REGISTER INFORMATION PAGE
Vol. 25 Iss. 21 - June 22, 2009

The Virginia Register OF REGULATIONS is an official state publication issued every other week throughout the year. Indexes are published quarterly, and are cumulative for the year. The Virginia Register has several functions. The new and amended sections of regulations, both as proposed and as finally adopted, are required by law to be published in the Virginia Register. In addition, the Virginia Register is a source of other information about state government, including petitions for rulemaking, emergency regulations, executive orders issued by the Governor, the Virginia Tax Bulletin issued periodically by the Department of Taxation, and notices of public hearings and open meetings of state agencies.

ADOPTION, AMENDMENT, AND REPEAL OF REGULATIONS

An agency wishing to adopt, amend, or repeal regulations must first publish in the Virginia Register a notice of intended regulatory action; a basis, purpose, substance and issues statement; an economic impact analysis prepared by the Department of Planning and Budget; the agency's response to the economic impact analysis; a summary; a notice giving the public an opportunity to comment on the proposal; and the text of the proposed regulation.

Following publication of the proposal in the Virginia Register, the promulgating agency receives public comments for a minimum of 60 days. The Governor reviews the proposed regulation to determine if it is necessary to protect the public health, safety and welfare, and if it is clearly written and easily understandable. If the Governor chooses to comment on the proposed regulation, his comments must be transmitted to the agency and the Registrar no later than 15 days following the completion of the 60-day public comment period. The Governor's comments, if any, will be published in the Virginia Register. Not less than 15 days following the completion of the 60-day public comment period, the agency may adopt the proposed regulation.

The Joint Commission on Administrative Rules (JCAR) or the appropriate standing committee of each house of the General Assembly may meet during the promulgation or final adoption process and file an objection with the Registrar and the promulgating agency. The objection will be published in the Virginia Register. Within 21 days after receipt by the agency of a legislative objection, the agency shall file a response with the Registrar, the objecting legislative body, and the Governor.

When final action is taken, the agency again publishes the text of the regulation as adopted, highlighting all changes made to the proposed regulation and explaining any substantial changes made since publication of the proposal. A 30-day final adoption period begins upon final publication in the Virginia Register.

The Governor may review the final regulation during this time and, if he objects, forward his objection to the Registrar and the agency. In addition to or in lieu of filing a formal objection, the Governor may suspend the effective date of a portion or all of a regulation until the end of the next regular General Assembly session by issuing a directive signed by a majority of the members of the appropriate legislative body and the Governor. The Governor's objection or suspension of the regulation, or both, will be published in the Virginia Register. If the Governor finds that changes made to the proposed regulation have substantial impact, he may require the agency to provide an additional 30-day public comment period on the changes. Notice of the additional public comment period required by the Governor will be published in the Virginia Register.

The agency shall suspend the regulatory process for 30 days when it receives requests from 25 or more individuals to solicit additional public comment, unless the agency determines that the changes have minor or inconsequential impact.

A regulation becomes effective at the conclusion of the 30-day final adoption period, or at any other later date specified by the promulgating agency, unless (i) a legislative objection has been filed, in which event the regulation, unless withdrawn, becomes effective on the date specified, which shall be after the expiration of the 21-day objection period; (ii) the Governor exercises his authority to require the agency to provide for additional public comment, in which event the regulation, unless withdrawn, becomes effective on the date specified, which shall be after the expiration of the period for which the Governor has provided for additional public comment; (iii) the Governor and the General Assembly exercise their authority to suspend the effective date of a regulation until the end of the next regular legislative session; or (iv) the agency suspends the regulatory process, in which event the regulation, unless withdrawn, becomes effective on the date specified, which shall be after the expiration of the 30-day public comment period and no earlier than 15 days from publication of the readopted action.

Proposed regulatory action may be withdrawn by the promulgating agency at any time before the regulation becomes final.

FAST-TRACK RULEMAKING PROCESS

Section 2.2-4012.1 of the Code of Virginia provides an exemption from certain provisions of the Administrative Process Act for agency regulations deemed by the Governor to be noncontroversial.  To use this process, Governor's concurrence is required and advance notice must be provided to certain legislative committees.  Fast-track regulations will become effective on the date noted in the regulatory action if no objections to using the process are filed in accordance with § 2.2-4012.1.

EMERGENCY REGULATIONS

Pursuant to § 2.2-4011 of the Code of Virginia, an agency, upon consultation with the Attorney General, and at the discretion of the Governor, may adopt emergency regulations that are necessitated by an emergency situation. An agency may also adopt an emergency regulation when Virginia statutory law or the appropriation act or federal law or federal regulation requires that a regulation be effective in 280 days or less from its enactment. The emergency regulation becomes operative upon its adoption and filing with the Registrar of Regulations, unless a later date is specified. Emergency regulations are limited to no more than 12 months in duration; however, may be extended for six months under certain circumstances as provided for in § 2.2-4011 D. Emergency regulations are published as soon as possible in the Register.

During the time the emergency status is in effect, the agency may proceed with the adoption of permanent regulations through the usual procedures. To begin promulgating the replacement regulation, the agency must (i) file the Notice of Intended Regulatory Action with the Registrar within 60 days of the effective date of the emergency regulation and (ii) file the proposed regulation with the Registrar within 180 days of the effective date of the emergency regulation. If the agency chooses not to adopt the regulations, the emergency status ends when the prescribed time limit expires.

STATEMENT

The foregoing constitutes a generalized statement of the procedures to be followed. For specific statutory language, it is suggested that Article 2 (§ 2.2-4006 et seq.) of Chapter 40 of Title 2.2 of the Code of Virginia be examined carefully.

CITATION TO THE VIRGINIA REGISTER

The Virginia Register is cited by volume, issue, page number, and date. 23:7 VA.R. 1023-1140 December 11, 2006, refers to Volume 23, Issue 7, pages 1023 through 1140 of the Virginia Register issued on December 11, 2006.

The Virginia Register of Regulations is published pursuant to Article 6 (§ 2.2-4031 et seq.) of Chapter 40 of Title 2.2 of the Code of Virginia.

Members of the Virginia Code Commission: R. Steven Landes, Chairman; John S. Edwards, Vice Chairman; Ryan T. McDougle; Robert Hurt; Robert L. Calhoun; Frank S. Ferguson; E.M. Miller, Jr.; Thomas M. Moncure, Jr.; James F. Almand; Jane M. Roush.

Staff of the Virginia Register: Jane D. Chaffin, Registrar of Regulations; June T. Chandler, Assistant Registrar.


PUBLICATION SCHEDULE AND DEADLINES
Vol. 25 Iss. 21 - June 22, 2009

June 2009 through March 2010

Volume: Issue

Material Submitted By Noon*

Will Be Published On

INDEX 3 Volume 25

 

July 2009

25:21

June 3, 2009

June 22, 2009

25:22

June 17, 2009

July 6, 2009

25:23

July 1, 2009

July 20, 2009

25:24

July 15, 2009

August 3, 2009

25:25

July 29, 2009

August 17, 2009

25:26

August 12, 2009

August 31, 2009

FINAL INDEX Volume 25

 

October 2009

26:1

August 26, 2009

September 14, 2009

26:2

September 9, 2009

September 28, 2009

26:3

September 23, 2009

October 12, 2009

26:4

October 7, 2009

October 26, 2009

26:5

October 21, 2009

November 9, 2009

26:6

November 4, 2009

November 23, 2009

26:7

November 17, 2009 (Tuesday)

December 7, 2009

INDEX 1 Volume 26

 

January 2010

26:8

December 2, 2009

December 21, 2009

26:9

December 15, 2009 (Tuesday)

January 4, 2010

26:10

December 29, 2009 (Tuesday)

January 18, 2010

26:11

January 13, 2010

February 1, 2010

26:12

January 27, 2010

February 15, 2010

26:13

February 10, 2010

March 1, 2010

26:14

February 24, 2010

March 15, 2010

INDEX 1 Volume 26

 

April 2010

26:15

March 10, 2010

March 29, 2010

*Filing deadlines are Wednesdays unless otherwise specified.


PETITIONS FOR RULEMAKING
Vol. 25 Iss. 21 - June 22, 2009

TITLE 8. EDUCATION

BOARD OF EDUCATION

Initial Agency Notice

Title of Regulation: N/A - There are no present regulations on this subject.

Statutory Authority: § 22.1-269 of the Code of Virginia.

Name of Petitioner: John R. Butcher, Carol A.O. Wolf.

Nature of Petitioner's Request: Requests promulgation of a regulation requiring school divisions to report annually to the Board of Education data on: the number of students with five or more unexcused absences from school; details regarding the attendance plan and conferences held regarding such attendance plans; and a summary of the outcomes of attendance enforcement proceedings.

Agency's Plan for Disposition of the Request: The agency has received the petitioner's request and has announced a 21-day comment period, which will be published in the Virginia Register. Agency action plan will be determined following the 21-day public comment period.

Public comments may be submitted until July 14, 2009.

Agency Contact: Anne D. Wescott, Executive Assistant to the Board of Education, P.O. Box 2120, Richmond, VA 23218-2120, telephone (804) 225-2403, FAX (804) 225-2524, or email anne.wescott@doe.virginia.gov.

VA.R. Doc. No. R09-28; Filed June 3, 2009, 1:11 p.m.

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TITLE 12. HEALTH

STATE MENTAL HEALTH, MENTAL RETARDATION AND SUBSTANCE ABUSE SERVICES BOARD

Agency Decision

Title of Regulation: N/A - There are no present regulations on this subject.

Statutory Authority: §§ 37.2-203 and 37.2-400 of the Code of Virginia.

Name of Petitioner: Steven Shoon.

Nature of Petitioner's Request: Adopt a regulation to state that the 2003 Guidelines for the Management of Individuals Found Not Guilty By Reason of Insanity (NGRI Guidelines) are subject to the Human Rights Regulations and any provision of the NGRI Guidelines in violation, in conflict, or contrary to the Human Rights Regulations is null and void.

Agency's Decision: Request denied.

Statement of Reasons for Decision: The NGRI Guidelines are subject to the requirements in the Human Rights Regulations (12VAC35-115). There is no need to add new regulatory provisions for this purpose. The NGRI Guidelines address the privileging process. To the extent that the privileging process conflicts with any provision of the Human Rights Regulations, the Commissioner of the Department of Mental Health, Mental Retardation and Substance Abuse Services has exempted those provisions from the regulations. The commissioner has also exempted a few of the requirements of the Human Rights Regulations for persons under forensic status and persons in custody as sexually violent predators, such as prohibiting access to victim information. The commissioner has exercised this authority in accordance with 12VAC35-115-10.

Agency Contact: Wendy V. Brown, Policy Analyst, Department of Mental Health, Mental Retardation and Substance Abuse Services, P.O. Box 1797, Richmond, VA 23218, telephone (804) 225-2252, FAX (804) 371-0092, or email wendy.brown@co.dmhmrsas.virginia.gov.

VA.R. Doc. No. R09-18; Filed June 8, 2009, 11:01 a.m.

Agency Decision

Title of Regulation: None specified.

Statutory Authority: §§ 37.2-203 and 37.2-400 of the Code of Virginia.

Name of Petitioner: Steven Shoon.

Nature of Petitioner's Request: Amend regulations to prohibit any director of providers from applying for a variance that abridges any individual rights for filing a complaint under the complaint process under the Human Rights Regulations. Individuals in this context means individuals receiving services from providers.

Agency Decision: Request denied.

Statement of Reasons for Decision: The board does not believe that the right to request a variance should be restricted. The variance section of the Rules and Regulations to Assure the Rights of Individuals Receiving Services from Providers Licensed, Funded or Operated by the Department of Mental Health, Mental Retardation and Substance Abuse Services (Human Rights Regulations, 12VAC35-115-220) is intended to protect individuals receiving services when the implementation of these regulations may cause harm. The process for pursuing a variance is extensive and the Human Rights Regulations currently require all variances to be approved by the State Human Rights Committee.

Agency Contact: Wendy V. Brown, Policy Analyst, Department of Mental Health, Mental Retardation and Substance Abuse Services, P.O. Box 1797, Richmond, VA 23218, telephone (804) 225-2252, FAX (804) 371-0092, or email wendy.brown@co.dmhmrsas.virginia.gov.

VA.R. Doc. No. R09-19; Filed June 8, 2009, 11:02 a.m.

Agency Decision

Title of Regulation: N/A - There are no present regulations on this subject.

Statutory Authority: §§ 37.2-203 and 37.2-400 of the Code of Virginia.

Name of Petitioner: Steven Shoon.

Nature of Petitioner's Request: Adopt regulations to require mental health facilities operated by the Department of Mental Health, Mental Retardation and Substance Abuse Services to physically post up information about the Virginia Freedom of Information Act.  This information layout is outlined in § 2.2-3704.1 of the Code of Virginia.  It includes the rights of the requester for requesting public records; the obligations of public bodies to process requests for public records; contact information for making requests for public records from the given public body; most commonly used public record exemptions; and recourse to the courts for violations of the Virginia Freedom of Information Act.

Agency Decision: Request denied.

Statement of Reasons for Decision: The board has determined that this request may be appropriately addressed by policy rather than regulation. The Department of Mental Health, Mental Retardation and Substance Abuse Services has complied with the Virginia Freedom of Information Act (FOIA) which requires all state public bodies to post information on their websites informing the public about procedures for requesting public records and responding to those requests. The board understands that some individuals receiving services in state facilities do not have access to the Internet through which they may obtain information about FOIA. Therefore, the Commissioner of the Department of Mental Health, Mental Retardation and Substance Abuse Services has issued a policy directive to the state facility directors encouraging the posting of FOIA information on facility websites and throughout the facility and specifically on patient units. The board affirms the commissioner's policy and believes that this policy directive addresses the intent of this petition.

Agency Contact: Wendy V. Brown, Policy Analyst, Department of Mental Health, Mental Retardation and Substance Abuse Services, P.O. Box 1797, Richmond, VA 23218, telephone (804) 225-2252, FAX (804) 371-0092, or email wendy.brown@co.dmhmrsas.virginia.gov.

VA.R. Doc. No. R09-20; Filed June 8, 2009, 11:02 a.m.

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TITLE 18. PROFESSIONAL AND OCCUPATIONAL LICENSING

BOARD OF DENTISTRY

Initial Agency Notice

Title of Regulation: 18VAC60-20. Regulations Governing the Practice of Dentistry and Dental Hygiene.

Statutory Authority: § 54.1-2400 of the Code of Virginia.

Name of Petitioner: Robert J. Haddad.

Nature of Petitioner's Request: To amend regulations to (i) eliminate the distinction between conscious sedation and deep sedation since deep sedation is a likely result; (ii) institute a permitting process with inspection of dental offices to ensure they are appropriately equipped to handle an emergency situation; and (iii) create an Anesthesia Review Committee to assist the profession and the public with issues relating to anxiety/pain control/sedation in dentistry.

Agency's Plan for Disposition of the Request: The board is requesting public comment on the petition to amend rules to amend regulations relating to sedation and anesthesia. Following a public comment period, the board will consider its action on the petition at its meeting on September 11, 2009.

Comments may be submitted until July 22, 2009.

Agency Contact: Elaine J. Yeatts, Agency Regulatory Coordinator, Department of Health Professions, 9960 Mayland Drive, Suite 300, Richmond, VA 23233, telephone (804) 367-4688, FAX (804) 527-4434, or email elaine.yeatts@dhp.virginia.gov.

VA.R. Doc. No. R09-27; Filed May 26, 2009, 9:44 a.m.


NOTICES OF INTENDED REGULATORY ACTION
Vol. 25 Iss. 21 - June 22, 2009

TITLE 9. ENVIRONMENT
Virginia Pollution Abatement General Permit Regulation for Poultry Waste Management
Notice of Intended Regulatory Action

Notice is hereby given in accordance with § 2.2-4007.01 of the Code of Virginia that the State Water Control Board intends to consider amending the following regulations: 9VAC25-630, Virginia Pollution Abatement General Permit Regulation for Poultry Waste Management. The purpose of the proposed action is to reissue the existing Virginia Pollution Abatement (VPA) General Permit for Poultry Waste Management. The current VPA general permit expires on November 30, 2010. The VPA General Permit Regulation for Poultry Waste Management governs the management of poultry feeding operations that confine 200 or more animal units (20,000 chickens or 11,000 turkeys) and establishes the utilization, storage, tracking, and accounting requirements related to poultry waste.

The agency intends to hold a public hearing on the proposed action after publication in the Virginia Register.

Statutory Authority: §§ 62.1-44.15 and 62.1-44.17:1.1 of the Code of Virginia.

Public Comments: Public comments may be submitted until July 22, 2009.

Agency Contact: Betsy Bowles, Department of Environmental Quality, 629 East Main Street, P.O. Box 1105, Richmond, VA 23218, telephone (804) 698-4059, FAX (804) 698-4116, or email betsy.bowles@deq.virginia.gov.

VA.R. Doc. No. R09-2006; Filed June 2, 2009, 5:00 p.m.

REGULATIONS
Vol. 25 Iss. 21 - June 22, 2009

TITLE 4. CONSERVATION AND NATURAL RESOURCES
MARINE RESOURCES COMMISSION
Emergency Regulation

Title of Regulation: 4VAC20-260. Pertaining to Designation of Seed Areas and Clean Cull Areas (amending 4VAC20-260-30).

Statutory Authority: §§ 28.2-201 and 28.2-210 of the Code of Virginia.

Effective Dates: June 1, 2009, through June 30, 2009.

Agency Contact: Jane Warren, Agency Regulatory Coordinator, Marine Resources Commission, 2600 Washington Avenue, 3rd Floor, Newport News, VA 23607, telephone (757) 247-2248, FAX (757) 247-2002, or email betty.warren@mrc.virginia.gov.

Summary:

This emergency amendment establishes that oysters raised in caged aquaculture by licensed aquaculture facilities on the seaside of Eastern Shore seed areas shall be exempt from the requirement to be at least three inches in shell height.

4VAC20-260-30. Minimum cull size.

In order to encourage a continued supply of marketable oysters, minimum size limits are hereby established. Undersized oysters or shells shall be returned immediately to their natural beds, rocks, or shoals where taken. When small oysters are adhering so closely to the shell of the marketable oyster as to render removal impossible without destroying the young oyster, then it shall not be necessary to remove it. Allowances for undersized oysters and shells incidentally retained during culling are found in 4VAC20-260-40.

1. Oysters taken from clean cull areas shall not have shells less than three inches in length.

2. In the James River seed areas, there shall be no size limit on oysters harvested for replanting as seed oysters and seed oysters shall not be marketed for direct consumption.

3. In the James River seed areas, the shells of oysters harvested for direct consumption shall not be less than three inches in length.

4. On the seaside of Eastern Shore seed area, the shells of oysters marketed for direct consumption shall not be less than three inches in length. The provisions of this subdivision shall not apply to oysters raised in caged aquaculture by licensed aquaculture facilities.

5. In the Rappahannock River, the shells of oysters harvested for direct consumption, from the areas known as Russ' Rock and Carter's Rock, shall not be less than 2-1/2 inches in length.

VA.R. Doc. No. R09-1998; Filed May 28, 2009, 12:08 p.m.
TITLE 4. CONSERVATION AND NATURAL RESOURCES
MARINE RESOURCES COMMISSION
Final Regulation

Title of Regulation: 4VAC20-270. Pertaining to Crabbing (amending 4VAC20-270-40, 4VAC20-270-50, 4VAC20-270-58).

Statutory Authority: § 28.2-201 of the Code of Virginia.

Effective Date: June 1, 2009.

Agency Contact: Jane Warren, Agency Regulatory Coordinator, Marine Resources Commission, 2600 Washington Avenue, 3rd Floor, Newport News, VA 23607, telephone (757) 247-2248, FAX (757) 247-2002, or email betty.warren@mrc.virginia.gov.

Summary:

The amendments (i) create a fall closure to the harvest by any gear of female crabs from November 21 through November 30; (ii) establish a 15% reduction in crab pots (relative to 2007 limits per each of the five license categories) rather than the 30% reductions currently in effect; (iii) establish that any agent convicted by a court of two crab fishery-related violations within a 12-month period may be precluded from serving as an agent; and (iv) proposes that the licensee who has authorized an agent who is convicted by a court of two crab fishery-related violations within a 12-month period shall appear before the commission for a license-revocation hearing.

4VAC20-270-40. Season limits.

A. The lawful season for the harvest of male crabs shall be March 17 through November 30. The lawful season for the harvest of female crabs shall be March 17 through November 30 20.

B. It shall be unlawful for any person to harvest crabs or to possess crabs on board a vessel, except during the lawful season, as described in subsection A of this section.

C. It shall be unlawful for any person knowingly to place, set, fish or leave any hard crab pot or peeler crab pot in any tidal waters of Virginia from December 1 through March 16.

D. It shall be unlawful for any person knowingly to place, set, fish or leave any fish pot in any tidal waters from March 12 through March 16, except as provided in subdivisions 1 and 2 of this subsection.

1. It shall be lawful for any person to place, set, or fish any fish pot in those Virginia waters located upriver of the following boundary lines:

a. In the James River the boundary shall be a line connecting Hog Point and the downstream point at the mouth of College Creek.

b. In the York River the boundary lines shall be the Route 33 bridges at West Point.

c. In the Rappahannock River the boundary line shall be the Route 360 bridge at Tappahannock.

d. In the Potomac River the boundary line shall be the Route 301 bridge that extends from Newberg, Maryland, to Dahlgren, Virginia.

2. This subsection shall not apply to lawful eel pots as described in 4VAC20-500-50.

4VAC20-270-50. Peeler crab pot and crab pot limits.

A. It shall be unlawful for any person to place, set or fish or attempt to place, set or fish more than 210 peeler crab pots in Virginia tidal waters.

B. The lawful crab pot license categories and crab pot limits for the 2008 crab pot season are as follows:

1. Up to 85 crab pots.

2. Up to 127 crab pots.

3. Up to 170 crab pots.

4. Up to 255 crab pots.

5. Up to 425 crab pots.

C. The lawful crab pot license categories and crab pot limits for the 2009 crab pot season are as follows:

1. Up to 70 crab pots.

2. Up to 105 crab pots.

3. Up to 140 crab pots.

4. Up to 210 crab pots.

5. Up to 350 crab pots.

D. C. It shall be unlawful for any person to knowingly place, set or fish any amount of crab pots that exceeds that person's crab pot limit, as described in subsections subsection B and C of this section.

4VAC20-270-58. License revocation.

A. Any person convicted by a court of two crab fishery-related violations, may be subject to having his license(s) to take crabs revoked in accordance with the provisions of § 28.2-232 of the Code of Virginia.

B. Any person serving as an agent who is convicted by a court of two crab fishery-related violations may be subject to having his authority to serve as an agent revoked by the commission.

C. Any crab licensee whose agent is convicted by a court of two crab fishery-related violations may be subject to having any of his licenses to take crabs revoked by the commission.

VA.R. Doc. No. R09-1990; Filed May 28, 2009, 12:17 p.m.
TITLE 4. CONSERVATION AND NATURAL RESOURCES
MARINE RESOURCES COMMISSION
Final Regulation

Title of Regulation: 4VAC20-320. Pertaining to the Taking of Black Drum (amending 4VAC20-320-70).

Statutory Authority: §§ 28.2-201 and 28.2-204.1 of the Code of Virginia.

Effective Date: June 1, 2009.

Agency Contact: Jane Warren, Agency Regulatory Coordinator, Marine Resources Commission, 2600 Washington Avenue, 3rd Floor, Newport News, VA 23607, telephone (757) 247-2248, FAX (757) 247-2002, or email betty.warren@mrc.virginia.gov.

Summary:

The amendments provide the commissioner, or his designee, the authority to grant exceptions and transfer requests for a Black Drum Harvesting Permit, and eliminate the March 1 deadline for submission of requests to transfer.

4VAC20-320-70. Commercial harvest permits required.

A. It shall be unlawful for any registered commercial fisherman to take, catch, sell, or possess more than one black drum per day, without first having obtained a Black Drum Harvesting and Selling Permit from the Marine Resources Commission. Such permit shall be completed in full by the permittee and a copy kept in the possession of the permittee while fishing and selling black drum. Permits shall only be issued to applicants meeting the following criteria:

1. The applicant shall be a registered commercial fisherman and shall have held a Black Drum Permit in at least one year from 1988 to 1993;

2. The applicant shall have documented catch of black drum in at least one year for which a Black Drum Permit was held from 1988 to 1993; and

3. The applicant shall have reported, in accordance with this chapter, any black drum fishery activity in 1992 and 1993, if a Black Drum Permit was held in those years.

