count any days of noncompliance as days of violation should the VESCP authority or the Board take an enforcement action. The issuance of a notice to comply by the Board shall not be considered a case decision as defined in § 2.2-4001 . Upon failure to comply within the time specified, any plan approval or land-disturbance approval may be revoked and the VESCP authority or the Board may pursue enforcement as provided by § 62.1-44.15:63 .
  2. Notwithstanding the provisions of subsection A, a VESCP authority is authorized to enter into agreements or contracts with districts, adjacent localities, or other public or private entities to assist with the responsibilities of this article, including but not limited to the review and determination of adequacy of erosion and sediment control plans submitted for land-disturbing activities as well as monitoring, reports, inspections, and enforcement.
  3. Upon issuance of an inspection report denoting a violation of this section or § 62.1-44.15:55 , in conjunction with or subsequent to a notice to comply as specified in subsection A, a VESCP authority or the Board may issue a stop work order requiring that all or part of the land-disturbing activities on the site be stopped until the specified corrective measures have been taken or, if land-disturbing activities have commenced without an approved plan as provided in § 62.1-44.15:55 , requiring that all of the land-disturbing activities be stopped until an approved plan is obtained. When such an order is issued by the Board, it shall be issued in accordance with the procedures of the Administrative Process Act (§ 2.2-4000 et seq.). Where the alleged noncompliance is causing or is in imminent danger of causing harmful erosion of lands or sediment deposition in waters within the watersheds of the Commonwealth, or where the land-disturbing activities have commenced without an approved erosion and sediment control plan, such a stop work order may be issued whether or not the alleged violator has been issued a notice to comply as specified in subsection A. Otherwise, such an order may be issued only after the alleged violator has failed to comply with a notice to comply. The order for noncompliance with a plan shall be served in the same manner as a notice to comply, and shall remain in effect for seven days from the date of service pending application by the VESCP authority, the Board, or alleged violator for appropriate relief to the circuit court of the jurisdiction wherein the violation was alleged to have occurred or other appropriate court. The stop work order for disturbance without an approved plan shall be served upon the owner by mailing with confirmation of delivery to the address specified in the land records of the locality, shall be posted on the site where the disturbance is occurring, and shall remain in effect until such time as plan approvals are secured, except in such situations where an agricultural exemption applies. If the alleged violator has not obtained an approved erosion and sediment control plan within seven days from the date of service of the stop work order, the Board or the chief administrative officer or his designee on behalf of the VESCP authority may issue a subsequent order to the owner requiring that all construction and other work on the site, other than corrective measures, be stopped until an approved erosion and sediment control plan has been obtained. The subsequent order shall be served upon the owner by mailing with confirmation of delivery to the address specified in the plan or the land records of the locality in which the site is located. The owner may appeal the issuance of any order to the circuit court of the jurisdiction wherein the violation was alleged to have occurred or other appropriate court. Any person violating or failing, neglecting, or refusing to obey an order issued by the Board or the chief administrative officer or his designee on behalf of the VESCP authority may be compelled in a proceeding instituted in the circuit court of the jurisdiction wherein the violation was alleged to have occurred or other appropriate court to obey same and to comply therewith by injunction, mandamus, or other appropriate remedy. Upon completion and approval of corrective action or obtaining an approved plan, the order shall immediately be lifted. Nothing in this section shall prevent the Board or the chief administrative officer or his designee on behalf of the VESCP authority from taking any other action specified in § 62.1-44.15:63 .

History. 1973, c. 486, § 21-89.8; 1986, c. 328; 1988, cc. 694, 891, § 10.1-566; 1992, c. 298; 1993, c. 925; 2001, c. 490; 2003, c. 827; 2012, cc. 249, 785, 819; 2013, cc. 756, 793; 2016, cc. 68, 758.

Section set out twice.

The section above is effective July 1, 2018, or 30 days after the adoption by the State Water Control Board of the regulations pursuant to Acts 2016, cc. 68 and 758, cl. 9, whichever occurs later. For this section as in effect until that time, see the preceding section, also numbered 62.1-44.15:58 .

Editor’s note.

Acts 2016, cc. 68 and 758, cl. 9 provides: “That the State Water Control Board (the Board) shall adopt regulations to implement the requirements of this act. The adoption of such regulations shall be exempt from the requirements of Article 2 ( § 2.2-4006 et seq.) of the Administrative Process Act ( § 2.2-4000 et seq.) of the Code of Virginia. However, the Department shall (i) provide a Notice of Intended Regulatory Action, (ii) form a stakeholders advisory group, (iii) provide for a 60-day public comment period prior to the Board’s adoption of the regulations, and (iv) provide the Board with a written summary of comments received and responses to comments prior to the Board’s adoption of the regulations.”

Acts 2016, cc. 68 and 758, cl. 10, as amended by Acts 2017, c. 345, cl. 2, provides: “That the provisions of this act shall become effective July 1, 2018, or 30 days after the adoption by the State Water Control Board of the regulations required by the ninth enactment of this act, whichever occurs later.”

The 2016 amendments.

The 2016 amendments by cc. 68 and 758 are identical, and rewrote subsections A and C; in subsection B, deleted “where an authority is granted such powers by this article” from the end of the subsection. For effective date, see Editor’s note.

§ 62.1-44.15:58.1. Inspections; land-disturbing activities of natural gas pipelines; stop work instructions.

  1. The Department is authorized to conduct inspections of the land-disturbing activities of interstate and intrastate natural gas pipeline companies that have approved annual standards and specifications pursuant to § 62.1-44.15:55 as such land-disturbing activities relate to construction of any natural gas transmission pipeline equal to or greater than 24 inches inside diameter to determine (i) compliance with such annual standards and specifications, (ii) compliance with any site-specific plans, and (iii) if there have been or are likely to be adverse impacts to water quality as a result of such land-disturbing activities, including instances where (a) there has been a violation of any water quality standard adopted pursuant to the State Water Control Law (§ 62.1-44.2 et seq.), (b) sediment has been deposited in significant amounts in areas where those deposits are not contained by best management practices, (c) there are repeated instances of adverse impacts or likely adverse impacts within a 30-day period, or (d) there have been widespread and repeated instances of adverse impacts or likely impacts. When the Department determines that there has been a substantial adverse impact to water quality or that an imminent and substantial adverse impact to water quality is likely to occur as a result of such land-disturbing activities, the Department may issue a stop work instruction, without advance notice or hearing, requiring that all or part of such land-disturbing activities on the part of the site that caused the substantial adverse impacts to water quality or are likely to cause imminent and substantial adverse impacts to water quality be stopped until corrective measures specified in the stop work instruction have been completed and approved by the Department. Where substantial adverse impacts or likely adverse impacts are found on a repeated, frequent, and widespread basis, the Department may issue a stop work instruction for every work area in Virginia until the Department determines that any systemic cause that contributed to such occurrences has been corrected.Such stop work instruction shall become effective upon service on the company by email or other technology agreed to in writing by the Department and the company, by mailing with confirmation of delivery to the address specified in the annual standards and specifications, if available, or by delivery at the site to a person previously identified to the Department by the company. Upon request by the company, the Director or his designee shall review such stop work instruction within 48 hours of issuance.
  2. Within 10 business days of issuance of a stop work instruction, the Department shall promptly provide to such company an opportunity for an informal fact-finding proceeding concerning the stop work instruction and any review by the Director or his designee. Reasonable notice as to the time and place of the informal fact-finding proceeding shall be provided to such company. Within 10 business days of the informal fact-finding proceeding, the Department shall affirm, modify, amend, or cancel such stop work instruction. Upon written documentation from the company of the completion and approval by the Department in writing of the corrective measures specified in the stop work instruction, the instruction shall be immediately lifted.
  3. The company may appeal such stop work instruction or preliminary decision rendered by the Director or his designee to the circuit court of the jurisdiction wherein the land-disturbing activities subject to the stop work instruction occurred, or to another appropriate court, in accordance with the requirements of the Administrative Process Act (§ 2.2-4000 et seq.). Any person violating or failing, neglecting, or refusing to obey a stop work instruction issued by the Department may be compelled in a proceeding instituted in the circuit court of the jurisdiction wherein the violation was alleged to have occurred or other appropriate court to obey same and to comply therewith by injunction, mandamus, or other appropriate remedy. Nothing in this section shall prevent the Board or the Department from taking any other action authorized by this chapter.

