With recent changes to stormwater permitting in Virginia, the legal and practical implications of those changes need to be examined. Alex Turner, a member of the Virginia Bar and Spilman Thomas & Battle, PLLC’s Construction Law Practice Group, examines the legal requirements of stormwater permitting in Virginia, both federal and state. Nadean Carson, PE, a construction stormwater specialist, and the owner of Oya Construction, LLC, will discuss the practical implications the changes in Virginia stormwater permitting has on the construction industry in Virginia. Together, they will give you greater insight into the requirements of stormwater permitting for the construction industry in Virginia.

Earth moving construction activities, like clearing, grading, and excavating land, all disturb the ground with the removal of ground cover and the removal of trees. The ground cover and trees are what bind the soil and prevent erosion. The consequence of disturbing the ground cover and trees on a construction site is that in the event of a rainstorm, stormwater washes over the now exposed and loose soil, and carries away various pollutants to nearby storm sewer systems, and local and coastal waterways. These pollutants include: (1) sediment, (2) solid and sanitary wastes, (3) phosphorus, (4) nitrogen, (5) pesticides, (6) oil and grease, (7) concrete truck washout, (8) construction chemicals, and (9) construction debris. In an attempt to limit the impact of construction related stormwater runoff pollution, federal, state, and local governments have implemented regulations and permitting to protect local waterways and storm sewer systems from the polluted stormwater runoff from construction sites.

Through authorization by the Clean Water Act, the EPA administers the Clean Water Act and National Pollutant Discharge Elimination System (“NPDES”) permitting programs. The EPA requires construction companies to obtain a NPDES permit for stormwater runoff for all construction activity that causes the disturbance of either: (1) one acre or more of land, or (2) less than one acre of land that is part of a common plan of development or sale of land that will ultimately disturb one or more acres of land. All NPDES permits for construction stormwater must satisfy the minimum NPDES effluent limitations contained in 40 CFR 450.21. These minimum limitations include:

• The design, installation, and maintenance of effective erosion and sediment controls, along with pollution prevention measures in order to minimize the discharge of pollutants into the larger environment;
• The stabilization of disturbed ground immediately after construction has halted and is not intended to resume for more than 14 days;
• The prohibition of dewatering discharges unless they are managed by appropriate controls; and
• The prohibition on the discharge of:
  • Waste water from concrete washout, unless managed by appropriate controls, or washout/cleanout of stucco, paint, form release oils, or other wastewater materials;
  • Vehicle fuels, oils, grease or other pollutants used in the operation and/or maintenance of vehicles; and
  • Soaps and solvents used to wash vehicles and equipment.

In 2022, the EPA released the updated 2022 Construction General Permit (“CGP”) for stormwater discharges from construction activities in areas where the EPA is the NPDES permitting authority. These areas include: (1) Massachusetts, New Hampshire, and Washington, D.C.; (2) U.S. territories; (3) Native American reservations in various states; (4) certain Federal facilities in Colorado, Delaware, Vermont, along with areas in Washington being constructed by a federal operator; (5) Denali National Park and Reserve; and (6) oil and gas activities in Oklahoma. The key requirements of the 2022 CGP are:

• The development and maintenance of a Stormwater Pollution Prevention Plan;
• The completion and submission of a Notice of Intent to the EPA via the NPDES eReporting Tool;
• The implementation of erosion and sediment controls and pollution prevention practices throughout the entire construction project;
• Conducting the required inspections to verify compliance with the permit. The inspections cannot be conducted by just anyone, the inspector a qualified individual who either:
  • Completed the EPA construction inspection course and passed the exam; or
  • Holds a current construction inspection certification or license from a program that covers the same core material as the EPA inspection course;
• The maintenance and repair of controls or discharges;
• Maintaining records of all site inspections, dewatering inspections, and all corrective actions taken;
• If applicable, compliance with turbidity monitoring requirements for dewatering discharges into sensitive waters; and
• Compliance with any state, tribal, or territory-specific requirements in Part 9 of the permit.

In all other areas, where the EPA is not the NPDES permitting authority, states and local governments issue the construction stormwater permits. 

The Virginia Department of Environment Quality (“VADEQ”) is responsible for issuing construction stormwater permits, otherwise known as VPDES permits, in the Commonwealth of Virginia. The requirements for when a construction company is required to obtain a VPDES permit is the same as the requirements for when a NPDES permit is required, as described above. The VADEQ has oversight authority over the following Virginia laws and regulations regarding construction activity related stormwater runoff control, including the: (1) Stormwater Management Act, (2) Erosion and Sediment Control Law, (3) Erosion and Sediment Control Regulations, and (4) Virginia Stormwater Management Program regulations. In 2022, the Virginia Legislature passed HB 1224, which directs the State Water Control Board to update its regulations providing for the certification and use of a proprietary best management practice. It also directed the VADEQ to prioritize review of any proprietary best management practice that was on the Virginia Stormwater BMP Clearinghouse prior to December 31, 2021.