Nothing in this subsection is intended to prohibit a registered commercial fisherman fishing pursuant to 4VAC20-320-40 as a legally eligible recreational fisherman from possessing only one black drum not to be sold.

B. Any registered commercial fisherman who is not permitted to harvest black drum, in accordance with subsection A of this section, may harvest, possess, and sell one black drum per day. Any such daily harvest shall not be a part of the commercial harvest quota but shall be reported to the VMRC as specified in 4VAC20-610.

C. The Marine Resources Commission commissioner, or his designee, may grant exceptions to the limited entry criteria listed in subsection A of this section based upon scientific, economic, biological, sociological, and hardship factors. Any person requesting an exception shall provide in writing an explanation for exception and all pertinent information relating to the criteria in subsection A of this section. All exception requests must be received by the Marine Resources Commission prior to March 1 of the year for which a permit is requested.

D. Requests to transfer a Black Drum Harvesting Permit shall be documented on a form provided by the Marine Resources Commission, notarized by lawful notary public, and subject to approval by the commissioner, or his designee.

D. E. It shall be unlawful for any person, firm, or corporation to buy any black drum from the harvester without first having obtained a Black Drum Buying Permit from the Marine Resources Commission. Such permit shall be completed in full by the permittee and a copy kept in possession of the permittee while buying black drum.

E. F. Any person, firm or corporation that has black drum in possession with the intent to sell must either be a permitted harvester or buyer, or must be able to demonstrate that those fish were imported from another state or purchased from a permitted buyer or seller.

VA.R. Doc. No. R09-1979; Filed May 28, 2009, 12:24 p.m.
TITLE 4. CONSERVATION AND NATURAL RESOURCES
MARINE RESOURCES COMMISSION
Final Regulation

Title of Regulation: 4VAC20-450. Pertaining to the Taking of Bluefish (amending 4VAC20-450-30).

Statutory Authority: § 28.2-201 of the Code of Virginia.

Effective Date: June 1, 2009.

Agency Contact: Jane Warren, Agency Regulatory Coordinator, Marine Resources Commission, 2600 Washington Avenue, 3rd Floor, Newport News, VA 23607, telephone (757) 247-2248, FAX (757) 247-2002, or email betty.warren@mrc.virginia.gov.

Summary:

The amendment establishes the 2009 commercial bluefish quota as 1,155,945 pounds.

4VAC20-450-30. Commercial landings quota.

A. During the period of January 1 through December 31, commercial landings of bluefish shall be limited to 1,048,366 1,155,945 pounds.

B. When it is projected that 95% of the commercial landings quota has been realized, a notice will be posted to close commercial harvest and landings from the bluefish fishery within five days of posting.

C. It shall be unlawful for any person to harvest or land bluefish for commercial purposes after the closure date set forth in the notice described in subsection B of this section.

VA.R. Doc. No. R09-1978; Filed May 28, 2009, 12:31 p.m.
TITLE 4. CONSERVATION AND NATURAL RESOURCES
MARINE RESOURCES COMMISSION
Final Regulation

Title of Regulation: 4VAC20-650. Establishment of Oyster Sanctuary Areas (amending 4VAC20-650-10, 4VAC20-650-20, 4VAC20-650-30).

Statutory Authority: § 28.2-201 of the Code of Virginia.

Effective Date: June 1, 2009.

Agency Contact: Jane Warren, Agency Regulatory Coordinator, Marine Resources Commission, 2600 Washington Avenue, 3rd Floor, Newport News, VA 23607, telephone (757) 247-2248, FAX (757) 247-2002, or email betty.warren@mrc.virginia.gov.

Summary:

The amendments establish five new shellfish sanctuaries in Northampton and Accomack Counties on the Seaside Eastern Shore (on and adjacent to the Nature Conservancy).

4VAC20-650-10. Purpose.

The purpose of this chapter is to protect and promote the oyster resources within the designated sanctuary areas and to protect oyster replenishment efforts on all public oyster grounds.

4VAC20-650-20. Oyster replenishment sanctuary areas.

The following oyster sanctuary areas are established:

A. The following Oyster Sanctuary Area is established: 1. The Wreck Shoals-James River Oyster Sanctuary Area shall consist consisting of all public oyster grounds with a boundary defined as: beginning at Corner 1 of Public Ground No.1-Warwick County (Lat 37° 04.520'N, Lon 76° 33.7333'W-NAD 1983); thence southeasterly to Deep Creek Channel Marker "2" (Lat 37° 03.609'N, Lon 76° 32.102'W); thence south-southwesterly to James River Channel Marker "5" (Lat 37° 02.345'N, Lon 76° 32.769'W); thence southwesterly to the chimney of a beach house east of the Luter airstrip (Lat 37° 01.666'N, Lon 76° 35.136'W); thence northerly to James River Channel Marker "12" (Lat 37° 03.323'N, Lon 76° 35.169'W); thence northeasterly to Corner 190 of Plat File 16734 (Lat 37° 04.904'N, Lon 76° 34.254'W); thence southeasterly to Corner 1 of Public Ground 1-Warwick County, the point of beginning.

2. Smith Island Sanctuary - Beginning at a point in Smith Island Bay near the western shore of Smith Island, said point being approximately 9,900 feet north-northwest of the Cape Charles Light House and the northern most point on Ballard Fish and Oyster Co., Inc. oyster lease, plat 16613, said point being corner 85, having NAD 83 Geographic Coordinates of 37° 08.3987390'N, 75° 54.0094551'W; thence in a northeasterly direction along the inshore oyster lease line of Thomas J. O'Conner, III, plat 17720, to corner 106, 37° 08.5079488'N, 75° 53.9121013'W; thence northeasterly to corner 107, 37° 08.5406502'N, 75° 53.8494541'W; thence east-northeasterly to corner 207, 37° 08.5420829'N, 75° 53.8281776'W; thence east-northeasterly along the inshore oyster lease line of Mark R. Heath, plat 17721, to corner 108, 37° 08.5446005' N, 75° 53.7907806'W; thence north-northeasterly to corner 109, 37° 08.5895883'N, 75° 53.7864524'W; thence northeasterly to corner 110, 37° 08.6921483'N, 75° 53.6226465'W; thence northeasterly to corner 111, 37° 08.7546771'N, 75° 53.4568175'W; thence northeasterly to corner 112, 37° 08.7754748'N, 75° 53.3619827'W; thence southeasterly along the inshore oyster lease line of H. M. Terry Co., Inc. to corner 18, 37° 08.7544364'N, 75° 53.3207742'W; thence southeasterly to corner 17, 37° 08.7306590'N, 75° 53.2980718'W; thence southeasterly to corner 16, 37° 08.6251318'N, 75° 53.1579039'W; thence easterly to corner 15, 37° 08.6225028'N, 75° 53.1025432'W; thence north-northeasterly to corner 14, 37° 08.6626612'N, 75° 53.0854858'W; thence northwesterly to corner 153, 37° 08.6768312'N, 75° 53.1394736'W; thence along the inshore oyster lease line of Daniel Scott Long, plat 16802, northeasterly to corner 152, 37° 08.7156785'N, 75° 53.0819599'W; thence northeasterly to corner 151, 37° 08.8330482'N, 75° 52.7283538'W; thence, south-southeasterly onto Smith Island to corner 1, 37° 08.4630004'N, 75° 52.6679990'W; thence, southwesterly to corner 2, 37° 07.9690002'N, 75° 53.0919992'W; thence southwesterly to corner 3, 37° 07.9080005'N, 75° 53.4390002'W; thence southwesterly to corner 4, 37° 07.7800009'N, 75° 53.6839996'W; thence southwesterly to corner 5, 37° 07.6540002'N, 75° 54.3200009'W; thence southwesterly to corner 6, 37° 07.3169996'N, 75° 54.6700007' W.; thence northwesterly, off shore, to corner 170 of Mark R. Heath's oyster lease, plat 17456, 37° 07.3524313'N, 75° 54.6976587'W; thence along the inshore line of said parcel, northwesterly to corner 169, 37° 07.3528695'N, 75° 54.7176135'W; thence north-northeasterly to corner 168, 37° 07.4495084'N, 75° 54.7100342'W; thence northeasterly to corner 92, 37° 07.5477653'N, 75° 54.5615711'W; thence northeasterly along the inshore oyster lease line of Ballard Fish and Oyster Co., Inc., plat 16613, to corner 91, 37° 07.6416382'N, 75° 54.4402745'W; thence northeasterly to corner 90, 37° 07.6890220'N, 75° 54.3527929'W; thence northeasterly to corner 89, 37° 07.7661702'N, 75° 54.0839677'W; thence northeasterly along the inshore oyster lease line of Henry S. Jones, Jr., plat 19450, to corner 254, 37° 07.7879690'N, 75° 53.9324560'W; thence northerly to corner 253, 37° 07.8109207'N, 75° 53.9343385'W; thence westerly to corner 252, 37° 07.8094111'N, 75° 53.9916726'W; thence north-northwesterly to corner 251, 37° 07.8582020'N, 75° 53.9962243'W; thence west-southwesterly to corner 250, 37° 07.8535649'N, 75° 54.0512576'W; thence northwesterly to corner 249, 37° 07.9116397'N, 75° 54.0935389'W; thence westerly to corner 248, 37° 07.9113922'N, 75° 54.0976427'W; thence north-northwesterly along the inshore oyster lease line of Ballard Fish and Oyster Co., Inc., plat 16613, to corner 88, 37° 08.0660474'N, 75° 54.1122194'W; thence northeasterly to corner 87, 37° 08.1821017'N, 75° 54.0516546'W; thence north-northeasterly to corner 86, 37° 08.2555945'N, 75° 54.0483544'W; thence north-northeasterly to corner 85, 37° 08.3987390'N, 75° 54.0094551'W, said point being the point of beginning.

3. Cobb Island Oyster Sanctuary - Beginning at a point in Cobb Bay, near the western shore of Cobb Island and being the southern most point of the oyster lease of John R. Mariner, plat 16866, corner 355, said corner having NAD 83 Geographic Coordinates of 37° 19.3528688'N, 75° 45.9182774'W; thence northeasterly along the inshore line of said oyster lease to corner 354, 37° 19.4051876'N, 75° 45.8386060'W; thence northeasterly to corner 353, 37° 19.5182900'N, 75° 45.6662561'W; thence northeasterly to corner 352, 37° 19.6443229'N, 75° 45.5201098'W; thence southeasterly to a point on Cobb Island, corner 5, 37° 19.2960000'N, 75° 45.3319992'W; thence southwesterly to corner 6, 37° 19.2109998'N, 75° 45.4150006'W; thence southwesterly to a point west of Cobb Island, corner 7, 37° 18.9289998'N, 75° 45.5570001'W; thence southwesterly to corner 8, 37° 18.8050003'N, 75° 45.7710008'W; thence southwesterly to corner 9, 37° 18.2650004'N, 75° 46.3249991'W; thence southwesterly to corner 10, 37° 18.1689997'N, 75° 46.6559996'W; thence northerly to corner 11, 37° 18.6160000'N, 75° 46.6279994'W; thence northeasterly to corner 12, 37° 18.7500009'N, 75° 46.5019997'W; thence northeasterly to the western most point of the oyster lease of J. Steve McCready, plat 16371, corner 90, 37° 18.8870550'N, 75° 46.1567968'W; thence southeasterly along the lease line to corner 89, 37° 18.8653681'N, 75° 46.1241425'W; thence southeasterly along the oyster lease line of R&C Seafood, plat 16986 to corner 374, 37° 18.7448511'N, 75° 46.0512077'W; thence northeasterly to corner 373, 37° 18.9339657'N, 75° 45.7191531'W; thence northeasterly to corner 372, 37° 18.9858220'N, 75° 45.6864128'W; thence northwesterly to corner 355, 37° 19.3528688'N, 75° 45.9182774'W, said point being the point of beginning.

4. Boxtree Oyster Sanctuary - Beginning at a point in Boxtree Creek, said point being the eastern most point on the oyster lease of Edwin E. Brady and Marion Brady, Jr., plat 16344, corner 7, said corner having NAD 83 Geographic Coordinates of 37° 23.7990757'N, 75° 51.5561984'W; thence southeasterly to corner 2, 37° 23.6849997'N, 75° 51.4280006'W; thence southerly to a point in Ramshorn Bay, corner 3, 37° 23.5570008'N, 75° 51.4309991'W; thence southeasterly to corner 4, 37° 23.5009994'N, 75° 51.3100008'W; thence southeasterly to corner 5, 37° 23.4050000'N, 75° 51.2529994'W; thence southwesterly to corner 6, 37° 22.8749994'N, 75° 51.5500012'W; thence westerly to a point on shore, corner 8, 37° 22.9039994'N, 75° 52.3000000'W; thence northeasterly to corner 7, 37° 23.7990757'N, 75° 51.5561984'W, said point being the point of beginning.

5. Parramore Island Sanctuary - Beginning at a point, corner 1, in Swash Bay, near the western shore of Parramore Island, being approximately 1,550 feet northeast of the northern most point of the oyster lease of John Barr, plat 19331, said corner having NAD 83 Geographic Coordinates of 37° 32.7759991'N, 75° 39.1639995'W; thence in a east-southeasterly direction, onto Parramore Island, to corner 2, 37° 32.7529993'N, 75° 39.0129998'W; thence south-southeasterly to, a point on shore, corner 3, 37° 32.2970002'N, 75° 39.0090007'W; thence northwesterly, off shore, to corner 4, 37° 32.3579996'N, 75° 39.1610007'W; thence north-northwesterly to corner 1, 37° 32.7759991'N, 75° 39.1639995'W, said point being the point of beginning.

6. Hillcrest Oyster Sanctuary - Beginning at a point in Brockenberry Bay, on the south side of the entrance channel to Oyster Slip and approximately 139 feet south-southwest of Day Marker 14, said point being corner 1, having NAD 83 Geographic Coordinates of 37° 17.3320003'N, 75° 55.1269999'W; thence southeasterly to corner 2, 37° 17.2680001'N, 75° 54.8050006'W; thence east-northeasterly to corner 3, 37° 17.3050000'N, 75° 54.5899996'W; thence northeasterly to corner 4, 37° 17.4090006'N, 75° 54.5039998'W; thence northeasterly to corner 5, 37° 17.5909997'N, 75° 54.4389995'W; thence northeasterly to corner 6, 37° 17.7330004'N, 75° 54.2999997'W; thence south-southeasterly to corner 7, 37° 17.5039998'N, 75° 54.0680001'W; thence south-southeasterly to corner 8, 37° 17.3660002'N, 75° 53.9980006'W; thence south-southeasterly to corner 9, 37° 16.8299992'N, 75° 53.9940006'W; thence south-southwesterly to corner 10, 37° 16.4400007'N, 75° 54.0729995'W; thence northwesterly to corner 11, 37° 16.6400008'N, 75° 54.3490009'W; thence west-northwesterly to corner 12, 37° 16.7200007'N, 75° 54.5290004'W; thence west-southwesterly to corner 13, 37° 16.7550008'N, 75° 55.1040003' W; thence west-southwesterly to corner 14, 37° 16.7039996'N, 75° 55.6450007'W; thence northeasterly to corner 15, 37° 17.0609995'N, 75° 55.0360003'W; thence northeasterly to corner 16, 37° 17.1370004'N, 75° 54.9509998'W; thence northwesterly to corner 17, 37° 17.2660006' N, 75° 55.0820004'W; thence west-southwesterly to corner 18, 37° 17.2610009'N, 75° 55.2330009'W; thence northerly to corner 19, 37° 17.2979996'N, 75° 55.2310007'W; thence northeasterly to corner 1, 37° 17.3320003'N, 75° 55.1269999'W, said point being the point of beginning.

B. Constructed 7. All constructed oyster reefs include all reefs constructed and reef sanctuary areas marked by a "no harvesting" sign provided by the Conservation and Replenishment Department.

4VAC20-650-30. Closure of sanctuary areas.

A. All Oyster Sanctuary Areas shall be closed to the harvest of oysters, except that Seaside of the Eastern Shore Oyster Sanctuary Areas shall be closed to the harvest of all shellfish. Any person harvesting oysters or shellfish from the specified areas shall be guilty of a violation of this chapter.

B. It shall be unlawful for any person to possess any gear that could be used to harvest shellfish, within 100 feet of on public or unassigned oyster grounds, in the area surrounding within 100 feet of any oyster sanctuary area, and such possession shall be considered as prima facie evidence of a violation of this chapter.

VA.R. Doc. No. R09-1906; Filed May 28, 2009, 12:50 p.m.
TITLE 4. CONSERVATION AND NATURAL RESOURCES
MARINE RESOURCES COMMISSION
Final Regulation

Title of Regulation: 4VAC20-670. Pertaining to Recreational Gear Licenses (amending 4VAC20-670-20, 4VAC20-670-25, 4VAC20-670-30, 4VAC20-670-40).

Statutory Authority: § 28.2-201 of the Code of Virginia.

Effective Date: June 1, 2009.

Agency Contact: Jane Warren, Agency Regulatory Coordinator, Marine Resources Commission, 2600 Washington Avenue, 3rd Floor, Newport News, VA 23607, telephone (757) 247-2248, FAX (757) 247-2002, or email betty.warren@mrc.virginia.gov.

Summary:

The amendment establishes a five-pot license to take or possess one bushel of hard crabs and two dozen peeler crabs during June 1 through September 15 season.

4VAC20-670-20. Recreational gear licenses.

A. Any person desiring to take or catch finfish or shellfish for recreational purposes in the tidal waters of Virginia using commercial gear authorized under § 28.2-226.1 of the Code of Virginia shall first obtain the license for the appropriate gear.

B. Any license to use fishing gear for recreational purposes shall be issued to an individual for his exclusive use and shall not be transferable.

C. No person shall be issued more than one recreational gill net license, more than one recreational crab pot license, more than one crab trap license, nor more than one recreational eel pot license.

D. After May 1, 2008, no license to take crabs by crab pot for recreation or personal use shall be issued and any license purchased prior to May 1, 2008, shall be null and void. The commission shall establish a five-pot recreational crab pot license, at such time that it determines from the Virginia-Maryland Baywide Winter Dredge Survey that the abundance of age one and older blue crabs in the Chesapeake Bay meets or exceeds an interim abundance target of 200 million crabs.

E. D. No license shall be required of any person taking minnows, menhaden, or mullet with a cast net for personal use as bait which is not to be sold, traded, or bartered.

4VAC20-670-25. Harvest limits.

It shall be unlawful for any person licensed to use recreational crab pots, recreational crab trap, or recreational ordinary crab trotline, as described in 4VAC20-670-20, to take or possess more than one bushel of hard crabs and two dozen peeler crabs, in any one day, for personal use.

4VAC20-670-30. Gear restrictions.

A. It shall be unlawful for any person to use any gill net greater than 300 feet in length when licensed for recreational purposes under this chapter except as described in subsection B of this section. Any person licensed to use a recreational gill net up to 300 feet in length shall stay within 100 yards of such net when it is overboard. Failure to attend such net in this fashion is a violation of this chapter.

B. It shall be unlawful for any person to use any anchored gill net when licensed for recreational purposes under this chapter that is greater than 110 feet in length in any of the tidal waters upriver of the saltwater-freshwater boundaries. Any anchored gill net set or placed in areas upriver of the saltwater-freshwater boundaries shall be retrieved within one hour of setting or placing that gill net. Any person licensed to use a recreational anchored gill net shall stay within 100 yards of such net when it is overboard. Failure to attend such net in this fashion is a violation of this chapter, and any unattended anchored gill net shall be confiscated by the marine police officer.

C. It shall be unlawful for any person to use more than five crab pots or more than two eel pots when licensed for recreational purposes under this chapter.

D. Any law or chapter applying to the setting or fishing of commercial gill nets, cast nets, dip nets, crab pots, crab traps, or crab trot lines shall also apply to the gear licensed under this chapter when set or fished for recreational purposes, except that (i) certain commercial gear used for recreational purposes shall be marked in accordance with the provisions described in 4VAC20-670-40, (ii) the daily time limits for commercial crab potting and peeler potting established in this section shall not apply to the setting and fishing of recreational crab pots licensed under this chapter, and (iii) the closed season and area established in § 28.2-709 of the Code of Virginia shall not apply to the setting and fishing of recreational crab pots licensed under this chapter.

E. It shall be unlawful for any person to use any recreational gill net to catch and possess any species of fish whose commercial fishery is regulated by an annual harvest quota.

F. It shall be unlawful for any person using a recreational gill net, fish cast net, or fish dip net to take and possess more than the recreational possession limit for any species regulated by such a limit. When fishing from any boat, using gear licensed under this chapter, the total possession limit shall be equal to the number of persons on board legally eligible to fish multiplied by the individual possession limit for the regulated species, and the captain or operator of the boat shall be responsible for adherence to the possession limit.

G. It shall be unlawful for any person using a recreational gill net, fish cast net, or fish dip net to take and possess any fish which is less than the lawful minimum size established for that species. When the taking of any fish is regulated by different size limits for commercial and recreational fishermen, that size limit applicable to recreational fishermen or to hook-and-line fishermen shall apply to the taking of that species by persons licensed under this chapter.

H. It shall be unlawful for any person to use any ordinary crab trot line greater than 300 feet in length when licensed for recreational purposes under this chapter.

I. It shall be unlawful for any person licensed to use five crab pots under this chapter to fish those pots on Sunday or to fish those pots from September 16 through May 31.

4VAC20-670-40. Gear marking requirements.

A. Buoys of any crab pot, eel pot, gill net or ordinary crab trot line used for recreational purposes shall be marked with the licensee's last four numbers of his social security number or driver's license number, preceded by the letter "R."

B. An offshore stake of any crab trap used for recreational purposes shall be marked with the licensee's last four numbers of his social security number or driver's license number, preceded by the letter "R."

C. In accordance with subsections A and B of this section, licensees shall mark their gear in a legible and visible manner and in figures of not less than one inch in height.

VA.R. Doc. No. R09-1991; Filed May 29, 2009, 9:31 a.m.
TITLE 4. CONSERVATION AND NATURAL RESOURCES
MARINE RESOURCES COMMISSION
Final Regulation

Title of Regulation: 4VAC20-880. Pertaining to Hard Crab Pot Limits (amending 4VAC20-880-30).

Statutory Authority: § 28.2-201 of the Code of Virginia.

Effective Date: June 1, 2009.

Agency Contact: Jane Warren, Agency Regulatory Coordinator, Marine Resources Commission, 2600 Washington Avenue, 3rd Floor, Newport News, VA 23607, telephone (757) 247-2248, FAX (757) 247-2002, or email betty.warren@mrc.virginia.gov.

Summary:

The amendments establish that it is unlawful (i) to place, set, or fish more than 255 hard crab pots in the tributaries of the mainstem Chesapeake Bay; (ii) to fish more than 425 hard crab pots in the mainstem Chesapeake Bay or coastal area; and (iii) to place, set, or fish more than a combined total of 425 pots in Virginia tidal waters.

4VAC20-880-30. Hard crab pot limits.

A. From May 1, 2008, through November 30, 2008, it shall be unlawful for any person to place, set or fish more than 255 hard crab pots in the tributaries of the mainstem Chesapeake Bay. After March 16, 2009, it It shall be unlawful for any person to place, set or fish more than 210 255 hard crab pots in the tributaries of the mainstem Chesapeake Bay or the Potomac River tributaries.

B. From May 1, 2008, through November 30, 2008, it shall be unlawful for any person to place, set or fish more than 425 hard crab pots in the mainstem Chesapeake Bay and coastal area. After March 16, 2009, it It shall be unlawful for any person to place, set or fish more than 350 425 hard crab pots in the mainstem Chesapeake Bay or coastal area.

C. From May 1, 2008, through November 30, 2008, it shall be unlawful for any person to place, set or fish more than a combined total of 425 hard crab pots in Virginia tidal waters. After March 16, 2009, it It shall be unlawful for any person to place, set or fish more than 350 425 hard crab pots in Virginia tidal waters.

D. It shall be unlawful for any person to take or catch hard crabs or peeler crabs using any type of pot other than a licensed hard crab pot or peeler pot except as provided in § 28.2-226 of the Code of Virginia.