History. 2018, c. 297; 2021, Sp. Sess. I, c. 277.

Effective date.

This section is effective March 10, 2018, by emergency clause.

The 2021 Sp. Sess. I amendments.

The 2021 amendment by Sp. Sess. I, c. 277, effective July 1, 2021, in subsection A, substituted “equal to or greater than 24 inches” for “greater than 36 inches” and inserted “including instances where (a) there has been a violation of any water quality standard adopted pursuant to the State Water Control Law (§ 62.1-44.2 et seq.), (b) sediment has been deposited in significant amounts in areas where those deposits are not contained by best management practices, (c) there are repeated instances of adverse impacts or likely adverse impacts within a 30-day period, or (d) there have been widespread and repeated instances of adverse impacts or likely impacts” in the first sentence and added the last sentence in the first paragraph.

§ 62.1-44.15:59. Reporting.

Each VESCP authority shall report to the Department, in a method such as an online reporting system and on a time schedule established by the Department, a listing of each land-disturbing activity for which a plan has been approved by the VESCP under this article.

History. 2005, c. 102, § 10.1-566.1; 2012, cc. 785, 819; 2013, cc. 756, 793.

§ 62.1-44.15:60. (For expiration date — see notes) Right of entry.

The Department, the VESCP authority, where authorized to enforce this article, or any duly authorized agent of the Department or such VESCP authority may, at reasonable times and under reasonable circumstances, enter any establishment or upon any property, public or private, for the purpose of obtaining information or conducting surveys or investigations necessary in the enforcement of the provisions of this article.

In accordance with a performance bond with surety, cash escrow, letter of credit, any combination thereof, or such other legal arrangement, a VESCP authority may also enter any establishment or upon any property, public or private, for the purpose of initiating or maintaining appropriate actions that are required by the permit conditions associated with a land-disturbing activity when a permittee, after proper notice, has failed to take acceptable action within the time specified.

History. 2012, cc. 785, 819, § 10.1-566.2; 2013, cc. 756, 793.

Section set out twice.

The section above is effective until July 1, 2018, or 30 days after the adoption by the State Water Control Board of the regulations pursuant to Acts 2016, cc. 68 and 758, cl. 9, whichever occurs later. For this section as in effect at that time, see the following section, also numbered 62.1-44.15:60 .

CASE NOTES

Entry onto property not authorized. —

Because the floodplain manager in the Planning Department was not in the Building Inspections/Permits Department, which was responsible for enforcing the Virginia Statewide Building Code and erosion and sediment control ordinances, the floodplain manager’s entry onto plaintiff’s property was not authorized by the Virginia Erosion and Sediment Control Program regulatory scheme. Mendes v. Wendling, No. 5:19-cv-00072, 2021 U.S. Dist. LEXIS 53819 (W.D. Va. Mar. 23, 2021).

§ 62.1-44.15:60. (For effective date — see notes) Right of entry.

In addition to the Board’s authority set forth in § 62.1-44.20 , a locality serving as a VESCP authority or any duly authorized agent thereof may, at reasonable times and under reasonable circumstances, enter any establishment or upon any property, public or private, for the purpose of obtaining information or conducting surveys or investigations necessary in the enforcement of the provisions of this article.

In accordance with a performance bond with surety, cash escrow, letter of credit, any combination thereof, or such other legal arrangement, a VESCP authority may also enter any establishment or upon any property, public or private, for the purpose of initiating or maintaining appropriate actions that are required by the conditions imposed by the VESCP authority on a land-disturbing activity when an owner, after proper notice, has failed to take acceptable action within the time specified.

History. 2012, cc. 785, 819, § 10.1-566.2; 2013, cc. 756, 793; 2016, cc. 68, 758.

Section set out twice.

The section above is effective July 1, 2018, or 30 days after the adoption by the State Water Control Board of the regulations pursuant to Acts 2016, cc. 68 and 758, cl. 9, whichever occurs later. For this section as in effect until that time, see the preceding section, also numbered 62.1-44.15:60 .

Editor’s note.

Acts 2016, cc. 68 and 758, cl. 9 provides: “That the State Water Control Board (the Board) shall adopt regulations to implement the requirements of this act. The adoption of such regulations shall be exempt from the requirements of Article 2 ( § 2.2-4006 et seq.) of the Administrative Process Act ( § 2.2-4000 et seq.) of the Code of Virginia. However, the Department shall (i) provide a Notice of Intended Regulatory Action, (ii) form a stakeholders advisory group, (iii) provide for a 60-day public comment period prior to the Board’s adoption of the regulations, and (iv) provide the Board with a written summary of comments received and responses to comments prior to the Board’s adoption of the regulations.”

Acts 2016, cc. 68 and 758, cl. 10, as amended by Acts 2017, c. 345, cl. 2, provides: “That the provisions of this act shall become effective July 1, 2018, or 30 days after the adoption by the State Water Control Board of the regulations required by the ninth enactment of this act, whichever occurs later.”

The 2016 amendments.

The 2016 amendments by cc. 68 and 758 are identical, and substituted “In addition to the Board’s authority set forth in § 62.1-44.20 , a locality serving as a VESCP authority” for “The Department, the VESCP authority, where authorized to enforce this article,” and “thereof” for “of the Department of such VESCP authority” in the first paragraph and “conditions imposed by the VESCP authority on” for “permit conditions associated with,” and “an owner” for “a permittee” in the second paragraph. For effective date, see Editor’s note.

§ 62.1-44.15:61. (For repeal date — see notes) Cooperation with federal and state agencies.

A VESCP authority and the Board are authorized to cooperate and enter into agreements with any federal or state agency in connection with the requirements for erosion and sediment control with respect to land-disturbing activities.

History. 1973, c. 486, § 21-89.9; 1988, c. 891, § 10.1-567; 2012, cc. 785, 819; 2013, cc. 756, 793.

Contingent repeal date. This section is repealed by Acts 2016, cc. 68 and 758, cl. 2, effective July 1, 2018, or 30 days after the adoption of regulations required by Acts 2016, cc. 68 and 758, cl. 9, whichever occurs later.

Editor’s note.

Acts 2016, cc. 68 and 758, cl. 9 provides: “That the State Water Control Board (the Board) shall adopt regulations to implement the requirements of this act. The adoption of such regulations shall be exempt from the requirements of Article 2 (§ 2.2-4006 et seq.) of the Administrative Process Act (§ 2.2-4000 et seq.) of the Code of Virginia. However, the Department shall (i) provide a Notice of Intended Regulatory Action, (ii) form a stakeholders advisory group, (iii) provide for a 60-day public comment period prior to the Board’s adoption of the regulations, and (iv) provide the Board with a written summary of comments received and responses to comments prior to the Board’s adoption of the regulations.”

Acts 2016, cc. 68 and 758, cl. 10, as amended by Acts 2017, c. 345, cl. 2, provides: “That the provisions of this act shall become effective July 1, 2018, or 30 days after the adoption by the State Water Control Board of the regulations required by the ninth enactment of this act, whichever occurs later.”

§ 62.1-44.15:62. Judicial appeals.

  1. A final decision by a county, city, or town, when serving as a VESCP authority under this article, shall be subject to judicial review, provided that an appeal is filed within 30 days from the date of any written decision adversely affecting the rights, duties, or privileges of the person engaging in or proposing to engage in land-disturbing activities.
  2. (For expiration date — see notes)  Final decisions of the Board, Department, or district shall be subject to judicial review in accordance with the provisions of the Administrative Process Act (§ 2.2-4000 et seq.).

B. (For effective date — see notes) Final decisions of the Board shall be subject to judicial review in accordance with the provisions of the Administrative Process Act (§ 2.2-4000 et seq.).

History. 1973, c. 486, § 21-89.10; 1986, c. 615; 1988, c. 891, § 10.1-568; 2012, cc. 785, 819; 2013, cc. 756, 793; 2016, cc. 68, 758.

Subsection B set out twice.

The second version of subsection B above is effective July 1, 2018, or 30 days after the adoption by the State Water Control Board of the regulations pursuant to Acts 2016, cc. 68 and 758, cl. 9, whichever occurs later. For subsection B as in effect until that time, see the first version above.

