§§ 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 Repealed by Acts 1992, c. 836.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 Effective Oct. 1, 1968, it repealed Title 62 of the Code and enacted a new Title 62.1.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recodified the tidal fishing and habitat laws of Virginia, by inter alia, adding a Title 28.2 and repealing Title 28.1, repealed §§ 62.1-1 through 62.1-4, 62.1-9.1 , 62.1-13.1 through 62.1-13.20, 62.1-13.21 through 62.1-13.28, and 62.1-194.1:1 .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 Repealed by Acts 1987, c. 488.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.

§ 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).

§ 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.

§§ 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.

§§ 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.

§§ 62.1-14 through 62.1-44.1.

Repealed by Acts 1970, c. 638.

§ 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.

§ 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.

§ 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).

§ 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.

§ 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.

§ 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.

§ 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).

§ 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).

§ 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.

§ 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).

§ 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. 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.
2. 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.
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 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).

§ 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.
2. 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.
3. 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.
4. 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.

§ 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.

§ 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 .

§ 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.”

§ 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.

§ 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 special order to any local government 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 .

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.

In lieu of issuing a special order, the Board is also authorized to take legal action against a local government to ensure compliance.

History. 2012, cc. 785, 819, § 10.1-2104.1; 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 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.”

§ 62.1-44.15:72. Board to develop criteria.

1. In order to implement the provisions of this article and to assist counties, cities, and towns in regulating the use and development of land and in protecting the quality of state waters, the Board shall promulgate regulations that establish criteria for use by local governments to determine the ecological and geographic extent of Chesapeake Bay Preservation Areas. The Board shall also promulgate regulations that establish criteria for use by local governments in granting, denying, or modifying requests to rezone, subdivide, or use and develop land in these areas.
2. In developing and amending the criteria, the Board shall consider all factors relevant to the protection of water quality from significant degradation as a result of the use and development of land. The criteria shall incorporate measures such as performance standards, best management practices, and various planning and zoning concepts to protect the quality of state waters while allowing use and development of land consistent with the provisions of this chapter. The criteria adopted by the Board, operating in conjunction with other state water quality programs, shall encourage and promote (i) protection of existing high quality state waters and restoration of all other state waters to a condition or quality that will permit all reasonable public uses and will support the propagation and growth of all aquatic life, including game fish, that might reasonably be expected to inhabit them; (ii) safeguarding of the clean waters of the Commonwealth from pollution; (iii) prevention of any increase in pollution; (iv) reduction of existing pollution; (v) preservation of mature trees or planting of trees as a water quality protection tool and as a means of providing other natural resource benefits; (vi) coastal resilience and adaptation to sea-level rise and climate change; and (vii) promotion of water resource conservation in order to provide for the health, safety, and welfare of the present and future citizens of the Commonwealth.
3. Prior to the development or amendment of criteria, the Board shall give due consideration to, among other things, the economic and social costs and benefits that can reasonably be expected to obtain as a result of the adoption or amendment of the criteria.
4. In developing such criteria the Board may consult with and obtain the comments of any federal, state, regional, or local agency that has jurisdiction by law or special expertise with respect to the use and development of land or the protection of water. The Board shall give due consideration to the comments submitted by such federal, state, regional, or local agencies.
5. In developing such criteria, the Board shall provide that any locality in a Chesapeake Bay Preservation Area that allows the owner of an onsite sewage treatment system not requiring a Virginia Pollutant Discharge Elimination System permit to submit documentation in lieu of proof of septic tank pump-out shall require such owner to have such documentation certified by an operator or onsite soil evaluator licensed or certified under Chapter 23 (§ 54.1-2300 et seq.) of Title 54.1 as being qualified to operate, maintain, or design onsite sewage systems.
6. In developing such criteria, the Board shall not require the designation of a Resource Protection Area (RPA) as defined according to the criteria developed by the Board, adjacent to a daylighted stream. However, a locality that elects not to designate an RPA adjacent to a daylighted stream shall use a water quality impact assessment to ensure that proposed development on properties adjacent to the daylighted stream does not result in the degradation of the stream. The water quality impact assessment shall (i) be consistent with the Board’s criteria for water quality assessments in RPAs, (ii) identify the impacts of the proposed development on water quality, and (iii) determine specific measures for the mitigation of those impacts. The objective of this assessment is to ensure that practices on properties adjacent to daylighted streams are effective in retarding runoff, preventing erosion, and filtering nonpoint source pollution. The specific content for the water quality impact assessment shall be established and implemented by any locality that chooses not to designate an RPA adjacent to a daylighted stream. Nothing in this subsection shall limit a locality’s authority to include a daylighted stream within the extent of an RPA.
7. Effective July 1, 2014, requirements promulgated under this article directly related to compliance with the erosion and sediment control and stormwater management provisions of this chapter and regulated under the authority of those provisions shall cease to have effect.
8. Effective July 1, 2023, requirements promulgated under this article directly related to compliance with onsite sewage system pump-outs shall be managed and enforced by the Department of Health in Accomack, Essex, Gloucester, King and Queen, King William, Lancaster, Mathews, Middlesex, Northampton, Northumberland, Richmond, and Westmoreland Counties, and the incorporated towns within those counties.

History. 1988, cc. 608, 891, § 10.1-2107; 2012, cc. 785, 819; 2013, cc. 756, 793; 2014, c. 151; 2015, c. 674; 2020, c. 1207; 2022, c. 486.

Editor’s note.

Acts 2020, c. 1207, cl. 2 provides: “That the State Water Control Board (the Board) shall adopt regulations to implement the provisions of 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. Such proposed regulations shall be subject to a public comment period of at least 60 days prior to final adoption by the Board.”

Acts 2022, c. 486, cl. 2 provides: “That the Department of Health (the Department) shall provide outreach and education to homeowners to ensure compliance with onsite sewage treatment system pump-out requirements adopted pursuant to the Chesapeake Bay Preservation Act (§ 62.1-44.15:67 et seq. of the Code of Virginia). The Department shall provide to the Chairmen of the House Committee on Health, Welfare and Institutions and the Senate Committee on Education and Health an interim report by December 1, 2024, and a final report by December 1, 2025, on compliance with such onsite sewage treatment system pump-out requirements in the localities specified in subsection L of § 32.1-164 of the Code of Virginia, as amended by this act, and subsection H of § 62.1-44.15:72 of the Code of Virginia, as amended by this act, and the incorporated towns within such localities. Such reports shall also include recommendations to improve compliance with onsite sewage treatment system pump-out requirements adopted pursuant to the Chesapeake Bay Preservation Act.”

The 2014 amendments.

The 2014 amendment by c. 151, added subsection E and redesignated former subsection E as subsection F.

The 2015 amendments.

The 2015 amendment by c. 674 added subsection F and redesignated former subsection F as subsection G.

The 2020 amendments.

The 2020 amendment by c. 1207, in subsection B in the last sentence, substituted “safeguarding of the clean waters” for “safeguarding the clean waters” in clause (ii), inserted clauses (v) and (vi), and redesignated former clause (v) as clause (vii); and made stylistic changes.

The 2022 amendments.

The 2022 amendment by c. 486 added subsection H and made stylistic changes.

§ 62.1-44.15:73. Local government authority.

Counties, cities, and towns are authorized to exercise their police and zoning powers to protect the quality of state waters consistent with the provisions of this article.

History. 1988, cc. 608, 891, § 10.1-2108; 2013, cc. 756, 793.

§ 62.1-44.15:74. Local governments to designate Chesapeake Bay Preservation Areas; incorporate into local plans and ordinances; impose civil penalties.

1. Counties, cities, and towns in Tidewater Virginia shall use the criteria developed by the Board to determine the extent of the Chesapeake Bay Preservation Area within their jurisdictions. Designation of Chesapeake Bay Preservation Areas shall be accomplished by every county, city, and town in Tidewater Virginia not later than 12 months after adoption of criteria by the Board.
2. Counties, cities, and towns in Tidewater Virginia shall incorporate protection of the quality of state waters into each locality’s comprehensive plan consistent with the provisions of this article.
3. All counties, cities, and towns in Tidewater Virginia shall have zoning ordinances that incorporate measures to protect the quality of state waters in the Chesapeake Bay Preservation Areas consistent with the provisions of this article. Zoning in Chesapeake Bay Preservation Areas shall comply with all criteria set forth in or established pursuant to § 62.1-44.15:72 .
4. Counties, cities, and towns in Tidewater Virginia shall incorporate protection of the quality of state waters in Chesapeake Bay Preservation Areas into their subdivision ordinances consistent with the provisions of this article. Counties, cities, and towns in Tidewater Virginia shall ensure that all subdivisions developed pursuant to their subdivision ordinances comply with all criteria developed by the Board.
5. (For expiration date — see notes)  In addition to any other remedies which may be obtained under any local ordinance enacted to protect the quality of state waters in Chesapeake Bay Preservation Areas, counties, cities, and towns in Tidewater Virginia may incorporate the following penalties into their zoning, subdivision, or other ordinances:
   1. Any person who (i) violates any provision of any such ordinance or (ii) violates or fails, neglects, or refuses to obey any local governmental body’s or official’s final notice, order, rule, regulation, or variance or permit condition authorized under such ordinance shall, upon such finding by an appropriate circuit court, be assessed a civil penalty not to exceed $5,000 for each day of violation. Such civil penalties may, at the discretion of the court assessing them, be directed to be paid into the treasury of the county, city, or town in which the violation occurred for the purpose of abating environmental damage to or restoring Chesapeake Bay Preservation Areas therein, in such a manner as the court may direct by order, except that where the violator is the county, city, or town itself, or its agent, the court shall direct the penalty to be paid into the state treasury.
   2. With the consent of any person who (i) violates any provision of any local ordinance related to the protection of water quality in Chesapeake Bay Preservation Areas or (ii) violates or fails, neglects, or refuses to obey any local governmental body’s or official’s notice, order, rule, regulation, or variance or permit condition authorized under such ordinance, the local government may provide for the issuance of an order against such person for the one-time payment of civil charges for each violation in specific sums, not to exceed $10,000 for each violation. Such civil charges shall be paid into the treasury of the county, city, or town in which the violation occurred for the purpose of abating environmental damage to or restoring Chesapeake Bay Preservation Areas therein, except that where the violator is the county, city, or town itself, or its agent, the civil charges shall be paid into the state treasury. Civil charges shall be in lieu of any appropriate civil penalty that could be imposed under subdivision 1. Civil charges may be in addition to the cost of any restoration required or ordered by the local governmental body or official.
6. Localities that are subject to the provisions of this article may by ordinance adopt an appeal period for any person aggrieved by a decision of a board that has been established by the locality to hear cases regarding ordinances adopted pursuant to this article. The ordinance shall allow the aggrieved party a minimum of 30 days from the date of such decision to appeal the decision to the circuit court.

E. (For effective date — see notes) In addition to any other remedies which may be obtained under any local ordinance enacted to protect the quality of state waters in Chesapeake Bay Preservation Areas, counties, cities, and towns in Tidewater Virginia may incorporate the following penalties into their zoning, subdivision, or other ordinances:

1. Any person who (i) violates any provision of any such ordinance or (ii) violates or fails, neglects, or refuses to obey any local governmental body’s or official’s final notice, order, rule, regulation, or variance or permit condition authorized under such ordinance shall, upon such finding by an appropriate circuit court, be assessed a civil penalty not to exceed $5,000 for each day of violation. Such civil penalties may, at the discretion of the court assessing them, be directed to be paid into the treasury of the county, city, or town in which the violation occurred for the purpose of abating environmental damage to or restoring Chesapeake Bay Preservation Areas therein, in such a manner as the court may direct by order, except that where the violator is the county, city, or town 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 by § 62.1-44.15:29.1 .

2. With the consent of any person who (i) violates any provision of any local ordinance related to the protection of water quality in Chesapeake Bay Preservation Areas or (ii) violates or fails, neglects, or refuses to obey any local governmental body’s or official’s notice, order, rule, regulation, or variance or permit condition authorized under such ordinance, the local government may provide for the issuance of an order against such person for the one-time payment of civil charges for each violation in specific sums, not to exceed $10,000 for each violation. Such civil charges shall be paid into the treasury of the county, city, or town in which the violation occurred for the purpose of abating environmental damage to or restoring Chesapeake Bay Preservation Areas therein, except that where the violator is the county, city, or town itself, or its agent, the civil charges shall be paid into the state treasury and deposited by the State Treasurer into the Stormwater Local Assistance Fund established by § 62.1-44.15:29.1 . Civil charges shall be in lieu of any appropriate civil penalty that could be imposed under subdivision 1. Civil charges may be in addition to the cost of any restoration required or ordered by the local governmental body or official.

History. 1988, cc. 608, 891, § 10.1-2109; 1998, cc. 700, 714; 2008, c. 15; 2013, cc. 756, 793; 2016, cc. 68, 758.

Subsection E set out twice.

The second version of subsection E above is 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. For subsection E 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 amendment by c. 68, in subdivision E 1, added “and deposited by the State Treasurer into the Stormwater Local Assistance Fund established by § 62.1-44.15:29.1 ” to the end of the subdivision; and in subdivision E 2, inserted “and deposited by the State Treasurer into the Stormwater Local Assistance Fund established by § 62.1-44.15:29.1 .” For effective date, see Editor’s note.

Law Review.

For article, “Legal Issues Affecting Local Governments in Implementing the Chesapeake Bay Preservation Act,” see 24 U. Rich. L. Rev. 1 (1989).

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).

Research References.

Virginia Forms (Matthew Bender). No. 16-401 Land Sales Contract.

CIRCUIT COURT OPINIONS

City’s designation of streams and property reversed as ultra vires. —

City’s designation of streams as perennial and property surrounding the streams as as Resource Protection Areas under the city’s Chesapeake Bay Preservation Act, ordinance was improper and 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) (decided under prior law).

OPINIONS OF THE ATTORNEY GENERAL

Intervention by Chesapeake Bay Local Assistance Board. —

The Chesapeake Bay Local Assistance Board has authority to “intervene ” on its own or on behalf of a person who believes a local governing body is disregarding its zoning ordinances or misinterpreting certain criteria designed to protect the quality of state waters, and the Board is also authorized to institute or take administrative and legal actions to ensure compliance with the Chesapeake Bay Preservation Act. See opinion of Attorney General to Mr. Michael D. Clower, Executive Director, Chesapeake Bay Local Assistance Department, 00-087, 2001 Va. AG LEXIS 24 (11/26/01) (decided under prior law).

§ 62.1-44.15:75. Local governments outside of Tidewater Virginia may adopt provisions.

Any local government, although not a part of Tidewater Virginia, may employ the criteria developed pursuant to § 62.1-44.15:72 and may incorporate protection of the quality of state waters into their comprehensive plans, zoning ordinances, and subdivision ordinances consistent with the provisions of this article.

History. 1988, cc. 608, 891, § 10.1-2110; 2013, cc. 756, 793.

§ 62.1-44.15:76. Local government requirements for water quality protection.

Local governments shall employ the criteria promulgated by the Board to ensure that the use and development of land in Chesapeake Bay Preservation Areas shall be accomplished in a manner that protects the quality of state waters consistent with the provisions of this article.

History. 1988, cc. 608, 891, § 10.1-2111; 2013, cc. 756, 793.

OPINIONS OF THE ATTORNEY GENERAL

Intervention by Chesapeake Bay Local Assistance Board. —

The Chesapeake Bay Local Assistance Board has authority to “intervene ” on its own or on behalf of a person who believes a local governing body is disregarding its zoning ordinances or misinterpreting certain criteria designed to protect the quality of state waters, and the Board is also authorized to institute or take administrative and legal actions to ensure compliance with the Chesapeake Bay Preservation Act. See opinion of Attorney General to Mr. Michael D. Clower, Executive Director, Chesapeake Bay Local Assistance Department, 00-087, 2001 Va. AG LEXIS 24 (11/26/01) (decided under prior law).

§ 62.1-44.15:77. Effect on other governmental authority.

The authorities granted herein are supplemental to other state, regional, and local governmental authority. No authority granted to a local government by this article shall affect in any way the authority of the Board. No authority granted to a local government by this article shall limit in any way any other planning, zoning, or subdivision authority of that local government.

History. 1988, cc. 608, 891, § 10.1-2113; 2013, cc. 756, 793.

§ 62.1-44.15:78. State agency consistency.

All agencies of the Commonwealth shall exercise their authorities under the Constitution and laws of Virginia in a manner consistent with the provisions of comprehensive plans, zoning ordinances, and subdivision ordinances that comply with §§ 62.1-44.15:74 and 62.1-44.15:75 .

History. 1988, cc. 608, 891, § 10.1-2114; 2013, cc. 756, 793.

§ 62.1-44.15:79. Vested rights protected.

The provisions of this article shall not affect vested rights of any landowner under existing law.

History. 1988, cc. 608, 891, § 10.1-2115; 2013, cc. 756, 793.

§ 62.1-44.15:80. Findings and purpose.

The General Assembly determines and finds that to comply with § 401 of the federal Clean Water Act (33 U.S.C. § 1341), any applicant for a federal license or permit to conduct any activity that may result in any discharge into navigable waters shall provide the federal licensing or permitting authority with a certification from the state in which the discharge originates or will originate certifying that any such discharge will comply with applicable provisions of the Clean Water Act. The General Assembly determines and finds that the Virginia Water Protection Permit program has proven to be sufficient to evaluate and, when necessary, mitigate potential water quality impacts for most federally permitted projects. Virginia Water Protection Permit coverage addresses the impacts caused to wetlands and streams by excavating in a wetland, draining or significantly altering wetland acreage or function, filling or dumping in a stream or wetland, or permanently flooding or impounding a wetland area or stream. However, the conditions and requirements of a Virginia Water Protection Permit do not cover activities in upland areas, outside of wetlands and streams, that may result in a discharge to state waters. The General Assembly determines and finds that for construction of natural gas transmission pipelines greater than 36 inches inside diameter that are subject to a certificate of public convenience and necessity under § 7c of the federal Natural Gas Act (15 U.S.C. § 717f(c)), there may be activities in upland areas that may have the potential to affect water quality but that do not fall within the scope of the Virginia Water Protection Permit program. Information related to such impacts would not be contained in the Joint Permit Application utilized to determine permit conditions for a Virginia Water Protection Permit. The General Assembly determines and finds that issuance of a Virginia Water Protection Permit and a certification issued pursuant to this article shall together constitute the certification required under § 401 of the Clean Water Act for natural gas transmission pipelines greater than 36 inches inside diameter subject to § 7c of the Natural Gas Act.

History. 2018, c. 636.

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)).”

§ 62.1-44.15:81. Application and preparation of draft certification conditions.

1. Any applicant for a federal license or permit for a natural gas transmission pipeline greater than 36 inches inside diameter subject to § 7c of the federal Natural Gas Act (15 U.S.C. § 717f(c)) shall submit a separate application, at the same time the Joint Permit Application is submitted, to the Department containing a description of all activities that will occur in upland areas, including activities in or related to (i) slopes with a grade greater than 15 percent; (ii) karst geology features, including sinkholes and underground springs; (iii) proximity to sensitive streams and wetlands identified by the Department of Conservation and Recreation or the Department of Wildlife Resources; (iv) seasonally high water tables; (v) water impoundment structures and reservoirs; and (vi) areas with highly erodible soils, low pH, and acid sulfate soils. Concurrently with the Joint Permit Application, the applicant shall also submit a detailed erosion and sediment control plan and stormwater management plan subject to Department review and approval.
2. After receipt of an application in accordance with subsection A, the Department shall issue a request for information about how the erosion and sediment control plan and stormwater management plan will address activities in or related to the upland areas identified in subsection A. The response to such request shall include the specific strategies and best management practices that will be utilized by the applicant to address challenges associated with each area type and an explanation of how such strategies and best management practices will ensure compliance with water quality standards.
3. At any time during the review of the application, but prior to issuing a certification pursuant to this article, the Department may issue an information request to the applicant for any relevant additional information necessary to determine (i) if any activities related to the applicant’s project in upland areas are likely to result in a discharge to state waters and (ii) how the applicant proposes to minimize water quality impacts to the maximum extent practicable to protect water quality. The information request shall provide a reasonable amount of time for the applicant to respond.
4. The Department shall review the information contained in the application, the response to the information request in subsection B, and any additional information obtained through any information requests issued pursuant to subsection C to determine if any activities described in the application or in any additional information requests (i) are likely to result in a discharge to state waters with the potential to adversely impact water quality and (ii) will not be addressed by the Virginia Water Protection Permit issued for the activity pursuant to Article 2.2 (§ 62.1-44.15:20 et seq.). The Department of Wildlife Resources, the Department of Conservation and Recreation, the Department of Health, and the Department of Agriculture and Consumer Services shall consult with the Department during the review of the application and any additional information obtained through any information requests issued pursuant to subsection B or C. Following the conclusion of its review, the Department shall develop a draft certification or denial. A draft certification, including (i) any additional conditions for activities in upland areas necessary to protect water quality and (ii) a condition that the applicant shall not commence land-disturbing activity prior to approval by the Department of the erosion and sediment control plan and stormwater management plan required pursuant to subsection E, shall be noticed for public comment and potential issuance by the Department. The Department shall make the information contained in the application and any additional information obtained through any information requests issued pursuant to subsection B or C available to the public.
5. Notwithstanding any applicable annual standards and specifications for erosion and sediment control or stormwater management pursuant to Article 2.3 (§ 62.1-44.15:24 et seq.) or 2.4 (§ 62.1-44.15:51 et seq.), the applicant shall not commence land-disturbing activity prior to resolution of any unresolved issues identified in subsection B to the satisfaction of the Department and approval by the Department of an erosion and sediment control plan and stormwater management plan in accordance with applicable regulations. The Department shall act on any plan submittal within 60 days after initial submittal of a completed plan to the Department. The Department may issue either approval or disapproval and shall provide written rationale for its decision. The Department shall act on any plan that has been previously disapproved within 30 days after the plan has been revised and resubmitted for approval.
6. No action by either the Department or the Board on a certification pursuant to this article shall alter the siting determination made through Federal Energy Regulatory Commission or State Corporation Commission approval.
7. The Department shall assess an administrative charge to the applicant to cover the direct costs of services rendered associated with its responsibilities pursuant to this section.
8. Neither the Department nor the Board shall expressly waive certification of a natural gas transmission pipeline of greater than 36 inches inside diameter under § 401 of the federal Clean Water Act (33 U.S.C. § 1341). The Department or the Board shall act on any certification request within a reasonable period of time pursuant to federal law. Nothing in this section shall be construed to prohibit the Department or the Board from taking action to deny a certification in accordance with the provisions of § 401 of the federal Clean Water Act (33 U.S.C. § 1341).

History. 2018, c. 636; 2020, c. 958; 2021, Sp. Sess. I, c. 501; 2022, c. 356.

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 2020 amendments.

The 2020 amendment by c. 958, in subsection A, clause (iii) and subsection C, second sentence, substituted “Department of Wildlife Resources” for “Department of Game and Inland Fisheries.”

The 2021 Sp. Sess. I amendments.

The 2021 amendment by Sp. Sess. I, c. 501, effective July 1, 2021, added the last sentence in subsection A; inserted subsection B, and redesignated the remaining subsections accordingly; in subsection D, in the first sentence, inserted “the response to the information request in subsection B,” substituted “subsection C” for “subsection B,” added “or C” in the second sentence, and rewrote the former next-to-last sentence, which read: “Following the conclusion of its review, the Department shall develop a draft certification for public comment and potential issuance by the Department or the Board pursuant to § 62.1-44.15:02 that contains any additional conditions for activities in upland areas necessary to protect water quality”; in subsection E, inserted “resolution of any unresolved issues identified in subsection B to the satisfaction of the Department and” in the first sentence, and substituted “its decision” for “any disapproval”; and added subsection H.

The 2022 amendments.

The 2022 amendment by c. 356 deleted “or the Board pursuant to § 62.1-44.15:02 ” following “by the Department” in subsection D in the penultimate sentence.

§ 62.1-44.15:82. Public notice of draft certification conditions.

1. The Department shall prepare a public notice of draft certification conditions developed pursuant to § 62.1-44.15:81 that the applicant shall cause to be published once in one or more newspapers of general circulation selected by the Department in the areas in which the proposed activity is to take place.
2. The public notice shall include:
   1. The name, address, telephone number, and government email address of the Department office at which persons may obtain information pertinent to the application;
   2. A brief description of the activity that may result in a discharge to state waters or how to obtain detailed information on the activity;
   3. The location of such activity and the state waters that may be affected. The location shall include a listing of all counties and cities in which the activity will occur and include either maps of the project area or directions on how to access such maps. Where possible, location information shall reference route numbers, road intersections, map coordinates, or similar information or how to obtain detailed information on the activity;
   4. A summary of the draft certification conditions;
   5. A brief description of the procedures for formulation of a final determination of any conditions, including the appropriate comment period required by subsection C and the means by which interested persons may comment on the application; and
   6. Instructions for requesting a public hearing if a public hearing is not already scheduled.
3. If no public hearing has already been scheduled, a period of 30 days following the date of the publication of public notice shall be provided during which interested persons may submit written comments and requests for a hearing. If a public hearing has already been scheduled, public notice shall be provided at least 30 days before the public hearing date.

History. 2018, c. 636.

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)).”

§ 62.1-44.15:83. Requests for public hearing, hearings, and final decisions procedures.

1. The issuance of a certification pursuant to this article shall be a permit action.
2. The Department shall assess an administrative charge to the applicant to cover the direct costs of services rendered associated with its responsibilities pursuant to this section.

History. 2018, c. 636; 2022, c. 356.

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 2022 amendments.

The 2022 amendment by c. 356 deleted “for purposes of § 62.1-44.15:02 ” in subsection A at the end.

§ 62.1-44.15:84. Requests for modification or revocation; public notice.

1. The applicant or the Department may request that conditions in the certification be modified or revoked. Requests for modification or revocation of any certification conditions shall contain the following information:
   1. If the request is made by the applicant, the name, mailing address, and telephone number of the requester and the name, mailing address, and telephone number of any person representing the requestor;
   2. Where applicable, a statement specifically setting forth the requested modification and the reason for such modification; and
   3. Where applicable, a statement specifically setting forth the reason for the requested revocation.
2. The Director shall review all requests for modification or revocation and make a tentative determination within 60 days of receipt of the completed request whether to grant or deny the requested modification or revocation.
3. Any draft modification or revocation shall be public noticed, and final decisions shall be made in the same manner as the original certification.

History. 2018, c. 636.

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)).”

§ 62.1-44.16. Industrial wastes.

1. Any owner who erects, constructs, opens, reopens, expands, or employs new processes in or operates any establishment from which there is a potential or actual discharge of industrial wastes or other wastes to state waters shall first provide facilities approved by the Board for the treatment or control of such industrial wastes or other wastes.Application for such discharge shall be made to the Board and shall be accompanied by pertinent plans, specifications, maps, and such other relevant information as may be required, in scope and details satisfactory to the Board.
   1. Public notice of every such application shall be given by notice published once a week for two successive weeks in a newspaper of general circulation in the county or city where the certificate is applied for or by such other means as the Board may prescribe. However, to the extent authorized by federal law and if the permit applicant so chooses, an abbreviated public notice shall be published in such newspaper listing the name of the permitted facility, the type of discharge, and a link to the Department’s website with such public notice.
   2. The Board shall review the application and the information that accompanies it as soon as practicable and making a ruling within a period of four months from the date the application is filed with the Board approving or disapproving the application and stating the grounds for conditional approval or disapproval. If the application is approved, the Board shall grant a certificate for the discharge of the industrial wastes or other wastes into state waters or for the other alteration of the physical, chemical, or biological properties of state waters, as the case may be. If the application is disapproved, the Board shall notify the owner as to what measures, if any, the owner may take to secure approval.
2. Any owner operating under a valid certificate issued by the Board who fails to meet water quality standards established by the Board solely as a result of a change in water quality standards or in the law shall provide the necessary facilities approved by the Board within a reasonable time to meet such new requirements; provided, however, that such facilities shall be reasonable and practicable of attainment giving consideration to the public interest and the equities of the case. The Board may amend such certificate, or revoke it and issue a new one to reflect such facilities after proper hearing, with at least thirty days’ notice to the owner of the time, place, and purpose thereof. If such revocation or amendment of a certificate is mutually agreeable to the Board and the owner involved, the hearing and notice may be dispensed with.
3. The Board shall revoke the certificate in case of a failure to comply with all such requirements and may issue a special order under subdivisions (8a), (8b), and (8c) of § 62.1-44.15 .
4. Any locality may adopt an ordinance that provides for the testing and monitoring of the land application of solid or semisolid industrial wastes within its political boundaries to ensure compliance with applicable laws and regulations.
5. The Board shall adopt regulations requiring the payment of a fee for the land application of solid or semisolid industrial wastes, pursuant to permits issued under this section, in localities that have adopted ordinances in accordance with subsection D. The person land applying industrial wastes shall (i) provide advance notice of the estimated fee to the generator of the industrial wastes unless notification is waived, (ii) collect the fee from the generator, and (iii) remit the fee to the Department of Environmental Quality as provided by regulation. The fee shall be imposed on each dry ton of solid or semisolid industrial wastes that is land applied in a locality in accordance with the regulations adopted by the Board. The regulations shall include requirements and procedures for:
   1. Collection of fees by the Department of Environmental Quality;
   2. The deposit of collected fees into the Sludge Management Fund established by subsection G of § 62.1-44.19:3 ; and
   3. Disbursement of proceeds from the Sludge Management Fund by the Department of Environmental Quality pursuant to subsection G of § 62.1-44.19:3 .
6. The Department, in consultation with the Department of Health, the Department of Conservation and Recreation, the Department of Agriculture and Consumer Services, and the Virginia Cooperative Extension Service, shall establish and implement a program to train persons employed by those local governments that have adopted ordinances, pursuant to this section, to test and monitor the land application of industrial wastes. The program shall include, at a minimum, instruction in (i) the provisions of the Virginia Pollution Abatement Permit Regulation; (ii) land application methods and equipment, including methods and processes for preparation and stabilization of industrial wastes that are land applied; (iii) sampling and chain of custody control; (iv) preparation and implementation of nutrient management plans for land application sites; (v) complaint response and preparation of complaint and inspection reports; (vi) enforcement authority and procedures; (vii) interaction and communication with the public; and (viii) preparation of applications for reimbursement of local monitoring costs disbursed pursuant to subsection G of § 62.1-44.19:3 . To the extent feasible, the program shall emphasize in-field instruction and practical training. Persons employed by local governments shall successfully complete such training before the local government may request reimbursement from the Board for testing and monitoring of land application of solid or semisolid industrial wastes performed by the person. The completion of training shall not be a prerequisite to the exercise of authority granted to local governments by any applicable provision of law.The Department may:
   1. Charge attendees a reasonable fee to recover the actual costs of preparing course materials and providing facilities and instructors for the program. The fee shall be reimbursable from the Fund established pursuant to subsection G of § 62.1-44.19:3 ; and
   2. Request and accept the assistance and participation of other state agencies and institutions in preparing and presenting the course of training established by this subsection.

History. 1970, c. 638; 2015, cc. 104, 677; 2018, c. 552.

Editor’s note.

Acts 1998, c. 145, cl. 1 provides: “That the State Water Control Board shall require any coal loading facility (i) from which there is a potential or actual discharge of industrial wastes or other wastes to state waters and (ii) that is not regulated under the Virginia Coal Surface Mining Control and Reclamation Act of 1979 (§ 45.1-226 et seq.) to obtain a certificate as provided in § 62.1-44.16 .”

Acts 2015, cc. 104 and 677, cl. 2 provides: “That the State Water Control Board shall promulgate regulations to implement the provisions of this act to be effective no later than January 1, 2016. The State Water Control Board’s initial adoption of regulations necessary to implement the provisions of this act shall be exempt from the provisions of the Administrative Process Act (§ 2.2-4000 et seq.) of the Code of Virginia, except that the Department of Environmental Quality shall utilize a regulatory advisory panel to assist in the development of necessary regulations and shall provide an opportunity for public comment on the regulations prior to adoption.”

Acts 2015, cc. 104 and 677, cl. 3 provides: “That upon the effective date of this act, the fee imposed on each dry ton of solid or semisolid industrial waste that is land applied pursuant to subsection E of § 62.1-44.16 of the Code of Virginia, as created by this act, shall be $5 until altered, amended, or rescinded by the State Water Control Board.”

Acts 2018, c. 552, cl. 2 provides: “That the adoption of amendments to the State Water Control Board regulations necessary to implement the provisions of this act shall be exempt from Article 2 (§ 2.2-4006 et seq. of the Code of Virginia) of the Administrative Process Act if the Department of Environmental Quality accepts public comment on the proposed amendments for at least 60 days and provides a summary of the public comments to the Board prior to Board action on the amendments.”

The 2015 amendments.

The 2015 amendments by cc. 104 and 677 are identical, and redesignated former subdivisions (1), (2) (a) and (2) (b) as subsections A through C and former subdivisions (1) (a) and (1) (b) as subdivisions A 1 and A 2; and added subsections D through F.

The 2018 amendments. The 2018 amendments by c. 552 added the second sentence to subdivision A 1.

Law Review.

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

§ 62.1-44.16:1. Local enforcement of industrial waste permits.

1. Any locality that has adopted an ordinance for the testing and monitoring of the land application of industrial wastes pursuant to § 62.1-44.16 shall have the authority to order the abatement of any violation of § 62.1-44.16 or of any violation of any permit or certificate issued under that section. Such abatement order shall identify the activity constituting the violation, specify the provision of the Code of Virginia or permit condition violated by the activity, and order that the activity cease immediately.
2. In the event of any dispute concerning the existence of a violation, the activity alleged to be in violation shall be halted pending a determination by the Director, whose decision shall be final and binding unless reversed on judicial appeal pursuant to § 2.2-4026 . Any person who fails or refuses to halt such activity may be compelled to do so by injunction issued by a court having competent jurisdiction. Upon determination by the Director that there has been a violation of § 62.1-44.16 or of any permit or certificate issued under that section and that such violation poses an imminent threat to public health, safety, or welfare, the Department shall commence appropriate action to abate the violation and immediately notify the chief administrative officer of any locality potentially affected by the violation. Neither the Board, the Commonwealth, nor any employee of the Commonwealth shall be liable for failing to provide the notification required by this section.
3. Local governments shall promptly notify the Department of all results from the testing and monitoring of the land application of industrial wastes performed by persons employed by local governments and any violation of § 62.1-44.16 or of any violation of any permit or certificate issued under that section, discovered by local governments.

History. 2015, cc. 104, 677.

Editor’s note.

Acts 2015, cc. 104 and 677, cl. 2 provides: “That the State Water Control Board shall promulgate regulations to implement the provisions of this act to be effective no later than January 1, 2016. The State Water Control Board’s initial adoption of regulations necessary to implement the provisions of this act shall be exempt from the provisions of the Administrative Process Act (§ 2.2-4000 et seq.) of the Code of Virginia, except that the Department of Environmental Quality shall utilize a regulatory advisory panel to assist in the development of necessary regulations and shall provide an opportunity for public comment on the regulations prior to adoption.”

§ 62.1-44.17. Other wastes.

1. Any owner who handles, stores, distributes or produces other wastes as defined in § 62.1-44.3 , any owner who causes or permits same to be handled, stored, distributed or produced or any owner upon or in whose establishment other wastes are handled, stored, distributed or produced shall upon request of the Board install facilities approved by the Board or adopt such measures approved by the Board as are necessary to prevent the escape, flow or discharge into any state waters when the escape, flow or discharge of such other wastes into any state waters would cause pollution of such state waters.
2. Any owner under this section requested by the Board to provide facilities or adopt such measures shall make application therefor to the Board. Such application shall be accompanied by a copy of pertinent plans, specifications, maps, and such other relevant information as may be required, in scope and details satisfactory to the Board.
3. The Board shall review the application and the information that accompanies it as soon as practicable and make a ruling within a period of four months from the date the application is filed with the Board approving or disapproving the application and stating the grounds for conditional approval or disapproval. If the application is approved, the Board shall grant a certificate for the handling, storing, distribution or production of such other wastes. If the application is disapproved, the Board shall notify the owner as to what measures the owner may take to secure approval.

History. Code 1950, § 62.1-30; 1968, c. 659; 1970, c. 638.

Law Review.

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

§ 62.1-44.17:1. Permits for confined animal feeding operations.