VA.R. Doc. No. R09-1992; Filed May 28, 2009, 1:11 p.m.
TITLE 4. CONSERVATION AND NATURAL RESOURCES
MARINE RESOURCES COMMISSION
Final Regulation

Title of Regulation: 4VAC20-1040. Pertaining to Crabbing Licenses (amending 4VAC20-1040-25).

Statutory Authority: § 28.2-201 of the Code of Virginia.

Effective Date: June 1, 2009.

Agency Contact: Jane Warren, Agency Regulatory Coordinator, Marine Resources Commission, 2600 Washington Avenue, 3rd Floor, Newport News, VA 23607, telephone (757) 247-2248, FAX (757) 247-2002, or email betty.warren@mrc.virginia.gov.

Summary:

The amendment establishes a deadline for the submission of crabbing license eligibility appeals as June 9, 2009.

4VAC20-1040-25. Appeal process.

Any registered commercial fisherman described in 4VAC20-1040-20 B 2 may appeal the status of his license ineligibility, to the commission, provided he documents one of the following conditions: (i) a health condition that prevented the registered commercial fisherman from harvesting any crabs during the 2004 through 2007 lawful crabbing seasons; (ii) an active military service that prevented the registered commercial fisherman from harvesting any crabs during the 2004 through 2007 lawful crabbing seasons; or (iii) a substantial error in his mandatory harvest reporting records. The deadline for submission to the commission of any appeal under this section shall be June 9, 2009.

VA.R. Doc. No. R09-1993; Filed May 28, 2009, 1:24 p.m.
TITLE 4. CONSERVATION AND NATURAL RESOURCES
MARINE RESOURCES COMMISSION
Final Regulation

Title of Regulation: 4VAC20-1090. Pertaining to Licensing Requirements and License Fees (amending 4VAC20-1090-30).

Statutory Authority: § 28.2-201 of the Code of Virginia.

Effective Date: June 1, 2009.

Agency Contact: Jane Warren, Agency Regulatory Coordinator, Marine Resources Commission, 2600 Washington Avenue, 3rd Floor, Newport News, VA 23607, telephone (757) 247-2248, FAX (757) 247-2002, or email betty.warren@mrc.virginia.gov.

Summary:

The amendments modify crab pot license categories and their limits.


4VAC20-1090-30. License fees.

The following listing of license fees applies to any person who purchases a license for the purposes of harvesting for commercial purposes, or fishing for recreational purposes, during any calendar year.

1. COMMERCIAL LICENSES.

Commercial Fisherman Registration License

$190.00

Commercial Fisherman Registration License for a person 70 years or older

$90.00

Delayed Entry Registration.

$190.00

Delayed Entry Registration License for a person 70 years or older

$90.00

Seafood Landing License for each boat or vessel

$175.00

For each Commercial Fishing Pier over or upon subaqueous beds (mandatory)

$83.00

Seafood Buyer's License -- For each boat or motor vehicle

$63.00

Seafood Buyer's License -- For each place of business

$126.00

Clam Aquaculture Product Owner's Permit

$10.00

Oyster Aquaculture Product Owner's Permit

$10.00

Clam Aquaculture Harvester's Permit

$5.00

Oyster Aquaculture Harvester's Permit

$5.00

Nonresident Harvester's License

$444.00

OYSTER HARVESTING AND SHUCKING LICENSES

For each person taking oysters by hand, or with ordinary tongs

$10.00

For each single-rigged patent tong boat taking oysters

$35.00

For each double-rigged patent tong boat taking oysters

$70.00

Oyster Dredge Public Ground

$50.00

Oyster Hand Scrape

$50.00

To shuck and pack oysters, for any number of gallons under 1,000

$12.00

To shuck and pack oysters, for 1,000 gallons, up to 10,000

$33.00

To shuck and pack oysters, for 10,000 gallons, up to 25,000

$74.00

To shuck and pack oysters, for 25,000 gallons, up to 50,000

$124.00

To shuck and pack oysters, for 50,000 gallons, up to 100,000

$207.00

To shuck and pack oysters, for 100,000 gallons, up to 200,000

$290.00

To shuck and pack oysters, for 200,000 gallons or over

$456.00

BLUE CRAB HARVESTING AND SHEDDING LICENSES, EXCLUSIVE OF CRAB POT LICENSES

For each person taking or catching crabs by dip nets

$13.00

For ordinary trotlines

$13.00

For patent trotlines

$51.00

For each single-rigged crab-scrape boat

$26.00

For each double-rigged crab-scrape boat

$53.00

For up to 210 peeler pots

$36.00

For up to 20 tanks and floats for shedding crabs

$9.00

For more than 20 tanks or floats for shedding crabs

$19.00

For each crab trap or crab pound

$8.00

CRAB POT LICENSES

a. From May 1, 2008, through November 30, 2008, the following crab pot licenses and fees shall be in effect:

For up to 85 crab pots

$48.00

For over 85 but not more than 127 crab pots

$79.00

For over 127 but not more than 170 crab pots

$79.00

For over 170 but not more than 255 crab pots

$79.00

For over 255 but not more than 425 crab pots

$127.00

b. After November 30, 2008, the following crab pot licenses and fees shall be in effect:

For up to 70 85 crab pots

$48.00

For over 70 85 but not more than 105 127 crab pots

$79.00

For over 105 127 but not more than 140 170 crab pots

$79.00

For over 140 170 but not more than 210 255 crab pots

$79.00

For over 210 255 but not more than 350 425 crab pots

$127.00

HORSESHOE CRAB AND LOBSTER LICENSES

For each person harvesting horseshoe crabs by hand

$16.00

For each boat engaged in fishing for, or landing of, lobster using less than 200 pots

$41.00

For each boat engaged in fishing for, or landing of, lobster using 200 pots or more

$166.00

CLAM HARVESTING LICENSES

For each person taking or harvesting clams by hand, rake or with ordinary tongs

$24.00

For each single-rigged patent tong boat taking clams

$58.00

For each double-rigged patent tong boat taking clams

$84.00

For each boat using clam dredge (hand)

$19.00

For each boat using clam dredge (power)

$44.00

For each boat using hydraulic dredge to catch soft shell clams

$83.00

For each person taking surf clams

$124.00

CONCH (WHELK) HARVESTING LICENSES

For each boat using a conch dredge

$58.00

For each person taking channeled whelk by conch pot

$51.00

FINFISH HARVESTING LICENSES

Each pound net

$41.00

Each stake gill net of 1,200 feet in length or under, with a fixed location

$24.00

All other gill nets up to 600 feet

$16.00

All other gill nets over 600 feet and up to 1,200 feet

$24.00

Each person using a cast net or throw net or similar device

$13.00

Each fyke net head, weir, or similar device

$13.00

For fish trotlines

$19.00

Each person using or operating a fish dip net

$9.00

On each haul seine used for catching fish, under 500 yards in length

$48.00

On each haul seine used for catching fish, from 500 yards in length to 1,000 yards in length

$146.00

For each person using commercial hook and line

$31.00

For each person using commercial hook and line for catching striped bass only

$31.00

On each boat or vessel under 70 gross tons fishing with purse net, per gross ton, but not more than $249

$4.00

On each boat or vessel over 70 gross tons fishing with purse net, per gross ton. Provided the maximum license fee for such vessels shall not be more than $996

$8.00

For up to 100 fish pots or eel pots

$19.00

For over 100 but not more than 300 fish pots or eel pots

$24.00

For over 300 fish pots or eel pots

$62.00

2. COMMERCIAL GEAR FOR RECREATIONAL USE.

Up to five crab pots

$36.00

Crab trotline (300 feet maximum)

$10.00

One crab trap or crab pound

$6.00

One gill net up to 300 feet in length

$9.00

Fish dip net

$7.00

Fish cast net

$10.00

Up to two eel pots

$10.00

3. SALTWATER RECREATIONAL FISHING LICENSE.

Individual License

$12.50

Temporary 10-Day License

$5.00

Recreational boat

$38.00

Head Boat/Charter Boat, six or less passengers

$190.00

Head Boat/Charter Boat, more than six passengers plus $5.00 per person over six

$190.00

Rental Boat, per boat, with maximum fee of $635

$9.00

Commercial Fishing Pier (Optional)

$571.00

Disabled Resident Lifetime Saltwater License

$5.00

Reissuance of Saltwater Recreational Boat License

$5.00

Combined Sportfishing License to fish in all inland waters and tidal waters of the Commonwealth during open season

Residents

$24.50

Nonresidents

$42.50

Combined Sportfishing Trip License to fish in all inland waters and tidal waters of the Commonwealth during open season, for five consecutive days

Residents

$10.50

Nonresidents

$15.50

Individual Lifetime License

$250.00

Individual Lifetime License age 45 - 50

$120.00

Individual Lifetime License age 51 - 55

$90.00

Individual Lifetime License age 56 - 60

$60.00

Individual Lifetime License age 61 - 64

$30.00

VA.R. Doc. No. R09-1994; Filed May 28, 2009, 1:30 p.m.
TITLE 4. CONSERVATION AND NATURAL RESOURCES
MARINE RESOURCES COMMISSION
Final Regulation

Title of Regulation: 4VAC20-1120. Pertaining to Tilefish and Grouper (adding 4VAC20-1120-31, 4VAC20-1120-32).

Statutory Authority: § 28.2-201 of the Code of Virginia.

Effective Date: July 1, 2009.

Agency Contact: Jane Warren, Agency Regulatory Coordinator, Marine Resources Commission, 2600 Washington Avenue, 3rd Floor, Newport News, VA 23607, telephone (757) 247-2248, FAX (757) 247-2002, or email betty.warren@mrc.virginia.gov.

Summary:

The amendment establishes a requirement to obtain a Tilefish and Grouper Landing Permit to possess and land grouper and tilefish in Virginia and also requires the reporting of recreational harvests of tilefish and grouper when landed in Virginia.

4VAC20-1120-31. Recreational landing permit.

It shall be unlawful to possess aboard or to land from any private recreational fishing vessel, charter boat, or head boat, any tilefish or grouper harvested recreationally without first having obtained a Tilefish and Grouper Landing Permit for that vessel from the Marine Resources Commission. Such permit shall be completed in full by the vessel owner or operator, approved by the commissioner or his designee, and a copy shall be kept with the permittee while tilefish or grouper is in the possession of that permittee.

4VAC20-1120-32. Recreational mandatory harvest reporting.

A. It shall be unlawful for any registered Tilefish and Grouper Landing Permittee, as described in 4VAC20-1120-31, to fail to fully report harvests and related information as set forth in this chapter and as provided by 4VAC20-610-60.

B. Registered Tilefish and Grouper Landing Permittees shall complete a daily form that accurately enumerates and legibly describes that permittee's daily harvest from Virginia tidal and federal waters. The form used to record daily harvest shall be that provided by the commission or approved by the commission.

C. Registered Tilefish and Grouper Landing Permittees shall submit a monthly harvest report to the commission no later than the fifth day of the following month. This report shall be accompanied by the daily harvest records described in subsection D of this section. Completed forms shall be mailed or delivered to the commission or other designated locations.

D. The monthly harvest report and daily harvest records from registered Tilefish and Grouper Landing Permittees shall include the name and signature of the registered Tilefish and Grouper Landing Permittee and his license number; date of harvest; city or county of landing; water body fished; gear type and amount used; number of hours fished; number of individuals on board, including captain; species harvested; number of discard by species; live weight of each individual species harvested; and vessel identification (Coast Guard documentation number, Virginia license number, or hull/VIN number).

VA.R. Doc. No. R09-1989; Filed May 29, 2009, 9:36 a.m.
TITLE 4. CONSERVATION AND NATURAL RESOURCES
MARINE RESOURCES COMMISSION
Final Regulation

Title of Regulation: 4VAC20-1140. Prohibition of Crab Dredging in Virginia Waters (amending 4VAC20-1140-20).

Statutory Authority: § 28.2-201 of the Code of Virginia.

Effective Date: June 1, 2009.

Agency Contact: Jane Warren, Agency Regulatory Coordinator, Marine Resources Commission, 2600 Washington Avenue, 3rd Floor, Newport News, VA 23607, telephone (757) 247-2248, FAX (757) 247-2002, or email betty.warren@mrc.virginia.gov.

Summary:

The amendments prohibit crab dredging in Virginia's waters from December 1, 2009, through March 31, 2010.

4VAC20-1140-20. Crab dredging prohibited.

A. The season to use a dredge for catching crabs is closed In accordance with the provisions of § 28.2-707 of the Code of Virginia, the crab dredging season of December 1, 2009, through March 31, 2010, is closed, and it shall be unlawful to use a dredge for catching crabs from the waters of the Commonwealth during that season.

B. It shall be unlawful for any person to use a dredge for catching crabs from the waters of the Commonwealth.

C. B. The following regulations that pertain to the crab dredge fishery or activities associated with crab dredging are repealed:

4VAC20-40, "Pertaining to Crab Catch Limits"

4VAC20-90, "Pertaining to Dredging for Crabs"

4VAC20-270-30 C, Daily Time Limits, "Pertaining to Crabbing"

4VAC20-750, "Pertaining to Crab Dredge Sales"

4VAC20-752-30 A, Harvest Restrictions. "Pertaining to Blue Crab Sanctuaries"

4VAC20-1090-30 1, Commercial Licenses: Blue Crab Harvesting and Shedding Licenses--For each boat used for taking or catching hard crabs with dredges. "Pertaining to Licensing Requirements and License Fees"

VA.R. Doc. No. R09-1972; Filed May 28, 2009, 1:46 p.m.
TITLE 4. CONSERVATION AND NATURAL RESOURCES
VIRGINIA SOIL AND WATER CONSERVATION BOARD
Proposed Regulation

Title of Regulation: 4VAC50-60. Virginia Stormwater Management Program (VSMP) Permit Regulations (amending 4VAC50-60-700, 4VAC50-60-720 through 4VAC50-60-840; adding 4VAC50-60-825; repealing 4VAC50-60-710).

Statutory Authority: § 10.1-603.2:1 of the Code of Virginia.

Public Hearing Information:

June 30, 2009 - 7 p.m. - Hungry Mother State Park, Hemlock Haven Conference Center, 380 Hemlock Haven Lane, Marion, VA

July 1, 2009 - 7 p.m. - Augusta County Government Center, Board of Supervisors Meeting Room, 18 Government Center Lane, Verona, VA

July 7, 2009 - 7 p.m. - City of Manassas, City Council Chambers, 9027 Center Street, Manassas, VA

July 9, 2009 - 7 p.m. - City of Hampton, City Council Chambers, 22 Lincoln Street, 8th Floor, Hampton, VA

July 14, 2009 - 7 p.m. - Virginia General Assembly Building, 910 Capitol Street, Senate Room B, Richmond, VA

Public Comments: Public comments may be submitted until 5 p.m. on August 21, 2009.

Agency Contact: David C. Dowling, Policy, Planning, and Budget Director, Department of Conservation and Recreation, 203 Governor Street, Suite 302, Richmond, VA 23219, telephone (804) 786-2291, FAX (804) 786-6141, or email david.dowling@dcr.virginia.gov.

Basis: The Virginia Stormwater Management Program was created by Chapter 372 of the 2004 Virginia Acts of Assembly (HB1177). This action transferred the responsibility for the permitting programs for Municipal Separate Storm Sewers (MS4s) and construction activities from the State Water Control Board and the Department of Environmental Quality to the Virginia Soil and Water Conservation Board and the Department of Conservation and Recreation. This federally authorized program is administered in accordance with requirements set forth in the federal Clean Water Act (33 USC § 1251 et seq.) as well as the Virginia Stormwater Management Act (§ 10.1-603.1 et seq. of the Code of Virginia).

Section 10.1-603.2:1 of the Code of Virginia speaks to the powers and duties of the Virginia Soil and Water Conservation Board. Subdivision 2 of § 10.1-603.2:1 of the Code of Virginia authorizes the Virginia Soil and Water Conservation Board to delegate to the department or an approved locality the implementation of the Virginia Stormwater Management Program. Section 10.1-603.3 of the Code of Virginia (as it will read effective July 1, 2009) requires establishment of stormwater management programs by localities. The board must amend, modify, or delete provisions of the Virginia Stormwater Management Program (VSMP) Permit Regulations to allow localities to implement local stormwater management programs. Additionally, enactment clause 2 of Chapter 18 of the 2009 Virginia Acts of Assembly stipulates that "the regulation that establishes local program criteria and delegation procedures and the water quality and water quantity criteria, and that is referenced in subsections A and B of § 10.1-603.3 of this act, shall not become effective prior to July 1, 2010."

In order to properly pay for these local stormwater management programs and to fund the Department of Conservation and Recreation's necessary program oversight, the Stormwater Management Act, subdivision 5 of § 10.1-603.4 of the Code of Virginia allows for the establishment of a statewide permit fee at a level sufficient to carry out the program. The current fees will be evaluated and necessary increases or decreases made to implement this section of the Code of Virginia. Additionally, the Stormwater Management Act in subdivision 10 of § 10.1-603.4 of the Code of Virginia allows for the establishment of MS4 fees.

Also, requirements set forth in the federal Clean Water Act (33 USC § 1251 et seq.), formally 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, and its attendant regulations set forth in 40 CFR Parts 122, 123, 124 and 125 requires states to establish a permitting program for the management of stormwater for municipal separate storm sewer systems (MS4s) and construction activities disturbing greater than or equal to an acre.

Purpose: The stormwater management program funded through the fees authorized pursuant to this regulatory action is necessary to address water quality within the Commonwealth. Controlling stormwater runoff and its impacts is a serious issue facing the Commonwealth and its local governments. Citizens are complaining about flooding caused by increased amounts of stormwater runoff and the runoff is also reported as a contributor to excessive nutrient enrichment in numerous rivers, lakes, and ponds throughout the state, as well as a continued threat to estuarine waters and the Chesapeake Bay. Numerous studies have documented the cumulative effects of urbanization on stream and watershed ecology. Research has established that as impervious cover in a watershed increases, stream stability is reduced, habitat is lost, water quality becomes degraded, and biological diversity decreases largely due to stormwater runoff. We recognize that impervious areas decrease the natural stormwater purification functions of watersheds and increase the potential for water quality impacts in receiving waters. Additionally, runoff from managed turf is recognized as a significant source of pollutants.

The purpose of this proposed action is to develop regulations that establish statewide stormwater permit fees at a level sufficient to carry out the stormwater management program per subdivision 5 of § 10.1-603.4 of the Code of Virginia and to revise the related provisions in the regulations, as needed, to improve the administration and implementation of fees under the Virginia Stormwater Management Act (§ 10.1-603.2 et seq. of the Code of Virginia).

The fees that are in effect under the current VSMP regulations were transferred over with the stormwater program from the Department of Environmental Quality in 2005 and are essentially only minimal processing fees. These fees are proposed to be amended in this regulatory action, as they are insufficient for the operation of a local program and for necessary program oversight.

• Per the Code of Virginia, the fees need to be set at level sufficient to cover expenses associated with all portions of the administration of the Commonwealth's stormwater management permit program.

• The proposed fees are estimated to appropriately cover the costs of the key elements of administering a stormwater program: plan review, permit review and issuance, inspections, enforcement, program administration and oversight, and travel. The permit fee also includes costs associated with department oversight functions and database management.

• The construction fees are based on the area being disturbed. Administrative expenses routinely increase with the size of the project. When the higher fees are put on a per lot basis, they do not result in a large increase per lot. Such increases will most likely be passed on to the consumer as part of doing business.

• The annual maintenance fees have been established to allow local programs to recoup inspection and enforcement expenses for a project that has not been completed and terminated within the first year. Additionally, modification fees are added to allow a local program to recover expenses associated with significant plan modifications that require review.

• The CPI-U annual increase was added to provide a mechanism to ensure that fees keep pace with the costs of doing business.

• Localities may establish lower construction fees for their program if they can demonstrate their ability to fully and successfully implement a qualifying program at a lower rate or from a different funding source.

• The municipal separate storm sewer system (MS4) fees have been set at a level sufficient to provide oversight to regulated entities MS4 programs and to allow for implementation plan review, report review, and enforcement.

The fees are necessary, as the sole funding source, to support work to minimize the cumulative impacts of stormwater on humans and the environment and to moderate the associated hydrologic impacts. If not properly managed, stormwater can have significant economic impacts and the stream restoration costs to fix the problems after the fact are very costly. Without the fees generated through this regulatory action, local programs could not be properly administered.

This action is necessary to establish sufficient fees to fund the implementation and oversight of stormwater management programs by both localities and the Department of Conservation and Recreation. Such stormwater management programs are being established through a parallel regulatory action (Parts I, II, and III) and are essential to protect the general health, safety, and welfare of the citizens of the Commonwealth from the potential harm of unmanaged stormwater.

Substance: This proposed regulatory action establishes a statewide fee schedule for stormwater management and state agency projects and establishes the fee assessment and the collection and distribution systems for those fees.

• Construction permit fees are proposed to be established at a level to allow a local program to cover stormwater program costs associated with plan review, permit review and issuance, inspections, enforcement, program administration and oversight, and travel. Fees also include costs associated with department oversight functions and database management.

• 50% of the construction fees are due upon application and the remaining 50% at issuance of coverage.

• The construction fees are split 72% to the local program and 28% to the department.

• Localities may establish lower construction fees for their program if they can demonstrate their ability to fully and successfully implement a qualifying program at a lower rate or from a different funding source.

• The construction fees shall be periodically assessed and revised as necessary through regulatory actions.

• Permit fees are established for:

Municipal Separate Storm Sewer Systems new coverage (Individual and General Permit)

Municipal Separate Storm Sewer Systems major modifications (Individual)

Construction activity coverage (Individual and General Permit) (based on project acreage)

Construction activity modifications or transfers (Individual and General Permit) (For those permits that require significant additional administrative expenses such as additional plan reviews, etc.)

MS4 and Construction activity annual permit maintenance fees (Individual and General Permit) (For those projects that have not been completed and terminated within a year, allows for recovery in the out years of expenses associated with inspection, enforcement, etc.)

• Allows for an annual increase in fees based on the CPI-U. (Not to exceed 4.0% per annum without formal action by the board.)

Issues: The primary advantage of this regulatory change for the public is an enhanced statewide stormwater management program that will be properly funded and administered at the local level. This will result in improved compliance with the VSMP regulations and thus improved water quality. The regulated community will also benefit from properly funded and staffed local stormwater management programs, as local administration will improve efficiency and service over today's scenario of erosion and sediment control being administered by the locality and stormwater management being administered by the department. By developing the fee structure based upon the estimated actual costs of administering a local stormwater management program, there is not expected to be any disadvantage to localities or to the department from the fees associated with permits for construction activities.

The primary disadvantage of this proposed regulation is increased permit fees for the regulated community. Today's fees for permits associated with construction activities are set at levels insufficient to support the vast majority of responsibilities associated with administering a stormwater management program. The fees proposed by this regulatory action, while in many cases are higher than the current fees, will allow for proper funding of permit oversight and service. In addition to the increased proposed initial issuance permit fees, annual maintenance fees have been created for the Construction General Permit (by acreage), and for the Construction Individual Permit.

The fees proposed by this regulatory action for municipal separate storm sewer systems (MS4s) are, like the construction activity permitting fees, based on the estimated actual costs of permit administration. For Large and Medium MS4s (Individual Permit), the estimation has resulted in a lower proposed initial issuance permit fee than currently exists. For Small MS4 Individual Permit and for the Small MS4 General Permit, the proposed regulations do include an increased fee. Additionally, MS4 annual maintenance fees have been increased for the MS4 Individual Permit (Large and Medium) and the MS4 Individual Permit (Small) and created for the MS4 General Permit.

The Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Virginia Stormwater Management Program was created by Chapter 372 of the 2004 Virginia Acts of Assembly (HB1177). This transferred the responsibility for the permitting programs for Municipal Separate Storm Sewers (MS4s) and construction activities from the State Water Control Board and the Department of Environmental Quality to the Virginia Soil and Water Conservation Board and the Department of Conservation and Recreation. This federally-authorized program is administered in accordance with requirements set forth in the federal Clean Water Act (33 USC § 1251 et seq.) as well as the Virginia Stormwater Management Act (§ 10.1-603.1 et seq.).