Editor’s note.

Acts 2016, cc. 68 and 758, cl. 9 provides: “That the State Water Control Board (the Board) shall adopt regulations to implement the requirements of this act. The adoption of such regulations shall be exempt from the requirements of Article 2 (§ 2.2-4006 et seq.) of the Administrative Process Act (§ 2.2-4000 et seq.) of the Code of Virginia. However, the Department shall (i) provide a Notice of Intended Regulatory Action, (ii) form a stakeholders advisory group, (iii) provide for a 60-day public comment period prior to the Board’s adoption of the regulations, and (iv) provide the Board with a written summary of comments received and responses to comments prior to the Board’s adoption of the regulations.”

Acts 2016, cc. 68 and 758, cl. 10, as amended by Acts 2017, c. 345, cl. 2, provides: “That the provisions of this act shall become effective July 1, 2018, or 30 days after the adoption by the State Water Control Board of the regulations required by the ninth enactment of this act, whichever occurs later.”

The 2016 amendments.

The 2016 amendments by cc. 68 and 758 are identical, and deleted “Department, or district” following “decisions of the Board” in subsection B. For effective date, see Editor’s note.

§ 62.1-44.15:63. (For expiration date — see notes) Penalties, injunctions and other legal actions.

  1. Violators of § 62.1-44.15:55 , 62.1-44.15:56 , or 62.1-44.15:58 shall be guilty of a Class 1 misdemeanor.
  2. Any person who has violated or failed, neglected, or refused to obey any regulation or order of the Board, any order, notice, or requirement of the Department or VESCP authority, any condition of a permit, or any provision of this article or associated regulation shall, upon a finding of an appropriate court, be assessed a civil penalty. If a locality or district serving as a VESCP authority has adopted a uniform schedule of civil penalties as permitted by subsection K of § 62.1-44.15:54 , such assessment shall be in accordance with the schedule. The VESCP authority or the Department may issue a summons for collection of the civil penalty. In any trial for a scheduled violation, it shall be the burden of the locality or Department to show the liability of the violator by a preponderance of the evidence. An admission or finding of liability shall not be a criminal conviction for any purpose. Any civil penalties assessed by a court shall be paid into the treasury of the locality wherein the land lies, except that where the violator is the locality itself, or its agent, or where the Department is issuing the summons, the court shall direct the penalty to be paid into the state treasury.
  3. The VESCP authority, the Department, or the owner of property that has sustained damage or which is in imminent danger of being damaged may apply to the circuit court in any jurisdiction wherein the land lies or other appropriate court to enjoin a violation or a threatened violation under § 62.1-44.15:55 , 62.1-44.15:56 , or 62.1-44.15:58 without the necessity of showing that an adequate remedy at law does not exist; however, an owner of property shall not apply for injunctive relief unless (i) he has notified in writing the person who has violated the VESCP, the Department, and the VESCP authority that a violation of the VESCP has caused, or creates a probability of causing, damage to his property, and (ii) neither the person who has violated the VESCP, the Department, nor the VESCP authority has taken corrective action within 15 days to eliminate the conditions that have caused, or create the probability of causing, damage to his property.
  4. In addition to any criminal or civil penalties provided under this article, any person who violates any provision of this article may be liable to the VESCP authority or the Department, as appropriate, in a civil action for damages.
  5. Without limiting the remedies that may be obtained in this section, any person violating or failing, neglecting, or refusing to obey any injunction, mandamus, or other remedy obtained pursuant to this section shall be subject, in the discretion of the court, to a civil penalty not to exceed $2,000 for each violation. A civil action for such violation or failure may be brought by the VESCP authority wherein the land lies or the Department. Any civil penalties assessed by a court shall be paid into the treasury of the locality wherein the land lies, except that where the violator is the locality itself, or its agent, or other VESCP authority, or where the penalties are assessed as the result of an enforcement action brought by the Department, the court shall direct the penalty to be paid into the state treasury.
  6. With the consent of any person who has violated or failed, neglected, or refused to obey any regulation or order of the Board, any order, notice, or requirement of the Department or VESCP authority, any condition of a permit, or any provision of this article or associated regulations, the Board, the Director, or VESCP authority may provide, in an order issued by the Board or VESCP authority against such person, for the payment of civil charges for violations in specific sums, not to exceed the limit specified in subsection E. Such civil charges shall be instead of any appropriate civil penalty that could be imposed under subsection B or E.
  7. Upon request of a VESCP authority, the attorney for the Commonwealth shall take legal action to enforce the provisions of this article. Upon request of the Board, the Department, or the district, the Attorney General shall take appropriate legal action on behalf of the Board, the Department, or the district to enforce the provisions of this article.
  8. Compliance with the provisions of this article shall be prima facie evidence in any legal or equitable proceeding for damages caused by erosion or sedimentation that all requirements of law have been met and the complaining party must show negligence in order to recover any damages.

History. 1973, c. 486, § 21-89.11; 1988, cc. 694, 891, § 10.1-569; 1992, c. 298; 1993, c. 925; 1995, c. 832; 1996, c. 518; 2012, cc. 785, 819; 2013, cc. 756, 793.

Section set out twice.

The section above is effective until July 1, 2018, or 30 days after the adoption by the State Water Control Board of the regulations pursuant to Acts 2016, cc. 68 and 758, cl. 9, whichever occurs later. For this section as in effect at that time, see the following section, also numbered 62.1-44.15:63 .

§ 62.1-44.15:63. (For effective date — see notes) Penalties, injunctions and other legal actions.

  1. Any person who has violated or failed, neglected, or refused to obey any regulation or order of the Board, any order, notice, or requirement of the VESCP authority, any condition of a land-disturbance approval, or any provision of this article or associated regulation shall, upon a finding of an appropriate court, be assessed a civil penalty. If a locality serving as a VESCP authority has adopted a uniform schedule of civil penalties as permitted by subsection G of § 62.1-44.15:54 , such assessment shall be in accordance with the schedule. The VESCP authority or the Board may issue a summons for collection of the civil penalty. In any trial for a scheduled violation, it shall be the burden of the Board or the VESCP authority to show the liability of the violator by a preponderance of the evidence. Any civil penalties assessed by a court shall be paid into the treasury of the locality wherein the land lies and are to be used solely for stormwater management capital projects, including (i) new stormwater best management practices; (ii) stormwater best management practice maintenance, inspection, or retrofitting; (iii) stream restoration; (iv) low-impact development projects; (v) buffer restoration; (vi) pond retrofitting; and (vii) wetlands restoration. Where the violator is the locality itself, or its agent, or where the Board is issuing the summons, the court shall direct the penalty to be paid into the state treasury and deposited by the State Treasurer into the Stormwater Local Assistance Fund established pursuant to § 62.1-44.15:29.1 .
  2. The VESCP authority, the Board, or the owner of property that has sustained damage or which is in imminent danger of being damaged may apply to the circuit court in any jurisdiction wherein the land lies or other appropriate court to enjoin a violation or a threatened violation under § 62.1-44.15:55 or 62.1-44.15:58 without the necessity of showing that an adequate remedy at law does not exist; however, an owner of property shall not apply for injunctive relief unless (i) he has notified in writing the person who has violated the VESCP, the Board, and the VESCP authority that a violation of the VESCP has caused, or creates a probability of causing, damage to his property, and (ii) neither the person who has violated the VESCP, the Board, nor the VESCP authority has taken corrective action within 15 days to eliminate the conditions that have caused, or create the probability of causing, damage to his property.
  3. In addition to any civil penalties provided under this article, any person who violates any provision of this article may be liable to the VESCP authority or the Board, as appropriate, in a civil action for damages.
  4. Without limiting the remedies that may be obtained in this section, any person violating or failing, neglecting, or refusing to obey any injunction, mandamus, or other remedy obtained pursuant to this section shall be subject, in the discretion of the court, to a civil penalty not to exceed $2,000 for each violation. A civil action for such violation or failure may be brought by the VESCP authority wherein the land lies or the Board. Any civil penalties assessed by a court shall be paid into the treasury of the locality wherein the land lies and used pursuant to requirements of subsection A. Where the violator is the locality itself, or its agent, or where the penalties are assessed as the result of an enforcement action brought by the Board, the court shall direct the penalty to be paid into the state treasury and deposited by the State Treasurer into the Stormwater Local Assistance Fund (§ 62.1-44.15:29.1 ).
  5. With the consent of any person who has violated or failed, neglected, or refused to obey any regulation or order of the Board, any order, notice, or requirement of the VESCP authority, any condition of a land-disturbance approval, or any provision of this article or associated regulations, the Board, the Director, or VESCP authority may provide, in an order issued by the Board or VESCP authority against such person, for the payment of civil charges for violations in specific sums, not to exceed the limit specified in subsection D. Such civil charges shall be instead of any appropriate civil penalty that could be imposed under subsection A or D.
  6. Upon request of a VESCP authority, the attorney for the Commonwealth shall take legal action to enforce the provisions of this article. Upon request of the Board, the Attorney General shall take appropriate legal action on behalf of the Board to enforce the provisions of this article.