1. For the purposes of this chapter, “confined animal feeding operation” means a lot or facility, together with any associated treatment works, where both of the following conditions are met:
   1. Animals have been, are, or will be stabled or confined and fed or maintained for a total of 45 days or more in any 12-month period; and
   2. Crops, vegetation, forage growth or post-harvest residues are not sustained over any portion of the operation of the lot or facility.Two or more confined animal feeding operations under common ownership are considered to be a single confined animal feeding operation if they adjoin each other or if they use a common area or system for the disposal of liquid waste.
2. A confined animal feeding operation with 300 or more animal units utilizing a liquid manure collection and storage system, upon fulfillment of the requirements of this section, shall be permitted by a General Virginia Pollution Abatement permit (hereafter referred to as the “General Permit”), adopted by the Board. In adopting the General Permit the Board shall:
   1. Authorize the General Permit to pertain to confined animal feeding operations having 300 or more animal units;
   2. Establish procedures for submitting a registration statement meeting the requirements of subsection C. Submitting a registration statement shall be evidence of intention to be covered by the General Permit; and
   3. Establish criteria for the design and operation of confined animal feeding operations only as described in subsection E.
3. For coverage under the General Permit, the owner of the confined animal feeding operation shall file a registration statement with the Department of Environmental Quality providing the name and address of the owner of the operation, the name and address of the operator of the operation (if different than the owner), the mailing address and location of the operation, and a list of the types, maximum number and average weight of the animals that will be maintained at the facility. The owner shall attach to the registration statement:
   1. A copy of a letter of approval of the nutrient management plan for the operation from the Department of Conservation and Recreation;
   2. A copy of the approved nutrient management plan;
   3. A notification from the governing body of the locality where the operation is located that the operation is consistent with all ordinances adopted pursuant to Chapter 22 (§ 15.2-2200 et seq.) of Title 15.2;
   4. A certification that the owner or operator meets all the requirements of the Board for the General Permit; and
   5. A certification that the owner has given notice of the registration statement to all owners or residents of property that adjoins the property on which the proposed operation will be located. Such notice shall include (i) the types and maximum number of animals that will be maintained at the facility and (ii) the address and phone number of the appropriate Department of Environmental Quality regional office to which comments relevant to the permit may be submitted. Such certification of notice shall be waived whenever the registration is for the purpose of renewing coverage under a permit for which no expansion is proposed and the Department of Environmental Quality has not issued any special or consent order relating to violations under the existing permit.
4. Any person may submit written comments on the proposed operation to the Department within 30 days of the date of the filing of the registration statement. If, on the basis of such written comments or his review, the Director determines that the proposed operation will not be capable of complying with the provisions of this section, the Director shall require the owner to obtain an individual permit for the operation. Any such determination by the Director shall be made in writing and received by the owner not more than 45 days after the filing of the registration statement or, if in the Director’s sole discretion additional time is necessary to evaluate comments received from the public, not more than 60 days after the filing of the registration statement.
5. The criteria for the design and operation of a confined animal feeding operation shall be as follows:
   1. The operation shall have a liquid manure collection and storage facility designed and operated to: (i) prevent any discharge to state waters, except a discharge resulting from a storm event exceeding a 25-year, 24-hour storm and (ii) provide adequate waste storage capacity to accommodate periods when the ground is frozen or saturated, periods when land application of nutrients should not occur due to limited or nonexistent crop nutrient uptake, and periods when physical limitations prohibit the land application of waste;
   2. The operation shall implement and maintain on site a nutrient management plan approved pursuant to subdivision 1 of subsection C. The nutrient management plan shall contain at a minimum the following information: (i) a site map indicating the location of the waste storage facilities and the fields where waste will be applied; (ii) site evaluation and assessment of soil types and potential productivities; (iii) nutrient management sampling including soil and waste monitoring; (iv) storage and land area requirements; (v) calculation of waste application rates; (vi) waste application schedules; and (vii) a plan for waste utilization in the event the operation is discontinued;
   3. Adequate buffer zones, where waste shall not be applied, shall be maintained between areas where waste may be applied and (i) water supply wells or springs, (ii) surface water courses, (iii) rock outcroppings, (iv) sinkholes, and (v) occupied dwellings unless a waiver is signed by the occupants of the dwellings;
   4. The operation shall be monitored as follows: (i) waste shall be monitored at least once per year; (ii) soil shall be monitored at least once every three years; (iii) ground water shall be monitored at new earthen waste storage facilities constructed to an elevation below the seasonal high water table or within one foot thereof; and (iv) all facilities previously covered by a Virginia Pollution Abatement permit that required ground water monitoring shall continue such monitoring. In such facilities constructed below the water table, the top surface of the waste must be maintained at a level of at least two feet above the water table. The Department of Environmental Quality and the Department of Conservation and Recreation may include in the permit or nutrient management plan more frequent or additional monitoring of waste, soils or groundwater as required to protect state waters. Records shall be maintained to demonstrate where and at what rate waste has been applied, that the application schedule has been followed, and what crops have been planted. Such records shall be available for inspection by the Department of Environmental Quality and shall be maintained for a period of five years after recorded application is made;
   5. New earthen waste storage facilities shall include a properly designed and installed liner. Such liner shall be either a synthetic liner of at least 20 mils thickness or a compacted soil liner of at least one foot thickness with a maximum permeability rating of 0.0014 inches per hour. A licensed professional engineer, an employee of the Natural Resources Conservation Service of the United States Department of Agriculture with appropriate engineering approval authority, or an employee of a soil and water conservation district with appropriate engineering approval authority shall certify that the siting, design and construction of the waste storage facility comply with the requirements of this section;
   6. New waste storage facilities shall not be located on a 100-year flood plain;
   7. All facilities must maintain one foot of freeboard at all times, up to and including a 25-year, 24-hour storm;
   8. All equipment needed for the proper operation of the permitted facilities shall be maintained in good working order. Manufacturer’s operating and maintenance manuals shall be retained for references to allow for timely maintenance and prompt repair of equipment when appropriate;
   9. The owner or operator of the operation shall notify the Department of Environmental Quality at least 14 days prior to animals being placed in the confined facility; and
   10. Each operator of a facility covered by the General Permit on July 1, 1999, shall, by January 1, 2000, complete the training program offered or approved by the Department of Conservation and Recreation under subsection F. Each operator of a facility permitted after July 1, 1999, shall complete such training within one year after the registration statement required by subsection C has been submitted. Thereafter, all operators shall complete the training program at least once every three years.
6. The Department of Conservation and Recreation, in consultation with the Department of Environmental Quality and the Virginia Cooperative Extension Service, shall develop or approve a training program for persons operating confined animal feeding operations covered by the General Permit. The program shall include training in the requirements of the General Permit; the use of best management practices; inspection and management of liquid manure collection, storage and application systems; water quality monitoring and spill prevention; and emergency procedures.
7. Operations having an individual Virginia Pollution Abatement permit or a No Discharge Certificate may submit a registration statement for operation under the General Permit pursuant to this section.
8. The Director of the Department of Environmental Quality may require the owner of a confined animal feeding operation to obtain an individual permit for an operation subject to this section upon determining that the operation is in violation of the provisions of this section or if coverage under an individual permit is required to comply with federal law. New or reissued individual permits shall contain criteria for the design and operation of confined animal feeding operations including, but not limited to, those described in subsection E.
9. No person shall operate a confined animal feeding operation with 300 or more animal units utilizing a liquid manure collection and storage system after July 1, 2000, without having submitted a registration statement as provided in subsection C or being covered by a Virginia Pollutant Discharge Elimination System permit or an individual Virginia Pollution Abatement permit.
10. Any person violating this section shall be subject only to the provisions of §§ 62.1-44.23 and 62.1-44.32 (a) , except that any civil penalty imposed shall not exceed $2,500 for any confined animal feeding operation covered by a Virginia Pollution Abatement permit.

A1. Notwithstanding the provisions of subsection B, the Board shall promulgate regulations requiring Virginia Pollutant Discharge Elimination System permits for confined animal feeding operations to the extent necessary to comply with § 402 of the federal Clean Water Act (33 U.S.C. § 1342), as amended.

History. 1994, c. 698; 1998, cc. 805, 863; 2001, c. 109; 2003, c. 375; 2004, c. 455.

Editor’s note.

Acts 2003, c. 375, cl 2, provides: “That the Board shall impanel an advisory group.”

The 2001 amendments.

The 2001 amendment by c. 109 added the last sentence in subdivision C 5.

The 2003 amendments.

The 2003 amendment by c. 375 added subsection A1; in subsection H, inserted “or if coverage under an individual permit is required to comply with federal law”; in subsection I, inserted “a Virginia Pollutant Discharge Elimination System or” and “Virginia Pollution Abatement”; and substituted figures for words in number and dollar amounts throughout the section.

The 2004 amendments.

The 2004 amendment by c. 455 substituted “that” for “which” in the introductory language in subsection C and in subdivision C 5 (i); and added the language beginning “for any confined animal” at the end of subsection J.

Law Review.

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

CIRCUIT COURT OPINIONS

Construction. —

Term “applied” in the statute is ambiguous, and the term “where waste shall not be applied” means the intentional application of manure into fields or other usage areas; the statute does not require a mandatory livestock stream exclusion, but rather specifically enumerates the actions the State Water Control Board must take to alleviate environmental damage from confined animal feeding operations, and a plain reading of the statute renders “applied” to mean the intentional application of manure and not the random defecation of livestock. 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).

§ 62.1-44.17:1.1. Poultry waste management program.

1. As used in this section, unless the context requires a different meaning:“Commercial poultry processor” means any animal food manufacturer, as defined in § 3.2-5400, that contracts with poultry growers for the raising of poultry.“Confined poultry feeding operation” means any confined animal feeding operation with 200 or more animal units of poultry.“Nutrient management plan” means a plan developed or approved by the Department of Conservation and Recreation that requires proper storage, treatment and management of poultry waste, including dry litter, and limits accumulation of excess nutrients in soils and leaching or discharge of nutrients into state waters.“Poultry grower” means any person who owns or operates a confined poultry feeding operation.
2. The Board shall develop a regulatory program governing the storage, treatment and management of poultry waste, including dry litter, that:
   1. Requires the development and implementation of nutrient management plans for any person owning or operating a confined poultry feeding operation;
   2. Provides for waste tracking and accounting; and
   3. Ensures proper storage of waste consistent with the terms and provisions of a nutrient management plan.
3. The program shall include, at a minimum:
   1. Provisions for permitting confined poultry feeding operations under a general permit; however, the Board may require an individual permit upon determining that an operation is in violation of the program developed under this section;
   2. Provisions requiring that:
      1. Nitrogen application rates contained in nutrient management plans developed pursuant to this section shall not exceed crop nutrient needs as determined by the Department of Conservation and Recreation. The application of poultry waste shall be managed to minimize runoff, leaching, and volatilization losses, and reduce adverse water quality impacts from nitrogen;
      2. For all nutrient management plans developed pursuant to this section after October 1, 2001, phosphorous application rates shall not exceed the greater of crop nutrient needs or crop nutrient removal, as determined by the Department of Conservation and Recreation. The application of poultry waste shall be managed to minimize runoff and leaching and reduce adverse water quality impacts from phosphorus;
      3. By December 31, 2005, the Department of Conservation and Recreation, in consultation with the Department of Environmental Quality, shall (i) complete an examination of current developments in scientific research and technology that shall include a review of land application of poultry waste, soil nutrient retention capacity, and water quality degradation and (ii) adopt and implement regulatory or other changes, if any, to its nutrient management plan program that it concludes are appropriate as a result of this examination; and
      4. Notwithstanding subdivision 2 b, upon the effective date of the Department of Conservation and Recreation’s revised regulatory criteria and standards governing phosphorous application rates adopted pursuant to subdivision 2 c, or on October 31, 2005, whichever is later, phosphorous application rates for all nutrient management plans developed pursuant to this section shall conform solely to such regulatory criteria and standards adopted by the Department of Conservation and Recreation to protect water quality or to reduce soil concentrations of phosphorus or phosphorous loadings. The application of poultry waste shall be managed to minimize runoff and leaching and reduce adverse water quality impacts from phosphorus.
4. The program shall reflect Board consideration of existing state-approved nutrient management plans and existing general permit programs for other confined animal feeding operations, and may include such other provisions as the Board determines appropriate for the protection of state waters.
5. After October 1, 2001, all persons owning or operating a confined poultry feeding operation shall operate in compliance with the provisions of this section and any regulations promulgated thereunder.
6. Any person violating this section shall be subject only to the provisions of §§ 62.1-44.23 and 62.1-44.32 (a) , except that any civil penalty shall not exceed $2,500 for any confined animal feeding operation covered by a Virginia Pollution Abatement permit.
7. On or before January 1, 2000, or prior to commencing operations, each commercial poultry processor operating in the Commonwealth shall file with the Board a plan under which the processor, either directly or under contract with a third party, shall:
   1. Provide technical assistance to the poultry growers with whom it contracts on the proper management and storage of poultry waste in accordance with best management practices;
   2. Provide education programs on poultry waste nutrient management for the poultry growers with whom it contracts as well as for poultry litter brokers and persons utilizing poultry waste;
   3. Provide a toll-free hotline and advertising program to assist poultry growers with excess amounts of poultry waste to make available such waste to persons in other areas who can use such waste as a fertilizer consistent with the provisions of subdivision C 2 or for other alternative purposes;
   4. Participate in the development of a poultry waste transportation and alternative use equal matching grant program between the Commonwealth and commercial poultry processors to (i) facilitate the transportation of excess poultry waste in the possession of poultry growers with whom it contracts to persons in other areas who can use such waste as a fertilizer consistent with the provisions of subdivision C 2 or for other alternative purposes and (ii) encourage alternative uses to land application of poultry waste;
   5. Conduct research on the reduction of phosphorus in poultry waste, innovative best management practices for poultry waste, water quality issues concerning poultry waste, or alternative uses of poultry waste; and
   6. Conduct research on and consider implementation of nutrient reduction strategies in the formulation of feed. Such nutrient reduction strategies may include the addition of phytase or other feed additives or modifications to reduce nutrients in poultry waste.
8. Any amendments to the plan required by subsection G shall be filed with the Board before they are implemented. After January 1, 2000, each commercial poultry processor shall implement its plan and any amendments thereto. Each commercial poultry processor shall report annually to the Board on the activities it has undertaken pursuant to its plan and any amendments thereto. Failure to comply with the provisions of this section or to implement and follow a filed plan or any amendments thereto shall constitute a violation of this section.

History. 1999, c. 1; 2004, c. 455; 2005, c. 78.

Editor’s note.

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.

Acts 1999, c. 1, cl. 3, provides: “That the Director of the Department of Conservation and Recreation, with the consultation of the Director of the Department of Environmental Quality and the Commissioner of Agriculture and Consumer Services, shall, by December 20, 1999, recommend to the Governor, the Senate Committee on Agriculture, Conservation and Natural Resources, the House Committee on Conservation and Natural Resources, and the House Committee on the Chesapeake and Its Tributaries ways that the Commonwealth should assist poultry growers and processors to improve the economic feasibility of transporting and selling poultry waste, and pursue alternative uses for poultry waste, including the establishment of the equal matching grant program referred to in subdivision G 4 of § 62.1-44.17:1.1 .”

Acts 1999, c. 1, cl. 4, provides: “That on or before December 31, 2003, the Director of the Department of Environmental Quality, in consultation with the Director of the Department of Conservation and Recreation and the Commissioner of Agriculture and Consumer Services, shall report to the Governor and the General Assembly on the effectiveness of the plans implemented by commercial poultry processors pursuant to subsection G of § 62.1-44.17:1.1 in assisting poultry growers with whom they contract with the proper management, storage, disposal, and transportation of poultry waste, including excess poultry waste, for the protection of water quality.”

The 2004 amendments.

The 2004 amendment by c. 455 substituted “that” for “which” in clause (i) of subdivision C 2 c; and added the language beginning “for any confined animal” at the end of subsection F.

The 2005 amendments.

The 2005 amendment by c. 78 rewrote the first sentence in subdivision C 2 d.

Law Review.

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

§ 62.1-44.17:2. Definitions.

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

“Toxicity” means the inherent potential or capacity of a material to cause adverse effects on a living organism, including acute or chronic effects on aquatic life, detrimental effects on human health or other adverse environmental effects.

“Toxics” or “toxic substance” means any agent or material listed by the USEPA Administrator pursuant to § 307(a) of the Clean Water Act and those substances on the “toxics of concern” list of the Chesapeake Bay Program as of January 1, 1997.

History. 1997, c. 155; 2000, cc. 17, 1043.

The 2000 amendments.

The 2000 amendments by cc. 17 and 1043 are identical, and rewrote the second paragraph.

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).

Michie’s Jurisprudence.

For related discussion, see 9A M.J. Health and Sanitation, § 1.

§ 62.1-44.17:3. Toxic substances reduction in state waters; report required.

1. The Board shall (i) conduct ongoing assessments of the amounts of toxics in Virginia’s waters and (ii) develop and implement a plan for the reduction of toxics in Virginia’s waters.
2. The status of the Board’s efforts to reduce the level of toxic substances in state waters shall be reported biennially, no later than January 1 in each odd-numbered year, to the House Committee on Agriculture, Chesapeake and Natural Resources and the Senate Committee on Agriculture, Conservation and Natural Resources. The report shall include the following information:
   1. Compliance data on permits that have limits for toxics;
   2. The number of new permits or reissued permits that have toxic limits and the location of each permitted facility;
   3. The location and number of monitoring stations and the period of time that monitoring has occurred at each location;
   4. A summary of pollution prevention and pollution control activities for the reduction of toxics in state waters;
   5. The sampling results from the monitoring stations for the previous two years;
   6. The Board’s plan for continued reduction of the discharge of toxics, which shall include, but not be limited to, additional monitoring activities, a work plan for the pollution prevention program, and any pilot projects established for the use of innovative technologies to reduce the discharge of toxics;
   7. The identification of any segments for which the Board or the Director of the Department of Environmental Quality has made a decision to conduct additional evaluation or monitoring. Information regarding these segments shall include, at a minimum, the geographic location of the stream segment within a named county or city; and
   8. The identification of any segments that are designated as toxic impaired waters as defined in § 62.1-44.19:4 and any plans to address the impairment.

History. 1997, c. 155; 2000, cc. 17, 1043; 2015, c. 173.

The 2000 amendments.

The 2000 amendments by cc. 17 and 1043 are identical, and substituted “limits for toxics” for “toxics limits” in subdivision B 1, deleted “and” at the end of subdivision B 5, and added subdivisions B 7 and B 8.

The 2015 amendments.

The 2015 amendment by c. 173 rewrote the introductory paragraph of subsection B, which read “The status of the Board’s efforts to reduce the level of toxic substances in state waters shall be reported, annually no later than January 1, to the House Committees on Conservation and Natural Resources and Chesapeake and Its Tributaries, and the Senate Committee on Agriculture, Conservation and Natural Resources. The initial report shall be submitted no later than January 1, 1998, and shall include data from the previous five years on the trends of the reduction and monitoring of toxics in state waters. The initial report and each subsequent annual report shall include, but not be limited to, the following information:”; and substituted “two years” for “year” in subdivision B 5.

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).

§ 62.1-44.17:4. Evaluation of toxics removal and remediation technology.

The Board shall conduct a review of instream toxics removal or remediation technologies, a minimum of once every five years, to determine whether (i) new technologies for responding to toxic contamination will necessitate any changes in the selection of removal or remediation strategies previously included as provisions of Board agreements and (ii) any of the Department of Environmental Quality’s current strategies for responding to toxic contamination need to be revised.

History. 2000, cc. 17, 1043.

§ 62.1-44.18. Sewerage systems, etc., under supervision of Board and Department of Environmental Quality; Board to regulate design specification and plans.

1. All sewerage systems and sewage treatment works shall be under the general supervision of the Board.
2. The Department of Environmental Quality shall, when requested, consult with and advise the authorities of cities, towns, sanitary districts, and any owner having or intending to have installed sewage treatment works as to the most appropriate type of treatment, but the Department shall not prepare plans, specifications, or detailed estimates of cost for any improvement of an existing or proposed sewage treatment works.
3. It shall be the duty of the owner of any such sewerage system or sewage treatment works from which sewage is being discharged into any state waters to furnish, when requested by the Board, information with regard to the quantities and character of the raw and treated sewage and the operation results obtained in the removal and disposal of organic matter and other pertinent information as is required.
4. The regulations of the Board shall govern the collection, conveyance, treatment and disposal of sewage. Such regulations shall be designed to protect the public health and promote the public welfare and may include, without limitation:
   1. A requirement that the owner obtain a permit prior to the construction, installation, modification or operation of a sewerage system or treatment;
   2. Criteria for the granting or denial of such permits;
   3. Standards for the design, construction, installation, modification and operation of sewerage systems and treatment works;
   4. Standards specifying the minimum distance between sewerage systems or treatment works and:
      1. Public and private wells supplying water for human consumption,
      2. Lakes and other impounded waters,
      3. Streams and rivers,
      4. Shellfish waters,
      5. Ground waters,
      6. Areas and places of human habitation, and
      7. Property lines;
   5. Standards as to the adequacy of an approved water supply;
   6. A prohibition against the discharge of untreated sewage onto land or into waters of the Commonwealth; and
   7. Criteria for determining the demonstrated ability of alternative onsite systems, which are not permitted through the then current sewage handling and disposal regulations, to treat and dispose of sewage as effectively as approved methods.
5. In addition to factors related to the Board’s responsibilities for the safe and sanitary treatment and disposal of sewage as they affect the public health and welfare, the Board shall, in establishing standards, give due consideration to economic costs of such standards in accordance with the applicable provisions of the Administrative Process Act (§ 2.2-4000 et seq.).

History. Code 1950, §§ 62-39, § 62.1-31; 1968, c. 659; 1970, c. 638; 1991, c. 194; 2003, c. 614.

Editor’s note.

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.”

The 2003 amendments.

The 2003 amendment by c. 614, in subsection A, substituted “the Board” for “the State Department of Health and the Board jointly as prescribed in this article”; substituted “Department of Environmental Quality” for “State Department of Health” in subsection B; in subsection C, deleted “to the State Department of Health from time to time” following “Board,” and deleted the former last sentence, which read: “The State Department of Health shall furnish the Board with such available information as the Board requires”; and added subsections D and E.

Law Review.

For article on developments in the field of Virginia public utility law from June 2002 through May 2003, see 38 U. Rich. L. Rev. 195 (2003).

CIRCUIT COURT OPINIONS

Granting of sewer discharge permits. —

Board had no basis for denying the company’s § 62.1-44.18 sewer discharge permit application and, therefore, should not have denied it. Subsection B of § 62.1-44.19 stated that the Board “shall approve” such application if it determined that minimum treatment requirements will be met and that the discharge would not result in violations of water quality standards, and since the record supported a finding on both of those items, the Board had to approve the permit the application. 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).

§ 62.1-44.18:1. Repealed by Acts 1991, c. 194.

§ 62.1-44.18:2. When Board may prohibit discharge; permits.

1. Notwithstanding any other provision of this chapter, the Board shall have the authority to prohibit any present or proposed discharge of sewage, industrial wastes, or other wastes into any sewerage system or treatment works when it has determined that such discharge would threaten the public health and safety, or would substantially interfere or be incompatible with the treatment works, or would substantially interfere with usage of state waters as designated by the Board. Before making any such determination, the Board shall consult with and receive the advice of the State Department of Health.
2. The Board shall have the authority to issue permits which prescribe the terms and conditions upon which the discharge of sewage, industrial wastes, or other wastes may be made into any sewerage system or treatment works. The Board may revoke or amend any such permit for good cause and after proper hearing. Notwithstanding the requirement for notice and a hearing, the Board may, after consultation with the State Department of Health, summarily revoke or amend such permit when it determines that the permitted discharge poses a threat to the public health and safety, or is interfering substantially with the treatment works, or is grossly affecting usage of state waters as designated by the Board. In such case, the Board shall hold a hearing as soon as practicable but in no event later than twenty days after the revocation or amendment with reasonable notice to the owner as to the time and place thereof to affirm, modify, or rescind the summary revocation or amendment of such permit.
3. Nothing in this section shall limit the authority of the Board to proceed against such owner directly under § 62.1-44.23 or § 62.1-44.32 after the Board has prohibited discharge, or after the Board has summarily amended or revoked the permit which authorized the discharge. If a proposed revocation or amendment of a permit is mutually agreeable to the Board and the owner, the hearing and notice thereof may be dispensed with.

History. 1976, c. 626.

Editor’s note.

Acts 1998, c. 247, cl. 1 provides: “That the State Water Control Board shall petition the Administrator of the United States Environmental Protection Agency to approve the designation of Smith Mountain Lake as a no-discharge zone for boat sewage. If such approval is granted, the Board shall prohibit the discharge from all vessels of any sewage into Smith Mountain Lake.” The federal EPA has approved the designation.

§ 62.1-44.18:3. Permit for private sewerage facility; financial assurance; violations; waiver of filing.

1. No person shall operate a privately owned sewerage system or sewerage treatment works, including an LHS 120 facility, that discharges more than 1,000 gallons per day and less than 40,000 gallons per day without obtaining a Virginia Pollutant Discharge Elimination System permit. Any owner of such a facility shall file with the Board a plan to abate, control, prevent, remove, or contain any substantial or 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 creation of a trust fund, a submission of a bond, a 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.For the purposes of this section, “ceases operation” means to cease conducting the normal operation of a facility that 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. This shall not in any way limit other recourse available to the Board.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.
2. The Board may waive the filing of the plan required pursuant to subsection A for any person who operates a privately owned sewerage system or sewerage treatment works that was permitted prior to January 1, 2001, and discharges less than 5,000 gallons per day upon a finding that such person has not violated any regulation or order of the Board, any condition of a permit to operate the facility, or any provision of this chapter for a period of not less than five years; provided, that no waiver may be approved by the Board until after the governing body of the locality in which the facility is located approves the waiver after a public hearing. The Board may revoke such waiver at any time for good cause. Any person receiving a waiver who ceases operations shall, if such cessation of operation results in a significant harm or an imminent and substantial risk of significant harm to human health and the environment, be guilty of a Class 4 felony and liable to the Commonwealth and any political subdivision thereof, for the costs incurred in abating, controlling, preventing, removing, or containing such harm or threat.
3. The Department of Environmental Quality shall promulgate regulations necessary to carry out the provisions of this section. The Department shall identify by January 1, 2001, those facilities regulated under this section.

History. 2000, c. 69; 2001, c. 493.

Cross references.

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

Editor’s note.

Acts 2000, c. 69, cl. 2 provides: “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.”

The 2001 amendments.

The 2001 amendment by c. 493 added present subsection B, and redesignated former subsection B as present subsection C.

§ 62.1-44.19. Approval of sewerage systems and sewage treatment works.

1. Before any owner may erect, construct, open, expand or operate a sewerage system or sewage treatment works which will have a potential discharge or actual discharge to state waters, such owner shall file with the Board an application for a certificate in scope and detail satisfactory to the Board.
2. If the application involves a system or works from which there is or is to be a discharge to state waters, the application shall be given public notice by publication once a week for two successive weeks in a newspaper of general circulation in the county or city where the certificate is applied for or by such other means as the Board may prescribe. Before issuing the certificate, the Board shall consult with and give consideration to the written recommendations of the State Department of Health pertaining to the protection of public health. Upon completion of advertising, the Board shall determine if the application is complete, and if so, shall act upon it within 21 days of such determination. The Board shall approve such application if it determines that minimum treatment requirements will be met and that the discharge will not result in violations of water quality standards. If the Board disapproves the application, it shall state what modifications or changes, if any, will be required for approval.
3. After the certificate has been issued or amended by the Board, the owner shall acquire from the Department of Environmental Quality (i) authorization to construct the systems or works for which the Board has issued a discharge certificate and (ii) upon completion of construction, authorization to operate the sewerage system or sewage treatment works. These authorizations shall be obtained in accordance with regulations promulgated by the Board.
4. Any owner operating under a valid certificate issued by the Board who fails to meet water quality standards established by the Board solely as a result of a change in water quality standards or in the law shall provide the necessary facilities approved by the Department of Environmental Quality, in accordance with the provisions of subsection C of this section, within a reasonable time to meet such new requirements. The Board may amend such certificate, or revoke it and issue a new one to reflect such facilities after proper hearing, with at least 30 days’ notice to the owner of the time, place and purpose thereof. If such revocation or amendment of a certificate is mutually agreeable to the Board and the owner involved, the hearing and notice may be dispensed with.
5. The Board shall revoke the certificate in case of a failure to comply with all such requirements and may issue a special order under subdivisions (8a), (8b), and (8c) of § 62.1-44.15 .

History. Code 1950, § 62.1-33; 1968, c. 659; 1970, c. 638; 1976, c. 661; 1991, c. 194; 2003, c. 614.

Editor’s note.

Acts 1991, c. 194, cl. 3 provides: “That the joint sewage regulations promulgated by the Board of Health and the State Water Control Board shall remain in effect until superceded by new regulations promulgated by the Board of Health or the State Water Control Board as appropriate.”

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.”

The 2003 amendments.

The 2003 amendment by c. 614 substituted “21” for “twenty-one” in subsection B; in subsection C, substituted “Department of Environmental Quality” for “State Department of Health” in the first sentence, substituted “Board” for “State Board of Health under § 32.1-164 ” in the second sentence, and deleted a former third sentence, which read: “The State Department of Health shall promptly notify the Board when such authorizations are granted”; and in subsection D, substituted “Department of Environmental Quality” for “State Department of Health” and “30” for “thirty.”

§ 62.1-44.19:1. Prohibiting sewage discharge under certain conditions in certain cities.

If the Board or the State Department of Health determines that a receiving stream in the City of Virginia Beach is being polluted by the sewage discharge from a private or public sewage utility, and that it is possible to connect such utility to the sewage system of a municipality, sewage treatment authority, or sanitation district, the Board may order the utility in the City of Virginia Beach to stop such discharge into the receiving stream. The utility shall discontinue such discharge within one year of such order by providing either (i) adequate treatment as determined by the Board or the State Department of Health or (ii) a connection to central facilities.

History. 1972, c. 840; 2022, c. 235.

Editor’s note.

This section, authorizing the State Water Control Board to prohibit the discharge of sewage into a receiving stream in Virginia Beach upon a determination by the State Department of Health or the Board that the stream is being polluted by the discharge, was enacted by Acts 1972, c. 840. In furtherance of the general policy of the Commission to include in the Code only provisions having general and permanent application, this section, which is limited in its purpose and scope, is not set out here, but attention is called to it by this reference.

The 2022 amendments.

The 2022 amendment by c. 235 rewrote the section, which read: “Whenever the State Department of Health or the State Water Control Board determines that a receiving stream in Virginia Beach is being polluted by the sewage discharge from a private or public sewage utility, and that it is possible to connect such utility to the sewage system of a municipality, sewage treatment authority, or sanitation district, the Board is hereby empowered to order the utility in Virginia Beach to stop such discharge into the receiving stream. The utility shall discontinue the said discharge either by adequate treatment as determined the State Department of Health or Water Control Board, or by a connection to central facilities, either of which is to occur within one year.”

§ 62.1-44.19:2. Additional requirements on sewage discharge in the Cities of Chesapeake, Hampton, Newport News, Norfolk and Virginia Beach.

1. Beginning January 1, 1973, every sewage pumping station in the Cities of Chesapeake, Hampton, Newport News, Norfolk, and Virginia Beach shall:
   1. Have adequate personnel on call at all times, each of whom may serve multiple pumping stations, as prescribed by the Chesapeake, Hampton, Newport News, Norfolk, or Virginia Beach City Council, respectively;
   2. As prescribed by the Board, be inspected at such intervals and maintain such records of inspection. Such records shall be open for review by the Board or its representatives at any reasonable time it designates;
   3. Have an automatic alarm system installed to give immediate warning of any pump station failure;
   4. Have emergency pump connections installed and have portable pumps available to pump sewage to downstream sewer lines during any period of pump station failure;
   5. Not use, except in an emergency pursuant to regulations as provided by the Board, any overflow line from any such pumping station except as provided in subdivision 4.
2. Any sewerage system within the City of Chesapeake, Hampton, Newport News, Norfolk, or Virginia Beach that complies with the requirements of this section is deemed to meet the requirements for continuous operability as set forth in regulations of the Board or the State Department of Health.

History. 1972, c. 840; 1975, c. 373; 1976, c. 188; 2022, c. 235.

Editor’s note.

This section, regulating sewage pumping stations in Virginia Beach, was enacted by Acts 1972, c. 840. In furtherance of the general policy of the Commission to include in the Code only provisions having general and permanent application, this section, which is limited in its purpose and scope, is not set out here, but attention is called to it by this reference. This section was also amended by Acts 1975, c. 373, and Acts 1976, c. 188, which latter act made the section applicable to the Cities of Chesapeake, Newport News, Hampton and Norfolk as well as Virginia Beach.

The 2022 amendments.

The 2022 amendment by c. 235 added the subsection designations and made stylistic changes.

§ 62.1-44.19:3. Prohibition on land application, marketing and distribution of sewage sludge without permit; ordinances; notice requirement; fees.