In a separate action, the Virginia Soil and Water Conservation Board (Board), with the assistance of the Virginia Department of Conservation and Recreation (DCR), proposes a comprehensive revision of Virginia's regulations regarding the control and treatment of stormwater runoff from land development activities. The Board proposes to amend the technical criteria applicable to stormwater discharges from construction activities, establishes minimum criteria for locality-administered stormwater management programs (qualifying local programs) and Department of Conservation and Recreation (Department) administered local stormwater management programs, as well as authorization procedures and review procedures for qualifying local programs, and amends the definitions section applicable to all of the Virginia Stormwater Management Program (VSMP) regulations.

With regard to technical criteria applicable to stormwater discharges from construction activities, revised water quality and water quantity requirements are proposed to be included in Part II of the regulations. Water quality requirements include a 0.28 lbs/acre/year phosphorus standard for new development, a requirement that total phosphorus loads be reduced to an amount at least 20% below the pre-development phosphorus load on prior developed lands, and a requirement that control measures be installed on a site to meet any applicable wasteload allocation. Water quantity requirements include both channel protection and flood protection criteria. This action would also establish the minimum criteria and ordinance requirements (where applicable) for a Virginia Soil and Water Conservation Board (Board) authorized qualifying local program (Part IIIA) or for a Board-authorized Department-administered local stormwater management program (Part IIIB) which include, but are not limited to, administration, plan review, issuance of coverage under the General Virginia Stormwater Management Program (VSMP) Permit for Discharges of Stormwater from Construction Activities, inspection, enforcement, reporting, and recordkeeping. Part IIID establishes the procedures the Board will utilize in authorizing a locality to administer a qualifying local program. Part IIIC establishes the criteria the Department will utilize in reviewing a locality's administration of a qualifying local program.

Finally, the proposed action would make changes to definitions in Part I, which is applicable to the full body of the VSMP regulations. Unnecessary definitions are proposed to be deleted, needed definitions are proposed to be added, and many existing definitions are proposed to be updated.

This proposed action, which accompanies the aforementioned action, establishes a statewide fee schedule for stormwater management and state agency projects and establishes the fee assessment and the collection and distribution systems for those fees. Permit fees are established for: Municipal Separate Storm Sewer Systems (new coverage); Municipal Separate Storm Sewer Systems (major modifications); Construction activity general permit coverage; Construction activity individual permits, Construction activity modifications or transfers; and MS4 and Construction activity annual permit maintenance fees.

Note: most of the following analysis was directly taken from a report produced by Professor Kurt Stephenson of Virginia Tech and Bobby Beamer of BBeamer LLC. 1

Result of Analysis. The benefits exceed the costs for one or more proposed changes. The costs likely exceed the benefits for one or more other proposed changes.

Estimated Economic Impact. The Board proposes modifications to the existing stormwater water quantity and quality requirements that will be applied to every land disturbing activity not exempted by state law (§ 10.1-603.8B).2 Land disturbing activity subject to this regulation generally includes disturbances of 2,500 square feet or more in the Chesapeake Bay Preservation Act areas and disturbances of an acre or more elsewhere in the state (with some smaller areas included when a part of a larger common plan of development or sale).

The proposed regulations establish statewide water quality design criteria for land disturbing activities. For new land development projects, water quality plans must be designed so that the total phosphorus load shall not exceed 0.28 pounds per acre per year (4VAC50-60-63). The phosphorus load criterion was derived from Chesapeake Bay Tributary Strategies and reductions needed to achieve Bay-wide nutrient reductions derived from the Chesapeake Bay 2000 Agreement. The 0.28/lb/yr phosphorus design criteria represents the average per acre edge of field loading from agriculture, forest and mixed open land uses (estimated from Chesapeake Bay Program watershed model) if the 2005 tributary strategies input deck was fully implemented. For development that occurs on prior developed land, the designs must allow for the total phosphorus loads to be reduced by 20% below predevelopment levels. While the Chesapeake Bay Tributary Strategies called for phosphorus reductions exceeding 40%, a lower water quality criteria for redevelopment was chosen 1) to achieve additional load reductions from urban areas over existing regulations, and 2) to avoid higher barriers to redevelopment. No explicit sediment or nitrogen water quality design criteria were established because it was determined that the stormwater management practices used to achieve the necessary phosphorus reductions would also result in reductions of nitrogen, sediment, and other potential pollutants.

Compliance is determined by implementing control practices outlined in 4VAC50-60-65. The revisions provide three general ways to reduce phosphorus loads: 1) managing land use conversion (forest, turf, and impervious cover), 2) reducing runoff volumes, and 3) treatment of stormwater runoff. An initial list of best management practices that can be used to achieve the phosphorus criteria are listed in 4VAC50-60-65B. Other BMPs available to comply with the stormwater requirements are listed on the new Virginia Stormwater BMP Clearinghouse website (http://www.vwrrc.vt.edu/swc). The removal efficiency of each BMP includes phosphorus removal from treating the pollutant concentration in the stormwater as well as the percent removal achieved by preventing runoff from occurring (based upon 1 inch of rainfall, 90% storm). The addition of the runoff reduction potential of individual stormwater control practices reflects a substantive change over the existing regulation. Similar to existing practice, the calculation of phosphorus loads is based primarily on the "simple method" (see Virginia Stormwater Handbook) that relates phosphorus load to total impervious surface. The simple method calculation, however, is modified by adding phosphorus loading coefficients for turf and forest land cover. To assist in determining compliance, DCR has also developed an Excel stormwater compliance spreadsheet.

Water quantity control requirements (4VAC50-60-66) establish minimum standards for downstream flood protection and stream channel protection. The proposed regulation establishes different criteria based on the condition of the existing stormwater conveyance systems. Four general classifications of conveyance systems are identified: 1) man-made conveyance systems, 2) restored streams (designed to restore natural steam channels), 3) stable natural stream channels, and 4) unstable natural stream channels. For stream channel protection, general water quantity criteria are (4VAC50-60-66A):

• Man-made conveyance: stormwater releases following land disturbing activity conveys post-development peak flow from 2-year, 24-hour storm without causing erosion.

• Restored stream channel: runoff following land disturbing activity will not exceed design of the restored stormwater conveyance system or result in instability of that system.

• Stable natural stream channel: will not become unstable as a result of the peak flow from the 1-year, 24-hour storm and provides a developed peak flow rate equal to the pre-developed flow rate times the pre-developed runoff volume divided by the developed runoff volume.

• Unstable natural steam channel: runoff following a land-disturbing activity shall be released into a channel at or below a peak developed flow rate based on the 1-year 24-hour storm where the developed peak flow rate is equal to the peak flow rate from the site in a forested condition times the volume of runoff from the site in a forested condition divided by the developed runoff volume.

For flood protection, general water quantity criteria are (4VAC50-60-66B):

• Man-made conveyance must confine the post development peak flow rate from the 10-year, 24-hour storm.

• Restored stream channel: Peak flow rate from the 10-year, 24-hour storm following the land disturbance will be confined within the system.

• Natural stream channel that does not currently flood during a 10-year, 24-hour storm: Post development peak flow from the 10-year, 24-hour storm is confined within the system.

• Natural steam channel where localized flooding exists during a 10-year, 24-hour storm: Post development peak flow rate for 10-year, 24-hour storm shall not exceed predevelopment peak flow from the area under forested conditions.

These criteria do not have to be met under certain conditions where the land disturbance is small relative to the size of the drainage area or results in small contributions to overall peak flow (4VAC50-60-66 C). It is also possible that runoff volume reduction achieved through the implementation of water quality control practices would be sufficient to reduce or avoid the need for water quantity controls.

The proposed regulation allows, in certain situations, water quality and quantity objectives to be met offsite from the disturbed site. 4VAC50-60-65 F and G allow land disturbers to meet water quality criteria off-site. Specifically, the proposed regulations provide that off-site controls "shall achieve the required pollutant reductions either completely off-site in accordance with the plan or in a combination of on-site and off-site controls." In localities with an approved comprehensive watershed management plan (4VAC50-60-96), offset activities can occur within the same Hydrologic Unit Code (HUC)3 or any locally designated watershed. Without such a plan, offsite controls may be allowed, but must be located within the same HUC or adjacent downstream HUC to the land disturbing site (4VAC50-60-65 G 4). In addition, water quantity objectives could also be met offsite if a locality has a Board approved watershed stormwater management plan and equivalent off-site reductions are demonstrated. In areas with approved watershed plans, localities are also permitted to develop a pro rata fee program. Such a program allows land disturbers to pay a per unit fee ($ per pound of P) to meet all or a portion of a regulatory requirement. Fee funds must be used, by Virginia Code requirements (§ 15.2-2243), to fund actions to achieve equivalent results offsite. Local programs administered by DCR would not have a fee system and must confine water quality offset activities within, or adjacent to, the impacted HUC. Additionally, the regulations also provide for a request for an exception that may be granted by a local program in accordance with 4VAC50-60-122.

Linear (road) projects are also subject to the water quality and quantity requirements (4VAC50-60-76). Unless exempt from § 10.1-603.8 B, linear development projects shall "control post-development stormwater runoff in accordance with a site-specific stormwater management plan or a comprehensive watershed stormwater management plan developed in accordance with these regulations."

The proposed regulations also require a stormwater management plan for land disturbing activities. The plan applies the water quality and quantity technical criteria to the land disturbance (4VAC50-60-93).

Program Administration and Permitting: The proposed regulation establishes the requirements for local governments that are required to assume the primary authority to administer the provisions of the proposed regulations as well as for those localities that may elect to administer a program (4VAC50-60-104). DCR's aim is to encourage local governments (counties, cities, and towns) that are not required to administer a program to voluntarily assume this responsibility. Local governments developing a qualifying program must administer the stormwater program in accordance with general criteria outlined in Part III A. In general, a local qualifying program must provide technical criteria to be used in the qualifying local program; procedures for the submission and approval of stormwater management plans (4VAC50-60-108); assessment and collection of fees; inspection and monitoring of land disturbing activities (generally 4VAC50-60-114); procedures and policy for long-term inspection and maintenance of stormwater facilities (4VAC50-60-124); reporting and record keeping (4VAC30-60-126); and enforcement (4VAC30-60-116).

If the local government elects not to administer a program, DCR is required to assume the basic responsibilities of program implementation and administration described above (Part III B).

The regulations also define state oversight responsibilities for the Board and DCR. 4VAC50-60-159 describes the general procedure and requirements the Board must use for authorizing a locality to administer a stormwater management program. Once a locality is approved to administer a stormwater management program, 4VAC50-60-157 describes Board oversight of that program. The Board must review all administered stormwater programs a minimum of once every 5 years (including those administered by DCR). The review will generally consist of reviewing approved site development plans, inspection and enforcement activities, and fee accounting practices. The Board is authorized to pursue corrective actions for noncompliant local programs.

Summary of the estimated economic impact. The proposed revisions to Virginia stormwater regulations will likely produce improvements in the condition of receiving waters. The new emphasis on reducing runoff volumes can produce important benefits related to the condition of aquatic habitat by reducing the energy pulses produced during storm events. New water quantity control requirements also provide benefits in terms of additional flood protection and in-stream aquatic protection. Acknowledging and accounting for the runoff reduction potential of many types of stormwater control practices will increase compliance options and increase the effectiveness of state stormwater regulations.

The proposed regulatory revisions also impose more stringent stormwater water quality criteria. The proposed stormwater regulatory revisions will produce additional reductions in phosphorus and other effluent loads produced from urban land conversion (land use change to impervious cover and turf). Achieving additional improvements in the quality of stormwater will impose new costs on land development activities. In development case examples, the new water quality and quantity standards could be achieved on the development site. The cost of incremental reductions in nutrient loads from the application of stormwater controls, however, is high relative to other nutrient removal options. Uncertainties exist over the long-term cost and effectiveness of many stormwater control practices. The cost of achieving additional nutrient reductions in highly urban settings and other areas with site specific constraints is still uncertain but potentially high. The off-site and pro-rata provisions in the regulation offer opportunities to lower costs and enhance benefits to affected watersheds if properly implemented. The total incremental costs to the state of implementing additional stormwater control practices to meet the proposed regulatory changes could not be estimated at this time.

The proposed revisions apply the same water quality and quantity criteria across the entire state. New proposed stormwater water quality criteria was based on estimates of the nutrient reductions needed to achieve reductions called for in the Chesapeake Bay Tributary Strategies. Economic efficiency of the proposed regulation could be improved by applying differential water quality criteria in watersheds across the state based on the relative water quality benefits that can be achieved.

The proposed regulation will produce improvements in the stormwater permitting structure and will strengthen the administrative tools localities need to implement stormwater programs. While the proposed changes will increase the number and type of control practices that can be used, these changes will also increase the sophistication and resources needed for stormwater design and program administration. The greater expected use of smaller scale distributed practices could increase the costs of local stormwater management, particularly in terms of ensuring the long-term maintenance and performance of stormwater control practices over time. The local and state government cost to administer local stormwater programs will increase (rough estimates range between $13 and $17.5 million, but estimates are not final). State agency cost (DCR) for overall program administration will be a minimum of $3 million per year (estimates are not yet final). These costs are expected to be partially to fully covered by additional fees imposed on land disturbing permit applicants.

This proposed action includes the following fees per permit:

Project Size

Fee per Permit

Greater than or equal to 2,500 sq. ft. & less than 0.5 acres

$290

Greater than or equal to 0.5 acres & less than 1 acre

$1,500

Greater than or equal to 1 acre & less than 5 acres

$2,700

Greater than or equal to 5 acres & less than 10 acres

$3,400

Greater than or equal to 10 acres & less than 50 acres

$4,500

Greater than or equal to 50 acres & less than 100 acres

$6,100

Greater than or equal to 100 acres

$9,600

Based on information supplied by DCR and their own investigation, Stephenson and Beamer project a future average of 5,600 permits per year. Looking at a lower bound estimate of 3,000 permits, best estimated average of 5,600 permits, and an upper bound of 7,000 permits, Stephenson and Beamer estimate that the total annual permit fees collected would be approximately $9 million, $18 million, and $22 million, respectively. DCR would retain about 28 percent of those funds, with the rest going to local governments.

Further detail on estimated costs and benefits can be found in Stephenson and Beamer report, which is Appendix B in the Agency Background Document associated with this proposed action.

Businesses and Entities Affected. The general public and businesses throughout the Commonwealth benefit from additional stream channel and flood protection. Commercial and recreational fisheries benefit from improved water quality. Cleaner waters also benefit tourism-based businesses.

The proposed regulation revises water quality and quantity control requirements for land disturbing activities. As such, the proposed regulations will directly impact private land developers, public land developers, businesses, and homeowners. Virginia residents will also likely pay for the higher costs associated with local stormwater program requirements.4

Public agencies (such as state colleges and universities, state agencies, and municipalities) involved in public works and construction projects will also be required to comply with these requirements.

The direct expenditures (costs) associated with implementing the proposed stormwater requirements may increase upon the current demand for stormwater design and construction services. The comprehensive nature of the regulations and the additional technical requirements will necessitate the greater use of environmental consultants and engineers to design stormwater plans and oversee the implementation of stormwater practices. Businesses providing construction and earthmoving services will also be impacted.

Local governments and DCR are clearly affected by the changes in requirements as well.

Localities Particularly Affected. All Virginia localities are significantly affected by the proposed amendments.

Projected Impact on Employment. Since the comprehensive nature of the regulations and the additional technical requirements will necessitate the greater use of environmental consultants and engineers to design stormwater plans and oversee the implementation of stormwater practices, there will likely be more demand for their services and some increase in the value of associated firms.

Effects on the Use and Value of Private Property. Since the comprehensive nature of the regulations and the additional technical requirements will necessitate the greater use of environmental consultants and engineers to design stormwater plans and oversee the implementation of stormwater practices, there will likely be more demand for their services and some increase in the value of associated firms. Cleaner water may also add to the profitability of some commercial fisheries. Also, increased demand for stormwater design and construction services may result in higher value in some associated firms.

Private land developers across the state may face increased land development costs associated with these new regulations in many situations. A portion of those costs will be passed down to buyers of newly constructed properties, homeowners and businesses. Although maintenance of stormwater control facilities should be conducted under today's regulations, many commercial property owners and some residential property owners across the state may still face higher long-term costs associated with maintenance of stormwater control facilities because of the potential for the installation of a greater number of these facilities to meet the proposed requirements and higher maintenance costs associated with some types of BMPs. Virginia residents will also likely pay for the higher costs associated with local stormwater program requirements.

Small Businesses: Costs and Other Effects. Numerous small businesses, particularly those involved in aquaculture and tourism, will benefit from improved water quality. Those and other firms will benefit from reduced flooding risk. As alluded to above, stormwater design and construction services and environmental consultants and engineers will likely encounter greater demand for their services.

On the other hand, private land developers will face increased land development costs associated with these amended regulations, and a portion of those costs will be passed down to buyers of newly constructed properties including small businesses.

Small Businesses: Alternative Method that Minimizes Adverse Impact. This proposed action concerns the fee schedule associated with the proposed comprehensive revision of Virginia's regulations regarding the control and treatment of stormwater runoff from land development activities. Reducing the burden of the fees on small businesses would necessitate shifting the burden to other entities. If all aspects of the associated proposed comprehensive revision of Virginia's regulations regarding the control and treatment of stormwater runoff from land development activities are kept, then there is no clear alternative method that minimizes the adverse impact on small businesses that would not in turn just be a shifting of a commensurate burden to other entities.

Real Estate Development Costs. The proposed additional fees imposed on land disturbing permit applicants will commensurately increase real estate development costs.

Legal Mandate. The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Administrative Process Act and Executive Order Number 36 (06). Section 2.2-4007.04 requires that such economic impact analyses include, but need not be limited to, the projected number of businesses or other entities to whom the regulation would apply, the identity of any localities and types of businesses or other entities particularly affected, the projected number of persons and employment positions to be affected, the projected costs to affected businesses or entities to implement or comply with the regulation, and the impact on the use and value of private property. Further, if the proposed regulation has adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include (i) an identification and estimate of the number of small businesses subject to the regulation; (ii) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the regulation, including the type of professional skills necessary for preparing required reports and other documents; (iii) a statement of the probable effect of the regulation on affected small businesses; and (iv) a description of any less intrusive or less costly alternative methods of achieving the purpose of the regulation. The analysis presented above represents DPB's best estimate of these economic impacts.

_________________________________

1 Stephenson, K. and B. Beamer. December 31, 2008, "Economic Impact Analysis of Revisions to the Virginia Stormwater Regulation," Appendix B in the Agency Background Document associated with this proposed action.

2 Exemptions under this regulation include land-disturbing activities generally associated with agricultural, forest, and mining activities (§ 10.1-603.8 B). Road projects may also be exempted if certain minimal impacts can be demonstrated.

3 Hydrologic Unit Code" or "HUC" means a watershed unit established in the most recent version of Virginia's 6th Order National Watershed Boundary Dataset. Sixth order HUC range in size from 10,000 to 40,000 acres. See http://www.dcr.virginia.gov/soil_&_water/hu.shtml

4 For localities with stormwater utilities, the increase in cost for stormwater control facilities long-term maintenance may be paid for by higher fees. Other localities would have to cover the higher costs through existing local and state revenue sources.

Agency's Response to the Department of Planning and Budget's Economic Impact Analysis: The Department of Conservation and Recreation (DCR) has reviewed the economic impact analysis (EIA) of the Virginia Soil and Water Conservation Board's proposed amendments to Part XIII of the Virginia Stormwater Management Program (VSMP) Permit Regulations (4VAC50-60) prepared by the Department of Planning and Budget (DPB) and generally concurs with the fee assessment while offering the following specific observations and or qualifications.

First, DCR notes that this action is closely tied to the proposed Part I, II, and III stormwater regulatory action as the fees generated are necessary to fund the local stormwater management programs established through that concurrent regulatory action. The fees that are in effect under the current VSMP regulations were transferred over with the stormwater program from the Department of Environmental Quality in 2005 and are essentially only minimal processing fees. The existing fees are proposed to be amended in this regulatory action as they are insufficient for the operation of a local program and for necessary program oversight. The proposed fees have been established using estimates of the time determined to be necessary for different sized projects for a local stormwater management program to conduct plan review, inspections (including stormwater pollution prevention plan (SWPPP) review and re-inspections), and enforcement; provide technical assistance; and issue permit coverage, and for DCR to provide oversight of the Commonwealth's stormwater management program. The public will benefit from an enhanced statewide stormwater management program that will be properly funded and administered at the local level. This will result in improved compliance with the VSMP regulations and thus improved water quality. The regulated community will also benefit from properly funded and staffed local stormwater management programs, as local administration will improve efficiency and service over today's scenario of erosion and sediment control being administered by the locality and stormwater management being administered by the department. DCR also notes that a wealth of additional information regarding the proposed fees in this regulatory action, including how they are calculated, is presented in the detailed Agency Statement document (TH-02 form) accompanying this regulatory action.

Second, the EIA specifies that "[b]ased on information supplied by DCR and their own investigation, Stephenson and Beamer1 project a future average of 5,600 permits per year. Looking at a lower bound estimate of 3,000 permits, best estimated average of 5,600 permits, and an upper bound of 7,000 permits, Stephenson and Beamer estimate that the total annual permit fees collected would be approximately $9 million, $18 million, and $22 million, respectively." DCR spent considerable time in its analyses in the Agency Statement refining the estimate of the number of permits that are expected to be issued when the regulations are implemented and the revenue that would need to be generated to cover program costs. DCR, after taking the data from several sources under consideration and the significantly slowing economy, and recognizing that an overestimate of the permits to be expected in the future could lead to severe revenue shortfalls and an inability of both localities and the department to cover program administration costs (if proposed permit fees were further lowered), selected 5,000 permits as a reasonable estimate of the number of expected permits annually going forward (unless there is further erosion of the economy). This calculation is fundamental to both local and state staffing calculations as well as the right-sizing of the proposed fees to cover costs. DCR estimates that the revenue from the proposed fees will be approximately $14.7 million to be used by localities to administer 103 local stormwater management programs and by DCR to administer 74 local stormwater management programs (consolidation of 222 localities) as well as to conduct construction program oversight and MS4 program management. The estimated fee revenue generated compares closely with the $14.9 million estimate in combined program administration costs.

Finally, DCR emphasizes that the proposed fees are necessary, as the sole funding source, to support work to minimize the cumulative impacts of stormwater on humans and the environment and to moderate the associated hydrologic impacts. If not properly managed, stormwater can have significant economic impacts and the stream restoration costs for fixing the problems after the fact are very costly. Without the fees generated through this regulatory action, local programs could not be properly administered. Per the Code, the fees need to be set at level sufficient to cover expenses associated with all portions of the administration of the Commonwealth's stormwater management permit program.

______________________________________

1 Stephenson, K. and B. Beamer. December 31, 2008, "Economic Impact Analysis of Revisions to the Virginia Stormwater Regulation," Appendix B in the Agency Background Document associated with this proposed action.

Summary:

This proposed regulatory action establishes a statewide fee schedule for stormwater management and state agency projects and establishes the fee assessment and the collection and distribution systems for those fees. Permit fees are established for: Municipal Separate Storm Sewer Systems (new coverage); Municipal Separate Storm Sewer Systems (major modifications); Construction activity general permit coverage; Construction activity individual permits; Construction activity modifications or transfers; and MS4 and Construction activity annual permit maintenance fees.

This action is closely tied to the proposed Parts I, II, and III action of this chapter as the fees generated are necessary to fund the local stormwater management programs established through that concurrent regulatory action. The fees have been established using estimates of the time determined to be necessary for different sized projects for a local stormwater management program to conduct plan review, for inspections (including stormwater pollution prevention plan (SWPPP) review and re-inspections), for enforcement, to provide technical assistance, to issue permit coverage, and for the Department of Conservation and Recreation to provide oversight of the Commonwealth's stormwater management program.

The necessary proposed permit fee levels were arrived at through discussions of a subcommittee of the technical advisory committee and discussions with the overall technical advisory committee and through corroboration of the costs of conducting the various components of program implementation with Department of Conservation and Recreation stormwater field staff and with local government program personnel.

Part XIII
Fees

4VAC50-60-700. Purpose.