History. 1973, c. 486, § 21-89.11; 1988, cc. 694, 891, § 10.1-569; 1992, c. 298; 1993, c. 925; 1995, c. 832; 1996, c. 518; 2012, cc. 785, 819; 2013, cc. 756, 793; 2016, cc. 68, 758.

Section set out twice.

The section above is effective July 1, 2018, or 30 days after the adoption by the State Water Control Board of the regulations pursuant to Acts 2016, cc. 68 and 758, cl. 9, whichever occurs later. For this section as in effect until that time, see the preceding section, also numbered 62.1-44.15:63 .

Editor’s note.

Acts 2016, cc. 68 and 758, cl. 9 provides: “That the State Water Control Board (the Board) shall adopt regulations to implement the requirements of this act. The adoption of such regulations shall be exempt from the requirements of Article 2 ( § 2.2-4006 et seq.) of the Administrative Process Act ( § 2.2-4000 et seq.) of the Code of Virginia. However, the Department shall (i) provide a Notice of Intended Regulatory Action, (ii) form a stakeholders advisory group, (iii) provide for a 60-day public comment period prior to the Board’s adoption of the regulations, and (iv) provide the Board with a written summary of comments received and responses to comments prior to the Board’s adoption of the regulations.”

Acts 2016, cc. 68 and 758, cl. 10, as amended by Acts 2017, c. 345, cl. 2, provides: “That the provisions of this act shall become effective July 1, 2018, or 30 days after the adoption by the State Water Control Board of the regulations required by the ninth enactment of this act, whichever occurs later.”

The 2016 amendments.

The 2016 amendments by cc. 68 and 758 are identical, and rewrote the section. For effective date, see Editor’s note.

§ 62.1-44.15:64. (For expiration date — see notes) Stop work orders by Department; civil penalties.

  1. An aggrieved owner of property sustaining pecuniary damage resulting from a violation of an approved erosion and sediment control plan or required permit, or from the conduct of land-disturbing activities commenced without an approved plan or required permit, may give written notice of the alleged violation to the VESCP authority and to the Director.
  2. Upon receipt of the notice from the aggrieved owner and notification to the VESCP authority, the Director shall conduct an investigation of the aggrieved owner’s complaint.
  3. If the VESCP authority has not responded to the alleged violation in a manner that causes the violation to cease and abates the damage to the aggrieved owner’s property within 30 days following receipt of the notice from the aggrieved owner, the aggrieved owner may request that the Director require the violator to stop the violation and abate the damage to his property.
  4. If (i) the Director’s investigation of the complaint indicates that the VESCP authority has not responded to the alleged violation as required by the VESCP, (ii) the VESCP authority has not responded to the alleged violation within 30 days from the date of the notice given pursuant to subsection A, and (iii) the Director is requested by the aggrieved owner to require the violator to cease the violation, then the Director shall give written notice to the VESCP authority that the Department intends to issue an order pursuant to subsection E.
  5. If the VESCP authority has not instituted action to stop the violation and abate the damage to the aggrieved owner’s property within 10 days following receipt of the notice from the Director, the Department is authorized to issue an order requiring the owner, permittee, person responsible for carrying out an approved erosion and sediment control plan, or person conducting the land-disturbing activities without an approved plan or required permit to cease all land-disturbing activities until the violation of the plan or permit has ceased or an approved plan and required permits are obtained, as appropriate, and specified corrective measures have been completed. The Department also may immediately initiate a program review of the VESCP.
  6. Such orders are to be issued after a hearing held in accordance with the requirements of the Administrative Process Act (§ 2.2-4000 et seq.), and they shall become effective upon service on the person by mailing with confirmation of delivery, sent to his address specified in the land records of the locality, or by personal delivery by an agent of the Director. Any subsequent identical mail or notice that is sent by the Department may be sent by regular mail. However, if the Department finds that any such violation is grossly affecting or presents an imminent and substantial danger of causing harmful erosion of lands or sediment deposition in waters within the watersheds of the Commonwealth, it may issue, without advance notice or hearing, an emergency order directing such person to cease all land-disturbing activities on the site immediately and shall provide an opportunity for a hearing, after reasonable notice as to the time and place thereof, to such person, to affirm, modify, amend, or cancel such emergency order.
  7. If a person who has been issued an order or emergency order is not complying with the terms thereof, the Board may institute a proceeding in the appropriate circuit court for an injunction, mandamus, or other appropriate remedy compelling the person to comply with such order.
  8. Any person violating or failing, neglecting, or refusing to obey any injunction, mandamus, or other remedy obtained pursuant to subsection G shall be subject, in the discretion of the court, to a civil penalty not to exceed $2,000 for each violation. Any civil penalties assessed by a court shall be paid into the state treasury.

History. 1993, c. 925, § 10.1-569.1; 2012, cc. 785, 819.2013, cc. 756, 793.

Section set out twice.

The section above is effective until July 1, 2018, or 30 days after the adoption by the State Water Control Board of the regulations pursuant to Acts 2016, cc. 68 and 758, cl. 9, whichever occurs later. For this section as in effect at that time, see the following section, also numbered 62.1-44.15:64 .

§ 62.1-44.15:64. (For effective date — see notes) Stop work orders by Board; civil penalties.

  1. An aggrieved owner of property sustaining pecuniary damage resulting from a violation of an approved erosion and sediment control plan or required land-disturbance approval, or from the conduct of land-disturbing activities commenced without an approved plan or required land-disturbance approval, may give written notice of the alleged violation to the VESCP authority and to the Board.
  2. If the VESCP authority has not responded to the alleged violation in a manner that causes the violation to cease and abates the damage to the aggrieved owner’s property within 30 days following receipt of the notice from the aggrieved owner, the aggrieved owner may request that the Board conduct an investigation and, if necessary, require the violator to stop the alleged violation and abate the damage to his property.
  3. If the Board’s investigation of the complaint indicates that (i) the VESCP authority has not responded to the alleged violation as required by the VESCP, (ii) the VESCP authority has not responded to the alleged violation within 30 days from the date of the notice given pursuant to subsection A, and (iii) there is a violation and it is necessary to require the violator to cease the violation as requested by the aggrieved owner, then the Board shall give written notice to the VESCP authority that the Board intends to issue an order pursuant to subsection D.
  4. If the VESCP authority has not instituted action to stop the violation and abate the damage to the aggrieved owner’s property within 10 days following receipt of the notice from the Board, the Board is authorized to issue an order requiring the owner, person responsible for carrying out an approved erosion and sediment control plan, or person conducting the land-disturbing activities without an approved plan or required land-disturbance approval to cease all land-disturbing activities until the violation of the plan has ceased or an approved plan and required land-disturbance approval are obtained, as appropriate, and specified corrective measures have been completed. The Board also may immediately initiate a program review of the VESCP.
  5. Such orders are to be issued in accordance with the procedures of the Administrative Process Act (§ 2.2-4000 et seq.), and they shall become effective upon service on the person by mailing with confirmation of delivery, sent to his address specified in the land records of the locality, or by personal delivery by an agent of the Board. Any subsequent identical mail or notice that is sent by the Board may be sent by regular mail. However, if the Board finds that any such violation is grossly affecting or presents an imminent and substantial danger of causing harmful erosion of lands or sediment deposition in waters within the watersheds of the Commonwealth, it may issue, without advance notice or hearing, an emergency order directing such person to cease all land-disturbing activities on the site immediately and shall provide an opportunity for a hearing, after reasonable notice as to the time and place thereof, to such person, to affirm, modify, amend, or cancel such emergency order.
  6. If a person who has been issued an order or emergency order is not complying with the terms thereof, the Board may institute a proceeding in the appropriate circuit court for an injunction, mandamus, or other appropriate remedy compelling the person to comply with such order.
  7. Any person violating or failing, neglecting, or refusing to obey any injunction, mandamus, or other remedy obtained pursuant to subsection G shall be subject, in the discretion of the court, to a civil penalty not to exceed $2,000 for each violation. Any civil penalties assessed by a court shall be paid into the state treasury and deposited by the State Treasurer into the Stormwater Local Assistance Fund (§ 62.1-44.15:29.1 ).