1. 1. No owner of a sewage treatment works shall land apply, market or distribute sewage sludge from such treatment works except in compliance with a valid Virginia Pollutant Discharge Elimination System Permit or valid Virginia Pollution Abatement Permit. A. 1. No owner of a sewage treatment works shall land apply, market or distribute sewage sludge from such treatment works except in compliance with a valid Virginia Pollutant Discharge Elimination System Permit or valid Virginia Pollution Abatement Permit.
   2. Sewage sludge shall be treated to meet standards for land application as required by Board regulation prior to delivery at the land application site. No person shall alter the composition of sewage sludge at a site approved for land application of sewage sludge under a Virginia Pollution Abatement Permit or a Virginia Pollutant Discharge Elimination System. Any person who engages in the alteration of such sewage sludge shall be subject to the penalties provided in Article 6 (§ 62.1-44.31 et seq.) of this chapter. The addition of lime or deodorants to sewage sludge that has been treated to meet land application standards shall not constitute alteration of the composition of sewage sludge. The Department may authorize public institutions of higher education to conduct scientific research on the composition of sewage sludge that may be applied to land.
   3. No person shall contract or propose to contract, with the owner of a sewage treatment works, to land apply, market or distribute sewage sludge in the Commonwealth, nor shall any person land apply, market or distribute sewage sludge in the Commonwealth without a current Virginia Pollution Abatement Permit authorizing land application, marketing or distribution of sewage sludge and specifying the location or locations, and the terms and conditions of such land application, marketing or distribution. The permit application shall not be complete unless it includes the landowner’s written consent to apply sewage sludge on his property.
   4. The land disposal of lime-stabilized septage and unstabilized septage is prohibited.
   5. Beginning July 1, 2007, no application for a permit or variance to authorize the storage of sewage sludge shall be complete unless it contains certification from the governing body of the locality in which the sewage sludge is to be stored that the storage site is consistent with all applicable ordinances. The governing body shall confirm or deny consistency within 30 days of receiving a request for certification. If the governing body does not so respond, the site shall be deemed consistent.
2. The Board, with the assistance of the Department of Conservation and Recreation and the Department of Health, shall adopt regulations to ensure that (i) sewage sludge permitted for land application, marketing, or distribution is properly treated or stabilized; (ii) land application, marketing, and distribution of sewage sludge is performed in a manner that will protect public health and the environment; and (iii) the escape, flow or discharge of sewage sludge into state waters, in a manner that would cause pollution of state waters, as those terms are defined in § 62.1-44.3 , shall be prevented.
3. Regulations adopted by the Board, with the assistance of the Department of Conservation and Recreation and the Department of Health pursuant to subsection B, shall include:
   1. Requirements and procedures for the issuance and amendment of permits, including general permits, authorizing the land application, marketing or distribution of sewage sludge;
   2. Procedures for amending land application permits to include additional application sites and sewage sludge types;
   3. Standards for treatment or stabilization of sewage sludge prior to land application, marketing or distribution;
   4. Requirements for determining the suitability of land application sites and facilities used in land application, marketing or distribution of sewage sludge;
   5. Required procedures for land application, marketing, and distribution of sewage sludge;
   6. Requirements for sampling, analysis, recordkeeping, and reporting in connection with land application, marketing, and distribution of sewage sludge;
   7. Provisions for notification of local governing bodies to ensure compliance with §§ 62.1-44.15:3 and 62.1-44.19:3.4 ;
   8. Requirements for site-specific nutrient management plans, which shall be developed by persons certified in accordance with § 10.1-104.2 prior to land application for all sites where sewage sludge is land applied, and approved by the Department of Conservation and Recreation prior to permit issuance under specific conditions, including but not limited to, sites operated by an owner or lessee of a Confined Animal Feeding Operation, as defined in subsection A of § 62.1-44.17:1 , or Confined Poultry Feeding Operation, as defined in § 62.1-44.17:1.1 , sites where the permit authorizes land application more frequently than once every three years at greater than 50 percent of the annual agronomic rate, and other sites based on site-specific conditions that increase the risk that land application may adversely impact state waters;
   9. Procedures for the prompt investigation and disposition of complaints concerning land application of sewage sludge, including the requirements that (i) holders of permits issued under this section shall report all complaints received by them to the Department and to the local governing body of the jurisdiction in which the complaint originates, and (ii) localities receiving complaints concerning land application of sewage sludge shall notify the Department and the permit holder. The Department shall maintain a searchable electronic database of complaints received during the current and preceding calendar year, which shall include information detailing each complaint and how it was resolved; and
   10. Procedures for receiving and responding to public comments on applications for permits and for permit amendments authorizing land application at additional sites. Such procedures shall provide that an application for any permit amendments to increase the acreage authorized by the initial permit by 50 percent or more shall be treated as a new application for purposes of public notice and public hearings.
4. Prior to issuance of a permit authorizing the land application, marketing or distribution of sewage sludge, the Department shall consult with, and give full consideration to the written recommendations of the Department of Health and the Department of Conservation and Recreation. Such consultation shall include any public health risks or water quality impacts associated with the permitted activity. The Department of Health and the Department of Conservation and Recreation may submit written comments on proposed permits within 30 days after notification by the Department.
5. Where, because of site-specific conditions, including soil type, identified during the permit application review process, the Department determines that special requirements are necessary to protect the environment or the health, safety or welfare of persons residing in the vicinity of a proposed land application site, the Department may incorporate in the permit at the time it is issued reasonable special conditions regarding buffering, transportation routes, slope, material source, methods of handling and application, and time of day restrictions exceeding those required by the regulations adopted under this section. Before incorporating any such conditions into the permit, the Department shall provide written notice to the permit applicant, specifying the reasons therefor and identifying the site-specific conditions justifying the additional requirements. The Department shall incorporate into the notice any written requests or recommendations concerning such site-specific conditions submitted by the local governing body where the land application is to take place. The permit applicant shall have at least 14 days in which to review and respond to the proposed conditions.
6. The Board shall adopt regulations prescribing a fee to be charged to all permit holders and persons applying for permits and permit modifications pursuant to this section. All fees collected pursuant to this subsection shall be deposited into the Sludge Management Fund. The fee for the initial issuance of a permit shall be $5,000. The fee for the reissuance, amendment, or modification of a permit for an existing site shall not exceed $1,000 and shall be charged only for permit actions initiated by the permit holder. Fees collected under this section shall be exempt from statewide indirect costs charged and collected by the Department of Accounts and shall not supplant or reduce the general fund appropriation to the Department.
7. There is hereby established in the treasury a special fund to be known as the Sludge Management Fund, hereinafter referred to as the Fund. The fees required by this section and by subsection E of § 62.1-44.16 shall be transmitted to the Comptroller to be deposited into the Fund. The income and principal of the Fund shall be used only and exclusively (i) for the Department’s direct and indirect costs associated with the processing of an application to issue, reissue, amend, or modify any permit to land apply, distribute, or market sewage sludge or industrial wastes, the administration and management of the Department’s sewage sludge and industrial wastes land application programs, including monitoring and inspecting, and the Department of Conservation and Recreation’s costs for implementation of the sewage sludge application program and (ii) to reimburse localities with duly adopted ordinances providing for the testing and monitoring of the land application of sewage sludge or solid or semisolid industrial wastes. The State Treasurer shall be the custodian of the moneys deposited in the Fund. No part of the Fund, either principal or interest earned thereon, shall revert to the general fund of the state treasury.
8. All persons holding or applying for a permit authorizing the land application of sewage sludge shall provide to the Board written evidence of financial responsibility, which shall be available to pay claims for cleanup costs, personal injury, and property damages resulting from the transportation, storage or land application of sewage sludge. The Board shall, by regulation, establish and prescribe mechanisms for meeting the financial responsibility requirements of this section.
9. Any county, city or town may adopt an ordinance that provides for the testing and monitoring of the land application of sewage sludge within its political boundaries to ensure compliance with applicable laws and regulations.
10. The Department, upon the timely request of any individual to test the sewage sludge at a specific site, shall collect samples of the sewage sludge at the site prior to the land application and submit such samples to a laboratory. The testing shall include an analysis of the (i) concentration of trace elements, (ii) coliform count, and (iii) pH level. The results of the laboratory analysis shall be (a) furnished to the individual requesting that the test be conducted and (b) reviewed by the Department. The person requesting the test and analysis of the sewage sludge shall pay the costs of sampling, testing, and analysis.
11. At least 100 days prior to commencing land application of sewage sludge at a permitted site, the permit holder shall deliver or cause to be delivered written notification to the chief executive officer or his designee for the local government where the site is located. The notice shall identify the location of the permitted site and the expected sources of the sewage sludge to be applied to the site. This requirement may be satisfied by providing a list of all available permitted sites in the locality at least 100 days prior to commencing the application at any site on the list. This requirement shall not apply to any application commenced prior to October 10, 2005. If the site is located in more than one county, the notice shall be provided to all jurisdictions where the site is located.
12. The permit holder shall deliver or cause to be delivered written notification to the Department at least 14 days prior to commencing land application of sewage sludge at a permitted site. The notice shall identify the location of the permitted site and the expected sources of the sewage sludge to be applied to the site.
13. The Department shall randomly conduct unannounced site inspections while land application of sewage sludge is in progress at a sufficient frequency to determine compliance with the requirements of this section, § 62.1-44.19:3.1 , or regulations adopted under those sections.
14. Surface incorporation into the soil of sewage sludge applied to cropland may be required when practicable and compatible with a soil conservation plan meeting the standards and specifications of the U.S. Department of Agriculture Natural Resources Conservation Service.
15. The Board shall develop regulations specifying and providing for extended buffers to be employed for application of sewage sludge (i) to hay, pasture, and forestlands; or (ii) to croplands where surface incorporation is not practicable or is incompatible with a soil conservation plan meeting the standards and specifications of the U.S. Department of Agriculture Natural Resources Conservation Service. Such extended buffers may be included by the Department as site specific permit conditions pursuant to subsection E, as an alternative to surface incorporation when necessary to protect odor sensitive receptors as determined by the Department or the local monitor.
16. The Board shall adopt regulations requiring the payment of a fee for the land application of sewage sludge, pursuant to permits issued under this section. The person land applying sewage sludge shall (i) provide advance notice of the estimated fee to the generator of the sewage sludge unless notification is waived, (ii) collect the fee from the generator, and (iii) remit the fee to the Department as provided for by regulation. The fee shall be imposed on each dry ton of sewage sludge that is land applied in the Commonwealth. The regulations shall include requirements and procedures for:
    1. Collection of fees by the Department;
    2. Deposit of the fees into the Fund; and
    3. Disbursement of proceeds by the Department pursuant to subsection G.
17. The Department, in consultation with the Department of Health, the Department of Conservation and Recreation, the Department of Agriculture and Consumer Services, and the Virginia Cooperative Extension Service, shall establish and implement a program to train persons employed by those local governments that have adopted ordinances, pursuant to this section, to test and monitor the land application of sewage sludge. The program shall include, at a minimum, instruction in: (i) the provisions of the Virginia Biosolids Use Regulations; (ii) land application methods and equipment, including methods and processes for preparation and stabilization of sewage sludge that is land applied; (iii) sampling and chain of custody control; (iv) preparation and implementation of nutrient management plans for land application sites; (v) complaint response and preparation of complaint and inspection reports; (vi) enforcement authority and procedures; (vii) interaction and communication with the public; and (viii) preparation of applications for reimbursement of local monitoring costs disbursed pursuant to subsection G. To the extent feasible, the program shall emphasize in-field instruction and practical training. Persons employed by local governments shall successfully complete such training before the local government may request reimbursement from the Board for testing and monitoring of land application of sewage sludge performed by the person. The completion of training shall not be a prerequisite to the exercise of authority granted to local governments by any applicable provision of law.The Department may:
    1. Charge attendees a reasonable fee to recover the actual costs of preparing course materials and providing facilities and instructors for the program. The fee shall be reimbursable from the Fund established pursuant to this section; and
    2. Request and accept the assistance and participation of other state agencies and institutions in preparing and presenting the course of training established by this subsection.
18. Localities, as part of their zoning ordinances, may designate or reasonably restrict the storage of sewage sludge based on criteria directly related to the public health, safety, and welfare of its citizens and the environment. Notwithstanding any contrary provision of law, a locality may by ordinance require that a special exception or a special use permit be obtained to begin the storage of sewage sludge on any property in its jurisdiction, including any area that is zoned as an agricultural district or classification. Such ordinances shall not restrict the storage of sewage sludge on a farm as long as such sludge is being stored (i) solely for land application on that farm and (ii) for a period no longer than 45 days. No person shall apply to the State Health Commissioner or the Department of Environmental Quality for a permit, a variance, or a permit modification authorizing such storage without first complying with all requirements adopted pursuant to this subsection.

History. 1994, c. 288; 2001, c. 831; 2005, cc. 197, 396, 459, 593; 2007, cc. 390, 881, 927, 929; 2009, c. 42; 2015, cc. 104, 677.

Editor’s note.

Acts 2007, cc. 881 and 929, cl. 2 provides: “That the provisions of this act shall become effective on January 1, 2008, and shall not become effective unless adequate funds have been appropriated to administer the program and adequate positions have been authorized by this date.” Funds were appropriated.

Acts 2007, cc. 881 and 929, cl. 3 provides: “That any person previously certified as a sewage sludge land applicator pursuant to § 32.1-164.6 of the Code of Virginia as repealed by this act shall be deemed to be certified under this act until such certification expires or is revoked by the State Water Control Board.”

Acts 2007, cc. 881 and 929, cl. 4 provides: “That any permit, certificate, or authorization for the land application, marketing, or distribution of sewage sludge issued prior to January 1, 2008, shall remain in effect for the remainder of the term specified in such permit, certificate, or authorization unless amended or revoked by the Board.”

Acts 2007, cc. 881 and 929, cl. 5 provides: “That the State Board of Health’s Biosolids Use Regulations (12 VAC 5-585) shall be transferred from the State Board of Health to the State Water Control Board on January 1, 2008, and the State Water Control Board’s initial rulemaking to implement this act shall be exempt from Article 2 (§ 2.2-4006 et seq. of the Code of Virginia) of the Administrative Process Act. Such regulations that are in effect shall remain in full force and effect until altered, amended, or rescinded by the State Water Control Board.”

Acts 2007, cc. 881 and 929, cl. 6 provides: “That, upon the effective date of this act, the administration and management of the Sludge Management Fund and the moneys in the Fund shall be transferred to the Department of Environmental Quality.”

Acts 2007, c. 929, cl. 7 provides: “That upon the effective date of this act, the fee imposed on each dry ton of sewage sludge that is land applied pursuant to subsection P of § 62.1-44.19:3 shall be $7.50 until altered, amended or rescinded by the State Water Control Board.”

Acts 2018, Sp. Sess. I, c. 2, as amended by Acts 2019, c. 854, Item 366 E, effective for the biennium ending June 30, 2020, provides: “Beginning October 1, 2015, there shall be a $3.75 fee imposed on each dry ton of exceptional quality biosolids cake sewage sludge that is land applied pursuant to § 62.1-44.19:3 P, Code of Virginia, until such fee is altered, amended or rescinded by the State Water Control Board.”

The 2007 amendments.

The 2007 amendment by c. 390 added subdivision A 2 [now A 5] and the second and third sentences of subsection C [now the first and third sentences of subsection R].

The 2007 amendments by cc. 881 and 929, effective January 1, 2008, are identical, and rewrote the section.

The 2007 amendment by c. 927, effective April 4, 2007, added subsection I [now R].

The 2009 amendments.

The 2009 amendment by c. 42, in the last sentence of subdivision C 10, substituted “any permit amendments” for “permit amendment” and inserted “initial” preceding “permit by 50 percent.”

The 2015 amendments.

The 2015 amendments by cc. 104 and 677 are identical, and in subsection G, inserted “and by subsection E of § 62.1-44.16 ” in the second sentence, and in the third sentence added the clause (i) and (ii) designations, and in clause (i) inserted “or industrial wastes” and “and industrial wastes,” substituted “programs, including” for “program, including but not limited to” and in clause (ii) inserted “or solid or semisolid industrial wastes.”

Law Review.

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

Michie’s Jurisprudence.

For related discussion, see 13B M.J. Municipal Corporations, § 63.

CIRCUIT COURT OPINIONS

Amended regulations fulfilled statutory requirements. —

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’s decision was supported by substantial evidence including a report 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).

OPINIONS OF THE ATTORNEY GENERAL

Pollution abatement permits. —

A pollution abatement permit is a final decision of the Board, and if no timely appeal is taken, the permit is valid and enforceable by its terms and not subject to appeal. On the other hand, unless the court should stay, suspend, or set aside one or both of the pollution abatement permits that were appealed, each remains valid and enforceable. See opinion of Attorney General to The Honorable Jill H. Vogel, Member, Senate of Virginia, 10-084, 2010 Va. AG LEXIS 68 (10/29/10).

Any permit issued by the Board for land application of sewage sludge must be in compliance with the applicable requirements of § 62.1-44.19:3 . See opinion of Attorney General to The Honorable Todd C. Gilbert, Member, House of Delegates, 10-102, 2010 Va. AG LEXIS 70 (10/29/10).

§ 62.1-44.19:3.1. Certification of sewage sludge land applicators.

1. The Board, with the assistance of the Department of Health, and the Department of Professional and Occupational Regulation shall adopt regulations and standards for training, testing, and certification of persons land applying Class B sewage sludge in the Commonwealth, and for revoking, suspending, or denying such certification from any person for cause. The regulations shall include standards and criteria for the approval of programs of instruction taught by governmental entities and by the private sector for the purpose of certifying sewage sludge land applicators. The Board shall promulgate the regulations and standards required by this subsection no later than July 1, 2008.
2. No person shall land apply Class B sewage sludge pursuant to a permit under § 62.1-44.19:3 unless a certified sewage sludge land applicator is onsite at all times during such land application, as of 180 days following the effective date of regulations required by this section.

History. 2007, cc. 881, 929.

Editor’s note.

Acts 2007, cc. 881 and 929, cl. 2 provides: “That the provisions of this act shall become effective on January 1, 2008, and shall not become effective unless adequate funds have been appropriated to administer the program and adequate positions have been authorized by this date.” The funds were appropriated. See Item 362 G of Acts 2006, Sp. Sess. I, c. 3 as added by Acts 2007, c. 847.

Acts 2007, cc. 881 and 929, cl. 4 provides: “That any permit, certificate, or authorization for the land application, marketing, or distribution of sewage sludge issued prior to January 1, 2008, shall remain in effect for the remainder of the term specified in such permit, certificate, or authorization unless amended or revoked by the Board.”

Acts 2007, cc. 881 and 929, cl. 5 provides: “That the State Board of Health’s Biosolids Use Regulations (12 VAC 5-585) shall be transferred from the State Board of Health to the State Water Control Board on January 1, 2008, and the State Water Control Board’s initial rulemaking to implement this act shall be exempt from Article 2 (§ 2.2-4006 et seq. of the Code of Virginia) of the Administrative Process Act. Such regulations that are in effect shall remain in full force and effect until altered, amended, or rescinded by the State Water Control Board.”

Acts 2007, cc. 881 and 929, cl. 6 provides: “That, upon the effective date of this act, the administration and management of the Sludge Management Fund and the moneys in the Fund shall be transferred to the Department of Environmental Quality.”

§ 62.1-44.19:3.2. Local enforcement of sewage sludge regulations.

1. Any locality that has adopted an ordinance for the testing and monitoring of the land application of sewage sludge pursuant to § 62.1-44.19:3 shall have the authority to order the abatement of any violation of § 62.1-44.19:3 , 62.1-44.19:3.1 , or 62.1-44.19:3.3 , or of any violation of any regulation adopted under these sections. Such abatement order shall identify the activity constituting the violation, specify the Code provision or regulation violated by the activity, and order that the activity cease immediately.
2. In the event of any dispute concerning the existence of a violation, the activity alleged to be in violation shall be halted pending a determination by the Director, whose decision shall be final and binding unless reversed on judicial appeal pursuant to § 2.2-4026 . Any person who fails or refuses to halt such activity may be compelled to do so by injunction issued by a court having competent jurisdiction. Upon determination by the Director that there has been a violation of § 62.1-44.19:3 , 62.1-44.19:3.1 , or 62.1-44.19:3.3 , or of any regulation adopted under these sections and that such violation poses an imminent threat to public health, safety, or welfare, the Department shall commence appropriate action to abate the violation and immediately notify the chief administrative officer of any locality potentially affected by the violation. Neither the Board, the Commonwealth, nor any employee of the Commonwealth shall be liable for failing to provide the notification required by this section.
3. Local governments shall promptly notify the Department of all results from the testing and monitoring of the land application of sewage sludge performed by persons employed by local governments and any violation of § 62.1-44.19:3 , 62.1-44.19:3.1 , or 62.1-44.19:3.3 , or regulations adopted under those sections, discovered by local governments.

History. 2007, cc. 881, 929.

Editor’s note.

Acts 2007, cc. 881 and 929, cl. 2 provides: “That the provisions of this act shall become effective on January 1, 2008, and shall not become effective unless adequate funds have been appropriated to administer the program and adequate positions have been authorized by this date.” Funding has been provided. See Item 362 G of Acts 2006, Sp. Sess. I, c. 3, as amended by Acts 2007, c. 847.

§ 62.1-44.19:3.3. Septage disposal.

The Board shall have the authority to issue permits that prescribe the terms and conditions upon which septage may be disposed of by land application. Application for disposal permits shall be submitted in form and content that are satisfactory to the Board. Upon receipt of a satisfactory application, the Board shall send a copy to the State Board of Health and shall comply with the provisions of § 62.1-44.19:3.4 . The State Board of Health shall review the application without delay and advise the Board within 60 days of the requirements necessary to protect public health. The Board shall not consider the application complete until comments have been received from the State Board of Health. The Board shall approve or disapprove the application and issue the permit as appropriate. If the application is disapproved, the Board shall advise the applicant of the conditions necessary to obtain approval. The Board may summarily revoke or amend the permit if it determines that the septage disposal is adversely affecting state waters or if the State Board of Health notifies the Board that public health is being adversely affected.

History. 2007, cc. 881, 929.

Editor’s note.

Acts 2007, cc. 881 and 929, cl. 2 provides: “That the provisions of this act shall become effective on January 1, 2008, and shall not become effective unless adequate funds have been appropriated to administer the program and adequate positions have been authorized by this date.” Funding has been appropriated. See Item 362 G of Acts 2006, Sp. Sess. I, c. 3, as amended by Acts 2007, c. 847.

§ 62.1-44.19:3.4. Notification of local governing bodies.

1. Whenever the Department receives an application for land disposal of treated sewage, stabilized sewage sludge, or stabilized septage, the Department shall notify the local governing bodies where disposal is to take place of pertinent details of the proposal and establish a date for a public meeting to discuss technical issues relating to the proposal. The Department shall give notice of the date, time, and place of the public meeting and a description of the proposal by publication in a newspaper of general circulation in the city or county where land disposal is to take place. Public notice of the scheduled meeting shall occur no fewer than seven or more than 14 days prior to the meeting. The Board shall not issue the permit for land disposal until the public meeting has been held and comment has been received from the local governing body, or until 30 days have lapsed from the date of the public meeting. This section shall not apply to applications for septic tank permits.
2. When a farm is to be added to an existing permit authorizing land application of sewage sludge, the Department shall notify persons residing on property bordering such farm, and shall receive written comments from those persons for a period not to exceed 30 days. Based upon the written comments, the Department shall determine whether additional site-specific requirements should be included in the authorization for land application at the farm.

History. 2007, cc. 881, 929; 2009, c. 42.

Editor’s note.

Acts 2007, cc. 881 and 929, cl. 2 provides: “That the provisions of this act shall become effective on January 1, 2008, and shall not become effective unless adequate funds have been appropriated to administer the program and adequate positions have been authorized by this date.” Funding has been appropriated. See Item 362 G of Acts 2006, Sp. Sess. I, c. 3, as amended by Acts 2007, c. 847.

The 2009 amendments.

The 2009 amendment by c. 42 substituted “issue the permit for land disposal” for “consider the application for land disposal to be complete” in the next-to-last sentence of subsection A.

§ 62.1-44.19:4. Definitions.

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

“Clean Water Act” means the Federal Water Pollution Control Act, as amended, (33 U.S.C. § 1251 et seq.).

“Fully supporting” means those waters meeting the fishable and swimmable goals of the Clean Water Act.

“Impaired waters” means those water bodies or water body segments that are not fully supporting or are partially supporting of the fishable and swimmable goals of the Clean Water Act and include those waters identified in subdivision C 1 of § 62.1-44.19:5 as impaired waters.

“Toxic impaired waters” means those water bodies or water body segments identified as impaired due to one or more toxic substances in the reports prepared pursuant to § 62.1-44.19:5 .

“Toxic substance” or “toxics” means any agent or material listed by the USEPA Administrator pursuant to § 307(a) of the Clean Water Act and those substances on the “toxics of concern” list of the Chesapeake Bay Program as of January 1, 1997.

History. 1997, c. 519; 2000, cc. 17, 1043.

Cross references.

As to the Chesapeake Bay and Virginia Waters Clean-Up and Oversight Act and the development of an impaired waters clean-up plan pursuant thereto, see § 62.1-44.117 et seq.

The 2000 amendments.

The 2000 amendments by cc. 17 and 1043 are identical, and in the paragraph defining “Toxic impaired waters,” substituted “water bodies or water body segments” for “waters,” and substituted “one or more toxic substances” for “toxic contamination;” and substituted “any agent or material” for “those substances” in the paragraph defining “Toxic substance” or “toxics.”

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).

§ 62.1-44.19:5. Water quality monitoring and reporting.

1. The Board shall develop the reports required by § 1313(d) (hereafter the 303(d) report) and § 1315(b) (hereafter the 305(b) report) of the Clean Water Act in a manner such that the reports will: (i) provide an accurate and comprehensive assessment of the quality of state surface waters; (ii) identify trends in water quality for specific and easily identifiable geographically defined water segments; (iii) provide a basis for developing initiatives and programs to address current and potential water quality impairment; (iv) be consistent and comparable documents; and (v) contain accurate and comparable data that is representative of the state as a whole. The reports shall be produced in accordance with the schedule required by federal law, but shall incorporate at least the preceding five years of data. Data older than five years shall be incorporated when scientifically appropriate for trend analysis. The Board shall conduct monitoring as described in subsection B and consider and incorporate factors as described in subsection C into the reports. The Board may conduct additional monitoring and consider and incorporate other factors or information it deems appropriate or necessary.
2. Monitoring shall be conducted so that it:
   1. Establishes consistent siting and monitoring techniques to ensure data reliability, comparability of data collected throughout the state, and ability to determine water quality trends within specific and easily identifiable geographically defined water segments.
   2. Expands the percentage of river and stream miles monitored so as ultimately to be representative of all river and stream miles in the state according to a developed plan and schedule. Contingent upon the appropriation of adequate funding for this purpose, the number of water quality monitoring stations and the frequency of sampling shall be increased by at least five percent annually, until such representative monitoring is achieved, and shall be expanded first to water bodies for which there is credible evidence to support an indication of impairment.
   3. Monitors, according to a plan and schedule, for all substances that are discharged to state waters and that are: (i) listed on the Chesapeake Bay Program’s “toxics of concern” list as of January 1, 1997; (ii) listed by the USEPA Administrator pursuant to § 307(a) of the Clean Water Act; (iii) subject to water quality standards; or (iv) necessary to determine water quality conditions. The Board shall update the plan annually. The Board shall develop and implement the plan and schedule for the phasing in of monitoring required by this subdivision. The Board shall, upon development of the plan, publish notice in the Virginia Register that the plan is available for public inspection.
   4. Provides, according to the plan in subdivision B 3, for increased use, as necessary, beyond 1996 levels, of sediment monitoring as well as benthic macro-invertebrate organisms and fish tissue monitoring, and provides for specific assessments of water quality based on the results of such monitoring. Contingent upon the appropriation of adequate funding for this purpose, all fish tissue and sediment monitoring for the segments identified in the water quality monitoring plan shall occur at least once every three years.
   5. Increases frequency of sample collection at each chemical monitoring station to one or more per month when scientifically necessary to provide accurate and usable data. If statistical analysis is necessary to resolve issues surrounding potentially low sampling frequency, a sensitivity analysis shall be used to describe both potential overestimation and underestimation of water quality.
   6. Utilizes a mobile laboratory or other laboratories to provide independent monitoring and assessments of effluent from permitted industrial and municipal establishments and other discharges to state waters.
   7. Utilizes announced and unannounced inspections, and collection and testing of samples from establishments discharging to state surface waters.
3. The 303(d) report shall:
   1. In addition to such other categories as the Board deems necessary or appropriate, identify geographically defined water segments as impaired if monitoring or other evidence shows: (i) violations of ambient water quality standards or human health standards; (ii) fishing restrictions or advisories; (iii) shellfish consumption restrictions due to contamination; (iv) nutrient over-enrichment; (v) significant declines in aquatic life biodiversity or populations; or (vi) contamination of sediment at levels which violate water quality standards or threaten aquatic life or human health. Waters identified as “naturally impaired,” “fully supporting but threatened,” or “evaluated (without monitoring) as impaired” shall be set out in the report in the same format as those listed as “impaired.” The Board shall develop and publish a procedure governing its process for defining and determining impaired water segments and shall provide for public comment on the procedure.
   2. Include an assessment, conducted in conjunction with other appropriate state agencies, for the attribution of impairment to point and nonpoint sources. The absence of point source permit violations on or near the impaired water shall not conclusively support a determination that impairment is due to nonpoint sources. In determining the cause for impairment, the Board shall consider the cumulative impact of (i) multiple point source discharges, (ii) individual discharges over time, and (iii) nonpoint sources.
4. The 303(d) and 305(b) reports shall:
   1. Be developed in consultation with scientists from baccalaureate public institutions of higher education in the Commonwealth prior to its submission by the Board to the United States Environmental Protection Agency.
   2. Indicate water quality trends for specific and easily identifiable geographically defined water segments and provide summaries of the trends as well as available data and evaluations so that citizens of the Commonwealth can easily interpret and understand the conditions of the geographically defined water segments.
5. The Board shall refer to the 303(d) and 305(b) reports in determining proper staff and resource allocation.
6. The Board shall accept and review requests from the public regarding specific segments that should be included in the water quality monitoring plan described in subdivision B 3. Each request received by April 30 shall be reviewed when the agency develops or updates the water quality monitoring plan. Such requests shall include (i) a geographical description of the waterbody recommended for monitoring, (ii) the reason the monitoring is requested, and (iii) any water quality data that the petitioner may have collected or compiled. The Board shall respond in writing, either approving the request or stating the reasons a request under this subsection has been denied, by August 31 for requests received by April 30 of the same year. Such determination shall not be a regulation or case decision as defined by § 2.2-4001 .

History. 1997, c. 519; 2000, cc. 17, 945, 1043; 2007, c. 655.

Editor’s note.

At the direction of the Virginia Code Commission, the following changes were made to conform to Acts 2016, c. 588: in subdivision D 1, substituted “baccalaureate public institutions of higher education in the Commonwealth” for “state universities”; and made minor stylistic changes.

The 2000 amendments.

The 2000 amendments by cc. 17 and 1043 are identical, and in subsection A, substituted “in accordance with the schedule required by federal law” for “biennially” in the second sentence; in subsection B, added the second sentence in subdivision B 3; in subdivision B 4, substituted “benthic macro-invertebrate organisms” for “macro-invertebrate, benthic organism” in the first sentence and added the second sentence; and added subsection F.

The 2000 amendment by c. 945 substituted “Contingent upon the appropriation of adequate funding for this purpose, the number of water quality monitoring stations and the frequency of sampling shall be increased by at least five percent annually, until such representative monitoring is achieved, and shall” for “Water monitoring and sampling shall” in the last sentence in subdivision B 2.

The 2007 amendments.

The 2007 amendment by c. 655, in subsection F, substituted “April 30” for “December 31 of the preceding year” in the second sentence, and “August 31” for “April 30,” and “April 30 of the same” for “December 31 of the preceding” in the fourth sentence.

Law Review.

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

§ 62.1-44.19:6. Citizen right-to-know provisions.

1. The Board, based on the information in the 303(d) and 305(b) reports, shall:
   1. Request the Department of Wildlife Resources or the Virginia Marine Resources Commission to post notices at public access points to all toxic impaired waters. The notice shall be prepared by the Board and shall contain (i) the basis for the impaired designation and (ii) a statement of the potential health risks provided by the Virginia Department of Health. The Board shall annually notify local newspapers, and persons who request notice, of any posting and its contents. The Board shall coordinate with the Virginia Marine Resources Commission and the Department of Wildlife Resources to assure that adequate notice of posted waters is provided to those purchasing hunting and fishing licenses.
   2. Maintain a “citizen hot-line” for citizens to obtain, either telephonically or electronically, information about the condition of waterways, including information on toxics, toxic discharges, permit violations and other water quality related issues.
   3. Make information regarding the presence of toxics in fish tissue and sediments available to the public on the Internet and through other reasonable means for at least five years after the information is received by the Department of Environmental Quality. The Department of Environmental Quality shall post on the Internet and in the Virginia Register on or about January 1 and July 1 of each year an announcement of any new data that has been received over the past six months and shall make a copy of the information available upon request.
2. The Department of Environmental Quality shall provide to the Virginia Department of Health and local newspapers, television stations, and radio stations, and shall disseminate via official social media accounts and email notification lists, the discharge information reported to the Director of the Department of Environmental Quality pursuant to subsection B of § 62.1-44.5 , when the Virginia Department of Health determines that the discharge may be detrimental to the public health or the Department determines that the discharge may impair beneficial uses of state waters.

History. 1997, c. 519; 2000, cc. 17, 1043; 2020, cc. 958, 1182.

Editor’s note.

Acts 2020, c. 1182, cl. 2 provides: “That by December 1, 2020, the Department of Environmental Quality shall report to the General Assembly (i) a protocol that could be used to determine whether a discharge would have a de minimis impact on the beneficial uses of state waters and (ii) a proposed implementation procedure if subsection B of § 62.1-44.19:6 of the Code of Virginia were to be amended to require dissemination to media outlets, social media accounts, and email distribution lists of all discharges reported pursuant to subsection B of § 62.1-44.5 of the Code of Virginia except for those determined to have a de minimis impact on the beneficial uses of state waters. The Department of Environmental Quality shall consult with the Virginia Department of Health in preparing such report.”

The 2000 amendments.

The 2000 amendments by cc. 17 and 1043 are identical, and in subsection A, added “provided by the Virginia Department of Health” in clause (ii) of subdivision A 1, and added subdivision A 3; and in subsection B, substituted “Virginia Department of Health” for “Board” and inserted “the Board determines that the discharge.”

The 2020 amendments.

The 2020 amendment by c. 958 substituted “Department of Wildlife Resources” for “Department of Game and Inland Fisheries” in subdivision A 1 in the first and last sentences.

The 2020 amendment by c. 1182 rewrote subsection B, which read: “The Board shall provide to a local newspaper the discharge information reported to the Director of the Department of Environmental Quality pursuant to § 62.1-44.5 , when the Virginia Department of Health determines that the discharge may be detrimental to the public health or the Board determines that the discharge may impair beneficial uses of state waters.”

§ 62.1-44.19:7. Plans to address impaired waters.

1. The Board shall develop and implement a plan to achieve fully supporting status for impaired waters, except when the impairment is established as naturally occurring. The plan shall include the date of expected achievement of water quality objectives, measurable goals, the corrective actions necessary, and the associated costs, benefits, and environmental impact of addressing impairment and the expeditious development and implementation of total maximum daily loads when appropriate and as required pursuant to subsection C.
2. The plan required by subsection A shall include, but not be limited to, the promulgation of water quality standards for those substances: (i) listed on the Chesapeake Bay Program’s “toxics of concern” list as of January 1, 1997; (ii) listed by the USEPA Administrator pursuant to § 307 (a) of the Clean Water Act; or (iii) identified by the Board as having a particularly adverse effect on state water quality or living resources. The standards shall be promulgated pursuant to a schedule established by the Board following public notice and comment. Standards shall be adopted according to applicable federal criteria or standards unless the Board determines that an additional or more stringent standard is necessary to protect public health, aquatic life or drinking water supplies.
3. The plan required by subsection A shall, upon identification by the Board of impaired waters, establish a priority ranking for such waters, taking into account the severity of the pollution and the uses to be made of such waters. The Board shall develop and implement pursuant to a schedule total maximum daily loads of pollutants that may enter the water for each impaired water body as required by the Clean Water Act.
4. The plan required by subsection A shall, upon identification by the Board of toxic-impaired waters, include provisions as required by § 62.1-44.19:8 .
5. If an aggrieved party presents to the Board reasonable grounds indicating that the attainment of the designated use for a water is not feasible, then the Board, after public notice and at least 30 days provided for public comment, may allow the aggrieved party to conduct a use attainability analysis according to criteria established pursuant to the Clean Water Act and a schedule established by the Board. If applicable, the schedule shall also address whether TMDL development or implementation for the water should be delayed.
6. The plan required by subsection A shall be controlling unless and until amended or withdrawn by the Board.

History. 1997, c. 519; 2006, c. 154; 2011, cc. 281, 322.

The 2006 amendments.

The 2006 amendment by c. 154 added subsection E.

The 2011 amendments.

The 2011 amendments by cc. 281 and 322 are identical, and added subsection F.

Law Review.

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

§ 62.1-44.19:8. Control of discharges to toxic-impaired water.

Owners of establishments that discharge toxics to toxic-impaired waters shall evaluate the options described in §§ 10.1-1425.10 and 10.1-1425.11 in determining the appropriate means to control such discharges. Prior to issuing or reissuing any permit for the discharge of toxics to toxic-impaired waters, the Board shall review and consider the owner’s evaluation of the options in determining the conditions and limitations of the permit.

History. 1997, c. 519.

§ 62.1-44.19:9. Transmission of toxics information.

The Virginia Department of Health and the Department of Environmental Quality shall cooperate, in accordance with a memorandum of agreement to be signed by the Commissioner of Health and the Director of the Department of Environmental Quality, to ensure the timely transmission and evaluation of reliable water quality and fish advisory information. The memorandum of agreement, at a minimum, shall include specific time frames for the (i) transfer of information from the Department of Environmental Quality to the Virginia Department of Health; (ii) assessments and recommendations to be made by the Virginia Department of Health, when the toxicity of the substance is known; and (iii) transmission of the Virginia Department of Health’s assessments and recommendations to the Department of Environmental Quality and the dissemination of the assessments and recommendations to the public. Copies of the proposed memorandum of agreement shall be provided to the Chairmen of the House Committees on Conservation and Natural Resources and Chesapeake and Its Tributaries and the Senate Committee on Agriculture, Conservation and Natural Resources at least one month prior to final signature by the heads of the two agencies but no later than December 1, 2000. Any revision of the agreement shall be submitted to the chairmen of these committees no later than one month prior to adoption by the Virginia Department of Health and the Department of Environmental Quality.

History. 2000, cc. 17, 1043.

§ 62.1-44.19:10. Assessment of sources of toxic contamination.

The Department of Environmental Quality shall develop a written policy describing the circumstances or factors that indicate the need to conduct an assessment of potential sources of toxic contamination. The Department of Environmental Quality shall conduct source assessments as provided for in the written policy and shall develop strategies to remediate the contamination. A copy of the written policy shall be provided to the Chairmen of the House Committees on Conservation and Natural Resources and Chesapeake and Its Tributaries and the Senate Committee on Agriculture, Conservation and Natural Resources no later than one month prior to the adoption of the policy but no later than December 1, 2000. Any revision of the policy shall be submitted to the chairmen of these committees no later than one month prior to the adoption of the revision by the Department.

History. 2000, cc. 17, 1043.

§ 62.1-44.19:11. Citizen water quality monitoring program.

1. The Department of Environmental Quality shall establish a citizen water quality monitoring program to provide technical assistance and may provide grants to support citizen water quality monitoring groups if (i) the monitoring is done pursuant to a memorandum of agreement with the Department, (ii) the project or activity is consistent with the Department of Environmental Quality’s water quality monitoring program, (iii) the monitoring is conducted in a manner consistent with the Virginia Citizens Monitoring Methods Manual, and (iv) the location of the water quality monitoring activity is part of the water quality control plan required under § 62.1-44.19:5 . The results of such citizen monitoring shall not be used as evidence in any enforcement action.
2. It shall be the goal of the Department to encourage citizen water quality monitoring so that 3,000 stream miles are monitored by volunteer citizens by 2010.

History. 2002, c. 708; 2007, c. 29.

The 2007 amendments.

The 2007 amendment by c. 29 inserted the subsection A designation; and added subsection B.

§ 62.1-44.19:12. Legislative findings and purposes.

The 2000 Chesapeake Bay Agreement and related multistate cooperative and regulatory initiatives (i) establish allocations for nitrogen and phosphorus delivered to the Chesapeake Bay and its tidal tributaries to meet applicable water quality standards and (ii) place caps on the loads of these nutrients that may be discharged into the Chesapeake Bay watershed. These initiatives will require public and private point source dischargers of nitrogen and phosphorus to achieve significant additional reductions of these nutrients to meet the cap load allocations. The General Assembly finds and determines that adoption and utilization of a watershed general permit and market-based point source nutrient credit trading program will assist in (a) meeting these cap load allocations cost-effectively and as soon as possible in keeping with the 2010 timeline and objectives of the Chesapeake 2000 Agreement, (b) accommodating continued growth and economic development in the Chesapeake Bay watershed, and (c) providing a foundation for establishing market-based incentives to help achieve the Chesapeake Bay Program’s nonpoint source reduction goals.

History. 2005, cc. 708, 710.

Editor’s note.