Sections 10.1-603.4 and 10.1-603.5 of the Code of Virginia authorize the establishment of a statewide fee schedule for stormwater management and state agency projects for land-disturbing activities and for municipal separate storm sewer systems. These regulations in this This part establish establishes the fee assessment and the collection system and distribution systems for those fees. The fees associated with individual permits or coverage under the General Permit for Discharges of Stormwater From Construction Activities (permits for stormwater management for land-disturbing activities) issued by a qualifying local program or a department-administered local stormwater management program that has been approved by the board shall include costs associated with plan review, permit review and issuance, inspections, enforcement, program administration and oversight, and database management. Fees shall also be established for permit maintenance, modification, and transfer.

Should a qualifying local program demonstrate to the board its ability to fully and successfully implement a qualifying local program without a full implementation of the fees set out in this part, the board may authorize the administrative establishment of a lower fee for that program provided that such reduction shall not reduce the amount of fees due to the department for its program oversight and shall not affect the fee schedules set forth herein.

As part of its program oversight, the department shall periodically assess the revenue generated by both the localities and the department to ensure that the fees have been appropriately set and the fees may be adjusted through periodic regulatory actions should significant deviations become apparent. The department may make such periodic adjustments in addition to the annual fee increases authorized by 4VAC50-60-840.

4VAC50-60-710. Definitions. (Repealed.)

The following words and terms used in this chapter have the following meanings:

"Permit applicant" means for the purposes of this part any person submitting a permit application for issuance, reissuance, or modification, except as exempted by 4VAC50-60-740, of a permit or filing a registration statement or permit application for coverage under a general permit issued pursuant to the Act and this chapter.

"Permit application" means for the purposes of this part the forms approved by the Virginia Soil and Water Conservation Board for applying for issuance or reissuance of a permit or for filing a registration statement or application for coverage under a general permit issued in response to the Act and this chapter. In the case of modifications to an existing permit requested by the permit holder and not exempted by 4VAC50-60-740, the application shall consist of the formal written request and any accompanying documentation submitted by the permit holder to initiate the modification.

4VAC50-60-720. Authority.

The authority for this part is pursuant to §§ 10.1-604.4 §§ 10.1-603.4 and 10.1-603.4:1 of the Code of Virginia and enactment clause 7 governing the transfer of the relevant provisions of Fees for Permits and Certificates Regulations, 9VAC25-20, in accordance with Chapter 372 of the 2004 Virginia Acts of Assembly.

4VAC50-60-730. Applicability.

A. This part applies to:

1. All permit applicants for issuance of persons seeking coverage of a MS4 under a new permit or reissuance of an existing permit, except as specifically exempt under 4VAC50-60-740 A. The fee due shall be as specified under 4VAC50-60-800 or 4VAC50-60-820.

2. All permittees operators who request that an existing MS4 individual permit be modified, except as specifically exempt under 4VAC50-60-740 A 1 of this chapter. The fee due shall be as specified under 4VAC50-60-810.

3. All persons seeking coverage under the General Permit for Discharges of Stormwater From Construction Activities or a person seeking an Individual Permit for Discharges of Stormwater From Construction Activities. The fee due shall be as specified under 4VAC50-60-820.

4. All permittees who request modifications to or transfers of their existing registration statement for coverage under a General Permit for Discharges of Stormwater From Construction Activities or of an Individual Permit for Discharges of Stormwater From Construction Activities. The fee due shall be as specified under 4VAC50-60-825 in addition to any additional fees necessary pursuant to 4VAC50-60-820 due to an increase in acreage.

B. An applicant for a permit involving a permit that is to be revoked and reissued Persons who are applicants for an individual VSMP Municipal Separate Stormwater Sewer System permit as a result of existing permit revocation shall be considered an applicant for a new permit. The fee due shall be as specified under 4VAC50-60-800.

Persons whose coverage under the General Permit for Discharges of Stormwater From Construction Activities has been revoked shall reapply for an Individual Permit for Discharges of Stormwater From Construction Activities. The fee due shall be as specified under 4VAC50-60-820.

C. Permit and permit coverage maintenance fees may apply to each Virginia Stormwater Management Permit (VSMP) permit holder. The fee due shall be as specified under 4VAC50-60-830.

4VAC50-60-740. Exemptions.

A. No permit application fees will be assessed to:

1. Permittees who request minor modifications or minor amendments to permits as defined in 4VAC50-60-10 or other minor amendments at the discretion of the local stormwater management program.

2. Permittees whose permits are modified or amended at the initiative of the permit-issuing authority. This does not include errors in the registration statement identified by the local stormwater management program or errors related to the acreage of the site.

B. Permit modifications at the request of the permittee resulting in changes to stormwater management plans that require additional review by the local stormwater management program shall not be exempt pursuant to this section and shall be subject to fees specified under 4VAC50-60-825.

4VAC50-60-750. Due dates for Virginia Stormwater Management Program (VSMP) Permits.

A. Permit application fees for all new permit applications are due on the day a permit application is submitted and shall be Requests for a permit, permit modification, or general permit coverage shall not be processed until the fees required pursuant to this part are paid in accordance with 4VAC50-60-760. Applications will not be processed without payment of the required fee.

B. A permit application fee is due on the day a permit application is submitted for a major modification that occurs (and becomes effective) before the stated permit expiration date. There is no application fee for a major modification or amendment that is made at the permit-issuing authority's initiative.

C. Permit B. Individual permit or general permit coverage maintenance fees shall be paid annually to the permit-issuing authority by October 1 of each year department or the qualifying local program, as applicable, by the anniversary date of individual permit issuance or general permit coverage. No permit will be reissued or automatically continued without payment of the required fee. Individual permit or general permit coverage maintenance fees shall be applied until a Notice of Termination is effective.

MS4 individual operators who currently pay a permit maintenance fee that is due by October 1 of each year shall continue to pay the maintenance fee by October 1 until their current permit expires. Upon reissuance of the MS4 individual permit, maintenance fees shall be paid on the anniversary date of the reissued permit.

Effective April 1, 2005, any permit holder whose permit is effective as of April 1 of a given year (including permits that have been administratively continued) shall pay the permit maintenance fee or fees to the permit-issuing authority by October 1 of that same year.

4VAC50-60-760. Method of payment.

A. Fees, as applicable, shall be, at the discretion of the department, submitted electronically or be paid by check, draft, or postal money order payable to:

the 1. The Treasurer of Virginia, for a MS4 individual or general permit or for a coverage issued by the department under the General Permit for Discharges of Stormwater From Construction Activities or Individual Permit for Discharges of Stormwater From Construction Activities, to the permit-issuing authority, and must be in U.S. currency, except that agencies and institutions of the Commonwealth of Virginia may submit Interagency Transfers for the amount of the fee. To pay electronically, go to the Department of Conservation and Recreation's stormwater management section of the Department's public website at http://www.dcr.virginia.gov. The Department of Conservation and Recreation may provide a means to pay fees electronically. Fees not submitted electronically shall be sent to the following address: Virginia Department of Conservation and Recreation, Division of Finance, Accounts Payable, 203 Governor Street, Richmond, VA 23219.

Virginia Department of Conservation and Recreation
Division of Finance, Accounts Payable
203 Governor Street
Richmond, VA 23219

2. The qualifying local program, for coverage authorized by the qualifying local program under the General Permit for Discharges of Stormwater From Construction Activities, and must be in U.S. currency.

B. Required information . for permits or permit coverage: All applicants for new permit issuance, permit reissuance, or permit modification, unless otherwise specified by the department, shall submit the following information along with the fee payment or utilize the Department of Conservation and Recreation Permit Application Fee Form:

1. Applicant name, address and daytime phone number.

2. Applicant Federal Identification Number (FIN), if applicable.

3. The name of the facility/activity, and the facility/activity location.

4. The type of permit applied for.

5. Whether the application is for a new permit issuance, permit reissuance, permit maintenance, or permit modification.

6. The amount of fee submitted.

7. The existing permit number, if applicable.

8. Other information as required by the local stormwater management program.

4VAC50-60-770. Incomplete payments and late payments.

All incomplete payments will be deemed as nonpayments. The department or the qualifying local program, as applicable, shall provide notification to the applicant of any incomplete payments.

Interest may be charged for late payments at the underpayment rate set out by the U.S. Internal Revenue Service established pursuant to § 6621(a)(2) of the Internal Revenue Code. This rate is prescribed set forth in § 58.1-15 of the Code of Virginia and is calculated on a monthly basis at the applicable periodic rate.

A 10% late payment fee may shall be charged to any delinquent (over 90 days past due) account.

The permit-issuing authority is department and the qualifying local program are entitled to all remedies available under the Code of Virginia in collecting any past due amount and may recover any attorney's fees and/or other administrative costs incurred in pursuing and collecting any past due amount.

4VAC50-60-780. Deposit and use of fees.

A. All fees collected by the board department or department board in response pursuant to this chapter shall be deposited into a special nonreverting fund known as the Virginia Stormwater Management Fund established by, and shall be used and accounted for as specified in § 10.1-603.4:1 of the Code of Virginia. Fees collected by the department or board shall be exempt from statewide indirect costs charged and collected by the Department of Accounts.

B. All fees collected by a qualifying local program pursuant to this chapter shall be subject to accounting review and shall be used solely to carry out the qualifying local program's responsibilities pursuant to Part II and Part III A of this chapter.

Whenever Pursuant to subdivision 5 a of § 10.1-603.4 of the Code of Virginia, whenever the board has delegated authorized the administration of a stormwater management program to by a locality or is required to do so by the Act qualifying local program, no more than 30% 28% of the total revenue generated by the statewide stormwater management fees collected within the locality in accordance with 4VAC50-60-820 shall be remitted on a monthly basis to the State Treasurer for deposit in the Virginia Stormwater Management Fund unless otherwise collected electronically. If the qualifying local program waives or reduces any fee due in accordance with 4VAC50-60-820, the qualifying local program shall remit the 28% portion that would be due to the Virginia Stormwater Management Fund if such fee were charged in full.

4VAC50-60-790. General.

Each permit application for a new permit each permit application for reissuance of a permit, each permit application for major modification of a permit, and each revocation and reissuance of a permit is a The fees for individual permits, general permit coverage, permit or registration statement modification, or permit transfers are considered separate action actions and shall be assessed a separate fee, as applicable. The fees for each type of permit that the permit-issuing authority has the authority to issue, reissue or modify will be as specified in this part.

4VAC50-60-800. Fee schedules for VSMP Municipal Separate Storm Sewer System new permit issuance.

The following fee schedule applies to permit applications for issuance of a new individual VSMP Municipal Separate Storm Sewer System permit or coverage under a MS4 General Permit. All regulated MS4s that apply for joint coverage under an individual permit or general permit registration shall each pay the appropriate fees set out below.

VSMP Municipal Stormwater / MS4 Individual (Large and Medium)

$21,300 $16,000

VSMP Municipal Stormwater / MS4 Individual (Small)

$2,000 $8,000

VSMP Municipal Stormwater / MS4 General Permit (Small)

$600 $4,000

4VAC50-60-810. Fee schedules for major modification of MS4 individual permits or certificates requested by the permitee operator.

The following fee schedules apply schedule applies to applications for major modification of an individual MS4 permit requested by the permittee:

The permit application fees listed in the table below apply to a major modification of a VSMP Municipal Separate Storm Sewer Systems Permit that occurs (and becomes effective) before the stated permit expiration date.

VSMP Municipal Stormwater / MS4 Individual (Large and Medium)

$10,650 $5,000

VSMP Municipal Stormwater / MS4 Individual (Small)

$1,000 $2,500

4VAC50-60-820. Fees for filing permit applications (registration statements) for general permits issued by the permit-issuing authority an individual permit or coverage under the General Permit for Discharges of Stormwater from Construction Activities.

The following fees apply to filing of permit applications (registration statements) for all general permits issued by the permit-issuing authority, except VSMP Stormwater Construction General Permits coverage under the General Permit for Discharges of Stormwater from Construction Activities issued by the department prior to a qualifying local program or a department-administered local stormwater management program being approved by the board in the area where the applicable land-disturbing activity is located, or where the department has issued an individual permit or coverage under the General Permit for Discharges of Stormwater from Construction Activities for a state agency for which it has approved annual standards and specifications.

The fee for filing a permit application (registration statement) for coverage under a VSMP stormwater general permit issued by the permit-issuing authority shall be:

VSMP General / Stormwater Management - Phase I Land Clearing ("Large" Construction Activity - Sites or common plans of development equal to or greater than 5 five acres)

$500

VSMP General / Stormwater Management - Phase II Land Clearing ("Small" Construction Activity - Sites or common plans of development equal to or greater than 1 one acre and less than 5 five acres)

$300

VSMP General/Stormwater Management – Small Construction Activity/Land Clearing (Sites within designated areas of Chesapeake Bay Act localities with land disturbance acreage equal to or greater than 2,500 square feet and less than one acre)

$200

The following fees apply to coverage under the General Permit for Discharges of Stormwater from Construction Activities for a state agency that does not file annual standards and specifications, an individual permit issued by the board or coverage under the General Permit for Discharges of Stormwater from Construction Activities issued by a qualifying local program, or a department-administered local stormwater management program that has been approved by the board. For coverage under the General Permit for Discharges of Stormwater from Construction Activities, 50% of the fee shall be due at the time that a stormwater management plan or an initial stormwater management plan is submitted for review in accordance with 4VAC50-60-108. The remaining 50% shall be due prior to the issuance of coverage under the General Permit for Discharges of Stormwater from Construction Activities.

When a site or sites are purchased for development within a previously permitted common plan of development or sale, the applicant shall be subject to fees in accordance with the disturbed acreage of their site or sites according to the following table.

VSMP General / Stormwater Management – Small Construction Activity/Land Clearing (Sites within designated areas of Chesapeake Bay Act localities with land-disturbance acreage equal to or greater than 2,500 square feet and less than 0.5 acre)

$290

VSMP General / Stormwater Management - Small Construction Activity/Land Clearing (Areas within common plans of development or sale with land-disturbance acreage less than one acre)

$290

VSMP General / Stormwater Management - Small Construction Activity/Land Clearing (Sites within designated areas of Chesapeake Bay Act localities with land-disturbance acreage equal to or greater than 0.5 acre and less than one acre)

$1,500

VSMP General / Stormwater Management - Small Construction Activity/Land Clearing (Sites or areas within common plans of development or sale with land-disturbance acreage equal to or greater than one acre and less than five acres)

$2,700

VSMP General / Stormwater Management – Large Construction Activity/Land Clearing (Sites or areas within common plans of development or sale with land-disturbance acreage equal to or greater than five acres and less than 10 acres)

$3,400

VSMP General / Stormwater Management – Large Construction Activity/Land Clearing (Sites or areas within common plans of development or sale with land-disturbance acreage equal to or greater than 10 acres and less than 50 acres)

$4,500

VSMP General / Stormwater Management – Large Construction Activity/Land Clearing (Sites or areas within common plans of development or sale with land-disturbance acreage equal to or greater than 50 acres and less than 100 acres)

$6,100

VSMP General / Stormwater Management – Large Construction Activity/Land Clearing (Sites or areas within common plans of development or sale with land-disturbance acreage equal to or greater than 100 acres)

$9,600

VSMP Individual Permit for Discharges of Stormwater From Construction Activities

$15,000

4VAC50-60-825. Fees for the modification or transfer of individual permits or of registration statements for the General Permit for Discharges of Stormwater from Construction Activities.

The following fees apply to modification or transfer of individual permits or of registration statements for the General Permit for Discharges of Stormwater from Construction Activities issued by a qualifying local program or a department-administered local stormwater management program that has been approved by the board. If the permit modifications result in changes to stormwater management plans that require additional review by the local stormwater management program, such reviews shall be subject to the fees set out in this section. The fee assessed shall be based on the total disturbed acreage of the site. No modification or transfer fee shall be required until such board-approved programs exist. No modification fee shall be required for the General Permit for Discharges of Stormwater from Construction Activities for a state agency that is administering a project in accordance with approved annual standards and specifications but shall apply to all other state agency projects.

VSMP General / Stormwater Management – Small Construction Activity/Land Clearing (Sites within designated areas of Chesapeake Bay Act localities with land-disturbance acreage equal to or greater than 2,500 square feet and less than 0.5 acre)

$20

VSMP General / Stormwater Management – Small Construction Activity/Land Clearing (Areas within common plans of development or sale with land disturbance acreage less than one acre)

$20

VSMP General / Stormwater Management – Small Construction Activity/Land Clearing (Sites within designated areas of Chesapeake Bay Act localities with land-disturbance acreage equal to or greater than 0.5 acre and less than one acre)

$100

VSMP General / Stormwater Management – Small Construction Activity/Land Clearing (Sites or areas within common plans of development or sale with land-disturbance acreage equal to or greater than one and less than five acres)

$200

VSMP General / Stormwater Management – Large Construction Activity/Land Clearing (Sites or areas within common plans of development or sale with land-disturbance acreage equal to or greater than five acres and less than 10 acres)

$250

VSMP General / Stormwater Management – Large Construction Activity/Land Clearing (Sites or areas within common plans of development or sale with land-disturbance acreage equal to or greater than 10 acres and less than 50 acres)

$300

VSMP General / Stormwater Management – Large Construction Activity/Land Clearing (Sites or areas within common plans of development or sale with land-disturbance acreage equal to or greater than 50 acres and less than 100 acres)

$450

VSMP General / Stormwater Management – Large Construction Activity/Land Clearing (Sites or areas within common plans of development or sale with land-disturbance acreage equal to or greater than 100 acres)

$700

VSMP Individual Permit for Discharges of Stormwater From Construction Activities

$5,000

4VAC50-60-830. Permit maintenance fees.

A. The following annual permit maintenance fees apply to each VSMP permit identified below, including expired permits that have been administratively continued:. With respect to the General Permit for Discharges of Stormwater from Construction Activities, these fees shall apply until the permit coverage is terminated, and shall only be effective when assessed by a qualifying local program or a department-administered local stormwater management program that has been approved by the board. No maintenance fee shall be required for a General Permit for Discharges of Stormwater from Construction Activities until such board approved programs exist. No maintenance fee shall be required for the General Permit for Discharges of Stormwater from Construction Activities for a state agency that is administering a project in accordance with approved annual standards and specifications but shall apply to all other state agency projects. All regulated MS4s who are issued joint coverage under an individual permit or general permit registration shall each pay the appropriate fees set out below:

VSMP Municipal Stormwater / MS4 Individual (Large and Medium)

$3,800 $8,800

VSMP Municipal Stormwater / MS4 Individual (Small)

$400 $6,000

VSMP Municipal Stormwater / MS4 General Permit (Small)

$4,000

VSMP General / Stormwater Management - Phase I Land Clearing ("Large" Construction Activity - Sites or common plans of development equal to or greater than 5 acres)

$0

VSMP General / Stormwater Management - Phase II Land Clearing ("Small" Construction Activity - Sites or common plans of development equal to or greater than 1 acre and less than 5 Acres)

$0

VSMP General / Stormwater Management – Small Construction Activity/Land Clearing (Sites within designated areas of Chesapeake Bay Act localities with land-disturbance acreage equal to or greater than 2,500 square feet and less than 0.5 acre)

$50

VSMP General / Stormwater Management – Small Construction Activity/Land Clearing (Areas within common plans of development or sale with land-disturbance acreage less than one acre)

$50

VSMP General / Stormwater Management – Small Construction Activity/Land Clearing (Sites within designated areas of Chesapeake Bay Act localities with land-disturbance acreage equal to or greater than 0.5 acre and less than one acre)

$200

VSMP General / Stormwater Management – Small Construction Activity/Land Clearing (Sites or areas within common plans of development or sale with land-disturbance equal to or greater than one acre and less than five acres)

$400

VSMP General / Stormwater Management – Large Construction Activity/Land Clearing (Sites or areas within common plans of development or sale with land-disturbance acreage equal to or greater than five acres and less than 10 acres)

$500

VSMP General / Stormwater Management – Large Construction Activity/Land Clearing (Sites or areas within common plans of development or sale with land-disturbance acreage equal to or greater than 10 acres and less than 50 acres)

$650

VSMP General / Stormwater Management – Large Construction Activity/Land Clearing (Sites or areas within common plans of development or sale with land-disturbance acreage equal to or greater than 50 acres and less than 100 acres)

$900

VSMP General / Stormwater Management – Large Construction Activity/Land Clearing (Sites or areas within common plans of development or sale with land-disturbance acreage equal to or greater 100 acres)

$1,400

VSMP Individual Permit for Discharges From Construction Activities

$3,000

B. An additional permit maintenance fee of $1,000 shall be paid annually by permittees in a toxics management program. Any facility that performs acute or chronic biological testing for compliance with a limit or special condition requiring monitoring in a VPDES permit is included in the toxics management program.

4VAC50-60-840. [Reserved] Annual increase in fees.

The fees set out in 4VAC50-60-800 through 4VAC50-60-830 shall be increased each July 1 by multiplying the fee by the percentage by which the consumer price index for all-urban consumers published by the United States Department of Labor (CPI-U) for the 12-month period ending May 31 of the preceding year exceeds the CPI-U for the 12-month period ending May 31, 2007, and the result shall be rounded to the nearest $1 increment. The fee schedule shall be posted to the department's website and distributed to each qualified local program in advance of each fiscal year. Notwithstanding the foregoing, in no event shall the permit fee be decreased and in no event shall any increase exceed 4.0% per annum without formal action by the board.

FORMS (4VAC50-60)

Application Form 1-General Information, Consolidated Permits Program, EPA Form 3510-1, DCR 199-149 (August 1990).

Department of Conservation and Recreation Permit Fee Form, DCR 199-145 (03/09) (9/08).

VSMP General Permit for Discharges of Stormwater from Construction Activities (VAR10) - Registration Statement, DCR 199-146 (03/09).

VSMP General Permit Notice of Termination - Construction Activity Stormwater Discharges (VAR10), DCR 199-147 (03/09).

VSMP General Permit for Discharges of Stormwater from Construction Activities (VAR10) - Transfer Agreement, DCR199-191 (03/09).

VSMP General Permit Registration Statement for Stormwater Discharges From Small Municipal Separate Storm Sewer Systems (VAR04), DCR 199-148 (07/08).

VA.R. Doc. No. R06-129; Filed June 2, 2009, 2:35 p.m.
TITLE 4. CONSERVATION AND NATURAL RESOURCES
VIRGINIA SOIL AND WATER CONSERVATION BOARD
Proposed Regulation

Title of Regulation: 4VAC50-60. Virginia Stormwater Management Program (VSMP) Permit Regulations (amending 4VAC50-60-10, 4VAC50-60-20, 4VAC50-60-30, 4VAC50-60-40; adding 4VAC50-60-53, 4VAC50-60-56, 4VAC50-60-63, 4VAC50-60-65, 4VAC50-60-66, 4VAC50-60-72, 4VAC50-60-74, 4VAC50-60-76, 4VAC50-60-85, 4VAC50-60-93, 4VAC50-60-96, 4VAC50-60-102, 4VAC50-60-104, 4VAC50-60-106, 4VAC50-60-108, 4VAC50-60-112, 4VAC50-60-114, 4VAC50-60-116, 4VAC50-60-118, 4VAC50-60-122, 4VAC50-60-124, 4VAC50-60-126, 4VAC50-60-128, 4VAC50-60-132, 4VAC50-60-134, 4VAC50-60-136, 4VAC50-60-138, 4VAC50-60-142, 4VAC50-60-154, 4VAC50-60-156, 4VAC50-60-157, 4VAC50-60-158, 4VAC50-60-159; repealing 4VAC50-60-50, 4VAC50-60-60, 4VAC50-60-70, 4VAC50-60-80, 4VAC50-60-90, 4VAC50-60-100, 4VAC50-60-110, 4VAC50-60-120, 4VAC50-60-130, 4VAC50-60-140, 4VAC50-60-150).

Statutory Authority: §§ 10.1-603.2:1 and 10.1-603.4 of the Code of Virginia.

Public Hearing Information:

June 30, 2009 - 7 p.m. - Hungry Mother State Park, Hemlock Haven Conference Center, 380 Hemlock Haven Lane, Marion, VA

July 1, 2009 - 7 p.m. - Augusta County Government Center, Board of Supervisors Meeting Room, 18 Government Center Lane, Verona, VA

July 7, 2009 - 7 p.m. - City of Manassas, City Council Chambers, 9027 Center Street, Manassas, VA

July 9, 2009 - 7 p.m. - City of Hampton, City Council Chambers, 22 Lincoln Street, 8th Floor, Hampton, VA

July 14, 2009 - 7 p.m. - Virginia General Assembly Building, 910 Capitol Street, Senate Room B, Richmond, VA

Public Comments: Public comments may be submitted until 5 p.m. on August 21, 2009.