History. 1993, c. 925, § 10.1-569.1; 2012, cc. 785, 819.2013, cc. 756, 793; 2016, cc. 68, 758.

Section set out twice.

The section above is effective July 1, 2018, or 30 days after the adoption by the State Water Control Board of the regulations pursuant to Acts 2016, cc. 68 and 758, cl. 9, whichever occurs later. For this section as in effect until that time, see the preceding section, also numbered 62.1-44.15:64 .

Editor’s note.

Acts 2016, cc. 68 and 758, cl. 9 provides: “That the State Water Control Board (the Board) shall adopt regulations to implement the requirements of this act. The adoption of such regulations shall be exempt from the requirements of Article 2 ( § 2.2-4006 et seq.) of the Administrative Process Act ( § 2.2-4000 et seq.) of the Code of Virginia. However, the Department shall (i) provide a Notice of Intended Regulatory Action, (ii) form a stakeholders advisory group, (iii) provide for a 60-day public comment period prior to the Board’s adoption of the regulations, and (iv) provide the Board with a written summary of comments received and responses to comments prior to the Board’s adoption of the regulations.”

Acts 2016, cc. 68 and 758, cl. 10, as amended by Acts 2017, c. 345, cl. 2, provides: “That the provisions of this act shall become effective July 1, 2018, or 30 days after the adoption by the State Water Control Board of the regulations required by the ninth enactment of this act, whichever occurs later.”

The 2016 amendments.

The 2016 amendments by cc. 68 and 758 are identical, and rewrote the section. For effective date, see Editor’s note.

§ 62.1-44.15:65. (For expiration date — see notes) Authorization for more stringent regulations.

  1. As part of a VESCP, a district or locality is authorized to adopt more stringent soil erosion and sediment control regulations or ordinances than those necessary to ensure compliance with the Board’s regulations, provided that the more stringent regulations or ordinances are based upon factual findings of local or regional comprehensive watershed management studies or findings developed through the implementation of an MS4 permit or a locally adopted watershed management study and are determined by the district or locality to be necessary to prevent any further degradation to water resources, to address total maximum daily load requirements, to 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 and that prior to adopting more stringent regulations or ordinances, a public hearing is held after giving due notice. The VESCP authority shall report to the Board when more stringent stormwater management regulations or ordinances are determined to be necessary pursuant to this section. However, this section shall not be construed to authorize any district or locality to impose any more stringent regulations for plan approval or permit issuance than those specified in §§ 62.1-44.15:55 and 62.1-44.15:57 .
  2. Any provisions of an erosion and sediment control program in existence before July 1, 2012, that contains more stringent provisions than this article shall be exempt from the analysis requirements of subsection A.

History. 1973, c. 486, § 21-89.12; 1988, c. 891, § 10.1-570; 2012, cc. 785, 819; 2013, cc. 756, 793.

Section set out twice.

The section above is effective until July 1, 2018, or 30 days after the adoption by the State Water Control Board of the regulations pursuant to Acts 2016, cc. 68 and 758, cl. 9, whichever occurs later. For this section as in effect at that time, see the following section, also numbered 62.1-44.15:65 .

§ 62.1-44.15:65. (For effective date — see notes) Authorization for more stringent ordinances.

  1. As part of a VESCP, a locality is authorized to adopt more stringent soil erosion and sediment control ordinances than those necessary to ensure compliance with the Board’s regulations, provided that the more stringent ordinances are based upon factual findings of local or regional comprehensive watershed management studies or findings developed through the implementation of a locally adopted watershed management study and are determined by the locality to be necessary to prevent any further degradation to water resources, to address total maximum daily load requirements, to 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 and that prior to adopting more stringent ordinances, a public hearing is held after giving due notice. The VESCP authority shall report to the Board when more stringent erosion and sediment control ordinances are determined to be necessary pursuant to this section. This process shall not be required when a VESCP authority chooses to reduce the threshold for regulating land-disturbing activities to a smaller area of disturbed land pursuant to § 62.1-44.15:55 . This section shall not be construed to authorize any VESCP authority to impose any more stringent ordinances for land-disturbance review and approval than those specified in § 62.1-44.15:55 .
  2. Any provisions of an erosion and sediment control program in existence before July 1, 2012, that contains more stringent provisions than this article shall be exempt from the analysis requirements of subsection A.

History. 1973, c. 486, § 21-89.12; 1988, c. 891, § 10.1-570; 2012, cc. 785, 819; 2013, cc. 756, 793; 2016, cc. 68, 758.

Section set out twice.

The section above is effective July 1, 2018, or 30 days after the adoption by the State Water Control Board of the regulations pursuant to Acts 2016, cc. 68 and 758, cl. 9, whichever occurs later. For this section as in effect until that time, see the preceding section, also numbered 62.1-44.15:65 .

Editor’s note.

Acts 2016, cc. 68 and 758, cl. 9 provides: “That the State Water Control Board (the Board) shall adopt regulations to implement the requirements of this act. The adoption of such regulations shall be exempt from the requirements of Article 2 ( § 2.2-4006 et seq.) of the Administrative Process Act ( § 2.2-4000 et seq.) of the Code of Virginia. However, the Department shall (i) provide a Notice of Intended Regulatory Action, (ii) form a stakeholders advisory group, (iii) provide for a 60-day public comment period prior to the Board’s adoption of the regulations, and (iv) provide the Board with a written summary of comments received and responses to comments prior to the Board’s adoption of the regulations.”

Acts 2016, cc. 68 and 758, cl. 10, as amended by Acts 2017, c. 345, cl. 2, provides: “That the provisions of this act shall become effective July 1, 2018, or 30 days after the adoption by the State Water Control Board of the regulations required by the ninth enactment of this act, whichever occurs later.”

The 2016 amendments.

The 2016 amendments by cc. 68 and 758 are identical, and in subsection A, deleted “district or” preceding “locality is authorized,” three times deleted “regulations or” preceding “ordinances,” “an MS4 permit or” following “through the implementation of,” and “district or” preceding “locality to be necessary” in the first sentence; and substituted “erosion and sediment control” for “stormwater management regulations or” in the second sentence, added the third sentence, and rewrote the last sentence, which read “However, this section shall not be construed to authorize any district or locality to impose any more stringent regulations for plan approval or permit issuance than those specified in §§ 62.1-44.15:55 and 62.1-44.15:57 .” For effective date, see Editor’s note.

§ 62.1-44.15:66. No limitation on authority of Department of Energy.

The provisions of this article shall not limit the powers or duties of the Department of Energy as they relate to mine reclamation under Chapters 10 (§ 45.2-1000 et seq.) and 12 (§ 45.2-1200 et seq.) or oil or gas exploration under the Virginia Gas and Oil Act (§ 45.2-1600 et seq.).

History. 1973, c. 486, § 21-89.13; 1988, c. 891, § 10.1-571; 1996, c. 688; 2012, cc. 785, 819; 2013, cc. 47, 129, 756, 793; 2021, Sp. Sess. I, c. 532.

Editor’s note.

Acts 2013, cc. 47 and 129 amended § 10.1-571, from which this section is derived. Pursuant to § 30-152, Acts 2013, cc. 47 and 129 have been given effect in this section as set out above by deleting “17 (§ 45.1-198 et seq.).”

Effective October 1, 2021, “Chapters 10 (§ 45.2-1000 et seq.) and 12 (§ 45.2-1200 et seq.)” was substituted for “Chapters 16 (§ 45.1-180 et seq.) and 19 (§ 45.1-226 et seq.) of Title 45.1” and “Virginia Gas and Oil Act (§ 45.2-1600 et seq.)” was substituted for “Virginia Gas and Oil Act (§ 45.1-361.1 et seq.)” to conform to Acts 2021, Sp. Sess. I, c. 387, at the direction of the Virginia Code Commission.