Acts 2005, cc. 708 and 710, cl. 2 provides: “That any rights, claims, or defenses arising out of the general permit authorized under this act or arising out of Article 3.04 [4.02] (§ 62.1-44.19:12 et seq.) of Chapter 3.1 of Title 62.1 of this act shall not be applicable to, raised nor asserted in any judicial proceeding, or appeals therefrom, that relate to Virginia Pollutant Discharge Elimination System permits issued by the Board on June 17, 2004.”

Law Review.

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

§ 62.1-44.19:13. Definitions.

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

“Annual mass load of total nitrogen” (expressed in pounds per year) means the daily total nitrogen concentration (expressed as mg/L to the nearest 0.01 mg/L) multiplied by the flow volume of effluent discharged during the 24-hour period (expressed as MGD to the nearest 0.01 MGD), multiplied by 8.34 and rounded to the nearest whole number to convert to pounds per day (lbs/day) units, then totaled for the calendar month to convert to pounds per month (lbs/mo) units, and then totaled for the calendar year to convert to pounds per year (lbs/yr) units.

“Annual mass load of total phosphorus” (expressed in pounds per year) means the daily total phosphorus concentration (expressed as mg/L to the nearest 0.01mg/L) multiplied by the flow volume of effluent discharged during the 24-hour period (expressed as MGD to the nearest 0.01 MGD) multiplied by 8.34 and rounded to the nearest whole number to convert to pounds per day (lbs/day) units, then totaled for the calendar month to convert to pounds per month (lbs/mo) units, and then totaled for the calendar year to convert to pounds per year (lbs/yr) units.

“Association” means the Virginia Nutrient Credit Exchange Association authorized by this article.

“Attenuation” means the rate at which nutrients are reduced through natural processes during transport in water.

“Best management practice,” “practice,” or “BMP” means a structural practice, nonstructural practice, or other management practice used to prevent or reduce nutrient loads associated with stormwater from reaching surface waters or the adverse effects thereof.

“Biological nutrient removal technology” means (i) technology that will achieve an annual average total nitrogen effluent concentration of eight milligrams per liter and an annual average total phosphorus effluent concentration of one milligram per liter, or (ii) equivalent reductions in loads of total nitrogen and total phosphorus through the recycle or reuse of wastewater as determined by the Department.

“Delivered total nitrogen load” means the discharged mass load of total nitrogen from a point source that is adjusted by the delivery factor for that point source.

“Delivered total phosphorus load” means the discharged mass load of total phosphorus from a point source that is adjusted by the delivery factor for that point source.

“Delivery factor” means an estimate of the number of pounds of total nitrogen or total phosphorus delivered to tidal waters for every pound discharged from a permitted facility, as determined by the specific geographic location of the permitted facility, to account for attenuation that occurs during riverine transport between the permitted facility and tidal waters. Delivery factors shall be calculated using the Chesapeake Bay Program watershed model.

“Department” means the Department of Environmental Quality.

“Enhanced Nutrient Removal Certainty Program” or “ENRC Program” means the Phase III Watershed Implementation Plan Enhanced Nutrient Removal Certainty Program established pursuant to subsection G of § 62.1-44.19:14 .

“Equivalent load” means 2,300 pounds per year of total nitrogen and 300 pounds per year of total phosphorus at a flow volume of 40,000 gallons per day; 5,700 pounds per year of total nitrogen and 760 pounds per year of total phosphorus at a flow volume of 100,000 gallons per day; and 28,500 pounds per year of total nitrogen and 3,800 pounds per year of total phosphorus at a flow volume of 500,000 gallons per day.

“Facility” means a point source discharging or proposing to discharge total nitrogen or total phosphorus to the Chesapeake Bay or its tributaries. This term does not include confined animal feeding operations, discharges of stormwater, return flows from irrigated agriculture, or vessels.

“General permit” means the general permit authorized by this article.

“MS4” means a municipal separate storm sewer system.

“Nutrient credit” or “credit” means a nutrient reduction that is certified pursuant to this article and expressed in pounds of phosphorus or nitrogen either (i) delivered to tidal waters when the credit is generated within the Chesapeake Bay Watershed or (ii) as otherwise specified when generated in the Southern Rivers watersheds. “Nutrient credit” does not include point source nitrogen credits or point source phosphorus credits as defined in this section.

“Nutrient credit-generating entity” means an entity that generates nonpoint source nutrient credits.

“Permitted facility” means a facility authorized by the general permit to discharge total nitrogen or total phosphorus. For the sole purpose of generating point source nitrogen credits or point source phosphorus credits, “permitted facility” shall also mean the Blue Plains wastewater treatment facility operated by the District of Columbia Water and Sewer Authority.

“Permittee” means a person authorized by the general permit to discharge total nitrogen or total phosphorus.

“Point source nitrogen credit” means the difference between (i) the waste load allocation for a permitted facility specified as an annual mass load of total nitrogen, and (ii) the monitored annual mass load of total nitrogen discharged by that facility, where clause (ii) is less than clause (i), and where the difference is adjusted by the applicable delivery factor and expressed as pounds per year of delivered total nitrogen load.

“Point source phosphorus credit” means the difference between (i) the waste load allocation for a permitted facility specified as an annual mass load of total phosphorus, and (ii) the monitored annual mass load of total phosphorus discharged by that facility, where clause (ii) is less than clause (i), and where the difference is adjusted by the applicable delivery factor and expressed as pounds per year of delivered total phosphorus load.

“State-of-the-art nutrient removal technology” means (i) technology that will achieve an annual average total nitrogen effluent concentration of three milligrams per liter and an annual average total phosphorus effluent concentration of 0.3 milligrams per liter, or (ii) equivalent load reductions in total nitrogen and total phosphorus through recycle or reuse of wastewater as determined by the Department.

“Tributaries” means those river basins listed in the Chesapeake Bay TMDL and includes the Potomac, Rappahannock, York, and James River Basins, and the Eastern Shore, which encompasses the creeks and rivers of the Eastern Shore of Virginia that are west of Route 13 and drain into the Chesapeake Bay.

“Waste load allocation” means (i) the water quality-based annual mass load of total nitrogen or annual mass load of total phosphorus allocated to individual facilities pursuant to the Water Quality Management Planning Regulation (9VAC25-720) or its successor, or permitted capacity in the case of nonsignificant dischargers; (ii) the water quality-based annual mass load of total nitrogen or annual mass load of total phosphorus acquired pursuant to § 62.1-44.19:15 for new or expanded facilities; or (iii) applicable total nitrogen or total phosphorus waste load allocations under the Chesapeake Bay total maximum daily loads (TMDLs) to restore or protect the water quality and beneficial uses of the Chesapeake Bay or its tidal tributaries.

History. 2005, cc. 708, 710; 2012, cc. 748, 808; 2013, cc. 756, 793; 2015, c. 164; 2021, Sp. Sess. I, cc. 363, 364.

Editor’s note.

Acts 2013, cc. 756 and 793, cl. 6 provides: “That upon the Governor’s approval of the provisions of this act, the Department of Environmental Quality shall seek the U.S. Environmental Protection Agency’s rescission of authorization for delegation of program authority to the Virginia Soil and Water Conservation Board to return delegation of program authority to the State Water Control Board for the issuance of the national pollutant discharge elimination system permits for the control of stormwater discharges for MS4 and construction activities under the federal Clean Water Act. Permits issued by the Virginia Soil and Water Conservation Board or a Virginia Erosion and Sediment Control Program authority or a Virginia Stormwater Management Program authority acting under the Virginia Soil and Water Conservation Board’s authority that have not expired or been revoked or terminated before or on the program transfer date shall continue to remain in full force and effect until their specified expiration dates.”

Acts 2021, Sp. Sess. I, cc. 363 and 364, cl. 4 provides: “That if the Secretary of Natural and Historic Resources (the Secretary) determines on or after July 1, 2026, that the Commonwealth has not achieved, or in the event of increased nutrient loads associated with climate change will not be able to maintain, its nitrogen pollution reduction commitments in the Chesapeake Bay Total Maximum Daily Load (TMDL) Phase III Watershed Implementation Plan, the Secretary may develop an additional watershed implementation plan or plans pursuant to § 2.2-218 of the Code of Virginia. Any such plan shall take into consideration the progress made by all point and nonpoint sources toward meeting applicable load and waste load allocations, the best available science and water quality modeling, and any applicable U.S. Environmental Protection Agency guidance for Chesapeake Bay TMDL implementation. In any such plan, the Secretary may include as priority projects upgrades with nutrient removal technology of 4.0 mg/L annual average total nitrogen concentration at municipal wastewater treatment facilities with a design capacity greater than 10.0 MGD discharging to James River Segment JMSTF2 so long as (i) the scheduled date for compliance is January 1, 2036; (ii) notwithstanding the wasteload allocations specified in clause (iii), compliance requires operating the nutrient removal technology to achieve an annual average total nitrogen concentration of less than or equal to 4.0 mg/L or, until such time as the facility is upgraded to achieve such concentration, the option of achieving an equivalent discharged load based on an annual average total nitrogen concentration of 4.0 mg/L and actual annual flow treated, including the use of point source nitrogen credits; and (iii) the facilities have and retain the following total nitrogen waste load allocations: Falling Creek WWTP (182,738 lbs/year), Proctors Creek WWTP (411,151 lbs/year and, in the event that Proctors Creek WWTP is expanded in accordance with 9VAC25-40-70 and Falling Creek WWTP is upgraded to achieve 4.0 mg/L, 493,391 lbs/year), and Henrico County WWTP (1,142,085 lbs/year). If the Secretary opts to include such facilities in the plan, the State Water Control Board shall include the foregoing concentrations limits, waste load allocations, and schedules for compliance in the Water Quality Management Planning Regulation, the Watershed General Virginia Pollutant Discharge Elimination System permit, and individual VPDES permits, as applicable.”

The 2012 amendments.

The 2012 amendments by cc. 748 and 808 are identical, and in the definition of “waste load allocation,” inserted “or permitted capacity in the case of nonsignificant dischargers” in clause (i), inserted “waste load allocations under the Chesapeake Bay” and “(TMDLs)” in clause (iii), and made a stylistic change.

The 2013 amendments.

The 2013 amendments by cc. 756 and 793 are identical, and added the paragraphs defining “Best management practice,” “practice,” or “BMP,” “MS4,” “Nutrient credit” or “credit,” and “Nutrient credit-generating entity.”

The 2015 amendments.

The 2015 amendment by c. 164 substituted “listed in the Chesapeake Bay TMDL” for “for which separate tributary strategies were prepared pursuant to § 2.2-218 ” and “Shore” for “Coastal Basin” in the definition of “Tributaries.”

The 2021 Sp. Sess. I amendments.

The 2021 amendments by Sp. Sess. I, cc. 363 and 364, effective July 1, 2021, are identical, and inserted the definition for “Enhanced Nutrient Removal Certainty Program” or “ENRC Program.”

§ 62.1-44.19:14. Watershed general permit for nutrients.

1. The Board shall issue a Watershed General Virginia Pollutant Discharge Elimination System Permit, hereafter referred to as the general permit, authorizing point source discharges of total nitrogen and total phosphorus to the waters of the Chesapeake Bay and its tributaries. Except as otherwise provided in this article, the general permit shall control in lieu of technology-based, water quality-based, and best professional judgment, interim or final effluent limitations for total nitrogen and total phosphorus in individual Virginia Pollutant Discharge Elimination System permits for facilities covered by the general permit where the effluent limitations for total nitrogen and total phosphorus in the individual permits are based upon standards, criteria, waste load allocations, policy, or guidance established to restore or protect the water quality and beneficial uses of the Chesapeake Bay or its tidal tributaries.
2. This section shall not be construed to limit or otherwise affect the Board’s authority to establish and enforce more stringent water quality-based effluent limitations for total nitrogen or total phosphorus in individual permits where those limitations are necessary to protect local water quality. The exchange or acquisition of credits pursuant to this article shall not affect any requirement to comply with such local water quality-based limitations.
3. The general permit shall contain the following:
   1. Waste load allocations for total nitrogen and total phosphorus for each permitted facility expressed as annual mass loads, including reduced waste load allocations where applicable under the ENRC Program. The allocations for each permitted facility shall reflect the applicable individual water quality-based total nitrogen and total phosphorus waste load allocations. An owner or operator of two or more facilities located in the same tributary may apply for and receive an aggregated waste load allocation for total nitrogen and an aggregated waste load allocation for total phosphorus for multiple facilities reflecting the total of the water quality-based total nitrogen and total phosphorus waste load allocations established for such facilities individually;
   2. A schedule requiring compliance with the combined waste load allocations for each tributary as soon as possible taking into account (i) opportunities to minimize costs to the public or facility owners by phasing in the implementation of multiple projects; (ii) the availability of required services and skilled labor; (iii) the availability of funding from the Virginia Water Quality Improvement Fund as established in § 10.1-2128, the Virginia Water Facilities Revolving Fund as established in § 62.1-225 , and other financing mechanisms; (iv) water quality conditions; and (v) other relevant factors. Following receipt of the compliance plans required by subdivision C 3, the Board shall reevaluate the schedule taking into account the information in the compliance plans and the factors in this subdivision, and may modify the schedule as appropriate;
   3. A requirement that the permittees shall either individually or through the Association submit compliance plans to the Department for approval. The compliance plans shall contain, at a minimum, any capital projects and implementation schedules needed to achieve total nitrogen and phosphorus reductions sufficient to comply with the individual and combined waste load allocations of all the permittees in the tributary. The compliance plans may rely on the exchange of point source credits in accordance with this article, but not the acquisition of credits through payments authorized by § 62.1-44.19:18 , to achieve compliance with the individual and combined waste load allocations in each tributary. The compliance plans shall be updated annually and submitted to the Department no later than February 1 of each year. The compliance plans due beginning February 1, 2023, shall address the requirements of the ENRC Program;
   4. Such monitoring and reporting requirements as the Board deems necessary to carry out the provisions of this article;
   5. A procedure that requires every owner or operator of a facility authorized by a Virginia Pollutant Discharge Elimination System permit to discharge 100,000 gallons or more per day, or an equivalent load, directly into tidal waters, or 500,000 gallons or more per day, or an equivalent load, directly into nontidal waters, to secure general permit coverage by filing a registration statement with the Department within a specified period after each effective date of the general permit. The procedure shall also require any owner or operator of a facility authorized by a Virginia Pollutant Discharge Elimination System permit to discharge 40,000 gallons or more per day, or an equivalent load, directly into tidal or nontidal waters to secure general permit coverage by filing a registration statement with the Department at the time he makes application with the Department for a new discharge or expansion that is subject to an offset or technology-based requirement in § 62.1-44.19:15 , and thereafter within a specified period of time after each effective date of the general permit. The procedure shall also require any owner or operator of a facility with a discharge that is subject to an offset requirement in subdivision A 5 of § 62.1-44.19:15 to secure general permit coverage by filing a registration statement with the Department prior to commencing the discharge and thereafter within a specified period of time after each effective date of the general permit. The general permit shall provide that any facility authorized by a Virginia Pollutant Discharge Elimination System permit and not required by this subdivision to file a registration statement shall be deemed to be covered under the general permit at the time it is issued, and shall file a registration statement with the Department when required by this section. Owners or operators of facilities that are deemed to be permitted under this section shall have no other obligation under the general permit prior to filing a registration statement and securing coverage under the general permit based upon such registration statement;
   6. A procedure for efficiently modifying the lists of facilities covered by the general permit where the modification does not change or otherwise alter any waste load allocation or delivery factor adopted pursuant to the Water Quality Management Planning Regulation (9VAC25-720) or its successor, or an applicable total maximum daily load. The procedure shall also provide for modifying or incorporating new waste load allocations or delivery factors, including the opportunity for public notice and comment on such modifications or incorporations; and
   7. Such other conditions as the Board deems necessary to carry out the provisions of this chapter and § 402 of the federal Clean Water Act (33 U.S.C. § 1342).
4. 1. The Board shall (i) review during the year 2020 and every 10 years thereafter the basis for allocations granted in the Water Quality Management Planning Regulation (9VAC25-720) and (ii) as a result of such decennial reviews propose for inclusion in the Water Quality Management Planning Regulation (9VAC25-720) either the reallocation of unneeded allocations to other facilities registered under the general permit or the reservation of such allocations for future use. D. 1. The Board shall (i) review during the year 2020 and every 10 years thereafter the basis for allocations granted in the Water Quality Management Planning Regulation (9VAC25-720) and (ii) as a result of such decennial reviews propose for inclusion in the Water Quality Management Planning Regulation (9VAC25-720) either the reallocation of unneeded allocations to other facilities registered under the general permit or the reservation of such allocations for future use.
   2. For each decennial review, the Board shall determine whether a permitted facility has:
      1. Changed the use of the facility in such a way as to make discharges unnecessary, ceased the discharge of nutrients, and become unlikely to resume such discharges in the foreseeable future; or
      2. Changed the production processes employed in the facility in such a way as to render impossible, or significantly to diminish the likelihood of, the resumption of previous nutrient discharges.
      3. Significant establishment of conservation easements or other perpetual instruments that are associated with a deed and that restrict growth or development;
      4. Constructed treatment facility capacity;
      5. Significant changes in the understanding of the water chemistry or biology of receiving waters that would reasonably result in unused nutrient discharge allocations over an extended period of time;
      6. Significant changes in treatment technologies that would reasonably result in unused nutrient discharge allocations over an extended period of time;
      7. The ability of the permitted facility to accommodate projected growth under existing nutrient waste load allocations; and
      8. Other similarly significant factors that the Board determines reasonably to affect the allocations granted.

         The Board shall not reduce allocations based solely on voluntary improvements in nutrient removal technology.

5. The Board shall maintain and make available to the public a current listing, by tributary, of all permittees and permitted facilities under the general permit, together with each permitted facility’s total nitrogen and total phosphorus waste load allocations, and total nitrogen and total phosphorus delivery factors.
6. Except as otherwise provided in this article, in the event that there are conflicting or duplicative conditions contained in the general permit and an individual Virginia Pollutant Discharge Elimination System permit, the conditions in the general permit shall control.
7. The Board shall adopt amendments to the Water Quality Management Planning Regulation and modifications to Virginia Pollutant Discharge Elimination System permits or registration lists to establish and implement the Phase III Watershed Implementation Plan Enhanced Nutrient Removal Certainty Program (ENRC Program) as provided in this subsection. The ENRC Program shall consist of the following projects and the following waste load allocation reductions and their respective schedules for compliance.
   1. Priority projects for additional nitrogen and phosphorus removal (schedule for compliance):

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      Each priority project and the associated schedule of compliance shall be incorporated into the applicable Virginia Pollutant Discharge Elimination System permit or registration list. Each priority project facility shall be in compliance by complying with applicable annual average total nitrogen and total phosphorus concentrations for compliance years 2026, 2028, and 2032 or, only for a facility subject to an aggregated waste load allocation, by exercising the option of achieving an equivalent discharged load by the date set out in the schedule of compliance based on the applicable total nitrogen and total phosphorus annual average concentrations and actual annual flow treated without the acquisition and use of point source credits generated by permitted facilities not under common ownership. Noncompliance shall be enforceable in the same manner as any other condition of a Virginia Pollutant Discharge Elimination System permit.

   2. Nitrogen waste load allocation reductions — HRSD-York River WWTP:

      Reduce the total nitrogen waste load allocation for the HRSD-York River WWTP to 228,444 lbs/year effective January 1, 2026.

   3. James River HRSD SWIFT nutrient upgrades:

      Reduce total nitrogen waste load allocations for HRSD treatment works in the James River basin to the following allocations effective January 1, 2026:

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      Reduce total phosphorus waste load allocations for HRSD treatment works in the James River basin to the following allocations effective January 1, 2026:

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      Reduce total phosphorus waste load allocations for HRSD treatment works in the James River basin to the following allocations effective January 1, 2030:

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      Reduce total phosphorus waste load allocations for HRSD treatment works in the James River basin to the following allocations effective January 1, 2032:

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      Transfer the total nitrogen (454,596 lbs/year) and total phosphorus (41,450 lbs/year) waste load allocations for the HRSD-Chesapeake/Elizabeth STP to the Nutrient Offset Fund effective January 1, 2026.

      Transfer the total nitrogen (153,500 lbs/yr) and total phosphorous (17,437 lbs/yr) waste load allocations for the HRSD-J.H. Miles Facility consolidation to HRSD in accordance with the approved registration list December 21, 2015, transfer.

3. Beginning in 2030, each review also shall consider the following factors for municipal wastewater facilities:

a. Substantial changes in the size or population of a service area;

b. Significant changes in land use resulting from adopted changes to zoning ordinances or comprehensive plans within a service area;

PROJECT NAME DESCRIPTION (COMPLIANCE SCHEDULE) HRSD-Chesapeake/Elizabeth STP Consolidate into regional system and close treatment facility (1/1/2023) HRSD-Boat Harbor WWTP Convey by subaqueous crossing to Nansemond River WWTP for nutrient removal (1/1/2026) HRSD-Nansemond River WWTP Upgrade and expand with nutrient removal technology of 4.0 mg/L total nitrogen (1/1/2026) and 0.30 mg/L total phosphorus (1/1/2032) HRSD-Nassawadox WWTP Convey to regional system for nutrient removal (1/1/2026) Fredericksburg WWTF Expand with nutrient removal technology of 3.0 mg/L total nitrogen and 0.22 mg/L total phosphorus (1/1/2026) Spotsylvania Co.-FMC WWTF Convey to Massaponax WWTF and close treatment facility (1/1/2026) Spotsylvania Co.-Massaponax WWTF Expand with nutrient removal technology of 4.0 mg/L total nitrogen and 0.30 mg/L total phosphorus to consolidate and close FMC WWTF (1/1/2026) Spotsylvania Co.-Thornburg STP Upgrade with nutrient removal technology of 4.0 mg/L total nitrogen and 0.30 mg/L total phosphorus (1/1/2026) HRRSA-North River WWTP Phosphorus removal tertiary filtration upgrade (1/1/2026) South Central Wastewater Authority WWTF Upgrade with nutrient removal technology of 4.0 mg/L total nitrogen and 0.30 mg/L total phosphorus (1/1/2026) HRSD-Williamsburg WWTP Upgrade with nutrient removal technology of 4.0 mg/L total nitrogen (1/1/2026) and 0.30 mg/L total phosphorus (1/1/2032) HRSD-VIP WWTP Upgrade with nutrient removal technology of 4.0 mg/L total nitrogen (1/1/2026) and 0.30 mg/L total phosphorus (1/1/2032) HRSD-James River WWTP Upgrade with nutrient removal technology of 4.0 mg/L total nitrogen (1/1/2026) and 0.30 mg/L total phosphorus (1/1/2028) HRSD-Army Base WWTP Convey to VIP WWTP for nutrient removal (1/1/2032) or upgrade with nutrient removal technology of 4.0 mg/L total nitrogen (1/1/2026) and 0.30 mg/L total phosphorus (1/1/2032)

FACILITY NAME TOTAL NITROGEN WASTELOAD ALLOCATION (lbs/year) HRSD-Army Base WWTP 219,307 HRSD-Boat Harbor STP 304,593 HRSD-James River STP 243,674 HRSD-VIP WWTP 487,348 HRSD-Nansemond STP 365,511 HRSD-Williamsburg STP 274,133

FACILITY NAME TOTAL PHOSPHORUS WASTELOAD ALLOCATION (lbs/year) HRSD-Army Base WWTP 27,413 HRSD-Boat Harbor STP 38,074 HRSD-James River STP 30,459 HRSD-VIP WWTP 60,919 HRSD-Nansemond STP 45,689 HRSD-Williamsburg STP 34,267

FACILITY NAME TOTAL PHOSPHORUS WASTELOAD ALLOCATION (lbs/year) HRSD-Army Base WWTP 21,931 HRSD-Boat Harbor STP 30,459 HRSD-James River STP 24,367 HRSD-VIP WWTP 48,735 HRSD-Nansemond STP 36,551 HRSD-Williamsburg STP 27,413

FACILITY NAME TOTAL PHOSPHORUS WASTELOAD ALLOCATION (lbs/year) HRSD-Army Base WWTP 16,448 HRSD-Boat Harbor STP 22,844 HRSD-James River STP 18,276 HRSD-VIP WWTP 36,551 HRSD-Nansemond STP 27,413 HRSD-Williamsburg STP 20,560

History. 2005, cc. 708, 710; 2010, c. 288; 2017, c. 9; 2021, Sp. Sess. I, cc. 363, 364; 2022, cc. 127, 128.

Editor’s note.

Acts 2009, cc. 361 and 704, cl. 1 provides: “§ 1. The State Water Control Board shall accept petitions through July 10, 2009, for purposes of the expedited process set forth in this section, from the facilities subject to waste load allocations for two or more design flows based on their respective certificates to operate as of December 31, 2010. The petitions shall be for the sole purpose of extending the deadline to no later than December 31, 2015, to obtain the certificate to operate at the higher design flow, subject to the condition that such facilities shall nevertheless be required to comply with such nutrient allocations as of January 1, 2011, whether by point source nutrient credit exchanges under § 62.1-44.19:14 of the Code of Virginia or otherwise. The State Water Control Board shall, with respect to these facilities, approve or deny such petitions and adopt any regulation amendments to incorporate any approved petitions within 180 days of the petition deadline. Prior to a final decision on the petitions, the State Water Control Board shall provide an opportunity for public comment.”

Acts 2009, cc. 361 and 704, cl. 2 provides: “That the State Water Control Board’s adoption of any regulation amendments made pursuant to this act shall be exempt from Article 2 (§ 2.2-4006 et seq.) of the Code of Virginia of the Administrative Process Act.”

Acts 2009, cc. 361 and 704, cl. 3 provides: “That this act shall not prohibit any person from petitioning the State Water Control Board at any time to amend existing nutrient waste load allocations pursuant to § 2.2-4007 .”

Acts 2021, Sp. Sess. I, cc. 363 and 364, cl. 2 provides: “That the Enhanced Nutrient Removal Certainty Program as established in subdivisions G 1, 2, and 3 of § 62.1-44.19:14 of the Code of Virginia, as amended by this act, shall be deemed to implement through January 1, 2026, the Commonwealth’s Chesapeake Bay Phase III Watershed Implementation Plan in lieu of the floating waste load allocation concept proposed in Initiative 52 of the Commonwealth’s Chesapeake Bay Phase III Watershed Implementation Plan. However, nothing in this act shall be construed to limit the State Water Control Board’s authority to impose (i) additional requirements or modifications to phosphorous waste load allocations necessary to achieve compliance with the numeric chlorophyll-a criteria applicable to the James River; (ii) requirements or modifications to waste load allocations necessary to comply with changes to federal law that become effective after January 1, 2021; or (iii) requirements or modifications to waste load allocations necessary to comply with a court order issued after January 1, 2021.”

Acts 2021, Sp. Sess. I, cc. 363 and 364, cl. 3 provides: “That the State Water Control Board shall modify the Virginia Pollutant Discharge Elimination System (VPDES) permits for the facilities listed in subdivision G 1 of § 62.1-44.19:14 of the Code of Virginia, as amended by this act, to include any requirements and compliance schedules established in this act.”

Acts 2021, Sp. Sess. I, cc. 363 and 364, cl. 4 provides: “That if the Secretary of Natural and Historic Resources (the Secretary) determines on or after July 1, 2026, that the Commonwealth has not achieved, or in the event of increased nutrient loads associated with climate change will not be able to maintain, its nitrogen pollution reduction commitments in the Chesapeake Bay Total Maximum Daily Load (TMDL) Phase III Watershed Implementation Plan, the Secretary may develop an additional watershed implementation plan or plans pursuant to § 2.2-218 of the Code of Virginia. Any such plan shall take into consideration the progress made by all point and nonpoint sources toward meeting applicable load and waste load allocations, the best available science and water quality modeling, and any applicable U.S. Environmental Protection Agency guidance for Chesapeake Bay TMDL implementation. In any such plan, the Secretary may include as priority projects upgrades with nutrient removal technology of 4.0 mg/L annual average total nitrogen concentration at municipal wastewater treatment facilities with a design capacity greater than 10.0 MGD discharging to James River Segment JMSTF2 so long as (i) the scheduled date for compliance is January 1, 2036; (ii) notwithstanding the wasteload allocations specified in clause (iii), compliance requires operating the nutrient removal technology to achieve an annual average total nitrogen concentration of less than or equal to 4.0 mg/L or, until such time as the facility is upgraded to achieve such concentration, the option of achieving an equivalent discharged load based on an annual average total nitrogen concentration of 4.0 mg/L and actual annual flow treated, including the use of point source nitrogen credits; and (iii) the facilities have and retain the following total nitrogen waste load allocations: Falling Creek WWTP (182,738 lbs/year), Proctors Creek WWTP (411,151 lbs/year and, in the event that Proctors Creek WWTP is expanded in accordance with 9VAC25-40-70 and Falling Creek WWTP is upgraded to achieve 4.0 mg/L, 493,391 lbs/year), and Henrico County WWTP (1,142,085 lbs/year). If the Secretary opts to include such facilities in the plan, the State Water Control Board shall include the foregoing concentrations limits, waste load allocations, and schedules for compliance in the Water Quality Management Planning Regulation, the Watershed General Virginia Pollutant Discharge Elimination System permit, and individual VPDES permits, as applicable.”

Acts 2022, cc. 127 and 128, cl. 2 provides: “That the nutrient technology requirements of 3.0 mg/L total nitrogen and 0.22 mg/L total phosphorus for the Fredericksburg Waste Water Treatment Facility established in the first enactment clause of this act shall take effect and apply on an annual basis when the expanded Fredericksburg Waste Water Treatment Facility receives its certificate to operate.”

The 2010 amendments.

The 2010 amendment by c. 288 inserted the third sentence in subdivision C 5.

The 2017 amendments.

The 2017 amendment by c. 9 added subsection D and renumbered the remaining subsections accordingly; and substituted “(9VAC25-720)” for “(9VAC25-270)” in subdivision C 6.

The 2021 Sp. Sess. I amendments.

The 2021 amendments by Sp. Sess. I, cc. 363 and 364, effective July 1, 2021, are identical, and substituted “The Board” for “By January 1, 2006, or as soon thereafter as possible, the board” in subsection A; inserted “including reduced waste load allocations where applicable under the ENRC Program” in subdivision C 1; in subdivision C 3, deleted “within nine months after the initial effective date of the general permit” following “A requirement that” and added the last sentence; and added subsection G.

The 2022 amendments.

The 2022 amendments by cc. 127 and 128 are identical, and inserted the entries in both columns for “Fredericksburg WWTF” in subdivision G 1 in the list after the first paragraph.

Law Review.

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

§ 62.1-44.19:15. New or expanded facilities.

1. An owner or operator of a new or expanded facility shall comply with the applicable requirements of this section as a condition of the facility’s coverage under the general permit.
   1. An owner or operator of a facility authorized by a Virginia Pollutant Discharge Elimination System permit first issued before July 1, 2005, that expands his facility to discharge 100,000 gallons or more per day, or an equivalent load directly into tidal waters, or 500,000 gallons or more per day, or an equivalent load, directly into nontidal waters shall demonstrate to the Department that he has acquired waste load allocations sufficient to offset any increase in his delivered total nitrogen and delivered total phosphorus loads resulting from any expansion beyond his waste load allocations or permitted design capacity as of July 1, 2005, and will install state-of-the-art nutrient removal technology at the time of the expansion.
   2. An owner or operator of a facility authorized by a Virginia Pollutant Discharge Elimination System permit first issued before July 1, 2005, that expands his facility to discharge 100,000 gallons or more per day up to and including 499,999 gallons per day, or an equivalent load, directly into nontidal waters, shall demonstrate to the Department that he has acquired waste load allocations sufficient to offset any increase in his delivered total nitrogen and delivered total phosphorus loads resulting from any expansion beyond his permitted capacity as of July 1, 2005, and will install, at a minimum, biological nutrient removal technology at the time of the expansion.
   3. An owner or operator of a facility authorized by a Virginia Pollutant Discharge Elimination System permit first issued before July 1, 2005, that expands his facility to discharge 40,000 gallons or more per day up to and including 99,999 gallons per day, or an equivalent load, directly into tidal or nontidal waters, shall demonstrate to the Department that he has acquired waste load allocations sufficient to offset any increase in his delivered total nitrogen and delivered total phosphorus loads resulting from any expansion beyond his permitted capacity as of July 1, 2005.
   4. An owner or operator of a facility authorized by a Virginia Pollutant Discharge Elimination System permit first issued on or after July 1, 2005, to discharge 40,000 gallons or more per day, or an equivalent load, shall demonstrate to the Department that he has acquired waste load allocations sufficient to offset his delivered total nitrogen and delivered total phosphorus loads, and will install (i) at a minimum, biological nutrient removal technology at any facility authorized to discharge up to and including 99,999 gallons per day, or an equivalent load, directly into tidal and nontidal waters, or up to and including 499,999 gallons per day, or an equivalent load, to nontidal waters; and (ii) state-of-the-art nutrient removal technology at any facility authorized to discharge 100,000 gallons or more per day, or an equivalent load, directly into tidal waters, or 500,000 gallons or more per day, or an equivalent load, directly into nontidal waters.
   5. An owner or operator of a facility treating domestic sewage authorized by a Virginia Pollutant Discharge Elimination System permit with a discharge greater than 1,000 gallons per day up to and including 39,999 gallons per day that has not commenced the discharge of pollutants prior to January 1, 2011, shall demonstrate to the Department that he has acquired waste load allocations sufficient to offset his delivered total nitrogen and delivered total phosphorus loads prior to commencing the discharge, except when the facility is for short-term temporary use only or when treatment of domestic sewage is not the primary purpose of the facility.
2. Waste load allocations required by this section to offset new or increased delivered total nitrogen and delivered total phosphorus loads shall be acquired in accordance with this subsection.
   1. Such allocations may be acquired from one or a combination of the following:
      1. Acquisition of all or a portion of the waste load allocations or point source nitrogen or point source phosphorus credits from one or more permitted facilities in the same tributary;
      2. Acquisition of credits certified by the Board pursuant to § 62.1-44.19:20 . Such best management practices shall achieve reductions beyond those already required by or funded under federal or state law, or the Virginia Chesapeake Bay TMDL Watershed Implementation Plan, and shall be installed in the same tributary in which the new or expanded facility is located and included as conditions of the facility’s individual Virginia Pollutant Discharge Elimination System permit;
      3. Acquisition of allocations purchased through the Nutrient Offset Fund established pursuant to § 10.1-2128.2;
      4. Acquisition of allocations through such other means as may be approved by the Department on a case-by-case basis; or
      5. Acquisition of credits or allocations through the implementation of best management practices on lands owned or controlled by, or under contractual obligation with, the new or expanded facility that achieve reductions greater than those currently required by or funded under federal or state law, or the Virginia Chesapeake Bay TMDL Watershed Implementation Plan, subject to the approval by the Board in accordance with standards and procedures that are consistent with those established in § 62.1-44.19:20 . Any such best management practices shall be implemented on lands within the same tributary as the new or expanded facility, and any credits assigned by the Board based on those practices shall be subject to adjustment based on the relevant delivery factor, as defined in § 62.1-44.19:13 .
3. Until such time as the Director finds that no allocations are reasonably available in an individual tributary, the general permit shall provide for the acquisition of allocations through payments into the Nutrient Offset Fund established in § 10.1-2128.2. Such payments shall be promptly applied by the Department to achieve equivalent point or nonpoint source reductions in the same tributary beyond those reductions already required by or funded under federal or state law or the Virginia Chesapeake Bay TMDL Watershed Implementation Plan. The general permit shall base the cost of each pound of allocation on (i) the estimated cost of achieving a reduction of one pound of nitrogen or phosphorus at the facility that is securing the allocation, or comparable facility, for each pound of allocation acquired; or (ii) the average cost of reducing two pounds of nitrogen or phosphorus from nonpoint sources in the same tributary for each pound of allocation acquired, whichever is higher. Upon each reissuance of the general permit, the Board may adjust the cost of each pound of allocation based on current costs and cost estimates.
4. The acquisition of nutrient allocations or credits from animal waste-to-energy or animal waste reduction facilities, or the acquisition of such nutrient allocations or credits from entities acting on behalf of such facilities, shall be considered point source allocations or credits for all nutrient trading purposes and shall not be subject to any otherwise applicable nonpoint source trading ratio if the best management practice being used to generate such nutrient allocations or credits is a point source nutrient removal technology. Point source nutrient removal technology shall include animal waste gasification in which lab analysis of the animal waste reveals the concentration of nutrients in the animal waste being fed into the gasifier, and the fate of the nutrients during the animal waste gasification process, is known and documented using studies such as air emissions tests and ash analyses.

2. Such allocations or credits shall be provided for a minimum period of five years with each registration under the general permit. This subdivision shall not preclude longer-term or permanent allocations, except that such allocations are subject to modification by the Board where necessary to conform to the Chesapeake Bay TMDL.

3. The Board shall give priority to allocations or credits acquired in accordance with subdivisions 1 a, 1 b, and 1 d. The Board shall approve allocations acquired in accordance with subdivision 1 d only after the owner or operator has demonstrated that he has made a good faith effort to acquire sufficient allocations in accordance with subdivisions 1 a, 1 b, and 1 d and that such allocations are not reasonably available taking into account timing, cost, and other relevant factors.