Agency Contact: David C. Dowling, Policy, Planning, and Budget Director, Department of Conservation and Recreation, 203 Governor Street, Suite 302, Richmond, VA 23219, telephone (804) 786-2291, FAX (804) 786-6141, or email david.dowling@dcr.virginia.gov.

Basis: The Virginia Stormwater Management Program was created by Chapter 372 of the 2004 Virginia Acts of Assembly (HB1177). This action transferred the responsibility for the permitting programs for Municipal Separate Storm Sewers (MS4s) and construction activities from the State Water Control Board and DEQ to the Virginia Soil and Water Conservation Board and Department of Conservation and Recreation. This federally authorized program is administered in accordance with requirements set forth in the federal Clean Water Act (33 USC § 1251 et seq.) as well as the Virginia Stormwater Management Act (§ 10.1-603.1 et seq. of the Code of Virginia).

Subdivision 2 of § 10.1-603.2:1 of the Code of Virginia authorizes the Virginia Soil and Water Conservation Board to delegate to the department or an approved locality the implementation of the Virginia Stormwater Management Program.

Section 10.1-603.3 of the Code of Virginia (as it will read effective July 1, 2009) requires establishment of stormwater management programs by localities. The board must amend, modify, or delete provisions of the Virginia Stormwater Management Program (VSMP) Permit Regulations to allow localities to implement local stormwater management programs.

Additionally, enactment clause 2 of the Chapter 18 of the 2009 Virginia Acts of Assembly stipulates that the regulation that establishes local program criteria and delegation procedures and the water quality and water quantity criteria, and that is referenced in subsections A and B of § 10.1-603.3 of this act, shall not become effective prior to July 1, 2010.

Subsection E of § 10.1-603.3 of the Code of Virginia further stipulates minimum requirements for a local stormwater program.

Section 10.1-603.4 of the Code of Virginia also provides additional authority and guidance to the board in the development of regulations, including authority to develop criteria associated with local program administration and implementation, criteria to control nonpoint source pollution, and establishment of statewide standards for stormwater management from land-disturbing activities. It should also be noted that localities may adopt more stringent criteria than the minimum criteria developed by the board through this regulatory process.

HB 2168 of the 2009 Legislative Session (in a July 1, 2009, effective date) establishes a new § 10.1-603.8:1 of the Code of Virginia containing a process for approving stormwater management offsets in the Chesapeake Bay watershed and grants the board the necessary authority to develop a future program in the remainder of the state.

Also, requirements set forth in the federal Clean Water Act (33 USC § 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, and its attendant regulations set forth in 40 CFR Parts 122, 123, 124 and 125 requires states to establish a permitting program for the management of stormwater for municipal separate storm sewer systems (MS4s) and construction activities disturbing greater than or equal to an acre.

Purpose: Controlling stormwater runoff and its impacts is a serious issue facing the Commonwealth and its local governments. Citizens are complaining about flooding caused by increased amounts of stormwater runoff and the runoff is also reported as a contributor to excessive nutrient enrichment in numerous rivers, lakes, and ponds throughout the state, as well as a continued threat to estuarine waters and the Chesapeake Bay. Numerous studies have documented the cumulative effects of urbanization on stream and watershed ecology. Research has established that as impervious cover in a watershed increases, stream stability is reduced, habitat is lost, water quality becomes degraded, and biological diversity decreases largely due to stormwater runoff.

We recognize that impervious areas decrease the natural stormwater purification functions of watersheds and increase the potential for water quality impacts in receiving waters. Additionally, runoff from managed turf is recognized as an additional significant source of pollutants.

Uncontrolled stormwater runoff has many cumulative impacts on humans and the environment including:

• Flooding - Damage to public and private property,

• Eroded Streambanks - Sediment clogs waterways, fills lakes and reservoirs, and kills fish and aquatic animals,

• Widened Stream Channels - Loss of valuable property,

• Aesthetics - Dirty water, trash and debris, foul odors,

• Fish and Aquatic Life - Impaired and destroyed,

• Impaired Recreational Uses - Swimming, fishing, boating,

• Threatens Public Health - Contamination of drinking water, fish/shellfish,

• Threatens Public Safety - Drownings occur in flood waters, and

• Economic Impacts – Impairments to fisheries, shellfish, tourism, and recreation-related businesses.

Additionally, development can dramatically alter the hydrologic regime of a site or watershed as a result of increases in impervious surfaces. The impacts of development on hydrology may include loss of vegetation, resulting in decreased evapotranspiration; soil compaction; reduced groundwater recharge; reduced stream base flow; increased runoff volume; increased peak discharges; decreased runoff travel time; increased frequency and duration of high stream flow; increased flow velocity during storms; and increased frequency of bank-full and over-bank floods.

It is believed that these proposed regulations will work to minimize the cumulative impacts of stormwater on humans and the environment and moderate the associated hydrologic impacts. If not properly managed, stormwater can have significant economic impacts and the stream restoration costs to fix the problems after the fact are very costly.

A 2007 EPA Office of the Inspector General report entitled "Development Growth Outpacing Progress in Watershed Efforts to Restore the Chesapeake Bay"; Report No. 2007-P-00031; September 10, 2007, noted that "new development is increasing nutrient and sediment loads at rates faster than loads are being reduced from developed lands." The Chesapeake Bay Program Office estimated that impervious surfaces in the Bay watershed grew significantly – by 41% – in the 1990s. Meanwhile, the population increased by only 8%. Because progress in reducing loads is being offset by increasing loads from new development, greater reductions will be needed to meet the bay goals as well as to address stream impairments across the Commonwealth. The Chesapeake Bay Program Office estimated that loads from developed and developing lands increased while loads from agriculture and wastewater facilities decreased. Currently, 32% of the phosphorus loads and 28% of the sediment loads to the bay watershed are attributed to urban and suburban sources, making it one of the most significant contributors to the bay's poor health.

The Commonwealth needs to employ all possible strategies in its tool box to address water quality improvements on a statewide basis in both agricultural and urban settings, including making marked improvements in its stormwater regulations. The proposed stormwater regulations are a necessary and critical part of the Commonwealth's overall nutrient reduction strategies and the criteria included in the proposed regulations will slow nutrient and sediment increases, and where possible, contribute to water quality improvements. Improved stormwater management through these regulations will have numerous benefits including reductions in flood risk, avoidance of infrastructure costs through the use of LID practices, improved aquatic life, and enhancement of recreational and commercial fisheries.

This regulatory action is essential to protect the general health, safety, and welfare of the citizens of the Commonwealth from the potential harm of unmanaged stormwater through the establishment of criteria that further protect the quality and manage the quantity of stormwater runoff to state waters, criteria for the administration of a local stormwater management program, processes and procedures for board approval of a qualifying local program, and local program oversight and implementation criteria for the board and the department.

Substance: The key provisions of this regulation:

1. Establish that in order to protect the quality of state waters and to control nonpoint source pollution, a local program shall apply the minimum technical criteria and statewide standards established in Part II for stormwater management associated with land-disturbing activities. In general, since 2005 when the board took over the federal stormwater permit program, the current water quality technical criteria for construction activity statewide are as follows:

• Sites between 0 and 15% imperviousness for new development, all stormwater runoff goes virtually untreated.

• New development above the 16% imperviousness threshold requires a postdevelopment pollutant load of 0.45 lbs/acre/year Phosphorus.

• A 10% reduction in the predevelopment load is required on redevelopment sites.

New statewide water quality technical criteria that are being proposed for construction activity are as follows:

• For new development, a 0.28 lbs/acre/year phosphorus standard is established.

• On prior developed lands, total phosphorus loads shall be reduced to an amount at least 20% below the predevelopment phosphorus load.

• If a wasteload allocation for a pollutant has been established in a TMDL and is assigned to stormwater discharges from a construction activity, control measures must be implemented to meet the WLA.

• A qualifying local program may establish more stringent standards.

• Compliance with the water quality criteria shall be determined utilizing the Virginia Runoff Reduction Method.

• BMPs listed in Table 1 of Part II or those available on the Virginia Stormwater BMP Clearinghouse shall be utilized to reduce the phosphorus load.

• A locality may establish use limitations on specific BMPs (such as wet ponds or certain infiltration practices).

We believe that most projects can achieve the required reductions on site. However, if the water quality technical criteria cannot be met onsite, offsite controls in part or in whole will be allowed by a qualifying local program in accordance with a department-approved comprehensive watershed stormwater management plan. Offsite reductions shall be equal to or greater than those required on the land-disturbing site.

If no comprehensive watershed stormwater management plan exists, the criteria may still be allowed to be met offsite if:

• The local program allows for offsite controls;

• The applicant demonstrates to the satisfaction of the local program that offsite reductions equal to or greater than those that would otherwise be required for the site are achieved;

• The development's runoff will not result in flooding or channel erosion impacts downstream of the site or any offsite treatment area;

• Offsite controls are located within the same Hydrologic Unit Code or the adjacent downstream Hydrologic Unit Code to the land-disturbing site;

• Verification has been received as to the legal right to use the offsite property; and

• A maintenance agreement for the stormwater facilities is developed.

If allowed by the qualifying local program, reductions required for a site may be achieved by the payment of a pro rata fee sufficient to fund improvements necessary to adequately achieve those reductions.

A local program may also waive the water quality requirements through the granting of an exception in accordance with Part III provided that:

• The exception is the minimum necessary to afford relief.

• Reasonable and appropriate conditions are imposed to preserve the intent of the Act.

• Granting will not confer on the permittee any special privileges denied to others under similar circumstances.

• The exception requests are not based upon conditions or circumstances that are self-imposed or self-created.

• Economic hardship alone is not sufficient reason to grant an exception.

Additionally, HB2168 of the 2009 Session, effective July 1, 2009, created a new section numbered 10.1-603.8:1, relating to stormwater nonpoint nutrient offsets that stipulates that a permit-issuing authority may allow compliance with stormwater nonpoint nutrient runoff water quality criteria through the use of the permittee's acquisition of nonpoint nutrient offsets in the same tributary.

2. Establish in Part II water quantity criteria to address channel protection and flood protection. This language clarifies and expands on current requirements found in Minimum Standard 19 in the Erosion and Sediment Control Regulations (4VAC50-30).

Channel protection shall be achieved through one of the following:

• Stormwater released into a manmade conveyance system from the two-year 24-hour storm shall be done so without causing erosion of the system.

• Stormwater released into a restored stormwater conveyance system, in combination with other existing stormwater runoff, shall not exceed the design of the restored system nor result in instability of the system.

• Stormwater released to a stable natural stormwater conveyance shall not cause the system to become unstable from the one-year 24-hour storm discharge and it shall provide a peak flow rate from the one-year 24-hour storm that is less than or equal to the predevelopment peak flow rate as ascertained by the energy balance equation.

• Stormwater released to an unstable natural stormwater conveyance shall provide a peak flow rate from the one-year 24-hour storm that is less than or equal to the forested peak flow rate as ascertained by the energy balance equation.

Flood protection shall be achieved through one of the following:

• The postdevelopment peak flow rate from the 10-year 24-hour storm is confined within a manmade conveyance system.

• The postdevelopment peak flow rate from the 10-year 24-hour storm is confined within a restored stormwater conveyance system.

• The postdevelopment peak flow rate from the 10-year 24-hour storm is confined within a natural stormwater conveyance that currently does not flood.

• The postdevelopment peak flow rate from the 10-year 24-hour storm shall not exceed the predevelopment peak flow rate from the 10-year 24-hour storm based on forested conditions in a natural stormwater conveyance where localized flooding exists.

• A local program may adopt alternative flood design criteria that achieve equivalent results.

If either of the following conditions are met, the channel protection and flood protection criteria do not apply:

• The site's contributing drainage area is less than or equal to one percent of the total watershed area draining to the point of discharge.

• The development of the site results in an increase in the peak flow rate from the one-year 24-hour storm that is less than one percent of the existing peak flow rate from the one-year 24-hour storm generated by the total watershed area draining to the point of discharge.

3. Establish the minimum criteria and ordinance requirements (where applicable) for a board-authorized qualifying local program (Part III A) or for a board-authorized department-administered local stormwater management program (Part III B), which include but are not limited to administration, plan review, issuance of coverage under the General Virginia Stormwater Management Program (VSMP) Permit for Discharges of Stormwater from Construction Activities, inspection, enforcement, reporting, and recordkeeping.

A local program shall provide for the following:

a. Identification of the authority or authorities issuing permit coverage, reviewing plans, approving plans, conducting inspections, and carrying-out enforcement.

b. Any technical criteria differing from those set out in the regulations.

c. Plan submission and approval procedures.

d. Project inspection and monitoring processes.

e. Procedures for long-term inspection and maintenance of stormwater management facilities.

f. Enforcement.

g. An ordinance that incorporates the components outlined in items a through f above is required.

h. A local program shall report specified information to the department.

i. A local program may require performance bonds or other financial surety.

A local program shall require stormwater management plans that include the following elements:

• Location of points of discharge, receiving waters, predevelopment and postdevelopment conditions.

• Contact information.

• Project narrative.

• Location and design of stormwater management facilities.

• Hydrologic characteristics and structural properties of the soils utilized during facility installation.

• Hydrologic and hydraulic computations of the predevelopment and postdevelopment runoff conditions for the required design storms.

• Calculations verifying compliance with the water quality and quantity requirements.

• A site map that includes the specified elements.

• Plans shall be appropriately signed and sealed by a professional.

The regulation establishes timelines for establishing plan and application completeness, for plan review and approval, and for plan modifications. It also establishes applicant notification requirements.

Establish that coverage under the construction general permit shall be authorized in accordance with the following:

• The applicant must have an approved stormwater management plan.

• The applicant must have submitted proposed right-of-entry agreements or easements granted from the owner to the local program for the purposes of inspection and maintenance of stormwater management facilities as well as maintenance agreements, including inspection schedules, for such facilities.

• An approved general permit registration statement.

• The required fee form and total fee.

Inspections shall be conducted as follows:

• The local program or its designee shall inspect the land-disturbing activity during construction.

• At the termination of the project and prior to bond or surety release of the performance bond or surety, construction record drawings for the permanent stormwater facilities shall be submitted to the local program.

• The owner of the stormwater management facilities shall conduct inspections in accordance with the inspection schedule in the recorded maintenance agreement and shall submit the inspection report to the local program.

• The local program shall develop a board-approved inspection schedule.

Information shall be reported on a fiscal year basis by the local program to the department by October 1 annually as follows:

• Information regarding permanent stormwater facilities completed during the fiscal year.

• Number of permitted projects inspected by acreage categories.

• Number and type of enforcement actions taken.

• Number of exceptions granted or denied.

4. Establish a Schedule of Civil Penalties as guidance for a court as required by law.

5. Establish in Part III D the procedures the board will utilize in authorizing a locality to administer a qualifying local program. The application package shall include the following:

• The local program ordinance(s);

• A funding and staffing plan based on the projected permitting fees; and

• The policies and procedures, including but not limited to, agreements with Soil and Water Conservation Districts, adjacent localities, or other entities, for the administration, plan review, permit issuance, inspection and enforcement components of the program.

The department shall operate a program in any locality in which a qualifying local program has not been adopted in accordance with a board-approved schedule.

6. Establish in Part III C the criteria the department will utilize in reviewing a locality's administration of a qualifying local program. The review shall consist of the following:

• An interview between department staff and the qualifying local program administrator or his designee;

• A review of the local ordinance(s) and other applicable documents;

• A review of a subset of the plans approved by the qualifying local program and consistency of application including exceptions granted;

•· An accounting of the receipt and of the expenditure of fees received;

• An inspection of regulated activities; and

• A review of enforcement actions and an accounting of amounts recovered through enforcement actions.

7. Make changes to definitions in Part I by deleting unnecessary definitions; establishing abbreviations for commonly used terms; and adding needed definitions.

Issues: The primary advantage of this proposed regulatory action is enhanced water quality and management of stormwater runoff in the Commonwealth. Citizens are complaining about flooding caused by increased amounts of stormwater runoff and the runoff is also a contributor to excessive nutrient enrichment in numerous rivers, lakes, and ponds throughout the state, as well as a continued threat to estuarine waters and the Chesapeake Bay. The water quality and quantity criteria proposed by this regulatory action will improve upon today's stormwater management program and assist the Commonwealth in reducing nutrient pollution and meeting Chesapeake Bay restoration goals. The regulations will have numerous benefits including reductions in flood risk, avoidance of infrastructure costs through the use of LID practices, improved aquatic life, and enhancement of recreational and commercial fisheries.

The implementation of local stormwater management programs will also have benefits for the regulated community. Today, construction activity operators must go to two sources in order to receive needed Erosion and Sediment Control (locality) and Stormwater (department) approvals. The development of locality-run qualifying local programs will allow for both approvals to be received from a singular source, thus improving efficiency as well as saving time for the developer. Even in localities where the department administers the local stormwater management program, the program envisioned by these proposed regulations will allow for greater customer service and oversight over today's more limited program.

As the board is also proposing a regulatory action related to permit fees (Part XIII) as a compliment to this regulatory action, and as the permit fees proposed by that regulatory action are based on projected costs associated with program administration based on actual data for performing specified management activities, this regulatory action is not projected to have an adverse financial impact upon localities administering qualifying local programs or upon the department in administering local stormwater management programs or in its oversight of qualifying local programs.

The primary disadvantage of this regulatory action will be increased compliance costs in some instances for construction site operators. Those costs are further discussed in the economic impact portion of this document.

The Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Virginia Stormwater Management Program was created by Chapter 372 of the 2004 Virginia Acts of Assembly (HB1177). This action transferred the responsibility for the permitting programs for Municipal Separate Storm Sewers (MS4s) and construction activities from the State Water Control Board and the Department of Environmental Quality to the Virginia Soil and Water Conservation Board and the Department of Conservation and Recreation. This federally-authorized program is administered in accordance with requirements set forth in the federal Clean Water Act (33 USC § 1251 et seq.) as well as the Virginia Stormwater Management Act (§ 10.1-603.1 et seq.).

The Virginia Soil and Water Conservation Board (Board), with the assistance of the Virginia Department of Conservation and Recreation (DCR), proposes a comprehensive revision of Virginia's regulations regarding the control and treatment of stormwater runoff from land development activities. The Board proposes to amend the technical criteria applicable to stormwater discharges from construction activities, establishes minimum criteria for locality-administered stormwater management programs (qualifying local programs) and Department of Conservation and Recreation (Department) administered local stormwater management programs, as well as authorization procedures and review procedures for qualifying local programs, and amends the definitions section applicable to all of the Virginia Stormwater Management Program (VSMP) regulations.

With regard to technical criteria applicable to stormwater discharges from construction activities, revised water quality and water quantity requirements are proposed to be included in Part II of the regulations. Water quality requirements include a 0.28 lbs/acre/year phosphorus standard for new development, a requirement that total phosphorus loads be reduced to an amount at least 20% below the predevelopment phosphorus load on prior developed lands, and a requirement that control measures be installed on a site to meet any applicable wasteload allocation. Water quantity requirements include both channel protection and flood protection criteria. This action would also establish the minimum criteria and ordinance requirements (where applicable) for a Virginia Soil and Water Conservation Board (Board) authorized qualifying local program (Part IIIA) or for a Board-authorized Department-administered local stormwater management program (Part IIIB) which include, but are not limited to, administration, plan review, issuance of coverage under the General Virginia Stormwater Management Program (VSMP) Permit for Discharges of Stormwater from Construction Activities, inspection, enforcement, reporting, and recordkeeping. Part IIID establishes the procedures the Board will utilize in authorizing a locality to administer a qualifying local program. Part IIIC establishes the criteria the Department will utilize in reviewing a locality's administration of a qualifying local program.

Finally, this proposed action would make changes to definitions in Part I, which is applicable to the full body of the VSMP regulations. Unnecessary definitions are proposed to be deleted, needed definitions are proposed to be added, and many existing definitions are proposed to be updated.

Note: most of the following analysis was directly taken from a report produced by Professor Kurt Stephenson of Virginia Tech and Bobby Beamer of BBeamer LLC.1

Result of Analysis. The benefits exceed the costs for one or more proposed changes. The costs likely exceed the benefits for one or more other proposed changes.

Estimated Economic Impact. The Board proposes modifications to the existing stormwater water quantity and quality requirements that will be applied to every land disturbing activity not exempted by state law (§ 10.1-603.8 B).2 Land disturbing activity subject to this regulation generally includes disturbances of 2,500 square feet or more in the Chesapeake Bay Preservation Act areas and disturbances of an acre or more elsewhere in the state (with some smaller areas included when a part of a larger common plan of development or sale).

The proposed regulations establish statewide water quality design criteria for land disturbing activities. For new land development projects, water quality plans must be designed so that the total phosphorus load shall not exceed 0.28 pounds per acre per year (4VAC50-60-63). The phosphorus load criterion was derived from Chesapeake Bay Tributary Strategies and reductions needed to achieve Bay-wide nutrient reductions derived from the Chesapeake Bay 2000 Agreement. The 0.28/lb/yr phosphorus design criteria represents the average per acre edge of field loading from agriculture, forest and mixed open land uses (estimated from Chesapeake Bay Program watershed model) if the 2005 tributary strategies input deck was fully implemented (DCR 2008). For development that occurs on prior developed land, the designs must allow for the total phosphorus loads to be reduced by 20% below predevelopment levels. While the Chesapeake Bay Tributary Strategies called for phosphorus reductions exceeding 40%, a lower water quality criteria for redevelopment was chosen 1) to achieve additional load reductions from urban areas over existing regulations, and 2) to avoid higher barriers to redevelopment. No explicit sediment or nitrogen water quality design criteria were established because it was determined that the stormwater management practices used to achieve the necessary phosphorus reductions would also result in reductions of nitrogen, sediment, and other potential pollutants.

Compliance is determined by implementing control practices outlined in 4VAC50-60-65. The revisions provide three general ways to reduce phosphorus loads: 1) managing land use conversion (forest, turf, and impervious cover), 2) reducing runoff volumes, and 3) treatment of stormwater runoff. An initial list of best management practices that can be used to achieve the phosphorus criteria are listed in 4VAC50-60- 65 B. Other BMPs available to comply with the stormwater requirements are listed on the new Virginia Stormwater BMP Clearinghouse website (http://www.vwrrc.vt.edu/swc). The removal efficiency of each BMP includes phosphorus removal from treating the pollutant concentration in the stormwater as well as the percent removal achieved by preventing runoff from occurring (based upon 1 inch of rainfall, 90% storm). The addition of the runoff reduction potential of individual stormwater control practices reflects a substantive change over the existing regulation. Similar to existing practice, the calculation of phosphorus loads is based primarily on the "simple method" (see Virginia Stormwater Handbook) that relates phosphorus load to total impervious surface. The simple method calculation, however, is modified by adding phosphorus loading coefficients for turf and forest land cover. To assist in determining compliance, DCR has also developed an Excel stormwater compliance spreadsheet.

Water quantity control requirements (4VAC50-60-66) establish minimum standards for downstream flood protection and stream channel protection. The proposed regulation establishes different criteria based on the condition of the existing stormwater conveyance systems. Four general classifications of conveyance systems are identified: 1) man-made conveyance systems, 2) restored streams (designed to restore natural steam channels), 3) stable natural stream channels, and 4) unstable natural stream channels. For stream channel protection, general water quantity criteria are (4VAC50-60-66 B):

• Man-made conveyance: stormwater releases following land disturbing activity conveys postdevelopment peak flow from 2-year, 24-hour storm without causing erosion.

• Restored stream channel: runoff following land disturbing activity will not exceed design of the restored stormwater conveyance system or result in instability of that system.

• Stable natural stream channel: will not become unstable as a result of the peak flow from the 1-year, 24-hour storm and provides a developed peak flow rate equal to the pre-developed flow rate times the pre-developed runoff volume divided by the developed runoff volume.

• Unstable natural steam channel: runoff following a land-disturbing activity shall be released into a channel at or below a peak developed flow rate based on the 1-year 24-hour storm where the developed peak flow rate is equal to the peak flow rate from the site in a forested condition times the volume of runoff from the site in a forested condition divided by the developed runoff volume.

For flood protection, general water quantity criteria are (4VAC50-60-66 C):

• Man-made conveyance must confine the post development peak flow rate from the 10-year, 24-hour storm.