Acts 2021, Sp. Sess. I, c. 532, cl. 2 provides: “That the provisions of this act shall become effective on October 1, 2021.”

The 2021 Sp. Sess. I amendments.

The 2021 amendment by Sp. Sess. I, c. 532, effective October 1, 2021, substituted “Department of Energy” for “Department of Mines, Minerals and Energy” and deleted “strip” preceding “mine.”

Article 2.5. Chesapeake Bay Preservation Act.

§ 62.1-44.15:67. Cooperative state-local program.

  1. Healthy state and local economies and a healthy Chesapeake Bay are integrally related; balanced economic development and water quality protection are not mutually exclusive. The protection of the public interest in the Chesapeake Bay, its tributaries, and other state waters and the promotion of the general welfare of the people of the Commonwealth require that (i) the counties, cities, and towns of Tidewater Virginia incorporate general water quality protection measures into their comprehensive plans, zoning ordinances, and subdivision ordinances; (ii) the counties, cities, and towns of Tidewater Virginia establish programs, in accordance with criteria established by the Commonwealth, that define and protect certain lands, hereinafter called Chesapeake Bay Preservation Areas, which if improperly developed may result in substantial damage to the water quality of the Chesapeake Bay and its tributaries; (iii) the Commonwealth make its resources available to local governing bodies by providing financial and technical assistance, policy guidance, and oversight when requested or otherwise required to carry out and enforce the provisions of this article; and (iv) all agencies of the Commonwealth exercise their delegated authority in a manner consistent with water quality protection provisions of local comprehensive plans, zoning ordinances, and subdivision ordinances when it has been determined that they comply with the provisions of this article.
  2. Local governments have the initiative for planning and for implementing the provisions of this article, and the Commonwealth shall act primarily in a supportive role by providing oversight for local governmental programs, by establishing criteria as required by this article, and by providing those resources necessary to carry out and enforce the provisions of this article.
  3. Each local government in Tidewater Virginia shall publish on its website the elements and criteria adopted to implement its local plan as required by this article, including those elements and criteria required by 9VAC25-830-60 for local programs.

History. 1988, cc. 608, 891, § 10.1-2100; 2013, cc. 756, 793; 2022, c. 207.

Editor’s note.

Acts 2013, cc. 756 and 793, recodified Article 1 (§ 10.1-603.1 et seq.) of Chapter 21 of Title 10.1, as Article 2.5 (§ 62.1-44.15:67 et seq.) of Chapter 3.1 of Title 62.1. Where appropriate, the historical citations to former sections have been added to corresponding new sections. For tables of corresponding former and new sections, see the tables in Volume 10.

Acts 2013, cc. 756 and 793, cl. 5 provides: “That the transfer of the responsibility for administering the issuance and enforcement of national pollutant discharge elimination system permits for the control of stormwater discharges shall become effective on July 1, 2013, or upon the U.S. Environmental Protection Agency’s rescission of authorization for delegation of program authority to the Virginia Soil and Water Conservation Board, whichever occurs later.”

Acts 2013, cc. 756 and 793, cl. 6 provides: “Regulations of the regulatory boards served by (i) the Department of Labor and Industry pursuant to Title 40.1 and (ii) the Department of Professional and Occupational Regulation or the Department of Health Professions pursuant to Title 54.1 that are limited to reducing fees charged to regulants and applicants.”

Acts 2013, cc. 756 and 793, cl. 7 provides: “That the regulations adopted by the Virginia Soil and Water Conservation Board to administer and implement the Virginia Stormwater Management Act (§ 10.1-603.1 et seq. of the Code of Virginia), the Erosion and Sediment Control Law (§ 10.1- 560 et seq. of the Code of Virginia), and the Chesapeake Bay Preservation Act (§ 10.1- 2100 et seq. of the Code of Virginia) are transferred from the Virginia Soil and Water Conservation Board to the State Water Control Board, and the State Water Control Board may amend, modify, or delete provisions in these regulations in order to implement this act. Such regulations shall remain in full force and effect until altered, amended, or rescinded by the State Water Control Board.”

Acts 2013, cc. 756 and 793, cl. 8 provides: “That the initial actions of the State Water Control Board to adopt, with necessary amendments, the regulations implementing the programs being transferred by this act from the Virginia Soil and Water Conservation Board to the State Water Control Board shall be exempt from Article 2 (§ 2.2-4006 et seq.) of Chapter 40 of Title 2.2 of the Code of Virginia. After transfer of the programs, if the State Water Control Board determines that additional amendments to the regulations are necessary solely to enable implementation of the programs in accordance with this act, the regulatory actions necessary shall be exempt from Article 2 (§ 2.2-4006 et seq.) of Chapter 40 of Title 2.2 of the Code of Virginia, except that the Department of Environmental Quality shall provide an opportunity for public comment on the regulatory actions.”

Acts 2013, cc. 756 and 793, cl. 9 provides: “That any regulatory action initiated by the Virginia Soil and Water Conservation Board to amend the programs being transferred by this act may be continued by the State Water Control Board at the time of the program transfer and that the State Water Control Board shall act expeditiously to address all such actions.”

Acts 2013, cc. 756 and 793, cl. 10 provides: “That the full-time employees and the total maximum employment level employed in the administration of the programs being transferred by this act shall be transferred from the Department of Conservation and Recreation to the Department of Environmental Quality. The Department of Conservation and Recreation is directed to transfer to the Department of Environmental Quality all appropriations, including special funds, for programs identified for transfer by this act. The Department of Environmental Quality is authorized to hire additional staff to operate the programs transferred by this act.”

Acts 2013, cc. 756 and 793, cl. 11 provides: “That 30 days prior to (i) the transfer of any full-time employees and total maximum employment level employed in the administration of the programs being transferred by this act, the Secretary of Natural Resources shall report to the Chairs of the Senate Committee on Finance, the Senate Committee on Agriculture, Conservation and Natural Resources, the House Committee on Appropriations, and the House Committee on Agriculture, Chesapeake and Natural Resources on such transfers and (ii) the transfer of appropriations, including special funds, for programs identified for transfer in this act, the Secretary of Natural Resources shall report on such transfers. By December 1, 2013, the Secretary of Natural Resources shall also report on the process by which the Department of Environmental Quality will distribute funds to local soil and water conservation districts as provided for in § 319 of the federal Clean Water Act and § 6217 of the federal Coastal Zone Management Act.”

Acts 2013, cc. 756 and 793, cl. 12 provides: “That the Directors of the Departments of Environmental Quality and Conservation and Recreation, the Commissioner of Agriculture and Consumer Services, and members of the Senate Committee on Agriculture, Conservation and Natural Resources and the House Committee on Agriculture, Chesapeake and Natural Resources, appointed by their respective Chairs, shall convene public meetings throughout the Commonwealth to evaluate the role of soil and water conservation districts in providing effective delivery of water quality services and technical assistance. In their deliberations the representatives of the executive branch agencies and legislators shall:

“A. Discuss the provisions of this act and its implications and solicit comments from the public and affected parties;

“B. Determine the extent of the role soil and water conservation districts should play in providing assistance in delivery of water quality services for nonpoint source pollution management and providing technical assistance for such programs as erosion and sediment control and stormwater management; and

“C. Determine whether the mission of soil and water conservation districts is more effectively delivered under the current statutory framework or whether organizational changes would enhance the effectiveness and efficiency of the delivery of such services.”

Acts 2013, cc. 756 and 793, cl. 13 provides: “That guidance of the Department of Conservation and Recreation, the Virginia Soil and Water Conservation Board, and the former Chesapeake Bay Local Assistance Board relating to programs to be transferred by this act shall remain in effect until amended or repealed.”

Acts 2013, cc. 756 and 793, cl. 14 provides: “That the Secretary of Natural Resources, working with the Directors of the Departments of Environmental Quality and Conservation and Recreation, shall take steps to enhance collaboration and communication among the natural resources agencies to ensure the effective and efficient implementation of the Commonwealth’s water quality and soil and water conservation programs.”