4. Notwithstanding the priority provisions in subdivision 3, the Board may grant a waste load allocation in accordance with subdivision 1 d to an owner or operator of a facility authorized by a Virginia Pollution Abatement permit to land apply domestic sewage if (i) the Virginia Pollution Abatement permit was issued before July 1, 2005; (ii) the waste load allocation does not exceed such facility’s permitted design capacity as of July 1, 2005; (iii) the waste treated by the existing facility is going to be treated and discharged pursuant to a Virginia Pollutant Discharge Elimination System permit for a new discharge; and (iv) the owner or operator installs state-of-the-art nutrient removal technology at such facility. Such facilities cannot generate credits or waste load allocations, based upon the removal of land application sites, that can be acquired by other permitted facilities to meet the requirements of this article.

History. 2005, cc. 708, 710; 2007, c. 27; 2010, c. 288; 2011, cc. 440, 524; 2012, cc. 748, 808; 2013, cc. 756, 793; 2016, cc. 137, 377.

Editor’s note.

Acts 2012, cc. 748 and 808, cl. 2 provides: “That by July 1, 2013, the State Water Control Board shall reevaluate its trading ratio for nutrient allocation acquisition pursuant to subdivision B 1 b of § 62.1-44.19:15 of the Code of Virginia, giving full consideration to similar trading ratios established by § 10.1-603.8:1 of the Code of Virginia, § 10.1-603.15:2 as added by this act, and trading programs in other Chesapeake Bay watershed states. The Board shall establish an advisory group of interested stakeholders for the purpose of receiving recommendations during the reevaluation regarding an appropriate ratio. If warranted based on the outcome of the reevaluation, the Board shall adopt a revised trading ratio for purposes of subdivision B 1 b of § 62.1-44.19:15 as soon as practicable following the completion of the reevaluation.”

Acts 2012, cc. 748 and 808, cl. 3 provides: “That until the effective date of the regulations to be adopted pursuant to § 10.1-603.15:2 as added by this act, the State Water Control Board shall continue to certify nutrient credits from the use of nonpoint source best management practices pursuant to subdivision B 1 b of § 62.1-44.19:15 of the Code of Virginia.”

Acts 2013, cc. 756 and 793, cl. 6 provides: “That upon the Governor’s approval of the provisions of this act, the Department of Environmental Quality shall seek the U.S. Environmental Protection Agency’s rescission of authorization for delegation of program authority to the Virginia Soil and Water Conservation Board to return delegation of program authority to the State Water Control Board for the issuance of the national pollutant discharge elimination system permits for the control of stormwater discharges for MS4 and construction activities under the federal Clean Water Act. Permits issued by the Virginia Soil and Water Conservation Board or a Virginia Erosion and Sediment Control Program authority or a Virginia Stormwater Management Program authority acting under the Virginia Soil and Water Conservation Board’s authority that have not expired or been revoked or terminated before or on the program transfer date shall continue to remain in full force and effect until their specified expiration dates.”

The 2007 amendments.

The 2007 amendment by c. 27 added subdivision B 3.

The 2010 amendments.

The 2010 amendment by c. 288 added subdivision A 5.

The 2011 amendments.

The 2011 amendment by c. 440 added subsection D.

The 2011 amendment by c. 524 added subdivision B 1 c; redesignated former subdivision B 1 c as subdivision B 1 d, and therein deleted “in accordance with the terms of the general permit or” following “allocations”; in subdivisions B 2 and B 3, updated the subdivision references; and in subsection C, in the first sentence, substituted “Director” for “Board” and “Nutrient Offset Fund established in § 10.1-2128.2” for “Virginia Water Quality Improvement Fund established in § 10.1-2128,” and in the second sentence, inserted “by the Department.”

The 2012 amendments.

The 2012 amendments by cc. 748 and 808 are identical, and inserted “or point source nitrogen or point source phosphorus credits” in subdivision B 1 a; in subdivision B 1 b, substituted “credits certified by the Board pursuant to § 62.1-44.19:20 or certified by the Soil and Water Conservation Board pursuant to § 10.1-603.15:2” for “nonpoint source load allocations through the use of best management practices acquired through a public or private entity acting on behalf of the land owner” in the first sentence, and “Chesapeake Bay TMDL Watershed Implementation Plan” for “tributaries strategies plans” in the second sentence; inserted subdivision B 2 and redesignated former subdivisions B 2 and 3 as subdivisions B 3 and 4, and made related changes; inserted “or credits” following “priority to allocations” in subdivision B 3; substituted “Chesapeake Bay TMDL Watershed Implementation Plan” for “tributaries strategies plans” in the second sentence of subsection C; and in subsection D, substituted “or credits” for “credits; or offsets” throughout, and in the first sentence, deleted “pursuant to subdivision B 1” following “such facilities” and substituted “any otherwise applicable nonpoint source” for “a two-for-one.”

The 2013 amendments.

The 2013 amendments by cc. 756 and 793 are identical, and deleted “or certified by the Soil and Water Conservation Board pursuant to § 10.1-603.15:2” at the end of the first sentence of subdivision B 1 b.

The 2016 amendments.

The 2016 amendments by c. 137 and 377 are identical, and added subdivision B 1 e; in subdivision B 2, deleted “the Board from adopting” preceding “longer-term or permanent” and substituted “allocations, except that such allocations are subject to modification by the Board where necessary to conform to the Chesapeake Bay TMDL” for “allocation requirements by regulation.”

§ 62.1-44.19:16. Technology-based standards and effluent limitations.

1. The Board may establish a technology-based standard less stringent than the applicable standard specified in § 62.1-44.19:15 based on a demonstration by an owner or operator that the specified standard is not technically or economically feasible for the affected facility or that the technology-based standard would require the owner or operator to construct treatment facilities not otherwise necessary to comply with his waste load allocation without reliance on nutrient credit exchanges pursuant to § 62.1-44.19:18 .
2. The Board may include technology-based effluent concentration limitations in the individual permit for any facility that has installed technology for the control of nitrogen and phosphorus whether by new construction, expansion, or upgrade. Such limitations shall be based upon the technology installed by the facility and shall be expressed as annual average limitations. Such limitations shall not affect the generation, acquisition, or exchange of allocations or credits pursuant to this article.

History. 2005, cc. 708, 710.

§ 62.1-44.19:17. Virginia Nutrient Credit Exchange Association authorized; duties; composition; appointment; terms.

1. The permittees under the general permit may establish a nonstock corporation under Chapter 10 (§ 13.1-801 et seq.) of Title 13.1, to be known as the Virginia Nutrient Credit Exchange Association, to coordinate and facilitate participation in the nutrient credit exchange program by its members. The Virginia Nutrient Credit Exchange Association, which is hereafter referred to as the Association, may (i) submit on behalf of the permittees the compliance plans required by § 62.1-44.19:14 , (ii) develop a standard form of agreement for use by permittees when buying and selling nitrogen and phosphorus allocations and credits, (iii) assist permittees in identifying buyers and sellers of nitrogen and phosphorus allocations and credits, (iv) coordinate planning to ensure that to the extent possible, sufficient credits are available each year to achieve full compliance with the general permit, (v) assist individual municipal permittees in utilizing public-private partnerships and other innovative measures to achieve the Commonwealth’s water quality goals, and (vi) perform such other duties and functions as may be necessary to the effective and efficient implementation of the credit exchange program. The Association shall not assume any of the permittees’ compliance obligations under the general permit.
2. Only permittees under the general permit may become members of the Association. The Association shall operate through a board of directors, which shall consist of 10 members and be representative of the membership in the Association. Association board members shall be employees of Association members, shall be elected by the Association membership at the beginning of each term of the general permit, and shall serve through the end of the permit term to which they were elected. Vacancies for unexpired Association board terms shall be filled in the same manner in which members are originally elected to the Association board.
3. The Association board shall elect a president, vice-president, secretary, and treasurer from among its members at the beginning of each permit term. Officers and Association board members shall receive no compensation for their services as officers and board members of the Association.

History. 2005, cc. 708, 710.

§ 62.1-44.19:18. Nutrient allocation compliance and reporting.

1. Each permitted facility shall be in compliance with its individual waste load allocations if: (i) its annual mass load is less than the applicable waste load allocation assigned to the facility in the general permit; (ii) the permitted facility acquires sufficient point source nitrogen or phosphorus credits in accordance with subdivision 1; or (iii) in the event it is unable to meet the individual waste load allocation pursuant to clauses (i) or (ii), the permitted facility acquires sufficient nitrogen or phosphorus credits through payments made in accordance with subdivision 2, provided, however, that the acquisition of nitrogen or phosphorus credits pursuant to this section shall not alter or otherwise affect the individual waste load allocations for each permitted facility.
   1. A permittee may acquire point source nitrogen or phosphorus credits from one or more permitted facilities only if (i) the credits are generated and applied to a compliance obligation in the same calendar year, (ii) the credits are generated by one or more permitted facilities in the same tributary, except that permitted facilities in the Eastern Coastal Basin may also acquire credits from permitted facilities in the Potomac and Rappahannock tributaries, (iii) the credits are acquired no later than June 1 immediately following the calendar year in which the credits are applied, and (iv) no later than June 1 immediately following the calendar year in which the credits are applied, the permittee certifies on a form supplied by the Department that he has acquired sufficient credits to satisfy his compliance obligations.
   2. A permittee may acquire nitrogen or phosphorus credits through payments made into the Nutrient Offset Fund established in § 10.1-2128.2 only if, no later than June 1 immediately following the calendar year in which the credits are applied, the permittee certifies on a form supplied by the Department that he has diligently sought, but has been unable to acquire, sufficient credits to satisfy his compliance obligations through the acquisition of point source nitrogen or phosphorus credits with other permitted facilities in the same tributary, and that he has acquired sufficient credits to satisfy his compliance obligations through one or more payments made in accordance with the terms of the general permit.
2. Until such time as the Director finds that no credits are reasonably available in an individual tributary, the general permit shall provide for the acquisition of nitrogen and phosphorus credits through payments into the Nutrient Offset Fund in accordance with subdivision A 2. Such payments shall be promptly applied to achieve equivalent point or nonpoint source reductions in the same tributary beyond those reductions already required by or funded under federal or state law, or the Virginia Chesapeake Bay TMDL Watershed Implementation Plan. The general permit shall base the cost of each nitrogen or phosphorus credit on the average cost of reducing one pound of nitrogen or phosphorus from Virginia publicly owned wastewater treatment facilities for each credit acquired. Upon each reissuance of the general permit, the Board may adjust the cost of each nitrogen and phosphorus credit based on (i) the current average cost of reducing a pound of nitrogen or phosphorus from Virginia publicly owned wastewater treatment facilities for each credit acquired and (ii) any additional incentives reasonably necessary to ensure that there is timely and continuing progress toward attaining and maintaining each tributary’s combined waste load allocation.
3. On or before February 1, annually, each permittee shall file a discharge monitoring report with the Department identifying the annual mass load of total nitrogen and the annual mass load of total phosphorus discharged by each permitted facility during the previous calendar year. The report shall contain the certification required by federal and state law and be signed by each permittee for each of the permittee’s facilities covered by the general permit.
4. On or before April 1, annually, the Department shall prepare a report containing the annual mass load of total nitrogen and annual mass load of total phosphorus discharged by each permitted facility, the number of point source nitrogen and phosphorus credits for the previous calendar year generated or required by each such facility, and to the extent there are insufficient point source credits available for exchange to provide for full compliance by every permittee, the number of credits to be purchased pursuant to this section. Upon completion of the report, the Department shall promptly publish notice of the report and make the report available to any person requesting it.
5. On or before July 1, annually, the Department shall publish notice of all nitrogen and phosphorus credit exchanges and purchases for the previous calendar year and make all documents relating to the exchanges and purchases available to any person requesting them.

History. 2005, cc. 708, 710; 2010, c. 11; 2011, c. 524; 2012, cc. 748, 808.

Editor’s note.

Acts 2009, cc. 361 and 704, cl. 1 provides: “§ 1. The State Water Control Board shall accept petitions through July 10, 2009, for purposes of the expedited process set forth in this section, from the facilities subject to waste load allocations for two or more design flows based on their respective certificates to operate as of December 31, 2010. The petitions shall be for the sole purpose of extending the deadline to no later than December 31, 2015, to obtain the certificate to operate at the higher design flow, subject to the condition that such facilities shall nevertheless be required to comply with such nutrient allocations as of January 1, 2011, whether by point source nutrient credit exchanges under § 62.1-44.19:14 of the Code of Virginia or otherwise. The State Water Control Board shall, with respect to these facilities, approve or deny such petitions and adopt any regulation amendments to incorporate any approved petitions within 180 days of the petition deadline. Prior to a final decision on the petitions, the State Water Control Board shall provide an opportunity for public comment.”

Acts 2009, cc. 361 and 704, cl. 2 provides: “That the State Water Control Board’s adoption of any regulation amendments made pursuant to this act shall be exempt from Article 2 (§ 2.2-4006 et seq.) of the Code of Virginia of the Administrative Process Act.”

Acts 2009, cc. 361 and 704, cl. 3 provides: “That this act shall not prohibit any person from petitioning the State Water Control Board at any time to amend existing nutrient waste load allocations pursuant to § 2.2-4007 .”

The 2010 amendments.

The 2010 amendment by c. 11 added the exception at the end of clause (ii) of subdivision A 1.

The 2011 amendments.

The 2011 amendment by c. 524, in subdivision A 2, substituted “Nutrient Offset Fund established in § 10.1-2128.2” for “Virginia Water Quality Improvement Fund established in § 10.12128”; and in subsection B, substituted “Director” for “Board” and “Nutrient Offset Fund” for “Virginia Water Quality Improvement Fund.”

The 2012 amendments.

The 2012 amendments by cc. 748 and 808 are identical, and substituted “Eastern Coastal Basin” for “Eastern Shore basin” in A 1 (ii); substituted “Chesapeake Bay TMDL Watershed Implementation Plan” for “tributaries strategies plans” in the second sentence of subsection B; rewrote subsection C, which read: “On or before February 1, annually, each permittee shall either individually or through the Association file a report with the Department. The report shall identify (i) the annual mass load of total nitrogen and the annual mass load of total phosphorus discharged by each permitted facility during the previous calendar year, (ii) the delivered total nitrogen load and delivered total phosphorus load discharged by each permitted facility during the previous year, and (iii) the number of total nitrogen and total phosphorus credits for the previous calendar year to be purchased or sold by the permittee. The report shall contain the certification required by federal and state law and be signed by each permittee for each of the permittee’s facilities covered by the general permit.”; substituted “generated or required” for “for sale or purchase” in the first sentence of subsection D; and updated internal references throughout.

§ 62.1-44.19:19. Program audits.

In addition to its permit compliance and enforcement authority, the Department is authorized to conduct such audits of the Association and permittees as it deems necessary to ensure that the reports and data received from permittees and the Association are complete and accurate. The Association and permittees under the general permit shall cooperate with the Department in the conduct of such audits and provide the Department with such information as the Department may require to fulfill its responsibilities under this article.

History. 2005, cc. 708, 710.

§ 62.1-44.19:20. (Contingent expiration date /– See Editor's note) Nutrient credit certification.

1. The Board may adopt regulations for the purpose of establishing procedures for the certification of point source nutrient credits except that no certification shall be required for point source nitrogen and point source phosphorus credits generated by point sources regulated under the Watershed General Virginia Pollutant Discharge Elimination System Permit issued pursuant to § 62.1-44.19:14 . The Board shall adopt regulations for the purpose of establishing procedures for the certification of nonpoint source nutrient credits.
2. Regulations adopted pursuant to this section shall:
   1. Establish procedures for the certification and registration of credits, including:
      1. Certifying credits that may be generated from effective nutrient controls or removal practices, including activities associated with the types of facilities or practices historically regulated by the Board, such as water withdrawal and treatment and wastewater collection, treatment, and beneficial reuse;
      2. Certifying credits that may be generated from agricultural and urban stormwater best management practices, use or management of manures, managed turf, land use conversion, stream or wetlands projects, shellfish aquaculture, algal harvesting, and other established or innovative methods of nutrient control or removal, as appropriate;
      3. Establishing a process and standards for wetland or stream credits to be converted to nutrient credits. Such process and standards shall only apply to wetland or stream credits that were established after July 1, 2005, and have not been transferred or used. Under no circumstances shall such credits be used for both wetland or stream credit and nutrient credit purposes;
      4. Certifying credits from multiple practices that are bundled as a package by the applicant;
      5. Prohibiting the certification of credits generated from activities funded by federal or state water quality grant funds other than controls and practices under subdivision B 1 a; however, baseline levels may be achieved through the use of such grants;
      6. Establishing a timely and efficient certification process including application requirements, a reasonable application fee schedule not to exceed $10,000 per application, and review and approval procedures;
      7. Requiring public notification of a proposed nutrient credit-generating entity; and
      8. Establishing a timeline for the consideration of certification applications for land conversion projects. The timeline shall provide that within 30 days of receipt of an application the Department shall, if warranted, conduct a site visit and that within 45 days of receipt of an application the Department shall either determine that the application is complete or request additional specific information from the applicant. A determination that an application for a land conversion project is complete shall not require the Department to issue the certification. The Department shall deny, approve, or approve with conditions an application within 15 days of the Department’s determination that the application is complete. When the request for credit release is made concurrently with the application for a land conversion project certification, the concurrent release shall be processed on the same timeline. When the request for credit release is from a previously approved land conversion project, the Department shall schedule a site visit, if warranted, within 30 days of the request and shall deny, approve, or approve with conditions the release within 15 days of the site visit or determination that a site visit is not warranted. The timelines set out in this subdivision shall be implemented prior to adoption of regulations. The Department shall release credits from a land conversion project after it is satisfied that the applicant has met the criteria for release in an approved nutrient reduction implementation plan.
3. Prior to the adoption of such regulations, the Board shall certify (i) credits that may be generated from effective nutrient controls or removal practices, including activities associated with the types of facilities or practices historically regulated by the Board, such as water withdrawal and treatment and wastewater collection, treatment, and beneficial reuse, on a case-by-case basis using the best available scientific and technical information and (ii) credits that are located in tributaries outside of the Chesapeake Bay watershed as defined in § 62.1-44.15:35 , using an average of the nutrient removal rates for each practice identified in Appendix A of the Department’s document “Trading Nutrient Reductions from Nonpoint Source Best Management Practices in the Chesapeake Bay Watershed: Guidance for Agricultural Landowners and Your Potential Trading Partners.”
4. The Department shall establish and maintain an online Virginia Nutrient Credit Registry of credits as follows:
   1. The registry shall include all nonpoint source credits certified pursuant to this article and may include point source nitrogen and point source phosphorus credits generated from point sources covered by the general permit issued pursuant to § 62.1-44.19:14 or point source nutrient credits certified pursuant to this section at the option of the owner. No other credits shall be valid for compliance purposes.
   2. Registration of credits on the registry shall not preclude or restrict the right of the owner of such credits from transferring the credits on such commercial terms as may be established by and between the owner and the regulated or unregulated party acquiring the credits.
   3. The Department shall establish procedures for the listing and tracking of credits on the registry, including but not limited to (i) notification of the availability of new nutrient credits to the locality where the credit-generating practice is implemented at least five business days prior to listing on the registry to provide the locality an opportunity to acquire such credits at fair market value for compliance purposes and (ii) notification that the listing of credits on the registry does not constitute a representation by the Board or the owner that the credits will satisfy the specific regulatory requirements applicable to the prospective user’s intended use and that the prospective user is encouraged to contact the Board for technical assistance to identify limitations, if any, applicable to the intended use.
   4. The registry shall be publicly accessible without charge.
5. The owner or operator of a nonpoint source nutrient credit-generating entity that fails to comply with the provisions of this section shall be subject to the enforcement and penalty provisions of § 62.1-44.19:22 .
6. Nutrient credits from stormwater nonpoint nutrient credit-generating facilities in receipt of a Nonpoint Nutrient Offset Authorization for Transfer letter from the Department prior to July 1, 2012, shall be considered certified nutrient credits and shall not be subject to further certification requirements or to the credit retirement requirement under subdivision B 8. However, such facilities shall be subject to the other provisions of this article, including registration, inspection, reporting, and enforcement.

2. Establish credit calculation procedures for proposed credit-generating practices, including the determination of:

a. Baselines for credits certified under subdivision B 1 a in accordance with any applicable provisions of the Virginia Chesapeake Bay TMDL Watershed Implementation Plan or approved TMDLs;

b. Baselines established for agricultural practices, which shall be those actions necessary to achieve a level of reduction assigned in the Virginia Chesapeake Bay TMDL Watershed Implementation Plan or approved TMDLs as implemented on the tract, field, or other land area under consideration;

c. Baselines for urban practices from new development and redevelopment, which shall be in compliance with postconstruction nutrient loading requirements of the Virginia Stormwater Management Program regulations. Baselines for all other existing development shall be at a level necessary to achieve the reductions assigned in the urban sector in the Virginia Chesapeake Bay TMDL Watershed Implementation Plan or approved TMDLs;

d. Baselines for land use conversion, which shall be based on the pre-conversion land use and the level of reductions assigned in the Virginia Chesapeake Bay TMDL Watershed Implementation Plan or approved TMDLs applicable to that land use;

e. Baselines for other nonpoint source credit-generating practices, which shall be based on the Virginia Chesapeake Bay TMDL Watershed Implementation Plan or approved TMDLs using the best available scientific and technical information;

f. Unless otherwise established by the Board, for certification within the Chesapeake Bay Watershed a credit-generating practice that involves land use conversion, which shall represent controls beyond those in place as of July 1, 2005. For other waters for which a TMDL has been approved, the practice shall represent controls beyond those in place at the time of TMDL approval;

g. Baseline dates for all other credit-generating practices, which shall be based on the Virginia Chesapeake Bay TMDL Watershed Implementation Plan or approved TMDLs; and

h. Credit quantities, which shall be established using the best available scientific and technical information at the time of certification;

3. Provide certification of credits on an appropriate temporal basis, such as annual, term of years, or perpetual, depending on the nature of the credit-generating practice. A credit shall be certified for a term of no less than 12 months;

4. Establish requirements to reasonably assure the generation of the credit depending on the nature of the credit-generating activity and use, such as legal instruments for perpetual credits, operation and maintenance requirements, and associated financial assurance requirements. Financial assurance requirements may include letters of credit, escrows, surety bonds, insurance, and where the credits are used or generated by a locality, authority, utility, sanitation district, or permittee operating an MS4 or a point source permitted under this article, its existing tax or rate authority. In lieu of long-term management fund financial assurance mechanisms established or required by regulation for projects generating credits from stream restoration, a third-party long-term steward approved by the Department, such as a public agency, nongovernmental organization or private land manager, may hold long-term management funds in a separate interest-bearing account to be used only for the long-term management of the stream restoration project;

5. Establish appropriate reporting requirements;

6. Provide for the ability of the Department to inspect or audit for compliance with the requirements of such regulations;

7. Provide that the option to acquire nutrient credits for compliance purposes shall not eliminate any requirement to comply with local water quality requirements;

8. Establish a credit retirement requirement whereby five percent of nonpoint source credits in the Chesapeake Bay Watershed other than controls and practices under subdivision B 1 a are permanently retired at the time of certification pursuant to this section for the purposes of offsetting growth in unregulated nutrient loads; and

9. Establish such other requirements as the Board deems necessary and appropriate.

History. 2012, cc. 748, 808; 2013, cc. 756, 793; 2016, c. 653; 2022, c. 422.

Editor’s note.

Acts 2013, cc. 756 and 793, cl. 6 provides: “That upon the Governor’s approval of the provisions of this act, the Department of Environmental Quality shall seek the U.S. Environmental Protection Agency’s rescission of authorization for delegation of program authority to the Virginia Soil and Water Conservation Board to return delegation of program authority to the State Water Control Board for the issuance of the national pollutant discharge elimination system permits for the control of stormwater discharges for MS4 and construction activities under the federal Clean Water Act. Permits issued by the Virginia Soil and Water Conservation Board or a Virginia Erosion and Sediment Control Program authority or a Virginia Stormwater Management Program authority acting under the Virginia Soil and Water Conservation Board’s authority that have not expired or been revoked or terminated before or on the program transfer date shall continue to remain in full force and effect until their specified expiration dates.”

Acts 2020, c. 1289, Item 377 L 3, as added by Acts 2021, Sp. Sess. I, c. 552, effective for the biennium ending June 30, 2022, provides: “Notwithstanding § 62.1-44.19:20 , Code of Virginia, the application fee schedule adopted by the State Water Control Board pursuant to § 62.1-44.19:20 , Code of Virginia, 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 the nutrient credit certification program. To the extent practicable, the Board shall solicit input from affected stakeholders when establishing the new fee structure.”

Acts 2022, c. 526, cl. 2 provides: “That the provisions of this act shall become effective 30 days after the Department of Environmental Quality issues guidance regarding the implementation of this act.”

The 2013 amendments.

The 2013 amendments by cc. 756 and 793 are identical, and rewrote the section.

The 2016 amendments.

The 2016 amendment by c. 653, added subdivision B 1 h and made a related change; and in subsection C, inserted the clause (i) designation, added clause (ii), and made a related change.

The 2022 amendments.

The 2022 amendment by c. 422 added the second to last sentence in subdivision B 4.

The 2022 amendment by c. 526, added the last sentence in subdivision B 4.

§ 62.1-44.19:20. (Contingent effective date /- See Editor's note) Nutrient credit certification.

1. The Board may adopt regulations for the purpose of establishing procedures for the certification of point source nutrient credits except that no certification shall be required for point source nitrogen and point source phosphorus credits generated by point sources regulated under the Watershed General Virginia Pollutant Discharge Elimination System Permit issued pursuant to § 62.1-44.19:14 . The Board shall adopt regulations for the purpose of establishing procedures for the certification of nonpoint source nutrient credits.
2. Regulations adopted pursuant to this section shall:
   1. Establish procedures for the certification and registration of credits, including:
      1. Certifying credits that may be generated from effective nutrient controls or removal practices, including activities associated with the types of facilities or practices historically regulated by the Board, such as water withdrawal and treatment and wastewater collection, treatment, and beneficial reuse;
      2. Certifying credits that may be generated from agricultural and urban stormwater best management practices, use or management of manures, managed turf, land use conversion, stream or wetlands projects, shellfish aquaculture, algal harvesting, and other established or innovative methods of nutrient control or removal, as appropriate;
      3. Establishing a process and standards for wetland or stream credits to be converted to nutrient credits. Such process and standards shall only apply to wetland or stream credits that were established after July 1, 2005, and have not been transferred or used. Under no circumstances shall such credits be used for both wetland or stream credit and nutrient credit purposes;
      4. Certifying credits from multiple practices that are bundled as a package by the applicant;
      5. Prohibiting the certification of credits generated from activities funded by federal or state water quality grant funds other than controls and practices under subdivision B 1 a; however, baseline levels may be achieved through the use of such grants;
      6. Establishing a timely and efficient certification process including application requirements, a reasonable application fee schedule not to exceed $10,000 per application, and review and approval procedures;
      7. Requiring public notification of a proposed nutrient credit-generating entity; and
      8. Establishing a timeline for the consideration of certification applications for land conversion projects. The timeline shall provide that within 30 days of receipt of an application the Department shall, if warranted, conduct a site visit and that within 45 days of receipt of an application the Department shall either determine that the application is complete or request additional specific information from the applicant. A determination that an application for a land conversion project is complete shall not require the Department to issue the certification. The Department shall deny, approve, or approve with conditions an application within 15 days of the Department’s determination that the application is complete. When the request for credit release is made concurrently with the application for a land conversion project certification, the concurrent release shall be processed on the same timeline. When the request for credit release is from a previously approved land conversion project, the Department shall schedule a site visit, if warranted, within 30 days of the request and shall deny, approve, or approve with conditions the release within 15 days of the site visit or determination that a site visit is not warranted. The timelines set out in this subdivision shall be implemented prior to adoption of regulations. The Department shall release credits from a land conversion project after it is satisfied that the applicant has met the criteria for release in an approved nutrient reduction implementation plan.
3. Prior to the adoption of such regulations, the Board shall certify (i) credits that may be generated from effective nutrient controls or removal practices, including activities associated with the types of facilities or practices historically regulated by the Board, such as water withdrawal and treatment and wastewater collection, treatment, and beneficial reuse, on a case-by-case basis using the best available scientific and technical information and (ii) credits that are located in tributaries outside of the Chesapeake Bay watershed as defined in § 62.1-44.15:35 , using an average of the nutrient removal rates for each practice identified in Appendix A of the Department’s document “Trading Nutrient Reductions from Nonpoint Source Best Management Practices in the Chesapeake Bay Watershed: Guidance for Agricultural Landowners and Your Potential Trading Partners.”
4. The Department shall establish and maintain an online Virginia Nutrient Credit Registry of credits as follows:
   1. The registry shall include all nonpoint source credits certified pursuant to this article and may include point source nitrogen and point source phosphorus credits generated from point sources covered by the general permit issued pursuant to § 62.1-44.19:14 or point source nutrient credits certified pursuant to this section at the option of the owner. No other credits shall be valid for compliance purposes.
   2. Registration of credits on the registry shall not preclude or restrict the right of the owner of such credits from transferring the credits on such commercial terms as may be established by and between the owner and the regulated or unregulated party acquiring the credits.
   3. The Department shall establish procedures for the listing and tracking of credits on the registry, including but not limited to (i) notification of the availability of new nutrient credits to the locality where the credit-generating practice is implemented at least five business days prior to listing on the registry to provide the locality an opportunity to acquire such credits at fair market value for compliance purposes and (ii) notification that the listing of credits on the registry does not constitute a representation by the Board or the owner that the credits will satisfy the specific regulatory requirements applicable to the prospective user’s intended use and that the prospective user is encouraged to contact the Board for technical assistance to identify limitations, if any, applicable to the intended use.
   4. The registry shall be publicly accessible without charge.
5. The owner or operator of a nonpoint source nutrient credit-generating entity that fails to comply with the provisions of this section shall be subject to the enforcement and penalty provisions of § 62.1-44.19:22 .
6. Nutrient credits from stormwater nonpoint nutrient credit-generating facilities in receipt of a Nonpoint Nutrient Offset Authorization for Transfer letter from the Department prior to July 1, 2012, shall be considered certified nutrient credits and shall not be subject to further certification requirements or to the credit retirement requirement under subdivision B 8. However, such facilities shall be subject to the other provisions of this article, including registration, inspection, reporting, and enforcement.

2. Establish credit calculation procedures for proposed credit-generating practices, including the determination of:

a. Baselines for credits certified under subdivision B 1 a in accordance with any applicable provisions of the Virginia Chesapeake Bay TMDL Watershed Implementation Plan or approved TMDLs;

b. Baselines established for agricultural practices, which shall be those actions necessary to achieve a level of reduction assigned in the Virginia Chesapeake Bay TMDL Watershed Implementation Plan or approved TMDLs as implemented on the tract, field, or other land area under consideration;

c. Baselines for urban practices from new development and redevelopment, which shall be in compliance with postconstruction nutrient loading requirements of the Virginia Stormwater Management Program regulations. Baselines for all other existing development shall be at a level necessary to achieve the reductions assigned in the urban sector in the Virginia Chesapeake Bay TMDL Watershed Implementation Plan or approved TMDLs;

d. Baselines for land use conversion, which shall be based on the pre-conversion land use and the level of reductions assigned in the Virginia Chesapeake Bay TMDL Watershed Implementation Plan or approved TMDLs applicable to that land use;

e. Baselines for other nonpoint source credit-generating practices, which shall be based on the Virginia Chesapeake Bay TMDL Watershed Implementation Plan or approved TMDLs using the best available scientific and technical information;

f. Unless otherwise established by the Board, for certification within the Chesapeake Bay Watershed a credit-generating practice that involves land use conversion, which shall represent controls beyond those in place as of July 1, 2005. For other waters for which a TMDL has been approved, the practice shall represent controls beyond those in place at the time of TMDL approval;

g. Baseline dates for all other credit-generating practices, which shall be based on the Virginia Chesapeake Bay TMDL Watershed Implementation Plan or approved TMDLs; and

h. Credit quantities, which shall be established using the best available scientific and technical information at the time of certification;

3. Provide certification of credits on an appropriate temporal basis, such as annual, term of years, or perpetual, depending on the nature of the credit-generating practice. A credit shall be certified for a term of no less than 12 months;

4. Establish requirements to reasonably assure the generation of the credit depending on the nature of the credit-generating activity and use, such as legal instruments for perpetual credits, operation and maintenance requirements, and associated financial assurance requirements. Financial assurance requirements may include letters of credit, escrows, surety bonds, insurance, and where the credits are used or generated by a locality, authority, utility, sanitation district, or permittee operating an MS4 or a point source permitted under this article, its existing tax or rate authority. In lieu of long-term management fund financial assurance mechanisms established or required by regulation for projects generating credits from stream restoration, a third-party long-term steward approved by the Department, such as a public agency, nongovernmental organization or private land manager, may hold long-term management funds in a separate interest-bearing account to be used only for the long-term management of the stream restoration project. Notwithstanding any release schedule set out in regulations of the Board, the Department may accelerate the release of a maximum of 50 percent of nutrient credits from a stream restoration project based on (i) a determination that the level of risk for restoration failure is low, (ii) the provision of additional financial assurance in an amount adequate to cover the cost of project repair or replacement in the event of failure, and (iii) the experience of the applicant or the applicant’s agents who will implement the stream restoration project;

5. Establish appropriate reporting requirements;

6. Provide for the ability of the Department to inspect or audit for compliance with the requirements of such regulations;

7. Provide that the option to acquire nutrient credits for compliance purposes shall not eliminate any requirement to comply with local water quality requirements;

8. Establish a credit retirement requirement whereby five percent of nonpoint source credits in the Chesapeake Bay Watershed other than controls and practices under subdivision B 1 a are permanently retired at the time of certification pursuant to this section for the purposes of offsetting growth in unregulated nutrient loads; and

9. Establish such other requirements as the Board deems necessary and appropriate.

History. 2012, cc. 748, 808; 2013, cc. 756, 793; 2016, c. 653; 2022, cc. 422, 526.

§ 62.1-44.19:21. Nutrient credit use by regulated entities.

1. An MS4 permittee may acquire, use, and transfer nutrient credits for purposes of compliance with any waste load allocations established as effluent limitations in an MS4 permit issued pursuant to § 62.1-44.15:25 . Such method of compliance may be approved by the Department following review of a compliance plan submitted by the permittee that includes the use of nutrient credits. The permittee may use such credits for compliance purposes only if (i) the credits, whether annual, term, or perpetual, are generated and applied for purposes of compliance for the same calendar year; (ii) the credits are acquired no later than a date following the calendar year in which the credits are applied as specified by the Department consistent with the permittee’s Virginia Stormwater Management Program (VSMP) permit annual report deadline under such permit; (iii) the credits are generated in the same locality or tributary, except that permittees in the Eastern Coastal Basin may also acquire credits from the Potomac and Rappahannock tributaries; and (iv) the credits either are point source nitrogen or point source phosphorus credits generated by point sources covered by the general permit issued pursuant to § 62.1-44.19:14 , or are certified pursuant to § 62.1-44.19:20 . An MS4 permittee may enter into an agreement with one or more other MS4 permittees within the same locality or within the same or adjacent eight-digit hydrologic unit code to collectively meet the sum of any waste load allocations in their permits. Such permittees shall submit to the Department for approval a compliance plan to achieve their aggregate permit waste load allocations.
2. An applicant required to comply with water quality requirements for land-disturbing activities operating under a General VSMP Permit for Discharges of Stormwater from Construction Activities or a Construction Individual Permit may acquire and use perpetual nutrient credits certified and registered on the Virginia Nutrient Credit Registry in accordance with § 62.1-44.15:35 .
3. A confined animal feeding operation issued a permit pursuant to this chapter may acquire, use, and transfer credits for compliance with any waste load allocations contained in the provisions of a Virginia Pollutant Discharge Elimination System (VPDES) permit. Such method of compliance may be approved by the Department following review of a compliance plan submitted by the permittee that includes the use of nutrient credits.
4. A facility registered under the Industrial Stormwater General Permit issued pursuant to this chapter or issued a VPDES permit regulating stormwater discharges that requires nitrogen and phosphorus monitoring at the facility may acquire, use, and transfer credits for compliance with any waste load allocations established as effluent limitations in a VPDES permit. Such method of compliance may be approved by the Department following review of a compliance plan submitted by the permittee that includes the use of nutrient credits.
5. Public notice of each compliance plan submitted for approval pursuant to this section shall be given by the Department.
6. This section shall not be construed to limit or otherwise affect the authority of the Board to establish and enforce more stringent water quality-based effluent limitations for total nitrogen or total phosphorus in permits where those limitations are necessary to protect local water quality. The exchange or acquisition of credits pursuant to this article shall not affect any requirement to comply with such local water quality-based limitations.

History. 2012, cc. 748, 808, § 10.1-603.15:3; 2013, cc. 756, 793; 2021, Sp. Sess. I, c. 360.