• Restored stream channel: Peak flow rate from the 10-year, 24-hour storm following the land disturbance will be confined within the system.

• Natural stream channel that does not currently flood during a 10-year, 24-hour storm: Post development peak flow from the 10-year, 24-hour storm is confined within the system.

• Natural steam channel where localized flooding exists during a 10-year, 24-hour storm: Post development peak flow rate for 10-year, 24-hour storm shall not exceed predevelopment peak flow from the area under forested conditions.

These criteria do not have to be met under certain conditions where the land disturbance is small relative to the size of the drainage area or results in small contributions to overall peak flow (4VAC50-60-66 D). It is also possible that runoff volume reduction achieved through the implementation of water quality control practices would be sufficient to reduce or avoid the need for water quantity controls.

The proposed regulation allows, in certain situations, water quality and quantity objectives to be met offsite from the disturbed site. Section 4VAC50-60-65F and G allow land disturbers to meet water quality criteria off-site. Specifically, the proposed regulations provide that off-site controls "shall achieve the required pollutant reductions either completely off-site in accordance with the plan or in a combination of on-site and off-site controls." In localities with an approved comprehensive watershed management plan (4VAC50-60-96), offset activities can occur within the same Hydrologic Unit Code (HUC)3 or any locally designated watershed. Without such a plan, offsite controls may be allowed, but must be located within the same HUC or adjacent downstream HUC to the land disturbing site (4VAC50-60-65 G 4). In addition, water quantity objectives could also be met offsite if a locality has a Board approved watershed stormwater management plan and equivalent off-site reductions are demonstrated. In areas with approved watershed plans, localities are also permitted to develop a pro rata fee program. Such a program allows land disturbers to pay a per unit fee ($ per pound of P) to meet all or a portion of a regulatory requirement. Fee funds must be used, by Virginia Code requirements (§ 15.2-2243), to fund actions to achieve equivalent results offsite. Local programs administered by DCR would not have fee system and must confine water quality offset activities within, or adjacent to, the impacted HUC. Additionally, the regulations also provide for a request for an exception that may be granted by a local program in accordance with 4VAC50-60-122.

Linear (road) projects are also subject to the water quality and quantity requirements (VAC 50-60-76). Unless exempt from § 10.1-603.8 B, linear development projects shall "control postdevelopment stormwater runoff in accordance with a site-specific stormwater management plan or a comprehensive watershed stormwater management plan developed in accordance with these regulations."

The proposed regulations also require a stormwater management plan for land disturbing activities. The plan applies the water quality and quantity technical criteria to the land disturbance (4VAC50-60-93).

Program Administration and Permitting: The proposed regulation establishes the requirements for local governments that are required to assume the primary authority to administer the provisions of the proposed regulations as well as for those localities that may elect to administer a program (4VAC50-60-104). DCR's aim is to encourage local governments (counties, cities, and towns) that are not required to administer a program to voluntarily assume this responsibility. Local governments developing a qualifying program must administer the stormwater program in accordance with general criteria outlined in Part III A. In general, a local qualifying program must provide:

• technical criteria to be used in the qualifying local program;

• procedures for the submission and approval of stormwater management plans (4VAC50-60-108)

• assessment and collection of fees;

• inspection and monitoring of land disturbing activities (generally 4VAC50-60-114);

• procedures and policy for long-term inspection and maintenance of stormwater facilities (4VAC50-60-124);

• reporting and record keeping (4VAC30-60-126); and

• enforcement (4VAC30-60-116).

If the local government elects not to administer a program, DCR is required to assume the basic responsibilities of program implementation and administration described above (Part III B).

The regulations also define state oversight responsibilities for the Board and DCR. Section 4VAC50-60-159 describes the general procedure and requirements the Board must use for authorizing a locality to administer a stormwater management program. Once a locality is approved to administer a stormwater management program, section 4VAC50-60-157 describes Board oversight of that program. The Board must review all administered stormwater programs a minimum of once every 5 years (including those administered by DCR). The review will generally consist of reviewing approved site development plans, inspection and enforcement activities, and fee accounting practices. The Board is authorized to pursue corrective actions for noncompliant local programs.

Summary of the estimated economic impact

The proposed revisions to Virginia stormwater regulations will likely produce improvements in the condition of receiving waters. The new emphasis on reducing runoff volumes can produce important benefits related to the condition of aquatic habitat by reducing the energy pulses produced during storm events. New water quantity control requirements also provide benefits in terms of additional flood protection and in-stream aquatic protection. Acknowledging and accounting for the runoff reduction potential of many types of stormwater control practices will increase compliance options and increase the effectiveness of state stormwater regulations.

The proposed regulatory revisions also impose more stringent stormwater water quality criteria. The proposed stormwater regulatory revisions will produce additional reductions in phosphorus and other effluent loads produced from urban land conversion (land use change to impervious cover and turf). Achieving additional improvements in the quality of stormwater will impose new costs on land development activities. In development case examples, the new water quality and quantity standards could be achieved on the development site. The cost of incremental reductions in nutrient loads from the application of stormwater controls, however, is high relative to other nutrient removal options. Uncertainties exist over the long-term cost and effectiveness of many stormwater control practices. The cost of achieving additional nutrient reductions in highly urban settings and other areas with site specific constraints is still uncertain but potentially high. The off-site and pro-rata provisions in the regulation offer opportunities to lower costs and enhance benefits to affected watersheds if properly implemented. The total incremental costs to the state of implementing additional stormwater control practices to meet the proposed regulatory changes could not be estimated at this time.

The proposed revisions apply the same water quality and quantity criteria across the entire state. New proposed stormwater water quality criteria was based on estimates of the nutrient reductions needed to achieve reductions called for in the Chesapeake Bay Tributary Strategies. Economic efficiency of the proposed regulation could be improved by applying differential water quality criteria in watersheds across the state based on the relative water quality benefits that can be achieved.

The proposed regulation will produce improvements in the stormwater permitting structure and will strengthen the administrative tools localities need to implement stormwater programs. While the proposed changes will increase the number and type of control practices that can be used, these changes will also increase the sophistication and resources needed for stormwater design and program administration. The greater expected use of smaller scale distributed practices could increase the costs of local stormwater management, particularly in terms of ensuring the long-term maintenance and performance of stormwater control practices over time. The local and state government cost to administer local stormwater programs will increase (rough estimates range between $13 and $17.5 million, but estimates are not final). State agency cost (DCR) for overall program administration will be a minimum of $3 million per year (estimates are not yet final). These costs are expected to be partially to fully covered by additional fees imposed on land disturbing permit applicants.

Further detail on estimated costs and benefits can be found in the Stephenson and Beamer report, which is Appendix C in the Agency Background Document associated with this proposed action.

Businesses and Entities Affected. The general public and businesses throughout the Commonwealth benefit from additional stream channel and flood protection. Commercial and recreational fisheries benefit from improved water quality. Cleaner waters also benefit tourism–based businesses.

The proposed regulation revises water quality and quantity control requirements for land disturbing activities. As such, the proposed regulations will directly impact private land developers, public land developers, businesses, and homeowners. Virginia residents will also likely pay for the higher costs associated with local stormwater program requirements.4

Public agencies (such as state colleges and universities, state agencies, and municipalities) involved in public works and construction projects will also be required to comply with these requirements.

The direct expenditures (costs) associated with implementing the proposed stormwater requirements may increase upon the current demand for stormwater design and construction services. The comprehensive nature of the regulations and the additional technical requirements will necessitate the greater use of environmental consultants and engineers to design stormwater plans and oversee the implementation of stormwater practices. Businesses providing construction and earthmoving services will also be impacted.

Localities Particularly Affected. All Virginia localities are significantly affected by the proposed amendments.

Projected Impact on Employment. Since the comprehensive nature of the regulations and the additional technical requirements will necessitate the greater use of environmental consultants and engineers to design stormwater plans and oversee the implementation of stormwater practices, there will likely be more demand for their services and some increase in the value of associated firms.

Effects on the Use and Value of Private Property. Since the comprehensive nature of the regulations and the additional technical requirements will necessitate the greater use of environmental consultants and engineers to design stormwater plans and oversee the implementation of stormwater practices, there will likely be more demand for their services and some increase in the value of associated firms. Cleaner water may also add to the profitability of some commercial fisheries. Also, increased demand for stormwater design and construction services may result higher value in some associated firms.

Private land developers across the state may face increased land development costs associated with these new regulations in many situations. A portion of those costs will be passed down to buyers of newly constructed properties, homeowners and businesses. Although maintenance of stormwater control facilities should be conducted under today's regulations, many commercial property owners and some residential property owners across the state may still face higher long-term costs associated with maintenance of stormwater control facilities because of the potential for the installation of a greater number of these facilities to meet the proposed requirements and higher maintenance costs associated with some types of BMPs. Virginia residents will also likely pay for the higher costs associated with local stormwater program requirements.

Small Businesses: Costs and Other Effects. Numerous small businesses, particularly those involved in aquaculture and tourism, will benefit from improved water quality. Those and other firms will benefit from reduced flooding risk. As mentioned above, stormwater design and construction services and environmental consultants and engineers will likely encounter greater demand for their services.

On the other hand, private land developers will face increased land development costs associated with these amended regulations, and a portion of those costs will be passed down to buyers of newly constructed properties including small businesses.

Small Businesses: Alternative Method that Minimizes Adverse Impact. The proposed revisions apply the same water quality and quantity criteria across the entire state. New proposed stormwater water quality criteria was based on estimates of the nutrient reductions needed to achieve reductions called for in the Chesapeake Bay Tributary Strategies. Economic efficiency of the proposed regulation could be improved by applying differential water quality criteria in watersheds across the state based on the relative water quality benefits that can be achieved. In other words, there are areas of the state where the environmental benefit of a 0.28 lbs/acre/year phosphorus standard for new development is likely significant, and other parts of the Commonwealth where a less stringent standard would not produce a significant adverse impact. The costs for meeting the standard appear to be significant everywhere. Thus, costs could likely be significantly reduced without significantly reducing total benefit by applying differential water quality criteria in watersheds across the state based on the relative water quality benefits that can be achieved.

Real Estate Development Costs. The proposed regulatory revisions impose more stringent stormwater water quality criteria. The proposed stormwater regulatory revisions will produce additional reductions in phosphorus and other effluent loads produced from urban land conversion (land use change to impervious cover and turf). Achieving additional improvements in the quality of stormwater will impose new costs on land development activities.

Legal Mandate. The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Administrative Process Act and Executive Order Number 36 (06). Section 2.2-4007.04 requires that such economic impact analyses include, but need not be limited to, the projected number of businesses or other entities to whom the regulation would apply, the identity of any localities and types of businesses or other entities particularly affected, the projected number of persons and employment positions to be affected, the projected costs to affected businesses or entities to implement or comply with the regulation, and the impact on the use and value of private property. Further, if the proposed regulation has adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include (i) an identification and estimate of the number of small businesses subject to the regulation; (ii) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the regulation, including the type of professional skills necessary for preparing required reports and other documents; (iii) a statement of the probable effect of the regulation on affected small businesses; and (iv) a description of any less intrusive or less costly alternative methods of achieving the purpose of the regulation. The analysis presented above represents DPB's best estimate of these economic impacts

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1 Stephenson, K. and B. Beamer. December 31, 2008. "Economic Impact Analysis of Revisions to the Virginia Stormwater Regulation."

2 Exemptions under this regulation include land disturbing activities generally associated with agricultural, forest, and mining activities (§ 10.1-603.8 B). Road projects may also be exempted if certain minimal impacts can be demonstrated.

3 Hydrologic Unit Code or "HUC" means a watershed unit established in the most recent version of Virginia's 6th Order National Watershed Boundary Dataset. Sixth order HUC range in size from 10,000 to 40,000 acres. See http://www.dcr.virginia.gov/soil_&_water/hu.shtml

4 For localities with stormwater utilities, the increase in cost for stormwater control facilities long-term maintenance may be paid for by higher fees. Other localities would have to cover the higher costs through existing local and state revenue sources.

Agency's Response to the Department of Planning and Budget's Economic Impact Analysis. The Department of Conservation and Recreation (DCR) has reviewed the economic impact analysis (EIA) of the Virginia Soil and Water Conservation Board's proposed amendments to Parts I, II, and III of the Virginia Stormwater Management Program (VSMP) Permit Regulations (4VAC50-60) prepared by the Department of Planning and Budget (DPB) and generally concurs with the assessment while offering the following specific observations and or qualifications.

First, DCR agrees with the assertion of DPB that the "proposed revisions to the Virginia stormwater regulation will likely produce improvements in the condition of receiving waters" and that the "revisions will produce additional reductions in phosphorus and other effluent loads produced from urban land conversion (land use change to impervious cover and turf)." DCR notes that these "proposed regulations will work to minimize the cumulative impacts of stormwater on humans and the environment and moderate the associated hydrologic impacts. If not properly managed, stormwater can have significant economic impacts and the stream restoration costs to fix the problems after the fact are very costly." DCR also notes that "[t]he Commonwealth needs to employ all possible strategies in its tool box to address water quality improvements on a statewide basis in both agricultural and urban settings, including making marked improvements in its stormwater regulations. The proposed stormwater regulations are a necessary and critical part of the Commonwealth's overall nutrient reduction strategies and the criteria included in the proposed regulations will slow nutrient and sediment increases, and where possible, contribute to water quality improvements. Improved stormwater management through these regulations will have numerous benefits including reductions in flood risk, avoidance of infrastructure costs through the use of LID practices, improved aquatic life, and enhancement of recreational and commercial fisheries." DCR also notes that a wealth of additional information regarding the potential benefits of this regulatory action are presented in the detailed Agency Statement document (TH-02 form) accompanying this regulatory action.

Second, DCR wants to provide qualifications to DPB's statements regarding the proposed statewide 0.28 pounds per acre per year water quality phosphorus standard. The EIA recognizes that the 0.28 water quality standard that would be imposed by the proposed regulations was calculated based upon the nutrient reductions needed to meet Virginia's Chesapeake Bay goals. The EIA goes on to state that "[e]conomic efficiency of the proposed regulation could be improved by applying differential water quality criteria in watersheds across the state based on the relative water quality benefits that can be achieved." DCR notes that discussions occurred during the development of the proposed regulations surrounding the possibility of setting different water quality standards for the bay and nonbay areas of the Commonwealth, and DCR remains committed to further examining and discussing the appropriate use of this standard as the regulatory process moves forward. In drafting the proposed regulations, however, a statewide standard was believed to have merit for several reasons:

• Stormwater quality is a recognized problem statewide. Impaired waters are not only prevalent in the Chesapeake Bay, but have also been identified throughout the state. Total maximum daily loads have been established on stream segments throughout the state, including nonbay watersheds, to address these impairments. Additionally, studies have reportedly shown that nutrient loadings to Virginia's rivers draining to the Ohio and Mississippi basins may contribute to those basins' hypoxia episodes.

• While the 0.28 lbs/acre/year phosphorus standard was established not only to meet specified bay goals, but also as the target level necessary to minimize nutrient impacts on Virginia's aquatic systems and to maintain the health of aquatic communities.

• Phosphorus is an "indicator pollutant," meaning that targeting its removal will also lead to reductions in nitrogen, sediment, and other potential pollutants that plague the Commonwealth's waters statewide.

• The 0.28 lbs/acre/yr phosphorous load addresses the reductions needed by new development to maintain predevelopment phosphorous loads associated with non-urban land. The end result is "no-net increase" in phosphorous from new development, which helps assure that development will not further impact streams statewide.

• Additionally, stormwater additions to western streams may have even greater impacts due to the greater sensitivity of cold and cool water ecosystems (such as trout streams) to nutrient enrichment, sedimentation, turbidity, and dissolved oxygen reductions. These systems also contain some of Virginia's most ecologically sensitive and rare aquatic communities.

• Establishment of a statewide standard also simplifies and standardizes compliance calculations across jurisdictions, ensuring that no locality has a competitive development advantage and facilitating implementation for both permit applicants and local program administrators.

Third, the EIA observes that "[t]he cost of incremental reductions in nutrient loads from the application of stormwater controls, however, is high relative to other nutrient removal options." It is recognized that, to date, the Commonwealth has focused its efforts on sources that yield reductions at the lowest cost per pound. Efforts employed so far have been successful in helping to address nutrient removal goals for these sources, notably point sources (wastewater treatment and industrial facilities) and agriculture. Achieving the Commonwealth's water quality goals, however, requires that a comprehensive approach of addressing all nutrient pollution sources be utilized. These goals will not be achieved by allowing further degradation in stormwater quality and local receiving waterbodies and attempting to fully mitigate this damage through reductions achieved elsewhere. Moreover, while gains continue to be made in addressing other pollutant sources, contributions from stormwater runoff continue to increase.

Among other sources noted in the Department's Agency Background Document, a 2007 EPA Office of the Inspector General report entitled "Development Growth Outpacing Progress in Watershed Efforts to Restore the Chesapeake Bay"; Report No. 2007-P-00031; September 10, 2007, noted that "new development is increasing nutrient and sediment loads at rates faster than loads are being reduced from developed lands." The Chesapeake Bay Program Office estimated that impervious surfaces in the bay watershed grew significantly – by 41% – in the 1990s. Meanwhile, the population increased by only 8.0%. Because progress in reducing loads is being offset by increasing loads from new development, greater reductions will be needed to meet the bay goals as well as to address stream impairments across the Commonwealth. The Chesapeake Bay Program Office estimated that loads from developed and developing lands increased while loads from agriculture and wastewater facilities decreased. Currently, 32% of the phosphorus loads and 28% of the sediment loads to the bay watershed are attributed to urban and suburban sources, making it one of the most significant contributors to the bay's poor health. In order for the Commonwealth's waters to be adequately protected, this trend cannot continue, and all sources must be addressed.

Finally DCR reiterates that "[t]hese proposed regulations are thus a necessary part of the overall reduction strategies. We believe that a substantial amount of work done to date shows that proper site planning and designing for stormwater controls early in the development process will ease many difficulties involved with requiring appropriate stormwater controls. These improved stormwater regulations are necessary to protect the public interest. For example, stormwater itself is increasingly being recognized as a resource that should be retained on site and used for irrigation, groundwater recharge, and other beneficial uses. On the other hand, damages to aquatic resources, stream channels, and downstream properties from poorly managed stormwater are significant and are difficult to correct if development has taken place without the necessary design controls."

Summary:

The amendments provide technical criteria applicable to stormwater discharges from construction activities; establish minimum criteria for locality-administered stormwater management programs (qualifying local programs) and Department of Conservation and Recreation administered local stormwater management programs, as well as authorization procedures and review procedures for qualifying local programs; and revise the definitions section applicable to all of the Virginia Stormwater Management Program (VSMP) regulations.

With regard to technical criteria applicable to stormwater discharges from construction activities, revised water quality and water quantity requirements are proposed to be included in Part II of the regulations. Water quality requirements include a 0.28 lbs/acre/year phosphorus standard for new development, a requirement that total phosphorus loads be reduced to an amount at least 20% below the predevelopment phosphorus load on prior developed lands, and a requirement that control measures be installed on a site to meet any applicable wasteload allocation are added. Water quantity requirements include both channel protection and flood protection criteria.

This action would also establish the minimum criteria and ordinance requirements (where applicable) for a Virginia Soil and Water Conservation Board authorized qualifying local program (Part III A) or for a board-authorized department-administered local stormwater management program (Part III B) which include, but are not limited to, administration, plan review, issuance of coverage under the General Virginia Stormwater Management Program Permit for Discharges of Stormwater from Construction Activities, inspection, enforcement, reporting, and recordkeeping. Part III D establishes the procedures the board will utilize in authorizing a locality to administer a qualifying local program. Part III C establishes the criteria the department will utilize in reviewing a locality's administration of a qualifying local program.

Finally, this proposed action would make changes to definitions in Part I, which is applicable to the full body of the VSMP regulations. Unnecessary definitions are proposed to be deleted, needed definitions are proposed to be added, and many existing definitions are proposed to be updated.

Part I
Definitions, Purpose, and Applicability

4VAC50-60-10. Definitions.

The following words and terms used in this chapter have the following meanings unless the context clearly indicates otherwise.

"Act" means the Virginia Stormwater Management Act, Article 1.1 (§ 10.1-603.1 et seq.) of Chapter 6 of Title 10.1 of the Code of Virginia.

"Adequate channel" means a channel watercourse or wetland that will convey the designated frequency storm event without overtopping the channel bank nor its banks or causing erosive damage to the channel bed or, banks, or overbank sections of the same.

"Administrator" means the Administrator of the United States Environmental Protection Agency or an authorized representative.

"Applicable standards and limitations" means all state, interstate, and federal standards and limitations to which a discharge or a related activity is subject under the Clean Water Act (CWA) (33 USC § 1251 et seq.) and the Act, including effluent limitations, water quality standards, standards of performance, toxic effluent standards or prohibitions, best management practices, and standards for sewage sludge use or disposal under §§ 301, 302, 303, 304, 306, 307, 308, 403 and 405 of CWA.

"Approval authority" means the Virginia Soil and Water Conservation Board or their designee.

"Approved program" or "approved state" means a state or interstate program that has been approved or authorized by EPA under 40 CFR Part 123 (2000).

"Aquatic bench" means a 10- to 15-foot wide bench around the inside perimeter of a permanent pool that ranges in depth from zero to 12 inches. Vegetated with emergent plants, the bench augments pollutant removal, provides habitats, conceals trash and water level fluctuations, and enhances safety.

"Average land cover condition" means a measure of the average amount of impervious surfaces within a watershed, assumed to be 16%. Note that a locality may opt to calculate actual watershed-specific values for the average land cover condition based upon 4VAC50-60-110.

"Average monthly discharge limitation" means the highest allowable average of daily discharges over a calendar month, calculated as the sum of all daily discharges measured during a calendar month divided by the number of daily discharges measured during that month.

"Average weekly discharge limitation" means the highest allowable average of daily discharges over a calendar week, calculated as the sum of all daily discharges measured during a calendar week divided by the number of daily discharges measured during that week.

"Best management practice (BMP)" or "BMP" means schedules of activities, prohibitions of practices, including both a structural or nonstructural practice, maintenance procedures, and other management practices to prevent or reduce the pollution of surface waters and groundwater systems from the impacts of land-disturbing activities. BMPs also include treatment requirements, operating procedures, and practices to control plant site runoff, spillage or leaks, sludge or waste disposal, or drainage from raw material storage.

"Bioretention basin" means a water quality BMP engineered to filter the water quality volume through an engineered planting bed, consisting of a vegetated surface layer (vegetation, mulch, ground cover), planting soil, and sand bed, and into the in-situ material.

"Bioretention filter" means a bioretention basin with the addition of a sand filter collector pipe system beneath the planting bed.

"Board" means the Virginia Soil and Water Conservation Board.

"Bypass" means the intentional diversion of waste streams from any portion of a treatment facility.

"Channel" means a natural stream or manmade waterway watercourse with defined bed and banks that conducts continuously or periodically flowing water.

"Constructed wetlands" means areas intentionally designed and created to emulate the water quality improvement function of wetlands for the primary purpose of removing pollutants from stormwater.

"Comprehensive stormwater management plan" means a plan, which may be integrated with other land use plans or regulations, that specifies how the water quality and quantity components of stormwater are to be managed on the basis of an entire watershed or a portion thereof. The plan may also provide for the remediation of erosion, flooding, and water quality and quantity problems caused by prior development.

"Construction activity" means any clearing, grading or excavation associated with large construction activity or associated with small construction activity.

"Contiguous zone" means the entire zone established by the United States under Article 24 of the Convention on the Territorial Sea and the Contiguous Zone (37 FR 11906).

"Continuous discharge" means a discharge which occurs without interruption throughout the operating hours of the facility, except for infrequent shutdowns for maintenance, process changes, or other similar activities.

"Control measure" means any best management practice or other method used to prevent or reduce the discharge of pollutants to surface waters.

"Co-operator" means an operator to of a VSMP permit that is only responsible for permit conditions relating to the discharge for which it is the operator.

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

"CWA and regulations" means the Clean Water Act (CWA) and applicable regulations promulgated thereunder. For the purposes of this chapter, it includes state program requirements.

"Daily discharge" means the discharge of a pollutant measured during a calendar day or any 24-hour period that reasonably represents the calendar day for purposes of sampling. For pollutants with limitations expressed in units of mass, the daily discharge is calculated as the total mass of the pollutant discharged over the day. For pollutants with limitations expressed in other units of measurement, the daily discharge is calculated as the average measurement of the pollutant over the day.