Acts 2019, c. 429, cl. 1 provides: “§ 1. That the Department of Health shall develop a plan for the oversight and enforcement by the Department of requirements related to the inspection and pump-out of onsite sewage treatment systems that do not require a Virginia Pollutant Discharge Elimination System permit established pursuant to the Chesapeake Bay Preservation Act (§ 62.1-44.15:67 et seq. of the Code of Virginia) and are located in counties eligible for participation in the Rural Coastal Virginia Community Enhancement Authority pursuant to Chapter 76 (§ 15.2-7600 et seq.) of Title 15.2 of the Code of Virginia. The Department shall present such plan to the Chairmen of the House Committee on Health, Welfare and Institutions and the Senate Committee on Education and Health prior to implementing the plan.”

The 2022 amendments.

The 2022 amendment by c. 207 added subsection C.

Research References.

Virginia Forms (Matthew Bender). No. 16-573. Agreement for Right to Inundate; No. 16-576 Deed of Gift of Conservation Easement; No. 16-579. Deeds of Easement to Local Government for Natural Open Space, Conservation or Rural Preservation.

CASE NOTES

The cases below were decided under prior law.

Variance denied from regulations under the Chesapeake Bay Preservation Act. —

Variances to permit residential construction on five lots of an owner’s land that were rendered unbuildable by overlapping setbacks imposed under the Chesapeake Bay Preservation Act (Act), § 10.1-2100 et seq., were properly denied; the exceptional shallowness of the lots did not require a variance under subdivision 2 of § 15.2-2309 because the owner did not show that the lots existed when the Act was passed, and the denial did not interfere with all reasonable beneficial uses of the land since a single residence could have been built on the entire parcel. Cherrystone Inlet, LLC v. Bd. of Zoning Appeals, 271 Va. 670 , 628 S.E.2d 324, 2006 Va. LEXIS 35 (2006).

CIRCUIT COURT OPINIONS

Applicability. —

Ordinance placed residents of the municipality on notice that the entirety of the county drained ultimately into Chesapeake Bay, which also made the Resource Protection Area status of any parcel of land within the county readily and publicly available. As a result, the buyer was charged with constructive notice of the existence of the Resource Protection Area and the buyer could not claim in the buyer’s fraud action regarding the real estate transaction that the buyer did not know that the property the buyer purchased to build a home on was limited from development by the ordinance, which had been promulgated in accordance with the requirements of the Chesapeake Bay Preservation Act, § 10.1-2100 et seq. McGlen v. Barrett, 78 Va. Cir. 90, 2009 Va. Cir. LEXIS 6 (Fairfax County Jan. 9, 2009).

Chesapeake Bay Preservation Act is not a “no growth” act. —

Zoning board of appeals erred in interpreting the Chesapeake Bay Preservation Act as a “no growth” statute, and thereby limiting the ability of property owners’ to develop their property. Chappell v. Bd. of Zoning Appeals for Fairfax, 65 Va. Cir. 142, 2004 Va. Cir. LEXIS 139 (Fairfax County June 17, 2004).

City’s designation of streams and property reversed as ultra vires. —

City’s designation of streams as perennial and property surrounding the streams as Resource Protection Areas under the Chesapeake Bay Preservation Act (Act), § 10.1-2100 et seq., was reversed as ultra vires; the regulations implementing the Act prior to 2002 defined a tributary stream as a stream identified as perennial on the United States Geological Survey map, which the streams at issue were not, and there was no indication that the city had developed or used a scientifically valid system of in-field indicators of perennial flow, as required under 9 VAC § 10-20-80 (D), or that such system had been adopted into the local program and applied consistently, as required by the amended regulation. Pony Farm Assocs., L.L.C. v. City of Richmond, 62 Va. Cir. 386, 2003 Va. Cir. LEXIS 282 (Richmond Aug. 6, 2003).

OPINIONS OF THE ATTORNEY GENERAL

Constitutionality of amendments of regulations. —

Amendments by the Chesapeake Bay Local Assistance Board to its Chesapeake Bay Preservation Area Designation and Management Regulations do not violate the Equal Protection Clause of the Constitution of the United States. See opinion of Attorney General to W. Leslie Kilduff, Jr., County Attorney for Northumberland County, 02-052, 2002 Va. AG LEXIS 73 (10/30/02).

§ 62.1-44.15:68. Definitions.

For the purposes of this article, the following words shall have the meanings respectively ascribed to them:

“Chesapeake Bay Preservation Area” means an area delineated by a local government in accordance with criteria established pursuant to § 62.1-44.15:72 .

“Criteria” means criteria developed by the Board pursuant to § 62.1-44.15:72 for the purpose of determining the ecological and geographic extent of Chesapeake Bay Preservation Areas and for use by local governments in permitting, denying, or modifying requests to rezone, subdivide, or use and develop land in Chesapeake Bay Preservation Areas.

“Daylighted stream” means a stream that had been previously diverted into an underground drainage system, has been redirected into an aboveground channel using natural channel design concepts as defined in § 62.1-44.15:51 , and would meet the criteria for being designated as a Resource Protection Area (RPA) as defined by the Board under this article.

“Department” means the Department of Environmental Quality.

“Director” means the Director of the Department of Environmental Quality.

“Secretary” means the Secretary of Natural and Historic Resources.

“Tidewater Virginia” means the following jurisdictions:

The Counties of Accomack, Arlington, Caroline, Charles City, Chesterfield, Essex, Fairfax, Gloucester, Hanover, Henrico, Isle of Wight, James City, King and Queen, King George, King William, Lancaster, Mathews, Middlesex, New Kent, Northampton, Northumberland, Prince George, Prince William, Richmond, Spotsylvania, Stafford, Surry, Westmoreland, and York, and the Cities of Alexandria, Chesapeake, Colonial Heights, Fairfax, Falls Church, Fredericksburg, Hampton, Hopewell, Newport News, Norfolk, Petersburg, Poquoson, Portsmouth, Richmond, Suffolk, Virginia Beach, and Williamsburg.

History. 1988, cc. 608, 891, § 10.1-2101; 2005, c. 41; 2012, cc. 785, 819; 2013, cc. 756, 793; 2015, c. 674; 2021, Sp. Sess. I, c. 401.

Editor’s note.

Acts 2017, c. 345, cl. 1, effective until January 1, 2018, provides: “§ 1. That the Commonwealth Center for Recurrent Flooding Resiliency shall convene a work group to examine opportunities to improve stormwater management in rural localities that are located in Tidewater Virginia, as defined in § 62.1-44.15:68 of the Code of Virginia. The work group shall review and consider alternative methods that could be used in such localities to meet or exceed the level of water quality protection and water quantity control provided by the Virginia Stormwater Management Program (VSMP) Regulation, 9VAC25-870, including (i) the creation of rural development growth areas within such localities, in which stormwater management could be administered by the localities using different approaches than those set forth in the VSMP Regulation; (ii) the development of a volume credit program to fulfill water quantity requirements; (iii) the payment of fees to support regional stormwater best management practices; and (iv) the allowance of the use of the stormwater in the networks of ditches that line the highways within such localities to generate volume credits.

Ҥ 2. That the work group created by this act shall be facilitated by the Virginia Coastal Policy Center at William and Mary Law School and shall include representatives of the Virginia Institute of Marine Science, Old Dominion University, the Virginia Department of Transportation, the Virginia Department of Environmental Quality, the Chesapeake Bay Commission, local governments, environmental interests, private mitigation providers, the agriculture industry, the engineering and development communities, and other stakeholders as determined necessary.

Ҥ 3. That in order to support the efforts of the work group created by this act, the Commonwealth Center for Recurrent Flooding Resiliency shall provide comprehensive analysis of the appropriate regulatory sections, and alternatives developed by the work group, with the goal of determining the difference in water quality benefits provided.

“§ 4. That the Commonwealth Center for Recurrent Flooding Resiliency shall report the results of the examination conducted by the work group created by this act, including recommendations for any legislative or regulatory measures needed to improve the administration of stormwater management by rural localities, to the Governor, the Chairman of the House Committee on Agriculture, Chesapeake and Natural Resources, and the Chairman of the Senate Committee on Agriculture, Conservation and Natural Resources no later than January 1, 2018.”

Acts 2017, c. 345, cl. 3, provides: “That the provisions of the first enactment of this act shall expire on January 1, 2018.”