Editor’s note.

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.

The 2021 Sp. Sess. I amendments.

The 2021 amendment by Sp. Sess. I, c. 360, effective July 1, 2021, made stylistic plural-to-singular changes in subsections B-D and made related stylistic changes; and inserted “or issued a VPDES permit regulating stormwater discharges that requires nitrogen and phosphorus monitoring at the facility” in subsection D.

§ 62.1-44.19:21.1. Sediment credit use by regulated MS4s.

1. Subject to the conditions and limitations of subsections B, C, and D, an MS4 permittee may acquire and use sediment credits for purposes of compliance with any waste load allocations established by total maximum daily loads for the Chesapeake Bay or its tidal tributaries applied in an MS4 permit issued pursuant to § 62.1-44.15:25 , where such credit use is part of an integrated compliance plan for the MS4 permittee to address such nutrient and sediment total maximum daily loads.
2. Such method of compliance may be approved by the Department following review of an integrated compliance plan submitted by the permittee that includes the use of sediment credits. The permittee may use such credits for compliance purposes only if (i) the credits are generated and applied for purposes of compliance for the same calendar year; (ii) the credits are acquired no later than June 1 immediately following the calendar year to which the credits are applied; (iii) no later than June 1 immediately following the calendar year to which credits are applied, the permittee certifies on a form supplied by the Department that he has acquired sufficient credits to satisfy his compliance obligations; (iv) the credits are generated in the same tributary; (v) the sediment credits are not associated with phosphorus credits used for compliance with stormwater nonpoint nutrient runoff water quality criteria established pursuant to § 62.1-44.15:28 ; and (vi) the credits are derived from (a) implementation of best management practices in a defined area outside of an MS4 service area, in which case the necessary baseline sediment reduction for such defined area shall be achieved prior to the permittee’s use of additional reductions as credit, or (b) a point source waste load allocation established by the Chesapeake Bay total maximum daily load, in which case the credit is the difference between the waste load allocation specified as an annual mass load and any lower monitored annual mass load that is discharged as certified on a form supplied by the Department.
3. This section shall not be construed to limit or otherwise affect the authority of the Board to establish and enforce more stringent water quality-based effluent limitations in permits where those limitations are necessary to protect local water quality. The exchange or acquisition of credits pursuant to this article shall not affect any requirement to comply with such local water quality-based limitations.
4. The Board may adopt regulations for the purpose of establishing procedures for the certification of nonpoint source sediment credits used pursuant to subsection B. The Board’s administration of this section and its adoption of any such regulations shall be consistent wherever appropriate with the standards and procedures established pursuant to § 62.1-44.19:20 for certification of nonpoint source nutrient credits, including, without limitation, the opportunity for public notification, the retirement of credits, sediment baseline attainment as a condition on generation and use of nonpoint source sediment credits, financial assurance requirements, and requirements for inspection or auditing by the Department.
5. For the purposes of this section, “sediment credit” means a sediment or total suspended solids reduction that is expressed in pounds delivered to tidal waters within the Chesapeake Bay Watershed.

History. 2016, cc. 8, 126.

§ 62.1-44.19:21.2. Nutrient and sediment credit generation and transfer; public body.

1. Except as provided in subsection B, the only nonpoint nutrient credits that shall be transferred pursuant to either (i) § 62.1-44.15:35 or (ii) subsections B, C, and D of § 62.1-44.19:21 are nutrient credits generated by the private sector, including credits generated by the private sector pursuant to an agreement with a public body.
2. Other than for purposes of subsection A of § 62.1-44.19:21 , nutrient credits or sediment credits generated by a project undertaken by a public body, including a locality, and certified by the Department shall be used only by such public body and only for the purpose of compliance with the provisions of this chapter by such public body’s project. For the purposes of this subsection, the term “public body’s project” means a project for which the public body is the named permittee and for which no third party conducts any lease, sale, grant, transfer, or use of the project or its nutrient or sediment credits.
3. Any publicly owned treatment works that is permitted under the Watershed General Virginia Pollutant Discharge Elimination System (VPDES) Permit pursuant to § 62.1-44.19:14 and is constructing or expanding the treatment works, wastewater collection system, or other facility used for public wastewater utility operations may, as an alternative to acquiring and using certain perpetual nutrient credits pursuant to subsection B of § 62.1-44.19:21 , permanently retire a portion of its wasteload allocation if (i) notice is given by such applicant to the Department, (ii) a ratio of 10 pounds of nitrogen allocation for each pound of phosphorous allocation retired is also permanently retired and applied toward the land-disturbing project, and (iii) the general permit registration list is modified to reflect the permanent retirement of the wasteload allocation. Except for a water reclamation and reuse project at a treatment works, no more than 10 pounds per year of phosphorous allocation may be applied toward a single project’s postconstruction phosphorus control requirement.
4. Nothing in this section shall be construed to prevent any (i) public body, including a locality, from entering into an agreement with a private third party for the development of a project to generate nonpoint nutrient credits on terms and conditions upon which the public body and private third party agree or (ii) locality from operating a locality pollutant loading pro rata share program for nutrient reductions established pursuant to § 15.2-2243 .

History. 2020, cc. 1102, 1103.

§ 62.1-44.19:22. Enforcement and penalties.

1. Transfer of certified nutrient credits by an operator of a nutrient credit-generating entity may be suspended by the Department until such time as the operator comes into compliance with this article and attendant regulations.
2. (For expiration date — see notes)  Any operator of a nutrient credit-generating entity who violates any provision of this article, or of any regulations adopted hereunder, shall be subject to a civil penalty not to exceed $10,000 within the discretion of the court. The Department may issue a summons for collection of the civil penalty, and the action may be prosecuted in the appropriate circuit court. When the penalties are assessed by the court as a result of a summons issued by the Department, 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 .

B. (For effective date — see notes) Any operator of a nutrient credit-generating entity who violates any provision of this article, or of any regulations adopted hereunder, shall be subject to a civil penalty not to exceed $10,000 within the discretion of the court. The Department may issue a summons for collection of the civil penalty, and the action may be prosecuted in the appropriate circuit court. When the penalties are assessed by the court as a result of a summons issued by the Department, 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 .

History. 2012, cc. 748, 808, § 10.1-603.15:4; 2013, cc. 756, 793; 2016, cc. 68, 758.

Subsection B set out twice.

The second version of subsection B above is 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. For subsection B as in effect until that time, see the first version above.

Editor’s note.

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 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 B, substituted “Stormwater Local Assistance Fund established pursuant to § 62.1-44.15:29 .1” for “Virginia Stormwater Management Fund established pursuant to § 62.1-44.15:29 .” For effective date, see Editor’s note.

§ 62.1-44.19:23. Appeals.

Any person applying to establish a nutrient credit-generating entity or an operator of a nutrient credit-generating entity aggrieved by any action of the Department taken in accordance with this section, or by inaction of the Department, shall have the right to review in accordance with the provisions of the Administrative Process Act (§ 2.2-4000 et seq.).

History. 2012, cc. 748, 808, § 10.1-603.15:5; 2013, cc. 756, 793.

Editor’s note.

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.

§ 62.1-44.20. Right to entry to obtain information, etc.

Any duly authorized agent of the Board 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 chapter.

History. Code 1950, § 62.1-34; 1968, c. 659; 1970, c. 638.

§ 62.1-44.21. Information to be furnished to Board.

The Board may require every owner to furnish when requested such plans, specifications, and other pertinent information as may be necessary to determine the effect of the wastes from his discharge on the quality of state waters, or such other information as may be necessary to accomplish the purposes of this chapter. The Board shall not at any time disclose to any person other than appropriate officials of the Environmental Protection Agency pursuant to the requirements of the Federal Water Pollution Control Act Amendments of 1972 (P.L. 92-500) any secret formulae, secret processes, or secret methods other than effluent data used by any owner or under that owner’s direction.

History. Code 1950, § 62.1-35; 1968, c. 659; 1970, c. 638; 1974, c. 237.

§ 62.1-44.22. (For expiration date — see notes) Private rights not affected.

The fact that any owner holds or has held a certificate issued under this chapter shall not constitute a defense in any civil action involving private rights.

History. Code 1950, § 62.1-36; 1968, c. 659; 1970, c. 638.

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 62.1-44.22 .

§ 62.1-44.22. (For effective date — see notes) Private actions.

The fact that any owner holds or has held a certificate or land-disturbance approval issued under this chapter shall not constitute a defense in any civil action involving private rights.

Compliance with the provisions of this chapter 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. Code 1950, § 62.1-36; 1968, c. 659; 1970, c. 638; 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 62.1-44.22 .

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 inserted “or land-disturbance approval” in the first paragraph and added the second paragraph. For effective date, see Editor’s note.

§ 62.1-44.23. (For expiration date — see notes) Enforcement by injunction, etc.

Any person violating or failing, neglecting or refusing to obey any rule, regulation, order, water quality standard, pretreatment standard, or requirement of or any provision of any certificate issued by the Board, or by the owner of a publicly owned treatment works issued to an industrial user, or any provisions of this chapter, except as provided by a separate article, may be compelled in a proceeding instituted in any appropriate court by the Board to obey same and to comply therewith by injunction, mandamus or other appropriate remedy.

History. Code 1950, § 62.1-37; 1952, c. 702; 1968, c. 659; 1970, c. 638; 1977, c. 263; 1988, c. 167; 1990, c. 717; 1994, c. 489; 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 62.1-44.23 .

The 2013 amendments.

The 2013 amendments by cc. 756 and 793 are identical, and inserted “except as provided by a separate article.”

Law Review.

For survey of Virginia commercial law for the year 1976-1977, see 63 Va. L. Rev. 1377 (1977).

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).

§ 62.1-44.23. (For effective date — see notes) Enforcement by injunction, etc.

Any person violating or failing, neglecting or refusing to obey any rule, regulation, order, water quality standard, pretreatment standard, approved standard and specification, or requirement of or any provision of any certificate or land-disturbance approval issued by the Board, or by the owner of a publicly owned treatment works issued to an industrial user, or any provisions of this chapter, except as provided by a separate article, may be compelled in a proceeding instituted in any appropriate court by the Board to obey same and to comply therewith by injunction, mandamus or other appropriate remedy.

History. Code 1950, § 62.1-37; 1952, c. 702; 1968, c. 659; 1970, c. 638; 1977, c. 263; 1988, c. 167; 1990, c. 717; 1994, c. 489; 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 62.1-44.23 .

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 inserted “approved standard and specification,” and “or land-disturbance approval.” For effective date, see Editor’s note.

§ 62.1-44.23:1. Intervention of Commonwealth in actions involving surface water withdrawals.

The Board, in representing the public’s interest, shall have the authority and standing to intervene as an interested party in any civil action, including actions both within and without the Commonwealth, pertaining to the withdrawal of any of the surface waters of the Commonwealth.

History. 1989, c. 218.

§ 62.1-44.24. Testing validity of regulations; judicial review.

1. The validity of any regulation may be determined through judicial review in accordance with the provisions of the Administrative Process Act (§ 2.2-4000 et seq.).
2. [Repealed.]
3. An appeal may be taken from the decision of the court to the Court of Appeals as provided by law.

History. 1970, c. 638; 1984, c. 703; 1986, c. 615.

Law Review.

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

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

Research References.

Bryson on Virginia Civil Procedure (Matthew Bender). Chapter 2 Potential Jurisdiction. § 2.03 Courts. Bryson.

Michie’s Jurisprudence.

For related discussion, see 1A M.J. Administrative Law, § 18.

§ 62.1-44.25. (For expiration date — see notes) Right to hearing.

Any owner under §§ 62.1-44.16 , 62.1-44.17 , and 62.1-44.19 aggrieved by any action of the Board taken without a formal hearing, or by inaction of the Board, may demand in writing a formal hearing of such owner’s grievance, provided a petition requesting such hearing is filed with the Board. In cases involving actions of the Board, such petition must be filed within thirty days after notice of such action is mailed to such owner by certified mail.

History. 1970, c. 638.

Section set out twice.

The section above is effective until July 1, 2017, 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 following section, also numbered 62.1-44.25 .

§ 62.1-44.25. (For effective date — see notes) Right to hearing.

Any owner under Article 2.3 (§ 62.1-44.15:24 et seq.), Article 2.5 (§ 62.1-44.15:67 et seq.), or § 62.1-44.16 , 62.1-44.17 , or 62.1-44.19 aggrieved by any action of the Board taken without a formal hearing, or by inaction of the Board, may demand in writing a formal hearing of such owner’s grievance, provided a petition requesting such hearing is filed with the Board. In cases involving actions of the Board, such petition must be filed within 30 days after notice of such action is mailed to such owner by certified mail.

History. 1970, c. 638; 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 at that time, see the preceding section, also numbered 62.1-44.25 .

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 inserted “Article 2.3 (§ 62.1-44.15:24 et seq.), Article 2.5 (§ 62.1-44.15:67 et seq.), or” and made minor stylistic changes. For effective date, see Editor’s note.

§ 62.1-44.26. Hearings.

1. (For expiration date — see notes)  The formal hearings held under this chapter shall be conducted pursuant to § 2.2-4009 or 2.2-4020 and may be conducted by the Board itself at a regular or special meeting of the Board, or by at least one member of the Board designated by the chairman to conduct such hearings on behalf of the Board at any other time and place authorized by the Board.
2. A verbatim record of the proceedings of such hearings shall be taken and filed with the Board. Depositions may be taken and read as in actions at law.
3. The Board shall have power to issue subpoenas and subpoenas duces tecum, and at the request of any party shall issue such subpoenas. The failure of a witness without legal excuse to appear or to testify or to produce documents shall be acted upon by the Board in the manner prescribed in § 2.2-4022 . Witnesses who are subpoenaed shall receive the same fees and mileage as in civil actions.

A. (For effective date — see notes) The formal hearings held by the Board under this chapter shall be conducted pursuant to § 2.2-4009 or 2.2-4020 and may be conducted by the Board itself at a regular or special meeting of the Board, or by at least one member of the Board designated by the chairman to conduct such hearings on behalf of the Board at any other time and place authorized by the Board.

History. 1970, c. 638; 1977, c. 291; 1993, c. 897; 2008, cc. 276, 557; 2016, cc. 68, 758.

Subsection A set out twice.

The second version of subsection A above is 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. For subsection A as in effect until that time, see the first version.

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.”

Acts 2008, cc. 276 and 557, cl. 3 provides: “That regulatory actions necessary to implement the provisions of this act are exempt from Article 2 (§ 2.2-4006 et seq.) of the Administrative Process Act.”

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 2008 amendments.

The 2008 amendments by cc. 276 and 557 are identical, and substituted “The formal hearings held under this chapter shall be conducted pursuant to § 2.2-4009 or 2.2-4020 and may” for “The hearings held under this chapter may” in subsection A.

The 2016 amendments.

The 2016 amendments by cc. 68 and 758 are identical, and inserted “by the Board” near the beginning of Subsection A. For effective date, see Editor’s note.

§ 62.1-44.27. Rules of evidence in hearings.

In all hearings under this chapter:

1. All relevant and material evidence shall be received, except that (a) the rules relating to privileged communications and privileged topics shall be observed; (b) hearsay evidence shall be received only if the declarant is not readily available as a witness; and (c) secondary evidence of the contents of a document shall be received only if the original is not readily available. In deciding whether a witness or document is readily available, the Board or hearing officer shall balance the importance of the evidence against the difficulty of obtaining it, and the more important the evidence is the more effort should be made to produce the eyewitness or the original document.
2. All reports of inspectors and subordinates of the Board and other records and documents in the possession of the Board bearing on the case shall be introduced by the Board at the hearing.
3. Subject to the provisions of subdivision (1) of this section every party shall have the right to cross-examine adverse witnesses and any inspector or subordinate of the Board whose report is in evidence and to submit rebuttal evidence.
4. The decision of the Board shall be based only on evidence received at the hearing and matters of which a court of record could take judicial notice.

History. 1970, c. 638.

§ 62.1-44.28. Decisions of the Board in hearings pursuant to §§ 62.1-44.15 and 62.1-44.25.

To be valid and operative, the decision by the Board rendered pursuant to hearings under subdivisions (8a), (8b), and (8c) of §§ 62.1-44.15 and 62.1-44.25 must be reduced to writing and contain the explicit findings of fact and conclusions of law upon which the decision of the Board is based and certified copies thereof must be mailed by certified mail to the parties affected by it.

History. 1970, c. 638.

§ 62.1-44.29. (For expiration date — see notes) Judicial review.

Any owner aggrieved by 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 Board under § 62.1-44.15 (5), 62.1-44.15 (8a), (8b), and (8c), 62.1-44.15:20 , 62.1-44.15:21 , 62.1-44.15:22 , 62.1-44.15:23 , 62.1-44.16 , 62.1-44.17 , 62.1-44.19 , or 62.1-44.25 , 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 United States Constitution. A person shall be deemed to meet such standard if (i) such person has suffered an actual or imminent injury which is an invasion of a legally protected interest and which is concrete and particularized; (ii) such injury is fairly traceable to the decision of 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.

History. 1970, c. 638; 1986, c. 615; 1996, c. 1032; 2000, cc. 1032, 1054; 2007, c. 659.

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 62.1-44.29 .

Editor’s note.

Acts 1996, c. 1032, cl. 4, provides: “[t]hat the second enactment of this act [which amended this section] shall not be effective unless and until a final and unappealable decision of a court of competent jurisdiction declaring that subsection B of § 10.1-1318 as it is currently effective does not meet the requirements for state program approval under Title V of the federal Clean Air Act or regulations promulgated thereunder with respect to standing to seek judicial review of state permitting decisions.” The 1996 amendment became effective January 21, 1997, the date of the final and unappealable decision referred to throughout the act.

Acts 1996, c. 1032, cl. 5, as amended by Acts 1997, c. 520, cl. 1, provides: “That the “final and unappealable decision of a court of competent jurisdiction” referred to in enactment clauses 3 and 4 was rendered by the United States Supreme Court in the case of Commonwealth vs. Browner on January 21, 1997.”

Acts 2000, cc. 1032 and 1045, 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.”

The 2000 amendments.

The 2000 amendments by cc. 1032 and 1054 are identical, and inserted “62.1-44.15:5” in the first sentence.

The 2007 amendments.

The 2007 amendment by c. 659 substituted “62.1-44.15:20, 62.1-44.15:21 , 62.1-44.15:22 , 62.1-44.15:23 ” for “62.1-44.15:5.”

Law Review.

For article discussing decisions of Virginia courts dealing with state administrative procedures between June 1, 2002 and June 1, 2003, see 38 U. Rich. L. Rev. 39 (2003).

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

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).

Research References.

Bryson on Virginia Civil Procedure (Matthew Bender). Chapter 2 Potential Jurisdiction. § 2.03 Courts. Bryson.

Friend’s Virginia Pleading and Practice (Matthew Bender). Chapter 39 Appeals to Circuit Courts. § 39.06 Appeals under the Administrative Process Act. Friend.

Michie’s Jurisprudence.

For related discussion, see 1A M.J. Administrative Law, § 16; 5A M.J. Courts, § 47; 20 M.J. Waters and Watercourses, § 19.1B M.J. Appeal and Error, § 30; 9A M.J. Fraudulent and Voluntary Conveyances, § 126; 15 M.J. Public Service and State Corporation Commissions, §§ 30, 32.

§ 62.1-44.29. (For effective date — see notes) Judicial review.

Any owner aggrieved by 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 Board under subdivision (5), (8a), (8b), (8c), or (19) of § 62.1-44.15 or § 62.1-44.15:20 , 62.1-44.15:21 , 62.1-44.15:22 , 62.1-44.15:23 , 62.1-44.16 , 62.1-44.17 , 62.1-44.19 , or 62.1-44.25 , 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 United States Constitution. A person shall be deemed to meet such standard if (i) such person has suffered an actual or imminent injury which is an invasion of a legally protected interest and which is concrete and particularized; (ii) such injury is fairly traceable to the decision of 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.

History. 1970, c. 638; 1986, c. 615; 1996, c. 1032; 2000, cc. 1032, 1054; 2007, c. 659; 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 62.1-44.29 .

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 substituted “subdivision (5), (8a), (8b), (8c), or (19) of § 62.1-44.15 ” for “§ 62.1-44.15 (5), 62.1-44.15 (8a), (8b), and (8c).” For effective date, see Editor’s note.

§ 62.1-44.30. 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. 1970, c. 638; 1984, c. 703.

Research References.

Friend’s Virginia Pleading and Practice (Matthew Bender). Chapter 38 Appeals to the Court of Appeals of Virginia. § 38.30 Appeals Under the Administrative Process Act. Friend.

§ 62.1-44.31. (For expiration date — see notes) Violation of special order or certificate or failure to cooperate with Board.

It shall be unlawful for any owner to fail to comply with any special order adopted by the Board, which has become final under the provisions of this chapter, or to fail to comply with a pretreatment condition incorporated into the permit issued to it by the owner of a publicly owned treatment works or to fail to comply with any pretreatment standard or pretreatment requirement, or to discharge sewage, industrial waste or other waste in violation of any condition contained in a certificate issued by the Board or in excess of the waste covered by such certificate, or to fail or refuse to furnish information, plans, specifications or other data reasonably necessary and pertinent required by the Board under this chapter.

For the purpose of this section, the term “owner” shall mean, in addition to the definition contained in § 62.1-44.3 , any responsible corporate officer so designated in the applicable discharge permit.

History. Code 1950, § 62.1-43; 1952, c. 478; 1968, c. 659; 1970, c. 638; 1977, c. 263; 1988, c. 167.

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 62.1-44.31 .

Law Review.

For survey of Virginia commercial law for the year 1976-1977, see 63 Va. L. Rev. 1377 (1977).

§ 62.1-44.31. (For effective date — see notes) Violation of order or certificate or failure to cooperate with Board.

It shall be unlawful for any owner to fail to comply with any order adopted by the Board, which has become final under the provisions of this chapter, or to fail to comply with a pretreatment condition incorporated into the permit issued to it by the owner of a publicly owned treatment works or to fail to comply with any pretreatment standard or pretreatment requirement, or to discharge sewage, industrial waste or other waste in violation of any condition contained in a certificate or land-disturbance approval issued by the Board or in excess of the waste covered by such certificate or land-disturbance approval, or to fail or refuse to furnish information, plans, specifications or other data reasonably necessary and pertinent required by the Board under this chapter.

For the purpose of this section, the term “owner” shall mean, in addition to the definition contained in §§ 62.1-44.3 and 62.1-44.15:24 , any responsible corporate officer so designated in the applicable discharge permit.

History. Code 1950, § 62.1-43; 1952, c. 478; 1968, c. 659; 1970, c. 638; 1977, c. 263; 1988, c. 167; 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 62.1-44.31 .

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 deleted “special” following “comply with any” and twice inserted “or land-disturbance approval” in the first paragraph and inserted “and 62.1-44.15:24 ” and made a related change in the second paragraph. For effective date, see Editor’s note.

§ 62.1-44.32. (For expiration date — see notes) Penalties.

1. Except as otherwise provided in this chapter, any person who violates any provision of this chapter, or who fails, neglects, or refuses to comply with any order of the Board, or order of 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 state treasury and deposited by the State Treasurer into the Virginia Environmental Emergency Response Fund pursuant to Chapter 25 of Title 10.1, excluding penalties 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 of Title 62.1, or a regulation, administrative or judicial order, or term or condition of approval relating to or issued under those articles.Such civil penalties may, in the discretion of the court assessing them, be directed to be paid into the treasury of the county, city, or town in which the violation occurred, to be used for the purpose of abating environmental pollution therein in such manner as the court may, by order, direct, except that where the owner in violation is such county, city or town itself, or its agent, the court shall direct such penalty to be paid into the state treasury and deposited by the State Treasurer into the Virginia Environmental Emergency Response Fund pursuant to Chapter 25 of Title 10.1, excluding penalties assessed for violations of Article 9 or 10 of Chapter 3.1 of Title 62.1, or a regulation, administrative or judicial order, or term or condition of approval relating to or issued under those articles.In the event that a county, city, or town, or its agent, is the owner, such county, city, or town, or its agent, may initiate a civil action against any user or users of a waste water treatment facility to recover that portion of any civil penalty imposed against the owner proximately resulting from the act or acts of such user or users in violation of any applicable federal, state, or local requirements.
2. Except as otherwise provided in this chapter, any person who willfully or negligently violates any provision of this chapter, any regulation or order of the Board, any condition of a certificate 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 chapter, any regulation or order of the Board, any condition of a certificate 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 chapter or knowingly renders inaccurate any monitoring device or method required to be maintained under this chapter, 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. Except as otherwise provided in this chapter, any person who knowingly violates any provision of this chapter, 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. Criminal prosecution under this section shall be commenced within three years of discovery of the offense, notwithstanding the limitations provided in any other statute.

History. Code 1950, § 62.1-44; 1968, c. 659; 1970, c. 638; 1974, c. 237; 1977, c. 263; 1980, c. 378; 1981, cc. 582, 596; 1989, c. 627; 1990, cc. 13, 717; 1991, c. 718; 2005, c. 706; 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 62.1-44.32 .

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 substituted “$32,500” for “$25,000” in subsections (a) and (b); and made minor stylistic changes.

The 2013 amendments.

The 2013 amendments by cc. 756 and 793 are identical, and added the exception at the beginning of the first sentence of subsections (a), (b) and (c).

Cross references.

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 commercial law for the year 1976-1977, see 63 Va. L. Rev. 1377 (1977).

§ 62.1-44.32. (For effective date — see notes) Penalties.

1. Except as otherwise provided in this chapter, any person who violates any provision of this chapter, or who fails, neglects, or refuses to comply with any regulation, certificate, land-disturbance approval, or order of the Board, or order of 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 state treasury and deposited by the State Treasurer into the Virginia Environmental Emergency Response Fund pursuant to Chapter 25 (§ 10.1-2500 et seq.) of Title 10.1, excluding penalties assessed for violations of Article 2.3 (§ 62.1-44.15:24 et seq.), 2.4 (§ 62.1-44.15:51 et seq.), 2.5 (§ 62.1-44.15:67 et seq.), 9 (§ 62.1-44.34:8 et seq.), or 10 (§ 62.1-44.34:10 et seq.) of Chapter 3.1 of Title 62.1, or a regulation, administrative or judicial order, or term or condition of approval relating to or issued under those articles.Such civil penalties may, in the discretion of the court assessing them, be directed to be paid into the treasury of the county, city, or town in which the violation occurred, to be used for the purpose of abating environmental pollution therein in such manner as the court may, by order, direct, except that where the owner in violation is such county, city, or town itself, or its agent, the court shall direct such penalty to be paid into the state treasury and deposited by the State Treasurer into the Virginia Environmental Emergency Response Fund pursuant to Chapter 25 of Title 10.1, excluding penalties assessed for violations of Article 2.3, 2.4, 2.5, 9, or 10 of Chapter 3.1 of Title 62.1, or a regulation, administrative or judicial order, or term or condition of approval relating to or issued under those articles.In the event that a county, city, or town, or its agent, is the owner, such county, city, or town, or its agent, may initiate a civil action against any user or users of a waste water treatment facility to recover that portion of any civil penalty imposed against the owner proximately resulting from the act or acts of such user or users in violation of any applicable federal, state, or local requirements.
2. Except as otherwise provided in this chapter, any person who willfully or negligently violates (1) any provision of this chapter, any regulation or order of the Board, or any condition of a certificate or land-disturbance approval of the Board, (2) any land-disturbance approval, ordinance, or order of a locality serving as a Virginia Erosion and Stormwater Management Program authority, or (3) 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 (A) any provision of this chapter, any regulation or order of the Board, or any condition of a certificate or land-disturbance approval of the Board, (B) any land-disturbance approval, ordinance, or order of a locality serving as a Virginia Erosion and Stormwater Management Program authority, or (C) 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 chapter or knowingly renders inaccurate any monitoring device or method required to be maintained under this chapter, 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. Except as otherwise provided in this chapter, any person who knowingly violates any provision of this chapter, 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. Criminal prosecution under this section shall be commenced within three years of discovery of the offense, notwithstanding the limitations provided in any other statute.

History. Code 1950, § 62.1-44; 1968, c. 659; 1970, c. 638; 1974, c. 237; 1977, c. 263; 1980, c. 378; 1981, cc. 582, 596; 1989, c. 627; 1990, cc. 13, 717; 1991, c. 718; 2005, c. 706; 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 62.1-44.32 .

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 (a), inserted “regulation, certificate, land-disturbance approval, or,” “(§ 10.1-2500 et seq.),” and “2.3 (§ 62.1-44.15:24 et seq.), 2.4 (§ 62.1-44.15:51 et seq.), 2.5 (§ 62.1-44.15.67 et seq.)”; in subdivision (b), inserted clause (1)-(3) and (A)-(C) designations, inserted “or land-disturbance approval of the Board” in clause (1), added clause (2), inserted “or land-disturbance approval of the Board” in clause (A), and added clause (B) and made minor stylistic changes. For effective date, see Editor’s note.

§ 62.1-44.33. Board to adopt regulations; tidal waters no discharge zones.

1. The State Water Control Board is empowered and directed to adopt all necessary regulations for the purpose of controlling the discharge of sewage and other wastes from both documented and undocumented boats and vessels on all navigable and nonnavigable waters within this Commonwealth. No such regulation shall impose restrictions that are more restrictive than the regulations applicable under federal law; provided, however, the Board may adopt such regulations as are reasonably necessary with respect to: (i) vessels regularly berthed in marinas or other places where vessels are moored, in order to limit or avoid the closing of shellfish grounds; and (ii) no discharge zones. Documented and undocumented boats and vessels are prohibited from discharging into the Chesapeake Bay and the tidal portions of its tributaries sewage that has not been treated by a Coast Guard-approved Marine Sanitation Device (MSD Type 1 or Type 2); however, the discharge of treated or untreated sewage by such boats and vessels is prohibited in areas that have been designated as no discharge zones by the United States Environmental Protection Agency. Any discharges, as defined in 9VAC25-71-10, that are incidental to the normal operation of a vessel shall not constitute a violation of this section.
2. The tidal creeks of the Commonwealth are hereby established as no discharge zones for the discharge of sewage and other wastes from documented and undocumented boats and vessels. Criteria for the establishment of no discharge zones shall be premised on the improvement of impaired tidal creeks. Nothing in this section shall be construed to discourage the proper use of Type 1 and Type 2 Marine Sanitation Devices, as defined under 33 U.S.C. § 1332, in authorized areas other than properly designated no discharge zones. The Board shall adopt regulations for designated no discharge zones requiring (i) boats and vessels without installed toilets to dispose of any collected sewage from portable toilets or other containment devices at marina facilities approved by the Department of Health for collection of sewage wastes, or otherwise dispose of sewage in a manner that complies with state law; (ii) all boats and vessels with installed toilets to have a marine sanitation device to allow sewage holding capacity unless the toilets are rendered inoperable; (iii) all houseboats having installed toilets to have a holding tank with the capability of collecting and holding sewage and disposing of collected sewage at a pump-out facility; if the houseboats lack such tank then the marine sanitation device shall comply with clause (iv); (iv) y-valves, macerator pump valves, discharge conveyances or any other through-hull fitting valves capable of allowing a discharge of sewage from marine sanitation devices shall be secured in the closed position while in a no discharge zone by use of a padlock, nonreleasable wire tie, or removal of the y-valve handle. The method chosen shall present a physical barrier to the use of the y-valve or toilet; and (v) every owner or operator of a marina within a designated no discharge zone to notify boat patrons leasing slips of the sewage discharge restriction in the no discharge zone. As a minimum, notification shall consist of no discharge zone information in the slip rental contract and a sign indicating the area is a designated no discharge zone.In formulating regulations pursuant to this section, the Board shall consult with the State Department of Health, the Department of Wildlife Resources, and the Marine Resources Commission for the purpose of coordinating such regulations with the activities of such agencies.For purposes of this section, “no discharge zone” means an area where the Commonwealth has received an affirmative determination from the U.S. Environmental Protection Agency that there are adequate facilities for the removal of sewage from vessels (holding tank pump-out facilities) in accordance with 33 U.S.C. § 1322 (f)(3), and where federal approval has been received allowing a complete prohibition of all treated or untreated discharges of sewage from all vessels.
3. Violation of such regulations and violations of the prohibitions created by this section on the discharge of treated and untreated sewage from documented and undocumented boats and vessels shall, upon conviction, be a Class 1 misdemeanor. Every law-enforcement officer of this Commonwealth and its subdivisions shall have the authority to enforce the regulations adopted under the provisions of this section and to enforce the prohibitions on the discharge of treated and untreated sewage created by this section.

History. Code 1950, § 62.1-44.1; 1968, c. 659; 1970, c. 638; 1975, c. 204; 1997, c. 502; 2001, c. 42; 2004, c. 287; 2009, c. 337; 2011, c. 220; 2020, c. 958.

Cross references.

As to punishment for Class 1 misdemeanors, see § 18.2-11 .

The 2001 amendments.

The 2001 amendment by c. 42 added the third sentence in the first paragraph.

The 2004 amendments.

The 2004 amendment by c. 287, throughout the section, deleted “rules and” preceding “regulations”; in the first paragraph, deleted “and promulgate” following “directed to adopt” in the first sentence, in the second sentence, inserted the clause (i) designation and added clause (2), and deleted the former third sentence, pertaining to the regulations controlling the discharge of sewage and other wastes; inserted the present second paragraph; deleted “and promulgated” preceding “under the provisions” in the last sentence of the last paragraph; and made minor stylistic changes.

The 2009 amendments.

The 2009 amendment by c. 337, redesignated the former first paragraph as subsection A, the former second and third paragraphs as subsection B, and the former last paragraph as subsection C; in subsection B, in the first paragraph, added the first sentence, and added the third paragraph.

The 2011 amendments.

The 2011 amendment by c. 220 added the last sentence in subsection A; in the first paragraph in subsection B, added the second and third sentences, in clause (iii) of the fourth sentence, substituted “if the houseboats lack such tank then the marine sanitation device shall comply with clause (iv)” for “if the houseboats lack such tank with such capability, the toilet must be removed,” and rewrote clause (iv), which read: “y-valves, macerator pump sewage from the marine sanitation devices to be secured in the closed position by a device that is not readily removable, including, but not limited to, a numbered container seal such that through-hull sewage is rendered inoperable.”

The 2020 amendments.

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

Law Review.

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

§ 62.1-44.34. Repealed by Acts 1978, c. 816.

Cross references.

As to present provisions relating to discharge of oil into waters, see §§ 62.1-44.34:14 through 62.1-44.34:23 .

§§ 62.1-44.34:1 through 62.1-44.34:6. Repealed by Acts 1990, c. 917.

Cross references.

As to present provisions relating to discharge of oil into waters, see §§ 62.1-44.34:14 through 62.1-44.34:23 .

Editor’s note.

Acts 1990, c. 962 purported to amend §§ 62.1-44.34:2, 62.1-44.34:3 and 62.1-44.34:4, which were repealed by Acts 1990, c. 917. The effect of these amendments was to add lands and storm drain systems in the Commonwealth, along with state waters, as places where the discharging of oil is prohibited. At the direction of the Code Commission, these amendments have been effectuated in corresponding new code sections, §§ 62.1-44.34:18 and 62.1-44.34:19 .

§ 62.1-44.34:7. Repealed by Acts 1989, c. 627.

Cross references.

As to the Virginia Petroleum Storage Tank Fund, see Article 10 of this chapter, § 62.1-44.34:10 et seq.

Editor’s note.

Acts 1989, c. 627, cl. 3 provides that all moneys in the Virginia Oil Spill Contingency Fund as of July 1, 1989, are transferred to the Virginia Underground Petroleum Storage Tank Fund.

The repealed section was amended by Acts 1989, c. 608.

§ 62.1-44.34:8. Definitions.

The following terms as used in this article shall have the meanings ascribed to them:

“Aboveground storage tanks” means any one or combination of tanks, including pipes used to contain an accumulation of oil at atmospheric pressure, and the volume of which, including the volume of the pipes, is more than ninety percent above the surface of the ground. This term does not include (i) line pipe and breakout tanks of an interstate pipeline regulated under the Hazardous Liquid Pipeline Safety Act of 1979 or the Natural Gas Pipeline Safety Act of 1968, as amended, and (ii) flow through process equipment used in processing or treating oil by physical, biological, or chemical means.

“Facility” means any development or installation within the Commonwealth that deals in, stores or handles oil, and includes aboveground storage tanks. This term does not include underground storage tanks or pipelines.

“Oil” means oil of any kind and in any form, including, but not limited to, petroleum and petroleum by-products, fuel oil, lubricating oils, sludge, oil refuse, oil mixed with other wastes, crude oils and all other liquid hydrocarbons regardless of specific gravity.

“Operator of an underground storage tank” means any person in control of, or having responsibility for, the daily operation of the underground storage tank.

“Owner of an underground storage tank” means:

1. In the case of an underground storage tank in use or brought into use on or after November 8, 1984, any person who owns an underground storage tank for the storage, use, or dispensing of regulated substances; and
2. In the case of an underground storage tank in use before November 8, 1984, but no longer in use after that date, any person who owned such tank immediately before the discontinuation of its use.The term “owner” shall not include any person who, without participating in the management of an underground storage tank or being otherwise engaged in petroleum production, refining, and marketing, holds indicia of ownership primarily to protect the holder’s security interest in the tank.