As a result of the passage of HB 1224, the VADEQ began the process of updating its construction stormwater discharge permit program with the drafting of the 2022 Stormwater Procedural Guidance Memo. The first step that the VADEQ took was to automate the Stormwater Construction General Permit process. Effective as of January 19, 2023, there are five requirements for permitting an expedited review and approval of Stormwater Management and Sediment Control Plans:

• The VADEQ must be the administrator of Stormwater Management Plan or Sediment Control Plan in the locality where the construction activity is taking place;
• The Stormwater Management Plan or Sediment Control Plan must have been prepared, signed, and sealed by a Virginia-licensed professional engineer;
• The Stormwater Management Plan or Sediment Control Plan must have been prepared in accordance with VADEQ’s Guidance Memo, 22-2012, Stormwater Management and Erosion & Sediment Control Design Guide (discussed below);
• A complete and accurate Plan Submission Checklist must be included with the Stormwater Management Plan or Sediment Control Plan package; and
• A person certified as a Dual Combined Administrator for erosion and sediment control and stormwater management must pre-review, sign, date, and include his or her certificate number on, the Stormwater Management Plan or Sediment Control Plan Submission Checklist.

The review of a Stormwater Management Plan or Sediment Control Plan can only be expedited if these requirements are met.

In furtherance of its statutory requirements pursuant to HB 1224, the VADEQ also drafted the 2022 Stormwater Technical Guidance Memo in order to provide a single, comprehensive, cross-reference to and summaries of the design standards and practices for implementing Stormwater Management and Sediment Control Plans. The Technical Guidance Memo went into effect on February 18, 2023, and included the following key components:

• It is a consolidation of previous technical guidance and standard references, including those related to erosion and sediment control and stormwater management requirements and controls;
• It is a compilation of key issues that should be considered in determining water quality and the impact on water quality associated with construction projects that require Stormwater Management and Sediment Control Plans, along with cross-references for specific design standards;
• Clarification on how the process the VADEQ uses to review submitted Stormwater Management and Sediment Control Plans;
• Updates and strengthening of current technical methods and practices that are needed to show compliance with applicable water quantity and water quality criteria. These criteria included:
  • Applicable run-off coefficients and assumed groundcover conditions;
  • Analysis of channel protection and receiving stream adequacy;
  • Post-construction confirmation of soil composition use for run-off curve values; and
  • Greater consideration for flood prone areas;
• Additional discussion and clarification of the VADEQ’s solar energy project stormwater policy provided for in the May 29, 2022 and April 14, 2022 Solar Project Guidance Memoranda.

The VADEQ is currently in the process of drafting a new VADEQ Construction Stormwater Program Handbook that will likely incorporate both the 2022 Stormwater Procedural Guidance Memo and the 2022 Stormwater Technical Guidance Memo. These changes in stormwater permitting affect construction projects from the design process all the way through to annual maintenance/inspection for installed management systems. 

While an explanation of the new legal landscape in stormwater permitting in Virginia is helpful, we asked Nadean Carson, PE of Oya Construction, LLC to provide an explanation regarding how these legal changes impact stormwater management on Virginia construction projects moving forward. During the design process, engineers evaluate the requirements very closely to determine if the project must disturb over one acre of soil. If the project can stay under this one-acre threshold (and is not part of a larger common plan of development), the design and construction fees are significantly lower. This is in part due to fewer design requirements as well as fewer pollution prevention practices that must be conducted during construction.  

If the site disturbs over one acre of soil, and thereby requires a VPDES permit, then design engineers must create a stormwater management plan that covers the entire construction process, as well as post-construction measures to manage permanent stormwater management. The process for VPDES permitting and compliance includes:

• Engineering Design: Engineers must analyze potential stormwater impacts from the site, stormwater calculations, and management plans to treat the quantity and quality of the stormwater generated on the site;
• Stormwater Management: Installation and maintenance of specific stormwater management features during construction. This may include measures such as sediment basins, silt fences, erosion control blankets, and sediment traps to prevent sediment and other pollutants from entering nearby water bodies;
• Permit Requirement: These sites must apply for coverage under the VPDES permit, requiring additional permit fees. This coverage is often referred to as the Construction General Permit (“CGP”) and requires annual maintenance fees and a formal closure at the end of the project;  
• Erosion and Sediment Control: Construction projects must have plans in place to control erosion and manage sediment runoff. These plans detail how the site will minimize soil erosion and prevent sediment from being carried away by stormwater;
• Pollution Prevention Measures: The permit also requires construction sites to implement pollution prevention measures to control the discharge of hazardous substances, chemicals, and other pollutants commonly associated with construction activities;
• Documentation: The site owner/operator must have an active Stormwater Pollution Prevention Plan (“SWPPP”) onsite during construction. This document outlines site-specific details concerning potential contaminants and how the site will handle these contaminants;  
• Inspections: The permit requires that the owner/operation perform routine site stormwater inspections of the construction site and document these inspections in the SWPPP. In addition to the self-performed inspections, regulatory agencies like the DEQ may conduct inspections of construction sites to ensure that they are in compliance with the VPDES permit's requirements. Non-compliance can result in penalties and enforcement actions;  
• Public Awareness: The VPDES permit also promotes public awareness and transparency by requiring construction sites to post signs indicating that they are covered by the permit and providing contact information for reporting concerns or violations; and
• Permanent Stormwater Management: Installation, yearly inspection and maintenance of permanent stormwater measures on the site, specified in the engineer's stormwater management plan. These structures can include stormwater ponds, bioretention ponds, stormwater detention systems, pervious pavement, or a variety of other measures. In some instances, engineers can purchase nutrient credits to offset some of these costs.  

In summary, the VPDES permit has a direct impact on construction activities by requiring proper planning, implementation of best management practices, and compliance with regulations to minimize the environmental impact of construction-related pollutants on water quality. It aims to ensure that construction projects are conducted in an environmentally responsible manner to protect aquatic ecosystems and public health.