The 2015 amendments.

The 2015 amendment by c. 674 added the definition for “Daylighted stream.”

The 2021 Sp. Sess. I amendments.

The 2021 amendment by Sp. Sess. I, c. 401, effective July 1, 2021, inserted “and Historic” in the definition for “Secretary.”

§ 62.1-44.15:69. (For expiration date — see notes) Powers and duties of the Board.

The Board is responsible for carrying out the purposes and provisions of this article and is authorized to:

  1. Provide land use and development and water quality protection information and assistance to the various levels of local, regional, and state government within the Commonwealth.
  2. Consult, advise, and coordinate with the Governor, the Secretary, the General Assembly, other state agencies, regional agencies, local governments, and federal agencies for the purpose of implementing this article.
  3. Provide financial and technical assistance and advice to local governments and to regional and state agencies concerning aspects of land use and development and water quality protection pursuant to this article.
  4. Promulgate regulations pursuant to the Administrative Process Act (§ 2.2-4000 et seq.).
  5. Develop, promulgate, and keep current the criteria required by § 62.1-44.15:72 .
  6. Provide technical assistance and advice or other aid for the development, adoption, and implementation of local comprehensive plans, zoning ordinances, subdivision ordinances, and other land use and development and water quality protection measures utilizing criteria established by the Board to carry out the provisions of this article.
  7. Develop procedures for use by local governments to designate Chesapeake Bay Preservation Areas in accordance with the criteria developed pursuant to § 62.1-44.15:72 .
  8. Ensure that local government comprehensive plans, zoning ordinances, and subdivision ordinances are in accordance with the provisions of this article. Determination of compliance shall be in accordance with the provisions of the Administrative Process Act (§ 2.2-4000 et seq.).
  9. Make application for federal funds that may become available under federal acts and to transmit such funds when applicable to any appropriate person.
  10. Take administrative and legal actions to ensure compliance by counties, cities, and towns with the provisions of this article including the proper enforcement and implementation of, and continual compliance with, this article.
  11. Perform such other duties and responsibilities related to the use and development of land and the protection of water quality as the Secretary may assign.

History. 1988, cc. 608, 891, § 10.1-2103; 1997, c. 266; 2013, cc. 756, 793.

Section set out twice.

The section above is effective until July 1, 2018, or 30 days after the adoption by the State Water Control Board of the regulations pursuant to Acts 2016, cc. 68 and 758, cl. 9, whichever occurs later. For this section as in effect at that time, see the following section, also numbered 62.1-44.15:69 .

OPINIONS OF THE ATTORNEY GENERAL

Constitutionality of amendments of regulations. —

Amendments by the Chesapeake Bay Local Assistance Board to its Chesapeake Bay Preservation Area Designation and Management Regulations do not violate the Equal Protection Clause of the Constitution of the United States. See opinion of Attorney General to W. Leslie Kilduff, Jr., County Attorney for Northumberland County, 02-052, 2002 Va. AG LEXIS 73 (10/30/02) (decided under prior law).

§ 62.1-44.15:69. (For effective date — see notes) Powers and duties of the Board.

The Board is responsible for carrying out the purposes and provisions of this article and is authorized to:

  1. Provide land use and development and water quality protection information and assistance to the various levels of local, regional, and state government within the Commonwealth.
  2. Consult, advise, and coordinate with the Governor, the Secretary, the General Assembly, other state agencies, regional agencies, local governments, and federal agencies for the purpose of implementing this article.
  3. Provide financial and technical assistance and advice to local governments and to regional and state agencies concerning aspects of land use and development and water quality protection pursuant to this article.
  4. Promulgate regulations pursuant to the Administrative Process Act (§ 2.2-4000 et seq.).
  5. Develop, promulgate, and keep current the criteria required by § 62.1-44.15:72 .
  6. Provide technical assistance and advice or other aid for the development, adoption, and implementation of local comprehensive plans, zoning ordinances, subdivision ordinances, and other land use and development and water quality protection measures utilizing criteria established by the Board to carry out the provisions of this article.
  7. Develop procedures for use by local governments to designate Chesapeake Bay Preservation Areas in accordance with the criteria developed pursuant to § 62.1-44.15:72 .
  8. Ensure that local government comprehensive plans, zoning ordinances, and subdivision ordinances are in accordance with the provisions of this article. Determination of compliance shall be in accordance with the provisions of the Administrative Process Act (§ 2.2-4000 et seq.).
  9. Make application for federal funds that may become available under federal acts and to transmit such funds when applicable to any appropriate person.
  10. Take administrative and legal actions pursuant to subdivision (19) of § 62.1-44.15 to ensure compliance by counties, cities, and towns with the provisions of this article including the proper enforcement and implementation of, and continual compliance with, this article.
  11. Perform such other duties and responsibilities related to the use and development of land and the protection of water quality as the Secretary may assign.

History. 1988, cc. 608, 891, § 10.1-2103; 1997, c. 266; 2013, cc. 756, 793; 2016, cc. 68, 758.

Section set out twice.

The section above is effective July 1, 2018, or 30 days after the adoption by the State Water Control Board of the regulations pursuant to Acts 2016, cc. 68 and 758, cl. 9, whichever occurs later. For this section as in effect until that time, see the preceding section, also numbered 62.1-44.15:69 .

Editor’s note.

Acts 2016, cc. 68 and 758, cl. 9 provides: “That the State Water Control Board (the Board) shall adopt regulations to implement the requirements of this act. The adoption of such regulations shall be exempt from the requirements of Article 2 ( § 2.2-4006 et seq.) of the Administrative Process Act ( § 2.2-4000 et seq.) of the Code of Virginia. However, the Department shall (i) provide a Notice of Intended Regulatory Action, (ii) form a stakeholders advisory group, (iii) provide for a 60-day public comment period prior to the Board’s adoption of the regulations, and (iv) provide the Board with a written summary of comments received and responses to comments prior to the Board’s adoption of the regulations.”

Acts 2016, cc. 68 and 758, cl. 10, as amended by Acts 2017, c. 345, cl. 2, provides: “That the provisions of this act shall become effective July 1, 2018, or 30 days after the adoption by the State Water Control Board of the regulations required by the ninth enactment of this act, whichever occurs later.”

The 2016 amendments.

The 2016 amendments by cc. 68 and 758 are identical, and in subdivision 10, inserted “pursuant to subdivision (19) of § 62.1-44.15 .” For effective date, see Editor’s note.

§ 62.1-44.15:70. Exclusive authority of Board to institute legal actions.

The Board shall have the exclusive authority to institute or intervene in legal and administrative actions to ensure compliance by local governing bodies with this article and with any criteria or regulations adopted hereunder.

History. 1988, cc. 608, 891, § 10.1-2104; 1997, c. 266; 2013, cc. 756, 793.

OPINIONS OF THE ATTORNEY GENERAL

Constitutionality of amendments of regulations. —

Amendments by the Chesapeake Bay Local Assistance Board to its Chesapeake Bay Preservation Area Designation and Management Regulations do not violate the Equal Protection Clause of the Constitution of the United States. See opinion of Attorney General to W. Leslie Kilduff, Jr., County Attorney for Northumberland County, 02-052, 2002 Va. AG LEXIS 73 (10/30/02) (decided under prior law).

§ 62.1-44.15:71. (For repeal date — see notes) Program compliance.

Program compliance reviews conducted in accordance with § 62.1-44.15:69 and the regulations associated with this article shall be coordinated where applicable with those being implemented in accordance with the erosion and sediment control and stormwater management provisions of this chapter and associated regulations. The Department may also conduct a comprehensive or partial program compliance review and evaluation of a local government program more frequently than the standard schedule.

Following completion of a compliance review of a local government program, the Department shall provide results and compliance recommendations to the Board in the form of a corrective action agreement should deficiencies be found; otherwise, the Board may find the program compliant. When deficiencies are found, the Board will establish a schedule for the local government to come into compliance. The Board shall provide a copy of its decision to the local government that specifies the deficiencies, actions needed to be taken, and the approved compliance schedule. If the local government has not implemented the necessary compliance actions identified by the Board within 30 days following receipt of the corrective action agreement, or such additional period as is granted to complete the implementation of the compliance actions, then the Board shall have the authority to issue a spec