   “Person” means an individual, trust, firm, joint stock company, corporation, including a government corporation, partnership, association, any state or agency thereof, municipality, county, town, commission, political subdivision of a state, any interstate body, consortium, joint venture, commercial entity, the government of the United States or any unit or agency thereof.

   “Regulated substance” means an element, compound, mixture, solution, or substance that, when released into the environment, may present substantial danger to the public health or welfare, or the environment. The term “regulated substance” includes:

   “Release” means any spilling, leaking, emitting, discharging, escaping, leaching, or disposing from an underground storage tank or facility into ground water, surface water, or upon lands, subsurface soils or storm drain systems.

   “Responsible person” means any person who is an owner or operator of an underground storage tank or an aboveground storage tank at the time a release is reported to the Board.

   “Underground storage tank” means any one or combination of tanks, including connecting pipes, used to contain an accumulation of regulated substances, and the volume of which, including the volume of the underground connecting pipes, is ten percent or more beneath the surface of the ground. Exemptions from this definition and regulations promulgated under this article include:

3. Septic tanks;
4. Pipeline facilities, including gathering lines, regulated under: (i) the Natural Gas Pipeline Safety Act of 1968, (ii) the Hazardous Liquid Pipeline Safety Act of 1979, or (iii) any intrastate pipeline facility regulated under state laws comparable to the provisions of law in (i) or (ii) of this subdivision;
5. Surface impoundments, pits, ponds, or lagoons;
6. Storm water or waste water collection systems;
7. Flow-through process tanks;
8. Liquid traps or associated gathering lines directly related to oil or gas production and gathering operations; and
9. Storage tanks situated in an underground area, such as a basement, cellar, mineworking, drift, shaft, or tunnel, if the storage tank is situated upon or above the surface of the floor.

1. Any substance defined in § 101 (14) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, but not any substance regulated as a hazardous waste under Subtitle C of the Resource Conservation and Recovery Act of 1976; or

2. Petroleum, including crude oil or any fraction thereof, which is liquid at standard conditions of temperature and pressure (sixty degrees Fahrenheit and 14.7 pounds per square inch absolute).

1. Farm or residential tanks having a capacity of 1,100 gallons or less and used for storing motor fuel for noncommercial purposes;

2. Tanks used for storing heating oil for consumption on the premises where stored;

History. 1987, c. 528; 1989, c. 430; 1992, c. 819; 1996, cc. 737, 979.

Law Review.

For article, “Environmental Liability in Real Property Transactions,” see 23 U. Rich. L. Rev. 349 (1989).

§ 62.1-44.34:9. Powers and duties of Board.

The Board is responsible for carrying out the provisions of this article and compatible provisions of federal acts and is authorized to:

1. Enforce the interim prohibition provisions in § 9003 (g) of United States Public Law 98-616. Until state underground storage tank standards promulgated by regulation become effective, the Board shall enforce the federal interim standard which prohibits installation of an underground storage tank for the purpose of storing regulated substances unless such tank:
   1. Will prevent releases due to corrosion or structural failure for the operational life of the tank;
   2. Is cathodically protected against corrosion, constructed of noncorrosive material, or designed in a manner to prevent the release or threatened release of any stored substance; and
   3. The material used in the construction or lining of the tank is compatible with the substance to be stored.
2. Exercise general supervision and control over underground storage tank activities in this Commonwealth.
3. Provide technical assistance and advice concerning all aspects of underground storage tank management.
4. Collect such data and information as may be necessary to conduct the state underground storage tank program.
5. Apply for such federal funds as may become available under federal acts and transmit such funds to appropriate persons.
6. Require notification by owners of underground storage tanks in accordance with the provisions of § 9002 of United States Public Law 98-616.
7. Require notification by owners of property who have actual knowledge of underground storage tanks on such property that were taken out of service before January 1, 1974; however, the civil penalties specified in § 9006 (d) of United States Public Law 98-616 shall not apply to the foregoing notification requirement.
8. Promulgate such regulations as may be necessary to carry out its powers and duties with regard to underground storage tanks in accordance with applicable federal laws and regulations.
9. Require the owner or operator of an underground storage tank who is the responsible person for the release to undertake corrective action for any release of petroleum or any other regulated substance when the Board determines that such corrective action will be done properly and promptly by the owner or operator of the underground storage tank from which the release occurs, regardless of when the release occurred; or undertake corrective action for any release of petroleum or any other regulated substance into the environment from an underground storage tank if such action is necessary, in the judgment of the Board, to protect human health and the environment.
10. Seek recovery of costs incurred, excluding moneys expended from the Virginia Petroleum Storage Tank Fund which are governed by § 62.1-44.34:11 , for undertaking corrective action or enforcement action with respect to the release of a regulated substance from an underground storage tank or oil from a facility.

History. 1987, c. 528; 1989, c. 430; 1992, c. 819; 1993, c. 231; 1996, c. 737.

Editor’s note.

For United States Public Law 98-616, referred to above, see generally, 42 U.S.C.S. § 6991 et seq.

§ 62.1-44.34:10. Definitions.

The following terms as used in this article shall have the meanings ascribed to them:

“Aboveground storage tanks” means any one or combination of tanks, including pipes used to contain an accumulation of oil at atmospheric pressure, and the volume of which, including the volume of the pipes, is more than ninety percent above the surface of the ground. This term does not include (i) line pipe and breakout tanks of an interstate pipeline regulated under the Hazardous Liquid Pipeline Safety Act of 1979 or the Natural Gas Pipeline Safety Act of 1968, as amended, and (ii) flow through process equipment used in processing or treating oil by physical, biological, or chemical means.

“Facility” means any development or installation within the Commonwealth that deals in, stores or handles oil, and includes aboveground storage tanks. This term does not include underground storage tanks or pipelines.

“Fund” means the Virginia Petroleum Storage Tank Fund.

“Oil” means oil of any kind and in any form, including, but not limited to, petroleum and petroleum by-products, fuel oil, lubricating oils, sludge, oil refuse, oil mixed with other wastes, crude oils and all other liquid hydrocarbons regardless of specific gravity.

“Operator of a facility” means any person who owns, operates, rents or otherwise exercises control over or responsibility for a facility.

“Operator of an underground storage tank” means any person in control of, or having responsibility for, the daily operation of the underground storage tank.

“Owner of an underground storage tank” means:

1. In the case of an underground storage tank in use or brought into use on or after November 8, 1984, any person who owns an underground storage tank used for the storage, use or dispensing of regulated substances; and
2. In the case of an underground storage tank in use before November 8, 1984, but no longer in use after that date, any person who owned such tank immediately before the discontinuation of its use.The term “owner” shall not include any person who, without participating in the management of an underground storage tank or being otherwise engaged in petroleum production, refining, and marketing, holds indicia of ownership primarily to protect the holder’s security interest in the tank.“Person” means an individual, trust, firm, joint stock company, corporation, including a government corporation, partnership, association, any state or agency thereof, municipality, county, town, commission, political subdivision of a state, any interstate body, consortium, joint venture, commercial entity, the government of the United States or any unit or agency thereof.“Regulated substance” means an element, compound, mixture, solution, or substance that, when released into the environment, may present substantial danger to the public health or welfare, or the environment. The term “regulated substance” includes:

   “Release” means any spilling, leaking, emitting, discharging, escaping, leaching, or disposing from an underground storage tank or facility into ground water, surface water, or upon lands, subsurface soils or storm drain systems.

   “Responsible person” means any person who is an owner or operator of an underground storage tank or an aboveground storage tank at the time the release is reported to the Board.

   “Underground storage tank” means any one or combination of tanks, including connecting pipes, used to contain an accumulation of regulated substances, and the volume of which, including the volume of the underground connecting pipes, is ten percent or more beneath the surface of the ground. Exemptions from this definition include:

3. Septic tanks;
4. Pipeline facilities, including gathering lines, regulated under: (i) the Natural Gas Pipeline Safety Act of 1968, (ii) the Hazardous Liquid Pipeline Safety Act of 1979, or (iii) any intrastate pipeline facility regulated under state laws comparable to the provisions of law in (i) or (ii) of this definition;
5. Surface impoundments, pits, ponds, or lagoons;
6. Storm water or waste water collection systems;
7. Flow-through process tanks;
8. Liquid traps or associated gathering lines directly related to oil or gas production and gathering operations; and
9. Storage tanks situated in an underground area, such as a basement, cellar, mineworking, drift, shaft, or tunnel if the storage tank is situated upon or above the surface of the floor.

1. Any substance defined in § 101 (14) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, but not any substance regulated as a hazardous waste under Subtitle C of the Resource Conservation and Recovery Act of 1976; or

2. Petroleum, including crude oil or any fraction thereof, which is liquid at standard conditions of temperature and pressure (sixty degrees F and 14.7 pounds per square inch absolute).

1. Farm or residential tanks having a capacity of 1,100 gallons or less and used for storing motor fuel for noncommercial purposes;

2. Tanks used for storing heating oil for consumption on the premises where stored;

History. 1987, c. 677; 1989, cc. 430, 627; 1992, c. 819; 1996, cc. 737, 979.

The number of this section was assigned by the Virginia Code Commission, the number in the 1987 act having been 62.1-44.34:8 .

§ 62.1-44.34:11. Virginia Petroleum Storage Tank Fund.

1. The Virginia Petroleum Storage Tank Fund is hereby established as a nonlapsing revolving fund to be used by the Board for (i) administering the state regulatory programs authorized by Articles 9, 10 and 11 (§ 62.1-44.34:8 et seq.) of this chapter, (ii) demonstrating financial responsibility, and (iii) other purposes as provided for by applicable provisions of state and federal law. All expenses, costs, civil penalties, charges and judgments recovered by or on behalf of the Board pursuant to Articles 9, 10 and 11 of this chapter, and all moneys received as reimbursement in accordance with applicable provisions of federal law and all fees collected pursuant to §§ 62.1-44.34:19.1 and 62.1-44.34:21 , shall be deposited into the Fund. Interest earned on the Fund shall be credited to the Fund. No moneys shall be credited to the balance in the Fund until they have been received by the Fund. The Fund shall be established on the books of the Comptroller and any funds remaining in such Fund at the end of the biennium shall not revert to the general fund but shall remain in the Fund.The Fund shall be administered by the Board consistent with the provisions of Subtitle I of the federal Solid Waste Disposal Act (P.L. 98-616, § 9001 et seq.) and any approved state underground storage tank program and in accordance with the following provisions:
   1. The Fund shall be maintained in a separate account. An accounting of moneys received and disbursed shall be kept, and furnished upon request to the Governor or the General Assembly.
   2. Disbursements from the Fund may be made only for the following purposes:
      1. Reasonable and necessary per occurrence costs incurred for releases reported after December 22, 1989, by the owner or operator who is the responsible person, in taking corrective action for any release of petroleum into the environment from an underground storage tank which are in excess of the per occurrence financial responsibility requirement imposed in subsection B of § 62.1-44.34:12 , up to $1 million.
      2. Reasonable and necessary per occurrence costs incurred for releases reported after December 22, 1989, by the owner or operator who is the responsible person for compensating third parties, including payment of judgments for bodily injury and property damage caused by the release of petroleum into the environment from an underground storage tank, which are in excess of the per occurrence financial responsibility requirement imposed by subsection B of § 62.1-44.34:12 , up to $1 million. The reasonableness and necessity of costs shall be determined based upon documented or actual damage, loss in value, and other relevant factors. Disbursements for third party claims shall be subordinate to disbursements for the corrective action costs in subdivision A 2 a of this section. Compensation for bodily injury and property damage shall be paid only in accordance with final court orders in cases which have been tried to final judgment no longer (i) subject to appeal, (ii) in accordance with final arbitration awards not subject to appeal, or (iii) where the Board approved the settlement of claim between the owner or operator and the third-party prior to execution by the parties.
      3. Reasonable and necessary per occurrence costs incurred by an operator whose net annual profits from all facilities do not exceed $10 million for containment and cleanup of a release from a facility of a product subject to § 62.1-44.34:13 as follows: (i) for an operator of a facility with a storage capacity less than 25,000 gallons, per occurrence costs in excess of $2,500 up to $1 million; (ii) for an operator of a facility with a storage capacity from 25,000 gallons to 100,000 gallons, per occurrence costs in excess of $5,000 up to $1 million; (iii) for an operator of a facility with a storage capacity from 100,000 gallons to four million gallons, per occurrence costs in excess of $.05 per gallon of aboveground storage capacity up to $1 million; and (iv) for an operator of a facility with a storage capacity greater than four million gallons, per occurrence costs in excess of $200,000 up to $1 million. For purposes of this subdivision (2 c), the per occurrence financial responsibility requirements for an operator shall be based on the total storage capacity for the facility from which the discharge occurs.
      4. Reasonable and necessary per occurrence costs incurred by an operator whose net annual profits from all facilities exceed $10 million for containment and cleanup of a release from a facility of a product subject to § 62.1-44.34:13 as follows: (i) for an operator of a facility with a storage capacity less than four million gallons, per occurrence costs in excess of $200,000 up to $1 million; (ii) for an operator of a facility with a storage capacity from four million gallons to 20 million gallons, per occurrence costs in excess of $.05 per gallon of aboveground storage capacity up to $1 million; and (iii) an operator of a facility with a storage capacity greater than 20 million gallons shall have no access to the Fund. For purposes of this subdivision, the per occurrence financial responsibility requirements for an operator shall be based on the total storage capacity for all facilities located within the Commonwealth.
      5. Costs incurred by the Board in taking immediate corrective action to contain or mitigate the effects of any release of petroleum into the environment from an underground storage tank or from underground storage tanks exempted in subdivisions 1 and 2 of the definition of underground storage tank in § 62.1-44.34:10 , if such action is necessary, in the judgment of the Board, to protect human health and the environment.
      6. Costs of corrective action up to $1 million for any release of petroleum into the environment from underground storage tanks or from underground storage tanks exempted in subdivisions 1 and 2 of the definition of underground storage tank in § 62.1-44.34:10 (i) whose owner or operator cannot be determined by the Board within 90 days; or (ii) whose owner or operator is incapable, in the judgment of the Board, of carrying out such corrective action properly.
      7. Costs of corrective action incurred by the Board for any release of petroleum into the environment from underground storage tanks which are otherwise specifically listed in exemptions 1 through 9 of the definition of an underground storage tank in § 62.1-44.34:10.
      8. Reasonable and necessary per occurrence costs of corrective action incurred for releases reported after December 22, 1989, by the owner or operator in excess of $500 up to $1 million for any release of petroleum into the environment from an underground storage tank exempted in subdivisions 1 and 2 of the definition of an underground storage tank in § 62.1-44.34:10 and aboveground storage tanks with a capacity of 5,000 gallons or less used for storing heating oil for consumption on the premises where stored.
      9. The “cost share” of corrective action with respect to any release of petroleum into the environment from underground storage tanks undertaken under a cooperative agreement with the Administrator of the United States Environmental Protection Agency, as determined by the Administrator of the United States Environmental Protection Agency in accordance with the provisions of § 9003 (h) (7) (B) of the United States Public Law 98-616 (as amended in 1986 by United States Public Law 99-662).
      10. Administrative costs incurred by the Board in carrying out the provisions of regulatory programs authorized by Articles 9, 10, and 11 (§ 62.1-44.34:8 et seq.) of this chapter.
      11. All costs and expenses, including but not limited to personnel, administrative, and equipment costs and expenses, directly incurred by the Board or by any other state agency acting at the direction of the Board, in and for the abatement, containment, removal and disposal of oil pursuant to Article 11 (§ 62.1-44.34:14 et seq.) of Chapter 3.1 of this title.
      12. Procurement, maintenance and replenishment of materials, equipment and supplies, in such quantities and at such locations as the Board may deem necessary, for the abatement, containment, removal and disposal of oil pursuant to Article 11 (§ 62.1-44.34:14 et seq.) of Chapter 3.1 of this title.
      13. Costs and expenses, incurred by the Board or by any other state agency, acting at the direction of the Board, for the protection, cleanup and rehabilitation of waterfowl, wildlife, shellfish beds and other natural resources, damaged or threatened by the discharge of oil, owned by the Commonwealth or held in trust by the Commonwealth for the benefit of its citizens.
      14. Refund of cash deposits held in escrow pursuant to Article 11 (§ 62.1-44.34:14 et seq.) of Chapter 3.1 of this title and reasonable interest thereon, and refunds of fees collected pursuant to § 62.1-44.34:21 as authorized by this chapter.
      15. Administrative costs incurred by the Department of Motor Vehicles in the collection of fees specified in § 62.1-44.34:13.
      16. Reasonable and necessary costs incurred by the Virginia Department of Transportation in taking corrective action on property acquired for transportation purposes. If the costs of taking corrective action are recovered, in whole or in part, from any responsible party, the recovery shall be deposited to the Fund.
      17. Reasonable and necessary per occurrence costs for releases reported after December 22, 1989, in taking corrective action for any release of petroleum into the environment from an underground storage tank, which are in excess of $5,000 up to $1 million, by any person who, without participating in the management of an underground storage tank or being otherwise engaged in petroleum production, refining, and marketing, holds indicia of ownership primarily to protect the holder’s security interest in the tank.
2. The Board shall seek recovery of moneys expended from the Fund for corrective action under this section where the owner or operator of an underground storage tank has violated substantive environmental protection rules and regulations pertaining to underground storage tanks which have been promulgated by the Board.
3. For costs incurred for corrective action as authorized in subdivision A 2 e of this section, the Board shall seek recovery of moneys from the owner or operator of an underground storage tank up to the minimum financial responsibility requirement imposed on the owner or operator in subsection B of § 62.1-44.34:12 if any, or seek recovery of such costs incurred from any available federal government funds.
4. For costs incurred for corrective action taken resulting from a release from underground storage tanks specified in subdivision A 2 f of this section, the Board shall seek recovery of moneys from the owner or operator up to the minimum financial responsibility requirement imposed on the owner or operator in subsection B of § 62.1-44.34:12 if any, or seek recovery of such costs incurred from any available federal government funds.
5. The Board shall seek recovery of moneys expended from the Fund for costs incurred for corrective action as authorized in subdivision A 2 g of this section or seek recovery of such costs incurred from any available federal government funds. However, the Board shall not seek recovery of moneys expended from the Fund for costs of corrective action in excess of $500 from the owner or operator of an underground tank exempted in subdivisions 1 and 2 of the definition of underground storage tank in § 62.1-44.34:10 and aboveground storage tanks with a capacity of 5,000 gallons or less used for storing heating oil for consumption on the premises where stored.
6. The Board shall have the right of subrogation for moneys expended from the Fund as compensation for personal injury, death or property damage against any person who is liable for such injury, death or damage.
7. The Board shall promptly initiate an action to recover all costs and expenses incurred by the Commonwealth for investigation, containment and cleanup of a discharge of oil or threat of discharge against any person liable for a discharge of oil as specified in Article 11 (§ 62.1-44.34:14 et seq.) of Chapter 3.1 of this title; however, the Board shall seek recovery from an operator of expenditures from the Fund only in the amount by which such expenditures exceed the amount authorized to be disbursed to the operator under subdivisions A 2 through A 8 of this section.

3. No funds shall be paid for reimbursement of costs incurred for corrective action taken prior to December 22, 1989, by an owner or operator of an underground storage tank, or an owner of an underground storage tank exempted in subdivisions 1 and 2 of the definition of an underground storage tank in § 62.1-44.34:10 , or an owner of an aboveground storage tank with a capacity of 5,000 gallons or less used for storing heating oil for consumption on the premises where stored.

4. No funds shall be paid for reimbursement of costs incurred prior to January 1, 1992, by an operator of a facility for containment and cleanup of a release from a facility of a product subject to § 62.1-44.34:13 .

5. No funds shall be paid for reimbursement of moneys expended for payment of interest or other finance charges on loans which were used for corrective action or containment and cleanup of a release by a person in subdivisions A 3 or A 4 of this section, except for an owner or operator which is exempt from taxation under § 501 (c) (3) of the Internal Revenue Code, provided that: (i) the loan moneys have been paid for corrective action that was pre-approved by the Board, (ii) any and all disbursements received from the Fund shall be paid against the loan or for interest and points, and (iii) the payment of interest and points under this subdivision shall be limited to five years from the date the release is reported to the Board. The Board may extend the period for payment of interest and points if, in the judgment of the Board, such action is necessary. The restrictions imposed in clauses (i), (ii) and (iii) shall not apply to loans made prior to June 1, 1992, to an owner or operator exempt from taxation under § 501 (c) (3) of the Internal Revenue Code.

6. No funds shall be paid for penalties, charges or fines imposed pursuant to any applicable local, state or federal law.

7. No funds shall be paid for containment and cleanup costs that are reimbursed or are reimbursable from other applicable state or federal programs.

8. No funds shall be paid if the operator of the facility has not complied with applicable statutes or regulations governing reporting, prevention, containment and cleanup of a discharge of oil.

9. No funds shall be paid if the owner or operator of an underground storage tank or the operator of an aboveground storage tank facility fails to report a release of petroleum or a discharge of oil to the Board as required by applicable statutes, laws or regulations.

10. No funds shall be paid from the Fund unless a reimbursement claim has been filed with the Board within two years from the date the Board issues a site remediation closure letter for that release or July 1, 2000, whichever date is later.

11. The Fund balance shall be maintained at a level sufficient to ensure that the Fund can serve as a financial responsibility demonstration mechanism for the owners and operators of underground storage tanks. Any disbursements made by the Board pursuant to subdivision 2 of this subsection may be temporarily reduced or delayed, in whole or in part, if such action is necessary, in the judgment of the Board, to maintain the Fund balance.

History. 1987, c. 677; 1989, cc. 430, 627; 1990, cc. 580, 581, 582, 917; 1992, cc. 456, 819; 1993, cc. 20, 375; 1994, cc. 196, 535; 1996, cc. 737, 979; 1998, c. 87; 2004, c. 485.

The number of this section was assigned by the Virginia Code Commission, the number in the 1987 act having been 62.1-44.34:9 .

Editor’s note.

Acts 1990, c. 598 enacted an Article 11 of this chapter, comprising §§ 62.1-44.34:14 through 62.1-44.34:18 . Acts 1990, c. 917 enacted a new chapter 3.1:1 of this title, also comprising §§ 62.1-44.34:14 through 62.1-44.34:18 . At the direction of the Code Commission, the sections added by c. 917 were codified as Article 11 of this chapter, comprising §§ 62.1-44.34:14 through 62.1-44.34:18, and the sections added by c. 598 were codified as Article 12 of this chapter, comprising §§ 62.1-44.34:24 through 62.1-44.34:28 .

The federal Solid Waste Disposal Act (P.L. 98-616, § 9001 et seq.), referred to above, is codified as 42 U.S.C.S. § 6991 et seq., and “§ 9003 (h) (7) (B) of the United States Public Law 98-616” is codified as 42 U.SC.S. § 6991b(h)(7)(B).

The 2004 amendments.

The 2004 amendment by c. 485, in subdivision A 2 b, inserted the present second sentence and added the last sentence; and made minor stylistic changes.

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

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

Michie’s Jurisprudence.

For related discussion, see 1A M.J. Administrative Law, § 18; 15 M.J. Public Service and State Corporation Commissions, §§ 20, 33; 20 M.J. Water Companies and Waterworks, § 2; 3B M.J. Carriers, § 104; 15 M.J. Public Service and State Corporation Commissions, §§ 2, 30.

§ 62.1-44.34:12. Financial responsibility.

1. The Board shall adopt regulations that conform to the federal financial responsibility requirements of 42 U.S.C. § 6991b(d) and any regulations adopted thereunder. Owners and operators of underground storage tanks shall annually demonstrate and maintain evidence of financial responsibility for taking corrective action and for compensating third parties for bodily injury and property damage in accordance with regulations adopted by the Board. Financial responsibility established in accordance with regulations adopted by the Board may be demonstrated by any combination of the following mechanisms: insurance, guarantee, surety bond, letter of credit, irrevocable trust fund, qualification as a self-insurer, or the Fund. The Fund may be used as a mechanism to demonstrate the portion of the federal financial responsibility requirements that are in excess of the state financial responsibility requirements contained in subsection B.
2. State requirements for owners and operators of underground storage tanks for maintaining evidence of financial responsibility for taking corrective action and for compensating third parties for bodily injury and property damage shall be as follows:
   1. Owners and operators with 600,000 gallons or less of petroleum pumped on an annual basis into all underground storage tanks owned or operated, $5,000 per occurrence for taking corrective action and $15,000 per occurrence for compensating third parties, with an annual aggregate of $20,000;
   2. Owners and operators with between 600,001 to 1,200,000 gallons of petroleum pumped on an annual basis into all underground storage tanks owned or operated, $10,000 per occurrence for taking corrective action and $30,000 per occurrence for compensating third parties, with an annual aggregate of $40,000;
   3. Owners and operators with between 1,200,001 to 1,800,000 gallons of petroleum pumped on an annual basis into all underground storage tanks owned or operated, $20,000 per occurrence for taking corrective action and $60,000 per occurrence for compensating third parties, with an annual aggregate of $80,000;
   4. Owners and operators with between 1,800,001 to 2,400,000 gallons of petroleum pumped on an annual basis into all underground storage tanks owned or operated, $30,000 per occurrence for taking corrective action and $120,000 per occurrence for compensating third parties, with an annual aggregate of $150,000;
   5. Owners and operators with in excess of 2,400,000 gallons of petroleum pumped on an annual basis into all underground storage tanks owned or operated, $50,000 per occurrence for taking corrective action and $150,000 per occurrence for compensating third parties, with an annual aggregate of $200,000; and
   6. Other owners and operators, $50,000 per occurrence for taking corrective action and $150,000 per occurrence for compensating third parties, with an annual aggregate of $200,000.
3. Any claim arising out of conduct for which evidence of financial responsibility must be provided under this section may be asserted directly against the person guaranteeing or providing evidence of financial responsibility. In such a case, the person against whom the claim is made shall be entitled to invoke all rights and defenses which would have been available to the owner or operator had such action been brought directly against the owner or operator.This section shall not limit any other state or federal statutory, contractual, or common law liability of the guarantor for bad faith in negotiating or in failing to negotiate the settlement of any claim. This section does not diminish the liability of any person under § 107 or § 111 of the Comprehensive Environmental Response, Compensation and Liability Act of 1980, or other applicable law.The Board shall adopt regulations specifying compliance dates for the demonstration of financial responsibility required by this section, in accordance with the compliance dates established in federal regulations by the United States Environmental Protection Agency.
4. Owners and operators of underground storage tanks who are unable to demonstrate financial responsibility in the minimum amounts specified in subsection B, and operators of facilities who are unable to demonstrate financial responsibility in amounts established pursuant to subsection D of § 62.1-44.34:16 , may establish an insurance pool in order to demonstrate such financial responsibility. Any contract establishing such an insurance pool shall provide:
   1. For election by pool members of a governing authority for the pool, which may be a board of directors, a majority of whom shall be elected or appointed officials of pool members.
   2. A financial plan setting forth in general terms:
      1. The insurance coverages to be offered by the insurance pool, applicable deductible levels, and the maximum level of claims which the pool will self-insure;
      2. The amount of cash reserves to be set aside for the payment of claims;
      3. The amount of insurance to be purchased by the pool to provide coverage over and above the claims which are not to be satisfied directly from the pool’s resources; and
      4. The amount, if any, of aggregate excess insurance coverage to be purchased and maintained in the event that the insurance pool’s resources are exhausted in a given fiscal period.
      5. Such other provisions as are necessary or desirable for the operation of the pool.
5. The formation and operation of an insurance pool under this section shall be subject to approval by the State Corporation Commission which may, after notice and hearing, establish reasonable requirements and regulations for the approval and monitoring of such pools, including prior approval of pool administrators and provisions for periodic examinations of financial condition.The State Corporation Commission may disapprove an application for the formation of an insurance pool, and may suspend or withdraw such approval whenever it finds that such applicant or pool:
   1. Has refused to submit its books, papers, accounts, or affairs to the reasonable inspection of the Commission or its representative;
   2. Has refused, or its officers or agents have refused, to furnish satisfactory evidence of its financial and business standing or solvency;
   3. Is insolvent, or is in such condition that its further transaction of business in this Commonwealth is hazardous to its members and creditors in this Commonwealth, and to the public;
   4. Has refused or neglected to pay a valid final judgment against it within sixty days after its rendition;
   5. Has violated any law of this Commonwealth or has violated or exceeded the powers granted by its members;
   6. Has failed to pay any fees, taxes or charges imposed in this Commonwealth within sixty days after they are due and payable, or within sixty days after final disposition of any legal contest with respect to liability therefor; or
   7. Has been found insolvent by a court of any other state, or by the Insurance Commissioner or other proper officer or agency of any other state, and has been prohibited from doing business in such state.

3. A plan of management which provides for all of the following:

a. The means of establishing the governing authority of the pool;

b. The responsibility of the governing authority for fixing contributions to the pool, maintaining reserves, levying and collecting assessments for deficiencies, disposing of surpluses, and administration of the pool in the event of termination or insolvency;

c. The basis upon which new members may be admitted to, and existing members may leave, the pool;

d. The identification of funds and reserves by exposure areas; and

History. 1987, c. 677; 1989, c. 627; 1990, c. 581; 1992, c. 819; 1993, c. 375; 1996, c. 737; 1998, c. 87.

The number of this section was assigned by the Virginia Code Commission, the number in the 1987 act having been 62.1-44.34:10 .

Editor’s note.

The Comprehensive Environmental Response, Compensation and Liability Act of 1980 is codified generally as 42 U.S.C.S. § 9601 et seq.

Acts 1998, c. 87, cl. 2 provides: “That the requirements to maintain evidence of financial responsibility established by Chapter 677 of the 1987 Acts of Assembly, as amended, and all relevant regulations adopted thereunder shall remain in effect until the regulations required by the new subsection A of § 62.1-44.34:12 of this act become effective.”

Law Review.

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

§ 62.1-44.34:13. Levy of fee for Fund maintenance.

1. In order to generate revenue for the Fund and to make the Fund available to owners and operators of underground storage tanks and to owners and operators of aboveground storage tanks, there shall be imposed a fee of one-fifth of one cent on each gallon of the following fuels sold and delivered or used in the Commonwealth: gasoline, aviation gasoline, diesel fuel (including dyed diesel fuel), blended fuel, and heating oil, as such terms are defined in § 58.1-2201 ; however, such fee shall not be imposed on (i) gasoline, aviation gasoline, diesel fuel (including dyed diesel fuel), blended fuel, and heating oil sold and delivered to the United States or its departments, agencies and instrumentalities for the exclusive use by the United States or its departments, agencies and instrumentalities, (ii) alternative fuel as defined in § 58.1-2201 , or (iii) aviation jet fuel as defined in § 58.1-2201.
2. The fee shall be remitted to the Department of Motor Vehicles in the same manner and subject to the same provisions specified in Chapter 22 (§ 58.1-2200 et seq.) of Title 58.1, except § 58.1-2236 shall not apply.
3. Any person who purchases gasoline, aviation gasoline, diesel fuel (including dyed diesel fuel), blended fuel, or heating oil upon which the fee imposed by this article has been paid shall be entitled to a refund for the amount of the fee paid if such person subsequently transports and delivers such fuel to another state, district or country for sale or use outside the Commonwealth. The application for refund shall be accompanied by a paid ticket or invoice covering the sales of such fuel and shall be filed with the Commissioner of the Department of Motor Vehicles within one year of the date of payment of the fee for which the refund is claimed. A refund shall not be granted pursuant to this article on any fuel which is transported and delivered outside the Commonwealth in the fuel supply tank of a highway vehicle or aircraft.
4. To maintain the Fund at an appropriate operating level, the Commissioner of the Department of Motor Vehicles shall increase the fee to three-fifths of one cent when notified by the Comptroller that the Fund has been or is likely in the near future to be reduced below three million dollars, exclusive of fees collected pursuant to § 62.1-44.34:21 , and he shall reinstitute the one-fifth of one cent fee when the Comptroller notifies him that the Fund has been restored to twelve million dollars exclusive of fees collected pursuant to § 62.1-44.34:21 .
5. The Comptroller shall report to the Commissioner quarterly regarding the Fund expenditures and Fund total for the preceding quarter.
6. Revenues from such fees, less refunds and administrative expenses, shall be deposited in the Fund and used for the purposes set forth in this article.

History. 1989, c. 627; 1992, c. 819; 1993, c. 422; 1995, c. 664; 1996, c. 737; 1998, c. 87; 1999, cc. 119, 124; 2000, cc. 729, 758.

Editor’s note.

Acts 2000, c.c. 729 and 758, cl. 2 provides: “That the regulations of the Department of Motor Vehicles in effect on the effective date of this act shall continue in effect to the extent they are not in conflict with this act and shall be deemed to be regulations promulgated under this act.”

The 2000 amendments.

The 2000 amendments by cc. 729 and 758, effective January 1, 2001, are identical, and rewrote subsection A; in subsection B, substituted “Chapter 22 (§ 58.1-2200 et seq.) of Title 58.1, except § 58.1-2236 ” for “Article 4 (§ 58.1-2128 et seq.) of Chapter 21 of Title 58.1, except § 58.1-2129”; and in subsection C, substituted “gasoline, aviation gasoline, diesel fuel (including dyed diesel fuel), blended fuel” for “motor fuel, aviation motor fuel, dyed diesel fuel, diesel fuel” in the first sentence.

Law Review.

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

§ 62.1-44.34:14. Definitions.

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

“Aboveground storage tank” means any one or combination of tanks, including pipes, used to contain an accumulation of oil at atmospheric pressure, and the volume of which, including the volume of the pipes, is more than ninety percent above the surface of the ground. This term does not include line pipe and breakout tanks of an interstate pipeline regulated under the Hazardous Liquid Pipeline Safety Act of 1979 or the Natural Gas Pipeline Safety Act of 1968, as amended.

“Containment and cleanup” means abatement, containment, removal and disposal of oil and, to the extent possible, the restoration of the environment to its existing state prior to an oil discharge.

“Discharge” means any spilling, leaking, pumping, pouring, emitting, emptying or dumping.

“Facility” means any development or installation within the Commonwealth that deals in, stores or handles oil, and includes a pipeline.

“Oil” means oil of any kind and in any form, including, but not limited to, petroleum and petroleum by-products, fuel oil, lubricating oils, sludge, oil refuse, oil mixed with other wastes, crude oils and all other liquid hydrocarbons regardless of specific gravity.

“Operator” means any person who owns, operates, charters, rents or otherwise exercises control over or responsibility for a facility or a vehicle or vessel.

“Person” means any firm, corporation, association or partnership, one or more individuals, or any governmental unit or agency thereof.

“Pipeline” means all new and existing pipe, rights-of-way, and any equipment, facility, or building used in the transportation of oil, including, but not limited to, line pipe, valves and other appurtenances connected to line pipe, pumping units, fabricated assemblies associated with pumping units, metering and delivery stations and fabricated assemblies therein, and breakout tanks.

“Tank” means a device designed to contain an accumulation of oil and constructed of nonearthen materials, such as concrete, steel or plastic, which provide structural support. This term does not include flow-through process tanks as defined in 40 CFR Part 280.

“Tank vessel” means any vessel used in the transportation of oil as cargo.

“Vehicle” means any motor vehicle, rolling stock or other artificial contrivance for transport whether self-propelled or otherwise, except vessels.

“Vessel” includes every description of watercraft or other contrivance used as a means of transporting on water, whether self-propelled or otherwise, and shall include barges and tugs.

History. 1973, c. 417; 1976, c. 51; 1978, c. 816; 1990, c. 917; 1992, c. 456; 1994, c. 277; 1996, c. 737.

Editor’s note.

Acts 1990, c. 598 enacted an Article 11 of this chapter, comprising §§ 62.1-44.34:14 through 62.1-44.34:18 . Acts 1990, c. 917 enacted a new chapter 3.1:1 of this title, also comprising §§ 62.1-44.34:14 through 62.1-44.34:18 . At the direction of the Code Commission, the sections added by c. 917 were codified as Article 11 of this chapter, comprising §§ 62.1-44.34:14 through 62.1-44.34:18, and the sections added by c. 598 were codified as Article 12 of this chapter, comprising §§ 62.1-44.34:24 through 62.1-44.34:28 .

Law Review.

For survey of Virginia tort law for the year 1977-1978, see 64 Va. L. Rev. 1531 (1978).

§ 62.1-44.34:15. Oil discharge contingency plans.

