By way of background, operators of construction activities in Virginia that result in land disturbance equal to or greater than one acre, whether individually or as part of a larger common plan of development or sale, are required to obtain coverage under a Virginia Department of Environmental Quality (VDEQ) stormwater construction permit.[1] “Land disturbance” or “land-disturbing activity” generally means a man-made change to the land surface that potentially changes its runoff characteristics including clearing, grading, or excavation, with some exceptions.[2] The overall purpose of these regulations is to promote the stabilization of disturbed ground, manage the flow of water off the site, and prevent the discharge of water contaminated with building materials (including fuels, oils, grease, soaps, solvents, and other contaminants). No land disturbing activities should occur prior to gaining approval from the applicable Virginia Erosion and Sediment Control Program (VESCP) authority and the Virginia Stormwater Management Program (VSMP) authority.[3]

Keep an Eye on Permitting Program Changes

Last year, VDEQ rolled out some technical changes relevant to stormwater permitting, and more changes are on the way.

On March 29, 2022, VDEQ issued a memorandum establishing a more stringent post-development management policy for solar projects where VDEQ is the VSMP authority.[4] The policy stated that it affected any solar project that has a Virginia Stormwater Management (SWM) plan in place prior to March 29, 2022, but a follow-up memorandum issued on April 14, 2022, clarified that solar projects that have interconnection approval secured by the end of 2024 will be exempt from the new policy.[5] Under the new policy, solar panels will be considered: (1) unconnected impervious areas for post-development water quality calculations when using the hydrologic methods specified in the VSMP Regulation at 9VAC25-870-72; and (2) impervious areas when performing the post-development water quality calculations using the Virginia Runoff Reduction Method (VRRM). This new policy may require solar projects to acquire more land for additional drainage infrastructure to account for the solar panels being considered impervious rather than just the posts and beams.

Then, on November 30, 2022, VDEQ issued Guidance Memo No. 22-2011 (Streamlined Plan Review for Construction Stormwater Plans and Erosion and Sediment Control Plans submitted by a Licensed Design Professional and reviewed by a Dual Combined Administrator for Erosion and Sediment Control and Stormwater Management)[6], which provides guidance on plans that must be prepared in conjunction with stormwater permits. Specifically, this memorandum provides a streamlined review process for SWM plans in instances where VDEQ is the VSMP authority and for Erosion and Sediment Control (ESC) plans where VDEQ is the VESCP authority. In these situations, a potential permittee can obtain expedited review and approval of their SWM plan and ESC plan if the following are met:

• The plans are prepared, signed and stamped by a Virginia-licensed professional engineer;
• The plans are prepared in accordance with Memo No. 22-2012 (more on this below);
• The Plan Submission Checklist is included, complete and accurate; and
• Someone certified as an administrator for both ESC and SWM has reviewed and signed the plans and included their certificate number on the relevant checklist.

Also, on November 30, 2022, VDEQ issued Guidance Memo No. 22-2012 (Stormwater Management and Erosion & Sediment Control Design Guide),[7] which contains design guidelines for the development of SWM plans and ESC plans. This guidance is also only applicable to those projects where VDEQ is the VSMP authority for SWM Plans and/or the VESCP authority ESC Plans. This new guidance consolidates previous guidance, standard references, and key issues for determining water quality and impact on water quality. It also updates the technical methods and practices for complying with water quantity and quality criteria.

It is important to note that many localities administer their own VSMP and/or their own VESCP, and thus when submitting to these localities, the ESC plan and/or SWM plan will not be subject to either Memo No. 22-2011 or Memo No. 22-2012 respectively.

Lastly, VDEQ is in the process of developing a master stormwater program guidance handbook that will likely combine the previous construction stormwater management program and erosion and sediment control handbooks and will likely incorporate the requirements of Memo No. 22-2011 and Memo No. 22-2012.

Be Aware of Permit and Plan Requirements

There are some easily avoided pitfalls that Virginia developers should be aware of when trying to obtain stormwater construction permits prior to the start of construction activities. Although it may sound obvious, application errors can delay stormwater permit issuance, and a little extra attention to detail at the application phase can translate to a timely-issued permit, as evidenced by the VDEQ website’s list of frequent stormwater permit application errors. Maps attached to the application need to include a scale, north arrow, USGS quadrangle name, discharge point identification, and legal facility boundary identification. Applications also need to provide latitude and longitude information in the correct location, along with acreage that matches the acres that were approved in the SWM plan.[8] Receiving streams need to be correctly identified, and should be noted within the application if a discharge is to be made to an unnamed tributary. Finally, attention should be paid to the signature requirements, and applicants should be sure to complete each field on the form and state “N/A” if section is not applicable.[9]

Virginia developers should also be cautious when selecting and implementing Best Management Practices (BMPs), a key component of the required Stormwater Pollution Prevention Plan (SWPPP).[10] BMPs can include silt fences, sediment traps, and stormwater detention ponds. Developers should be careful when deciding what BMPs to include in the SWPPP and should be sure to implement the BMPs they selected. VDEQ or the local VESCP authority or the VSMP authority can inspect the site and enforcement can follow for improperly installed or maintained BMPs. BMPs that are not properly installed or maintained can result in the discharge of sediment and even petroleum products such as gasoline or oil from construction equipment. Such discharges can also result in a Clean Water Act violations and would likely constitute a violation of the state’s water quality standards. We have advised many developers subject to BMP-related enforcement who then have to answer to concerned financing parties seeking information and indemnities, so caution and care is advised when selecting and implementing BMPs.

[1] Va. Code § 62.1-44.15:34.A.

[2] Va. Code § 62.1-44.15:24.

[3] Va. Code § 62.1-44.15:34.A.

[4] https://www.deq.virginia.gov/home/showdocument?id=13985

[5] https://www.deq.virginia.gov/home/showpublisheddocument/14089/637855415232967399

[6] https://www.deq.virginia.gov/home/showpublisheddocument/16683/638186144538770000

[7] https://www.deq.virginia.gov/home/showpublisheddocument/16685/638186144540630000

[8] https://public.deq.virginia.gov/WPS/Make%20a%20%E2%80%9Cmanual%20guide%20here%E2%80%9D,%20brief%20rundown%20of%20030419%202019%20Revised%20VPDES%20Permit%20Manual.pdf

[9] Id.

[10] 9 Va. Admin. Code 25-870-56.B.

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