1. No operator shall cause or permit the operation of a facility in the Commonwealth unless an oil discharge contingency plan applicable to the facility has been filed with and approved by the Board. No operator shall cause or permit a tank vessel to transport or transfer oil in state waters unless an oil discharge contingency plan applicable to the tank vessel has been filed with and approved by the Board or a vessel response plan applicable to the tank vessel and approved by the U.S. Coast Guard, pursuant to § 4202 of the federal Oil Pollution Act of 1990.
2. Application for approval of an oil discharge contingency plan shall be made to the Board and shall be accompanied by plans, specifications, maps and such other relevant information as may be required, in scope and detail satisfactory to the Board. An oil discharge contingency plan must conform to the requirements and standards determined by the Board to be necessary to ensure that the applicant can take such steps as are necessary to protect environmentally sensitive areas, to respond to the threat of an oil discharge, and to contain, clean up and mitigate an oil discharge within the shortest feasible time. Each such plan shall provide for the use of the best available technology at the time the plan is submitted for approval. The applicant shall notify the Board immediately of any significant change in the operation or capacity of or the type of product dealt in, stored, handled, transported or transferred in or by any facility or vessel covered by the plan that will necessitate a change in the plan and shall update the plan periodically as required by the Board, but in no event more frequently than once every 36 months. The Board, on a finding of need, may require an oil discharge exercise designed to demonstrate the facility’s or vessel’s ability to implement its oil discharge contingency plan either before or after the plan is approved.
3. The Board, after notice and opportunity for a conference pursuant to § 2.2-4019 , may modify its approval of an oil discharge contingency plan if it determines that:
   1. A change has occurred in the operation of any facility or vessel covered by the plan that necessitates an amended or supplemented plan;
   2. The facility’s or vessel’s discharge experience or its inability to implement its plan in an oil discharge exercise demonstrates a necessity for modification; or
   3. There has been a significant change in the best available technology since the plan was approved.
4. The Board, after notice and opportunity for hearing, may revoke its approval of an oil discharge contingency plan if it determines that:
   1. Approval was obtained by fraud or misrepresentation;
   2. The plan cannot be implemented as approved; or
   3. A term or condition of approval has been violated.

History. 1990, c. 917; 2004, c. 276.

Editor’s note.

Acts 1990, c. 917, cl. 3 provides that the Board shall promulgate regulations implementing this section on or before Jan. 1, 1992, and that subsection A of this section became effective on July 1, 1992. Clause 3 of this act also stated that the Board should consider certain factors in adopting such regulations.

The 2004 amendments.

The 2004 amendment by c. 276 added the language beginning “or a vessel response plan” at the end of the last sentence in subsection A; and substituted “36” for “thirty-six” in the next-to-last sentence of subsection B.

§ 62.1-44.34:15.1. Regulations for aboveground storage tanks.

The Board shall adopt regulations and develop procedures necessary to prevent pollution of state waters, lands, or storm drain systems from the discharge of oil from new and existing aboveground storage tanks. These regulations shall be developed in substantial conformity with the current codes and standards recommended by the National Fire Protection Association. To the extent that they are consistent with the Board’s program, the Board shall incorporate accepted industry practices contained in the American Petroleum Institute publications and other accepted industry standards when developing the regulations contemplated by this section. The regulations shall provide the following:

1. For existing aboveground storage tanks at facilities with an aggregate capacity of one million gallons or greater:
   1. To prevent leaks from aboveground storage tanks, requirements for inventory control, testing for significant inventory variations (e.g., test procedures in accordance with accepted industry practices, where feasible, and approved by the Board) and formal tank inspections every five years in accordance with accepted industry practices and procedures approved by the Board. Initial testing shall be on a schedule approved by the Board. Aboveground storage tanks totally off ground with all associated piping off ground, aboveground storage tanks with a capacity of 5,000 gallons or less located within a building or structure designed to fully contain a discharge of oil, and aboveground storage tanks containing No. 5 or No. 6 fuel oil for consumption on the premises where stored shall not be subject to inventory control and testing for significant variations. In accordance with subdivision 6, the Board shall promulgate regulations which provide for variances from inventory control and testing for significant variation for (i) aboveground storage tanks with Release Prevention Barriers (RPBs) with all associated piping off ground, (ii) aboveground storage tanks with a de minimis capacity (12,000 gallons or less), and (iii) other categories of aboveground storage tanks, including those located within a building or structure, as deemed appropriate;
   2. To prevent overfills, requirements for safe fill and shut down procedures, including an audible staged alarm with immediate and controlled shut down procedures, or equivalent measures established by the Board;
   3. To prevent leaks from piping, requirements for cathodic protection, and pressure testing to be conducted at least once every five years, or equivalent measures established by the Board;
   4. To prevent and identify leaks from any source, requirements (i) for a visual inspection of the facility each day of normal operations and a weekly inspection of the facility with a checklist approved by the Board, performed by a person certified or trained by the operator in accordance with Board requirements, (ii) for monthly gauging and inspection of all ground water monitoring wells located at the facility, and monitoring of the well head space for the presence of vapors indicating the presence of petroleum, and (iii) for quarterly sampling and laboratory analysis of the fluids present in each such monitoring well to determine the presence of petroleum or petroleum by-product contamination; and
   5. To ensure proper training of individuals conducting inspections, requirements for proper certification or training by operators relative to aboveground storage tanks.
2. For existing aboveground storage tanks at facilities with an aggregate capacity of less than one million gallons but more than 25,000 gallons:
3. For aboveground storage tanks existing prior to the effective date of the regulations required by this section, when the results of a tank inspection indicate the need for replacement of the tank bottom, the operator of a facility shall install a release prevention barrier (RPB) capable of: (i) preventing the release of the oil and (ii) containing or channeling the oil for leak detection. The decision to replace an existing tank bottom shall be based on the criteria established by regulations pursuant to this section.
4. For aboveground storage tanks at facilities with an aggregate capacity of one million gallons or greater existing prior to January 29, 1992, and located in the City of Fairfax, the Board shall establish performance standards for operators to bring aboveground storage tanks into substantial conformance with regulations adopted in accordance with subdivision 5. Operators shall meet such performance standards no later than July 1, 2021.
5. The Board shall establish performance standards for aboveground storage tanks installed, retrofitted or brought into use after the effective date of the regulations promulgated pursuant to this subsection that incorporate all technologies designed to prevent oil discharges that have been proven in accordance with accepted industry practices and shown to be cost-effective.
6. The Board shall establish criteria for granting variances from the requirements of the regulations promulgated pursuant to this section (i) on a case-by-case basis and (ii) by regulation for categories of aboveground storage tanks, except that the Board shall not grant a variance that would result in an unreasonable risk to the public health or the environment. Variances by regulation shall be based on relevant factors such as tank size, use, and location. Within 30 days after the grant of a variance for a facility, the Board shall send written notification of the variance to the chief administrative officer of the locality in which the facility is located.

a. To prevent leaks from aboveground storage tanks, requirements for inventory control and testing for significant inventory variations (e.g., test procedures in accordance with accepted industry practices, where feasible, and approved by the Board). Initial testing shall be on a schedule approved by the Board. Aboveground storage tanks totally off ground with all associated piping off ground, aboveground storage tanks with a capacity of 5,000 gallons or less located within a building or structure designed to fully contain a discharge of oil, and aboveground storage tanks containing No. 5 or No. 6 fuel oil for consumption on the premises where stored shall not be subject to inventory control and testing for significant variations. In accordance with subdivision 6, the Board shall promulgate regulations which provide for variances from inventory control and testing for significant variation for (i) aboveground storage tanks with Release Prevention Barriers (RPBs) with all associated piping off ground, (ii) aboveground storage tanks with a de minimis capacity (12,000 gallons or less), and (iii) other categories of aboveground storage tanks, including those located within a building or structure, as deemed appropriate;

b. To prevent overfills, requirements for safe fill and shut down procedures;

c. To prevent leaks from piping, requirements for pressure testing to be conducted at least once every five years or equivalent measures established by the Board; and

d. To prevent and identify leaks from any source, requirements for a visual inspection of the facility each day of normal operations and a weekly inspection of the facility with a checklist approved by the Board, performed by a person certified or trained by the operator in accordance with Board requirements developed in accordance with subdivision 1.

History. 1992, c. 456; 1993, c. 353; 1994, c. 277; 1996, c. 737; 2011, cc. 883, 884.

Editor’s note.

Acts 1992, c. 456, cl. 2 provides that the Board shall promulgate regulations implementing this section not later than July 1, 1993.

The 2011 amendments.

The 2011 amendments by cc. 883 and 884 are identical, and substituted “subdivision 6” for “subdivision 5 of this section” in the fourth sentence of subdivisions 1 a and 2 a, deleted “of this section” at the end of subdivision 2 d., added subdivision 4, and redesignated former subdivisions 4 and 5 as 5 and 6.

§ 62.1-44.34:16. Financial responsibility for vessels and facilities.

1. The operator of any tank vessel entering upon state waters shall have a Certificate of Financial Responsibility approved by the U.S. Coast Guard pursuant to § 4202 of the federal Oil Pollution Act of 1990 or shall deposit with the Board cash or its equivalent in the amount of $500 per gross ton of such vessel. Any such cash deposits received by the Board shall be held in escrow in the Virginia Petroleum Storage Tank Fund.
2. If the Board determines that oil has been discharged in violation of this article or that there has been a substantial threat of such discharge from a vessel for which a cash deposit has been made, any amount held in escrow may be used to pay any fines, penalties or damages imposed under this chapter.
3. The Board shall exempt an operator of a tank vessel from the cash deposit requirements specified in this section if the operator of the tank vessel provides evidence of financial responsibility pursuant to the terms and conditions of this subsection. The Board shall adopt requirements for operators of tank vessels for maintaining evidence of financial responsibility in an amount equivalent to the cash deposit which would be required for such tank vessel pursuant to this section.
4. The Board is authorized to promulgate regulations requiring operators of facilities to demonstrate financial responsibility sufficient to comply with the requirements of this article as a condition of operation. Operators of facilities shall demonstrate financial responsibility based on the total storage capacity of all facilities operated within the Commonwealth. Regulations governing the amount of any financial responsibility required shall take into consideration the type, oil storage or handling capacity and location of a facility, the risk of a discharge of oil at that type of facility in the Commonwealth, the potential damage or injury to state waters or the impairment of their beneficial use that may result from a discharge at that type of facility, the potential cost of containment and cleanup at that type of facility, and the nature and degree of injury or interference with general health, welfare and property that may result from a discharge at that type of facility. In no instance shall the financial responsibility requirements for facilities exceed $.05 per gallon of aboveground storage capacity or $5 million for a pipeline. In no instance shall any financial test of self-insurance require the operator of a facility to demonstrate more than $1 of net worth for each dollar of required financial responsibility. If such net worth does not equal the required financial responsibility, then the operator shall demonstrate the minimum required amount by a combination of financial responsibility mechanisms in accordance with subsection E of this section. No governmental agency shall be required to comply with any such regulations.
5. Financial responsibility may be demonstrated by self-insurance, insurance, guaranty or surety, or any other method approved by the Board, or any combination thereof, under the terms the Board may prescribe. To obtain an exemption from the cash deposit requirements under this section: the operator of a tank vessel and insurer, guarantor or surety shall appoint an agent for service of process in the Commonwealth; any insurer must be authorized by the Commonwealth to engage in the insurance business; and any instrument of insurance, guaranty or surety must provide that actions may be brought on such instrument of insurance, guaranty or surety directly against the insurer, guarantor or surety for any violation of this chapter by the operator up to, but not exceeding, the amount insured, guaranteed or otherwise pledged. An operator of a tank vessel or facility whose financial responsibility is accepted by the Board under this subsection shall notify the Board at least 30 days before the effective date of a change, expiration or cancellation of any instrument of insurance, guaranty or surety. Operators of facilities who are unable to demonstrate financial responsibility in the amounts established pursuant to subsection D may establish an insurance pool pursuant to the requirements of § 62.1-44.34:12 in order to demonstrate such financial responsibility.
6. Acceptance of proof of financial responsibility for tank vessels shall expire:
   1. One year from the date on which the Board exempts an operator from the cash deposit requirement based on evidence of self-insurance, except that the Board may establish by regulation a different expiration date for acceptance of evidence of self-insurance submitted by public agencies;
   2. On the effective date of any change in the operator’s instrument of insurance, guaranty or surety; or
   3. Upon the expiration or cancellation of any instrument of insurance, guaranty or surety.Application for renewal of acceptance of proof of financial responsibility shall be filed 30 days before the date of expiration.
7. Operators of facilities shall annually demonstrate and maintain evidence of financial responsibility for containment and cleanup in accordance with regulations adopted by the Board.
8. The Board, after notice and opportunity for hearing, may revoke its acceptance of evidence of financial responsibility if it determines that:
   1. Acceptance has been procured by fraud or misrepresentation; or
   2. A change in circumstances has occurred that would warrant denial of acceptance of evidence of financial responsibility under this section or the requirements established by the Board pursuant to this section.
9. It is not a defense to any action brought for failure to comply with the cash deposit requirement or to provide acceptable evidence of financial responsibility that the person charged believed in good faith that the tank vessel or facility or the operator of the tank vessel or facility had made the required cash deposit or possessed evidence of financial responsibility accepted by the Board.

History. 1990, c. 917; 1992, cc. 456, 819; 1993, c. 375; 1994, c. 196; 1999, c. 91; 2004, c. 276.

The 2004 amendments.

The 2004 amendment by c. 276 inserted the language “have a Certificate of Financial Responsibility . . . of 1990 or shall” in subsection A; in subsection D, substituted “$.05” for “five cents” and “$5 million” for “five million dollars” in the fourth sentence and substituted “$1” for “one dollar” in the fifth sentence; and substituted “30” for “thirty” in the next-to-last sentence of subsection E and in the last paragraph of subdivision F 3.

§ 62.1-44.34:17. Exemptions.

1. Sections 62.1-44.34:15 and 62.1-44.34:16 do not apply to a facility having a maximum storage or handling capacity of less than 25,000 gallons of oil or to a tank vessel having a maximum storage, handling or transporting capacity of less than 15,000 gallons of oil or to a tank used to contain oil for less than 120 days and only in connection with activities related to the containment and cleanup of oil or to any vessel engaged only in activities within state waters related to the containment and cleanup of oil, including response-related training or drills.
2. Facilities having a maximum storage or handling capacity of between 25,000 gallons and one million gallons of oil shall be exempt until July 1, 1993, from any requirement under § 62.1-44.34:15 to install ground water monitoring wells or other ground water protection devices.
3. For purposes of §§ 62.1-44.34:15 and 62.1-44.34:16 , the definition of oil does not include nonpetroleum hydrocarbon-based animal and vegetable oils, or petroleum, including crude oil or any fraction thereof, which is specifically listed or designated as a hazardous substance under subparagraphs (A) through (F) of section 101 (14) of the Comprehensive Environmental Response, Compensation, and Liability Act (42 U.S.C. § 9601) and which is subject to the provisions of that Act.
4. Facilities not engaged in the resale of oil from aboveground storage tanks shall not be subject to regulations promulgated pursuant to § 62.1-44.34:15.1 until July 1, 1995, or any date later specified by the Board.
5. Aboveground storage tanks with a capacity of 5,000 gallons or less containing heating oil for consumption on the premises where stored shall be exempt from the provisions of § 62.1-44.34:15.1 .
6. For purposes of §§ 62.1-44.34:15.1 and 62.1-44.34:16 , and for the purposes of any requirement under § 62.1-44.34:15 to install ground water monitoring wells, ground water protection devices, or to conduct ground water characterization studies, the definition of oil does not include asphalt and asphalt compounds which are not liquid at standard conditions of temperature and pressure (sixty degrees Fahrenheit and 14.7 pounds per square inch absolute).

History. 1990, c. 917; 1992, c. 456; 1994, cc. 277, 460.

§ 62.1-44.34:18. Discharge of oil prohibited; liability for permitting discharge.

1. The discharge of oil into or upon state waters, lands, or storm drain systems within the Commonwealth is prohibited. For purposes of this section, discharges of oil into or upon state waters include discharges of oil that (i) violate applicable water quality standards or a permit or certificate of the Board or (ii) cause a film or sheen upon or discoloration of the surface of the water or adjoining shorelines or cause a sludge or emulsion to be deposited beneath the surface of the water or upon adjoining shorelines.
2. Any person discharging or causing or permitting a discharge of oil into or upon state waters, lands, or storm drain systems, discharging or causing or permitting a discharge of oil which may reasonably be expected to enter state waters, lands, or storm drain systems, or causing or permitting a substantial threat of such discharge and any operator of any facility, vehicle or vessel from which there is a discharge of oil into or upon state waters, lands, or storm drain systems, or from which there is a discharge of oil which may reasonably be expected to enter state waters, lands, or storm drain systems, or from which there is a substantial threat of such discharge shall, immediately upon learning of such discharge or threat of discharge, implement any applicable oil spill contingency plan approved under this article or take such other action as may be deemed necessary in the judgment of the Board to contain and clean up such discharge or threat of such discharge. In the event of such discharge or threat of discharge, if it cannot be determined immediately the person responsible therefor, or if the person is unwilling or unable to promptly contain and clean up such discharge or threat of discharge, the Board may take such action as is necessary to contain and clean up the discharge or threat of discharge, including the engagement of contractors or other competent persons.
3. Any person discharging or causing or permitting a discharge of oil into or upon state waters, lands, or storm drain systems within the Commonwealth, discharging or causing or permitting a discharge of oil which may reasonably be expected to enter state waters, lands, or storm drain systems, or causing or permitting a substantial threat of such discharge and any operator of any facility, vehicle or vessel from which there is a discharge of oil into or upon state waters, lands, or storm drain systems within the Commonwealth, or from which there is a discharge of oil which may reasonably be expected to enter state waters, lands, or storm drain systems, or from which there is a substantial threat of such discharge, shall be liable to:
   1. The Commonwealth of Virginia or any political subdivision thereof for all costs and expenses of investigation, containment and cleanup incurred as a result of such discharge or threat of discharge, including, but not limited to, reasonable personnel, administrative, and equipment costs and expenses directly incurred by the Commonwealth or political subdivision, in and for preventing or alleviating damage, loss, hardship, or harm to human health or the environment caused or threatened to be caused by such discharge or threat of discharge;
   2. The Commonwealth of Virginia or any political subdivision thereof for all damages to property of the Commonwealth of Virginia or the political subdivision caused by such discharge;
   3. The Commonwealth of Virginia or any political subdivision thereof for loss of tax or other revenues caused by such discharge, and compensation for the loss of any natural resources that cannot be restocked, replenished or restored; and
   4. Any person for injury or damage to person or property, real or personal, loss of income, loss of the means of producing income, or loss of the use of the damaged property for recreational, commercial, industrial, agricultural or other reasonable uses, caused by such discharge.
4. Notwithstanding any other provision of law, a person who renders assistance in containment and cleanup of a discharge of oil prohibited by this article or a threat of such discharge shall be liable under this section for damages for personal injury and wrongful death caused by that person’s negligence, and for damages caused by that person’s gross negligence or willful misconduct, but shall not be liable for any other damages or costs and expenses of containment and cleanup under this section that are caused by the acts or omissions of such person in rendering such assistance; however, such liability provision shall not apply to a person discharging or causing or permitting a discharge of oil into or upon state waters, lands, or storm drain systems, discharging or causing or permitting a discharge of oil which may reasonably be expected to enter state waters, lands, or storm drain systems, or causing or permitting a substantial threat of such discharge, or to such person’s employee. Nothing in this article shall affect the right of any person who renders such assistance to reimbursement for the costs of the containment and cleanup under the applicable provisions of this article or the Federal Water Pollution Control Act, as amended, or any rights that person may have against any third party whose acts or omissions caused or contributed to the prohibited discharge of oil or threat of such discharge. In addition, a person, other than an operator, who voluntarily, without compensation, and upon the request of a governmental agency, assists in the containment or cleanup of a discharge of oil, shall not be liable for any civil damages resulting from any act or omission on his part in the course of his rendering such assistance in good faith; nor shall any person or any organization exempt from income taxation under § 501 (c) (3) of the Internal Revenue Code who notifies or assists in notifying the membership of such organization to assist in the containment or cleanup of a discharge of oil, voluntarily, without compensation, and upon the request of a government agency, be liable for any civil damages resulting from such notification rendered in good faith.
5. In any action brought under this article, it shall not be necessary for the Commonwealth, political subdivision or any person, to plead or prove negligence in any form or manner.
6. In any action brought under this article, the Commonwealth, political subdivision or any person, if a prevailing party, shall be entitled to an award of reasonable attorneys’ fees and costs.
7. It shall be a defense to any action brought under subdivision C 2, C 3, or C 4 of this section that the discharge was caused solely by (i) an act of God, (ii) an act of war, (iii) a willful act or omission of a third party who is not an employee, agent or contractor of the operator, or (iv) any combination of the foregoing; however, this subsection shall not apply to any action brought against (a) a person or operator who failed or refused to report a discharge as required by § 62.1-44.34:19 ; or (b) a person or operator who failed or refused to cooperate fully in any containment and cleanup or who failed or refused to effect containment and cleanup as required by subsection B of this section.
8. In any action brought under subdivision C 2, C 3, or C 4 of this section, the total liability of a person or operator under this section for each discharge of oil or threat of such discharge shall not exceed the amount of financial responsibility required under § 62.1-44.34:16 or $10,000,000, whichever is greater; however, there shall be no limit of liability imposed under this section: (a) if the discharge of oil or threat of such discharge was caused by gross negligence or willful misconduct on the part of the person or the operator discharging or causing or permitting discharge or threat of discharge or by an agent, employee or contractor of such person or operator, or by the violation of any applicable safety, construction or operation regulations by such person or operator or an agent, employee or contractor of such person or operator; or (b) if the operator or person discharging or causing or permitting a discharge or threat of discharge failed or refused to report the discharge as required by § 62.1-44.34:19 , or failed or refused to cooperate fully in any containment and cleanup or to effect containment and cleanup as required by subsection B of this section.
9. An operator that incurs costs pursuant to subsection B shall have the right to recover all or part of such costs in an action for contribution against any person or persons whose acts or omissions caused or contributed to the discharge or threat of discharge. In resolving contribution claims under this article, the court may allocate costs among the parties using such equitable factors as the court deems appropriate.
10. Any person or operator who pays costs or damages pursuant to subsection C shall have the right to recover all or part of such costs or damages in an action for contribution against any person or persons whose act or omission has caused or contributed to the discharge or threat of discharge. In resolving contribution claims under this article, the court may allocate costs or damages among the parties using such equitable factors as the court deems appropriate.

History. 1973, c. 417; 1976, c. 51; 1978, c. 816; 1989, c. 627; 1990, cc. 917, 962; 1992, c. 456; 1998, cc. 90, 836.

Editor’s note.

Acts 1990, c. 962 purported to amend §§ 62.1-44.34:2 and 62.1-44.34:3, which were repealed by Acts 1990, c. 917. The effect of these amendments was to add lands and storm drain systems in the Commonwealth, along with state waters, as places where the discharging of oil is prohibited. At the direction of the Code Commission, these amendments have been effectuated in this corresponding new Code section.

Law Review.

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

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 annual survey of Virginia law article, “Local Government Law,” see 47 U. Rich. L. Rev. 257 (2012).

§ 62.1-44.34:19. Reporting of discharge.

1. Any person discharging or causing or permitting a discharge of oil into or upon state waters, lands, or storm drain systems within the Commonwealth or discharging or causing or permitting a discharge of oil which may reasonably be expected to enter state waters, lands, or storm drain systems within the Commonwealth, and any operator of any facility, vehicle or vessel from which there is a discharge of oil into state waters, lands, or storm drain systems, or from which there is a discharge of oil which may reasonably be expected to enter state waters, lands, or storm drain systems, shall, immediately upon learning of the discharge, notify the Board, the director or coordinator of emergency services appointed pursuant to § 44-146.19 for the political subdivision in which the discharge occurs and any other political subdivision reasonably expected to be affected by the discharge, and appropriate federal authorities of such discharge. Notice will be deemed to have been given under this section for any discharge of oil to state lands in amounts less than twenty-five gallons if the recordkeeping requirements of subsection C of § 62.1-44.34:19.2 have been met and the oil has been cleaned up in accordance with the requirements of this article.
2. Observations and data gathered as a result of the monthly and quarterly inspection activities required by § 62.1-44.34:15.1 (1) (d) shall be maintained on site pursuant to § 62.1-44.34:19.2 , and compiled into a summary, on a form developed by the Board, such summary to be submitted to the Board annually on a schedule established by the Board.  Should any such observations or data indicate the presence of petroleum hydrocarbons in ground water, the results shall be reported immediately to the Board and to the local director or coordinator of emergency services appointed pursuant to § 44-146.19.

History. 1978, c. 816; 1990, cc. 917, 962; 1992, c. 456.

Editor’s note.

Acts 1990, c. 962 purported to amend § 62.1-44.34:4, which was repealed by Acts 1990, c. 917. The effect of this amendment was to add lands and storm drain systems in the Commonwealth, along with state waters, as places where the discharging of oil is prohibited. At the direction of the Code Commission, this amendment has been effectuated in this corresponding new Code section.

§ 62.1-44.34:19.1. Registration of aboveground storage tanks.

1. The Board shall compile an inventory of facilities with an aboveground storage capacity of more than 1320 gallons of oil or individual aboveground storage tanks having a storage capacity of more than 660 gallons of oil within the Commonwealth.  To develop such an inventory, the Board is hereby authorized to develop regulations regarding registration requirements for facilities and aboveground storage tanks.  In adopting such regulations, the Board shall consider whether any registration program required under federal law or regulations is sufficient for purposes of this section.
2. Within ninety days of the effective date of the regulations referred to in subsection A, the operators of a facility shall register the facility with the Board and the local director or coordinator of emergency services appointed pursuant to § 44-146.19, and provide an inventory of aboveground storage tanks at the facility. If the Board determines that registration under federal law or regulations is inadequate for the purpose of compiling its inventory and that additional registration requirements are necessary, the Board is authorized to assess a fee, according to a schedule based on the size and type of the facility or tank, not to exceed $100 per facility or $50 per tank, whichever is less.  Such fee shall be paid at the time of registration or registration renewal.  Registration shall be renewed every five years or whenever title to a facility or tank is transferred, whichever first occurs.
3. The operator shall, within thirty days after the upgrade, repair, replacement, or closure of an existing tank or installation of a new tank, notify the Board in writing of such upgrade, repair, replacement, closure or installation.

History. 1992, c. 456.

§ 62.1-44.34:19.2. Recordkeeping and access to records and facilities.

1. All records relating to compliance with the requirements of this article shall be maintained by the operator of a facility at the facility or at an alternate location approved by the Board for a period of at least five years.  Such records shall be available for inspection and copying by the Board and shall include books, papers, documents and records relating to the daily measurement and inventory of oil stored at a facility, all information relating to tank testing, all records relating to spill events or other discharges of oil from the facility, all supporting documentation for developed contingency plans, and any records required to be kept by regulations of the Board.
2. In the case of a pipeline, all records relating to compliance with the requirements of the Hazardous Liquid Pipeline Safety Act of 1979, all records relating to spill events or other discharges of oil from the pipeline in the Commonwealth, and all supporting documentation for approved contingency plans shall be maintained by the operator of a pipeline at the facility or at an alternate location approved by the Board for a period of at least five years.
3. A record of all discharges of oil to state lands in amounts less than twenty-five gallons shall be established and maintained for a period of five years in accordance with subsections A and B of this section.
4. Every operator of a facility shall, upon reasonable notice, permit at reasonable times and under reasonable circumstances a duly designated official of the political subdivision in which the facility is located or of any political subdivision within one mile of the facility or duly designated agent retained or employed by such political subdivisions to have access to and to copy all information required to be kept in subsections A, B and C.
5. Any duly designated official of the political subdivision in which the facility is located or of any political subdivision within one mile of the facility or duly designated agent retained or employed by such political subdivisions may, at reasonable times and under reasonable circumstances, enter and inspect any facility, provided that in nonemergency situations such local official, agent or employee shall be accompanied by the operator or his designee.

History. 1992, c. 456.

§ 62.1-44.34:20. Enforcement and penalties.

1. Upon a finding of a violation of this article or a regulation or term or condition of approval issued pursuant to this article, the Board is authorized to issue a special order requiring any person to cease and desist from causing or permitting such violation or requiring any person to comply with any such provision, regulation or term or condition of approval. Such special orders shall be issued only after notice and an opportunity for hearing except that, if the Board finds that any discharge in violation of this article poses a serious threat to (i) the public health, safety or welfare or the health of animals, fish, botanic or aquatic life; (ii) a public water supply; or (iii) recreational, commercial, industrial, agricultural or other reasonable uses, the Board may issue, without advance notice or hearing, an emergency special order requiring the operator of any facility, vehicle or vessel to cease such discharge immediately, to implement any applicable contingency plan and to effect containment and cleanup. Such emergency special order may also require the operator of a facility to modify or cease regular operation of the facility, or any portion thereof, until the Board determines that continuing regular operation of the facility, or such portion thereof, will not pose a substantial threat of additional or continued discharges. The Board shall affirm, modify, amend or cancel any such emergency order after providing notice and opportunity for hearing to the operator charged with the violation. The notice of the hearing and the emergency order shall be issued at the same time. If an operator 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 subsection B of this section, 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 modification or cessation of operations, the Board shall provide an opportunity for a hearing within 48 hours of the issuance of the injunction.
2. In the event of a violation of this article or a regulation, administrative or judicial order, or term or condition of approval issued under this article, or in the event of failure to comply with a special order issued by the Board pursuant to this section, the Board is authorized to proceed by civil action to obtain an injunction of such violation, to obtain such affirmative equitable relief as is appropriate and to recover all costs, damages and civil penalties resulting from such violation or failure to comply. The Board shall be entitled to an award of reasonable attorneys’ fees and costs in any action in which it is a prevailing party.
3. Any person who violates or causes or permits to be violated a provision of this article, or a regulation, administrative or judicial order, or term or condition of approval issued under this article, shall be subject to a civil penalty for each such violation as follows:
   1. For failing to obtain approval of an oil discharge contingency plan as required by § 62.1-44.34:15 , not less than $1,000 nor more than $50,000 for the initial violation, and $5,000 per day for each day of violation thereafter;
   2. For failing to maintain evidence of financial responsibility as required by § 62.1-44.34:16 , not less than $1,000 nor more than $100,000 for the initial violation, and $5,000 per day for each day of violation thereafter;
   3. For discharging or causing or permitting a discharge of oil into or upon state waters, or owning or operating any facility, vessel or vehicle from which such discharge originates in violation of § 62.1-44.34:18 , up to $100 per gallon of oil discharged;
   4. For failing to cooperate in containment and cleanup of a discharge as required by § 62.1-44.34:18 or for failing to report a discharge as required by § 62.1-44.34:19 , not less than $1,000 nor more than $50,000 for the initial violation, and $10,000 for each day of violation thereafter; and
   5. For violating or causing or permitting to be violated any other provision of this article, or a regulation, administrative or judicial order, or term or condition of approval issued under this article, up to $32,500 for each violation. Each day of violation of each requirement shall constitute a separate offense.
4. Civil penalties may be assessed under this article either by a court in an action brought by the Board pursuant to this section, as specified in § 62.1-44.15 , or with the consent of the person charged, in a special order issued by the Board. All penalties shall be paid into the state treasury and deposited by the State Treasurer into the Virginia Underground Petroleum Storage Tank Fund as established in § 62.1-44.34:11 . In determining the amount of any penalty, consideration shall be given to the willfulness of the violation, any history of noncompliance, the actions of the person in reporting, containing and cleaning up any discharge or threat of discharge, the damage or injury to state waters or the impairment of their beneficial use, the cost of containment and cleanup, the nature and degree of injury to or interference with general health, welfare and property, and the available technology for preventing, containing, reducing or eliminating the discharge.
5. Any person who knowingly violates, or causes or permits to be violated, a provision of this article, or a regulation, administrative or judicial order, or term or condition of approval issued under this article shall be guilty of a misdemeanor punishable by confinement in jail for not more than 12 months and a fine of not more than $100,000, either or both. Any person who knowingly or willfully makes any false statement, representation or certification in any application, record, report, plan or other document filed or required to be maintained by this article or by administrative or judicial order issued under this article shall be guilty of a felony punishable by a term of imprisonment of not less than one nor more than three years and a fine of not more than $100,000, either or both. In the case of a discharge of oil into or upon state waters:
   1. Any person who negligently discharges or negligently causes or permits such discharge shall be guilty of a misdemeanor punishable by confinement in jail for not more than 12 months and a fine of not more than $50,000, either or both.
   2. Any person who knowingly and willfully discharges or knowingly and willfully causes or permits such discharge shall be guilty of a felony punishable by a term of imprisonment of not less than one year nor more than 10 years and a fine of not more than $100,000, either or both.
6. Each day of violation of each requirement shall constitute a separate offense. In the event the violation of this article follows a prior felony conviction under subdivision E 2 of this section, such violation shall constitute a felony and shall be punishable by a term of imprisonment of not less than two years nor more than 10 years and a fine of not more than $200,000, either or both.
7. Upon conviction for a violation of any provision of this article, or a regulation, administrative or judicial order, or term or condition of approval issued under this article, a defendant who is not an individual shall be sentenced to pay a fine not exceeding the greater of:
   1. $1 million; or
   2. An amount that is three times the economic benefit, if any, realized by the defendant as a result of the offense.
8. Any tank vessel entering upon state waters which fails to provide evidence of financial responsibility required by § 62.1-44.34:16 , and any vessel from which oil is discharged into or upon state waters, may be detained and held as security for payment to the Commonwealth of any damages or penalties assessed under this section. Such damages and penalties shall constitute a lien on the vessel and the lien shall secure all costs of containment and cleanup, damages, fines and penalties, as the case may be, for which the operator may be liable. The vessel shall be released upon posting of a bond with surety in the maximum amount of such damages or penalties.

History. 1990, c. 917; 1992, c. 456; 2005, c. 706.

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 substituted “$32,500” for “$25,000” in subdivision C 5; inserted “as specified in § 62.1-44.15 ” in the first sentence of subsection D; and made minor stylistic changes.

§ 62.1-44.34:21. Administrative fees.

1. The Board is authorized to collect from any applicant for approval of an oil discharge contingency plan and from any operator seeking acceptance of evidence of financial responsibility fees sufficient to meet, but not exceed, the costs of the Board related to implementation of § 62.1-44.34:15 as to an applicant for approval of an oil discharge contingency plan and of § 62.1-44.34:16 as to an operator seeking acceptance of evidence of financial responsibility.  The Board shall establish by regulation a schedule of fees that takes into account the nature and type of facility and the effect of any prior professional certification or federal review or approval on the level of review required by the Board.  All such fees received by the Board shall be used exclusively to implement the provisions of this article.
2. Fees charged an applicant should reflect the average time and complexity of processing approvals in each of the various categories.
3. When adopting regulations for fees, the Board shall take into account the fees charged in neighboring states, and the importance of not placing existing or prospective industries in the Commonwealth at a competitive disadvantage.  Within six months of receipt of any federal moneys that would offset the costs of implementing this article, the Board shall review the amount of fees set by regulation to determine the amount of fees which should be refunded.  Such refunds shall only be required if the fees plus the federal moneys received for the implementation of the program under this article as it applies to facilities exceed the actual cost to the Board of administering the program.
4. On October 1, 1995, and every two years thereafter, the Board shall make an evaluation of the implementation of the fee programs and provide this evaluation in writing to the Senate Committees on Agriculture, Conservation and Natural Resources, and on Finance and Appropriations; and the House Committees on Appropriations, Chesapeake and Its Tributaries, and Finance.

History. 1990, c. 917; 1992, c. 345.

Editor’s note.

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

§ 62.1-44.34:22. Applicability of Administrative Process Act.

The Administrative Process Act (§ 2.2-4000 et seq.) shall govern the activities and the proceedings of the Board under this article.

History. 1990, c. 917.

§ 62.1-44.34:23. Exceptions.

1. Nothing in this article shall apply to: (i) normal discharges from properly functioning vehicles and equipment, marine engines, outboard motors or hydroelectric facilities; (ii) accidental discharges from farm vehicles or noncommercial vehicles; (iii) accidental discharges from the fuel tanks of commercial vehicles or vessels that have a fuel tank capacity of 150 gallons or less; (iv) discharges authorized by a valid permit issued by the Board pursuant to § 62.1-44.15 (5) or by the United States Environmental Protection Agency; (v) underground storage tanks regulated under a state program; (vi) releases from underground storage tanks as defined in § 62.1-44.34:8 , regardless of when the release occurred; (vii) discharges of hydrostatic test media from a pipeline undergoing a hydrostatic test in accordance with federal pipeline safety regulations; or (viii) discharges authorized by the federal on-scene coordinator and the Executive Director or his designee in connection with activities related to the recovery of spilled oil where such activities are undertaken to minimize overall environmental damage due to an oil spill into or on state waters. However, the exception provided in clause (viii) shall in no way reduce the liability of the person who initially spilled the oil which is being recovered.
2. Notwithstanding the exemption set forth in clause (vi) of subsection A of this section, a political subdivision may recover pursuant to subsection C of § 62.1-44.34:18 for a discharge of oil into or upon state waters, lands, or storm drain systems from an underground storage tank regulated under a state program at facilities with an aggregate capacity of one million gallons or greater.

History. 1978, c. 816; 1987, c. 677; 1990, c. 917; 1992, cc. 302, 456; 1993, cc. 18, 231; 1994, c. 416.