"Department" means the Department of Conservation and Recreation.

"Development" means a tract of land developed or to be developed as a unit under single ownership or unified control which is to be used for any business or industrial purpose or is to contain three or more residential dwelling units land disturbance and the resulting landform associated with the construction of residential, commercial, industrial, institutional, recreation, transportation, or utility facilities or structures.

"Direct discharge" means the discharge of a pollutant.

"Director" means the Director of the Department of Conservation and Recreation or his designee.

"Discharge," when used without qualification, means the discharge of a pollutant.

"Discharge of a pollutant" means:

1. Any addition of any pollutant or combination of pollutants to surface waters from any point source; or

2. Any addition of any pollutant or combination of pollutants to the waters of the contiguous zone or the ocean from any point source other than a vessel or other floating craft which is being used as a means of transportation.

This definition includes additions of pollutants into surface waters from: surface runoff that is collected or channeled by man; discharges through pipes, sewers, or other conveyances owned by a state, municipality, or other person that do not lead to a treatment works; and discharges through pipes, sewers, or other conveyances, leading into privately owned treatment works. This term does not include an addition of pollutants by any indirect discharger.

"Discharge Monitoring Report" or "DMR" means the form supplied by the department, or an equivalent form developed by the operator and approved by the board, for the reporting of self-monitoring results by operators.

"Draft permit" means a document indicating the board's tentative decision to issue or deny, modify, revoke and reissue, terminate, or reissue a permit. A notice of intent to terminate a permit, and a notice of intent to deny a permit are types of draft permits. A denial of a request for modification, revocation and reissuance, or termination is not a draft permit. A proposed permit is not a draft permit.

"Drainage area" means a land and water area on a land-disturbing site from which runoff flows to a common outlet point.

"Effluent limitation" means any restriction imposed by the board on quantities, discharge rates, and concentrations of pollutants which are discharged from point sources into surface waters, the waters of the contiguous zone, or the ocean.

"Effluent limitations guidelines" means a regulation published by the administrator under § 304(b) of the CWA to adopt or revise effluent limitations.

"Environmental Protection Agency (EPA)" or "EPA" means the United States Environmental Protection Agency.

"Existing permit" means for the purposes of this chapter a permit issued by the permit-issuing authority and currently held by a permit applicant.

"Existing source" means any source that is not a new source or a new discharger.

"Facilities or equipment" means buildings, structures, process or production equipment or machinery that form a permanent part of a new source and that will be used in its operation, if these facilities or equipment are of such value as to represent a substantial commitment to construct. It excludes facilities or equipment used in connection with feasibility, engineering, and design studies regarding the new source or water pollution treatment for the new source.

"Facility or activity" means any VSMP point source or treatment works treating domestic sewage or any other facility or activity (including land or appurtenances thereto) that is subject to regulation under the VSMP program.

"Flood fringe" is the portion of the floodplain outside the floodway, usually associated with standing rather than flowing water, which is covered by floodwater during the 100-year discharge.

"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.

"Floodplain" means any land area adjoining a channel, river, stream, or other water body that is susceptible to being inundated by water. It includes the floodway and flood fringe areas.

"Floodway" means the channel of a river or other watercourse and the adjacent land areas, usually associated with flowing water, that must be reserved in order to discharge the base flood without cumulatively increasing the water surface elevation more than one foot or as otherwise designated by the Federal Emergency Management Agency.

"General permit" means a VSMP permit authorizing a category of discharges under the CWA and the Act within a geographical area.

"Grassed swale" means an earthen conveyance system which is broad and shallow with erosion resistant grasses and check dams, engineered to remove pollutants from stormwater runoff by filtration through grass and infiltration into the soil.

"Hazardous substance" means any substance designated under the Code of Virginia and 40 CFR Part 116 (2000) pursuant to § 311 of the CWA.

"Hydrologic Unit Code" or "HUC" means a watershed unit established in the most recent version of Virginia's 6th Order National Watershed Boundary Dataset.

"Illicit discharge" means any discharge to a municipal separate storm sewer that is not composed entirely of stormwater, except discharges pursuant to a VPDES or VSMP permit (other than the VSMP permit for discharges from the municipal separate storm sewer), discharges resulting from fire fighting activities, and discharges identified by and in compliance with 4VAC50-60-1220 C 2.

"Impervious cover" means a surface composed of any material that significantly impedes or prevents natural infiltration of water into soil. Impervious surfaces include, but are not limited to, conventional roofs, buildings, streets, parking areas, and any conventional concrete, asphalt, or compacted gravel surface that is or may become compacted.

"Incorporated place" means a city, town, township, or village that is incorporated under the Code of Virginia.

"Indian country" means (i) all land within the limits of any Indian reservation under the jurisdiction of the United States government, notwithstanding the issuance of any patent, and including rights-of-way running through the reservation; (ii) all dependent Indian communities with the borders of the United States whether within the originally or subsequently acquired territory thereof, and whether within or without the limits of a state; and (iii) all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same.

"Indirect discharger" means a nondomestic discharger introducing "pollutants" to a "publicly owned treatment works (POTW)."

"Infiltration facility" means a stormwater management facility that temporarily impounds runoff and discharges it via infiltration through the surrounding soil. While an infiltration facility may also be equipped with an outlet structure to discharge impounded runoff, such discharge is normally reserved for overflow and other emergency conditions. Since an infiltration facility impounds runoff only temporarily, it is normally dry during nonrainfall periods. Infiltration basin, infiltration trench, infiltration dry well, and porous pavement shall be considered infiltration facilities.

"Inspection" means an on-site review of the project's compliance with the permit, the local stormwater management program, and any applicable design criteria, or an on-site review to obtain information or conduct surveys or investigations necessary in the enforcement of the Act and this chapter.

"Interstate agency" means an agency of two or more states established by or under an agreement or compact approved by Congress, or any other agency of two or more states having substantial powers or duties pertaining to the control of pollution as determined and approved by the administrator under the CWA and regulations.

"Karst features" means sinkholes, sinking and losing streams, caves, large flow springs, and other such landscape features found in karst areas.

"Land disturbance" or "land-disturbing activity" means a manmade change to the land surface that potentially changes its runoff characteristics including any clearing, grading, or excavation associated with a construction activity regulated pursuant to the federal Clean Water Act CWA, the Act, and this chapter.

"Large construction activity" means construction activity including clearing, grading and excavation, except operations that result in the disturbance of less than five acres of total land area. Large construction activity also includes the disturbance of less than five acres of total land area that is a part of a larger common plan of development or sale if the larger common plan will ultimately disturb five acres or more.

"Large municipal separate storm sewer system" means all municipal separate storm sewers that are either:

1. Located in an incorporated place with a population of 250,000 or more as determined by the 1990 decennial census by the Bureau of Census (40 CFR Part 122 Appendix F (2000));

2. Located in the counties listed in 40 CFR Part 122 Appendix H (2000), except municipal separate storm sewers that are located in the incorporated places, townships or towns within such counties;

3. Owned or operated by a municipality other than those described in subdivision 1 or 2 of this definition and that are designated by the board as part of the large or medium municipal separate storm sewer system due to the interrelationship between the discharges of the designated storm sewer and the discharges from municipal separate storm sewers described under subdivision 1 or 2 of this definition. In making this determination the board may consider the following factors:

a. Physical interconnections between the municipal separate storm sewers;

b. The location of discharges from the designated municipal separate storm sewer relative to discharges from municipal separate storm sewers described in subdivision 1 of this definition;

c. The quantity and nature of pollutants discharged to surface waters;

d. The nature of the receiving surface waters; and

e. Other relevant factors.

4. The board may, upon petition, designate as a large municipal separate storm sewer system, municipal separate storm sewers located within the boundaries of a region defined by a stormwater management regional authority based on a jurisdictional, watershed, or other appropriate basis that includes one or more of the systems described in this definition.

"Linear development project" means a land-disturbing activity that is linear in nature such as, but not limited to, (i) the construction of electric and telephone utility lines, and natural gas pipelines; (ii) construction of tracks, rights-of-way, bridges, communication facilities and other related structures of a railroad company; and (iii) highway construction projects.

"Local stormwater management program" or "local program" means a statement of the various methods employed by a locality or the department to manage the quality and quantity of runoff resulting from land-disturbing activities and shall include such items as local ordinances, permit requirements, policies and guidelines, technical materials, plan review, inspection, enforcement, and evaluation consistent with the Act and this chapter. The ordinance shall include provisions to require the control of after-development stormwater runoff rate of flow, the proper maintenance of stormwater management facilities, and minimum administrative procedures.

"Locality" means a county, city, or town.

"Major facility" means any VSMP facility or activity classified as such by the regional administrator in conjunction with the board.

"Major modification" means, for the purposes of this chapter, the modification or amendment of an existing permit before its expiration that is not a minor modification as defined in this regulation.

"Major municipal separate storm sewer outfall (or major outfall)" or "major outfall" means a municipal separate storm sewer outfall that discharges from a single pipe with an inside diameter of 36 inches or more or its equivalent (discharge from a single conveyance other than circular pipe which is associated with a drainage area of more than 50 acres); or for municipal separate storm sewers that receive stormwater from lands zoned for industrial activity (based on comprehensive zoning plans or the equivalent), with an outfall that discharges from a single pipe with an inside diameter of 12 inches or more or from its equivalent (discharge from other than a circular pipe associated with a drainage area of two acres or more).

"Manmade" means constructed by man.

"Manmade stormwater conveyance system" means a pipe, ditch, vegetated swale, or other conveyance constructed by man.

"Maximum daily discharge limitation" means the highest allowable daily discharge.

"Maximum extent practicable" or "MEP" means the technology-based discharge standard for municipal separate storm sewer systems established by CWA § 402(p). MEP is achieved, in part, by selecting and implementing effective structural and nonstructural best management practices (BMPs) and rejecting ineffective BMPs and replacing them with effective best management practices (BMPs). MEP is an iterative standard, which evolves over time as urban runoff management knowledge increases. As such, the operator's MS4 program must continually be assessed and modified to incorporate improved programs, control measures, BMPs, etc., to attain compliance with water quality standards.

"Medium municipal separate storm sewer system" means all municipal separate storm sewers that are either:

1. Located in an incorporated place with a population of 100,000 or more but less than 250,000 as determined by the 1990 decennial census by the Bureau of Census (40 CFR Part 122 Appendix G (2000));

2. Located in the counties listed in 40 CFR Part 122 Appendix I (2000), except municipal separate storm sewers that are located in the incorporated places, townships or towns within such counties;

3. Owned or operated by a municipality other than those described in subdivision 1 or 2 of this definition and that are designated by the board as part of the large or medium municipal separate storm sewer system due to the interrelationship between the discharges of the designated storm sewer and the discharges from municipal separate storm sewers described under subdivision 1 or 2 of this definition. In making this determination the board may consider the following factors:

a. Physical interconnections between the municipal separate storm sewers;

b. The location of discharges from the designated municipal separate storm sewer relative to discharges from municipal separate storm sewers described in subdivision 1 of this definition;

c. The quantity and nature of pollutants discharged to surface waters;

d. The nature of the receiving surface waters; or

e. Other relevant factors.

4. The board may, upon petition, designate as a medium municipal separate storm sewer system, municipal separate storm sewers located within the boundaries of a region defined by a stormwater management regional authority based on a jurisdictional, watershed, or other appropriate basis that includes one or more of the systems described in subdivisions 1, 2 and 3 of this definition.

"Minor modification" means, for the purposes of this chapter, minor modification or amendment of an existing permit before its expiration as specified in 4VAC50-60-640. Minor modification for the purposes of this chapter also means other modifications and amendments not requiring extensive review and evaluation including, but not limited to, changes in EPA promulgated test protocols, increasing monitoring frequency requirements, changes in sampling locations, and changes to compliance dates within the overall compliance schedules. A minor permit modification or amendment does not substantially alter permit conditions, substantially increase or decrease the amount of surface water impacts, increase the size of the operation, or reduce the capacity of the facility to protect human health or the environment.

"Municipal separate storm sewer" means a conveyance or system of conveyances otherwise known as a municipal separate storm sewer system, including roads with drainage systems, municipal streets, catch basins, curbs, gutters, ditches, manmade 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" or "MS4" means all separate storm sewers that are defined as "large" or "medium" or "small" municipal separate storm sewer systems or designated under 4VAC50-60-380 A 1.

"Municipal Separate Storm Sewer System Management Program" or "MS4 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 the Virginia Stormwater Management Act and attendant regulations, using management practices, control techniques, and system, design and engineering methods, and such other provisions that are appropriate.

"Municipality" means a city, town, county, district, association, or other public body created by or under state law and having jurisdiction over disposal of sewage, industrial wastes, or other wastes, or an Indian tribe or an authorized Indian tribal organization, or a designated and approved management agency under § 208 of the CWA.

"National Pollutant Discharge Elimination System (NPDES)" or "NPDES" means the national program for issuing, modifying, revoking and reissuing, terminating, monitoring and enforcing permits, and imposing and enforcing pretreatment requirements under §§ 307, 402, 318, and 405 of the CWA. The term includes an approved program.

"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 floodplain.

"Natural stormwater conveyance system" means the main channel of a natural stream, in combination with the floodway and flood fringe, which compose the floodplain.

"Natural stream" means a tidal or nontidal watercourse that is part of the natural topography. It usually maintains a continuous or seasonal flow during the year and is characterized as being irregular in cross-section with a meandering course. Constructed channels such as drainage ditches or swales shall not be considered natural streams.

"New discharger" means any building, structure, facility, or installation:

1. From which there is or may be a discharge of pollutants;

2. That did not commence the discharge of pollutants at a particular site prior to August 13, 1979;

3. Which is not a new source; and

4. Which has never received a finally effective VPDES or VSMP permit for discharges at that site.

This definition includes an indirect discharger that commences discharging into surface waters after August 13, 1979. It also includes any existing mobile point source (other than an offshore or coastal oil and gas exploratory drilling rig or a coastal oil and gas developmental drilling rig) such as a seafood processing rig, seafood processing vessel, or aggregate plant, that begins discharging at a site for which it does not have a permit; and any offshore or coastal mobile oil and gas exploratory drilling rig or coastal mobile oil and gas developmental drilling rig that commences the discharge of pollutants after August 13, 1979.

"New permit" means, for the purposes of this chapter, a permit issued by the permit-issuing authority to a permit applicant that does not currently hold and has never held a permit of that type, for that activity, at that location.

"New source," means any building, structure, facility, or installation from which there is or may be a discharge of pollutants, the construction of which commenced:

1. After promulgation of standards of performance under § 306 of the CWA that are applicable to such source; or

2. After proposal of standards of performance in accordance with § 306 of the CWA that are applicable to such source, but only if the standards are promulgated in accordance with § 306 of the CWA within 120 days of their proposal.

"Nonpoint source pollution" means pollution such as sediment, nitrogen and phosphorous, 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.

"Nonpoint source pollutant runoff load" or "pollutant discharge" means the average amount of a particular pollutant measured in pounds per year, delivered in a diffuse manner by stormwater runoff.

"Operator" means the owner or operator of any facility or activity subject to regulation under the VSMP program. In the context of stormwater associated with a large or small construction activity, operator means any person associated with a construction project that meets either of the following two criteria: (i) the person has direct operational control over construction plans and specifications, including the ability to make modifications to those plans and specifications or (ii) the person has day-to-day operational control of those activities at a project that are necessary to ensure compliance with a stormwater pollution prevention plan for the site or other permit conditions (i.e., they are authorized to direct workers at a site to carry out activities required by the stormwater pollution prevention plan or comply with other permit conditions). In the context of stormwater discharges from Municipal Separate Storm Sewer Systems (MS4s), operator means the operator of the regulated MS4 system.

"Outfall" means, when used in reference to municipal separate storm sewers, a point source at the point where a municipal separate storm sewer discharges to surface waters and does not include open conveyances connecting two municipal separate storm sewers, or pipes, tunnels or other conveyances which connect segments of the same stream or other surface waters and are used to convey surface waters.

"Overburden" means any material of any nature, consolidated or unconsolidated, that overlies a mineral deposit, excluding topsoil or similar naturally occurring surface materials that are not disturbed by mining operations.

"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 or pollutants 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 of the Code of Virginia, the Act and this chapter.

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

"Percent impervious" means the impervious area within the site divided by the area of the site multiplied by 100.

"Permit" means an approval issued by the permit-issuing authority for the initiation of a land-disturbing activity or for stormwater discharges from an MS4. Permit does not include any permit that has not yet been the subject of final permit-issuing authority action, such as a draft permit or a proposed permit.

"Permit-issuing authority" means the board, the department, or a locality that is delegated authority by the board to issue, deny, revoke, terminate, or amend stormwater permits under the provisions of the Act and this chapter with a qualifying local program.

"Permittee" means the person or locality to which the permit is issued, including any operator whose construction site is covered under a construction general permit.

"Person" means any individual, corporation, partnership, association, state, municipality, commission, or political subdivision of a state, governmental body (including but not limited to a federal, state, or local entity), any interstate body or any other legal entity.

"Planning area" means a designated portion of the parcel on which the land development project is located. Planning areas shall be established by delineation on a master plan. Once established, planning areas shall be applied consistently for all future projects.

"Point of discharge" means a location at which stormwater runoff is released.

"Point source" means any discernible, confined, and discrete conveyance including, but not limited to, any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, landfill leachate collection system, vessel, or other floating craft from which pollutants are or may be discharged. This term does not include return flows from irrigated agriculture or agricultural stormwater runoff.

"Pollutant" means dredged spoil, solid waste, incinerator residue, filter backwash, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials (except those regulated under the Atomic Energy Act of 1954, as amended (42 USC § 2011 et seq.)), heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste discharged into water. It does not mean:

1. Sewage from vessels; or

2. Water, gas, or other material that is injected into a well to facilitate production of oil or gas, or water derived in association with oil and gas production and disposed of in a well if the well used either to facilitate production or for disposal purposes is approved by the board and if the board determines that the injection or disposal will not result in the degradation of ground or surface water resources.

"Pollutant discharge" means the average amount of a particular pollutant measured in pounds per year or other standard reportable unit as appropriate, delivered in a diffuse manner by stormwater runoff.

"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 State Water Control Board, are "pollution" for the terms and purposes of this chapter.

"Post-development" "Postdevelopment" refers to conditions that reasonably may be expected or anticipated to exist after completion of the land development activity on a specific site or tract of land.

"Pre-development" "Predevelopment" refers to the conditions that exist at the time that plans for the land development of a tract of land are approved by submitted to the plan approval authority. Where phased development or plan approval occurs (preliminary grading, roads and utilities, etc.), the existing conditions at the time prior to the first item being approved or permitted submitted shall establish pre-development predevelopment conditions.

"Prior developed lands" means land that has been previously utilized for residential, commercial, industrial, institutional, recreation, transportation or utility facilities or structures, and that will have the impervious areas associated with those uses altered during a land-disturbing activity.

"Privately owned treatment works (PVOTW)" or "PVOTW" means any device or system that is (i) used to treat wastes from any facility whose operator is not the operator of the treatment works and (ii) not a POTW.

"Proposed permit" means a VSMP permit prepared after the close of the public comment period (and, when applicable, any public hearing and administrative appeals) that is sent to EPA for review before final issuance. A proposed permit is not a draft permit.

"Publicly owned treatment works (POTW)" or "POTW" means a treatment works as defined by § 212 of the CWA that is owned by a state or municipality (as defined by § 502(4) of the CWA). This definition includes any devices and systems used in the storage, treatment, recycling, and reclamation of municipal sewage or industrial wastes of a liquid nature. It also includes sewers, pipes, and other conveyances only if they convey wastewater to a POTW treatment plant. The term also means the municipality as defined in § 502(4) of the CWA, that has jurisdiction over the indirect discharges to and the discharges from such a treatment works.

"Qualifying local stormwater management program" or "qualifying local program" means a local program that is administered by a locality that has been authorized by the board to issue coverage under the VSMP General Permit for Discharges of Stormwater from Construction Activities (4VAC50-60-1170).

"Recommencing discharger" means a source that recommences discharge after terminating operations.

"Regional administrator" means the Regional Administrator of Region III of the Environmental Protection Agency or the authorized representative of the regional administrator.

"Regional (watershed-wide) stormwater management facility" or "regional facility" means a facility or series of facilities designed to control stormwater runoff from a specific watershed, although only portions of the watershed may experience land development.

"Regional (watershed-wide) stormwater management plan" or "regional plan" means a document containing material describing how runoff from open space, existing development and future planned development areas within a watershed will be controlled by coordinated design and implementation of regional stormwater management facilities.

"Restored stormwater conveyance system" means a stormwater conveyance system that has been designed and constructed using natural channel design concepts, including the main channel, floodway, and flood fringe.

"Revoked permit" means, for the purposes of this chapter, an existing permit that is terminated by the board before its expiration.

"Runoff coefficient" means the fraction of total rainfall that will appear at a conveyance as runoff.

"Runoff" or "stormwater runoff" means that portion of precipitation that is discharged across the land surface or through conveyances to one or more waterways.

"Sand filter" means a contained bed of sand that acts to filter the first flush of runoff. The runoff is then collected beneath the sand bed and conveyed to an adequate discharge point or infiltrated into the in-situ soils.

"Runoff characteristics" include, but are not limited to, velocity, peak flow rate, volume, time of concentration, and flow duration, and their influence on channel morphology including sinuosity, channel cross-sectional area, and channel slope.

"Runoff volume" means the volume of water that runs off the site of a land-disturbing activity from a prescribed design storm.

"Schedule of compliance" means a schedule of remedial measures included in a permit, including an enforceable sequence of interim requirements (for example, actions, operations, or milestone events) leading to compliance with the Act, the CWA and regulations.

"Secretary" means the Secretary of the Army, acting through the Chief of Engineers.

"Severe property damage" means substantial physical damage to property, damage to the treatment facilities that causes them to become inoperable, or substantial and permanent loss of natural resources that can reasonably be expected to occur in the absence of a bypass. Severe property damage does not mean economic loss caused by delays in production.

"Shallow marsh" means a zone within a stormwater extended detention basin that exists from the surface of the normal pool to a depth of six to 18 inches, and has a large surface area and, therefore, requires a reliable source of baseflow, groundwater supply, or a sizeable drainage area, to maintain the desired water surface elevations to support emergent vegetation.

"Significant materials" means, but is not limited to: raw materials; fuels; materials such as solvents, detergents, and plastic pellets; finished materials such as metallic products; raw materials used in food processing or production; hazardous substances designated under § 101(14) of CERCLA (42 USC § 9601(14)); any chemical the facility is required to report pursuant to § 313 of Title III of SARA (42 USC § 11023); fertilizers; pesticides; and waste products such as ashes, slag and sludge that have the potential to be released with stormwater discharges.

"Single jurisdiction" means, for the purposes of this chapter, a single county or city. The term county includes incorporated towns which are part of the county.

"Site" means the land or water area where any facility or activity is physically located or conducted, a parcel of land being developed, or a designated planning area of a parcel in which the land development project is located. Areas channelward of mean low water in tidal Virginia shall not be considered part of a site.

"Site hydrology" means the movement of water on, across, through and off the site as determined by parameters including, but not limited to, soil types, soil permeability, vegetative cover, seasonal water tables, slopes, land cover, and impervious cover.

"Small construction activity" means:

1. Construction activities including clearing, grading, and excavating that results in land disturbance of equal to or greater than one acre, or equal to or greater than 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 Chesapeake Bay Preservation Act, and less than five acres. Small construction activity also includes the disturbance of less than one acre of total land area that is part of a larger common plan of development or sale if the larger common plan will ultimately disturb equal to or greater than one and less than five acres. Small construction activity does not include routine maintenance that is performed to maintain the original line and grade, hydraulic capacity, or original purpose of the facility. The board may waive the otherwise applicable requirements in a general permit for a stormwater discharge from construction activities that disturb less than five acres where stormwater controls are not needed based on a "total maximum daily load" (TMDL) approved or established by EPA that addresses the pollutant(s) of concern or, for nonimpaired waters that do not require TMDLs, an equivalent analysis that determines allocations for small construction sites for the pollutant(s) of concern or that determines that such allocations are not needed to protect water quality based on consideration of existing in-stream concentrations, expected growth in pollutant contributions from all sources, and a margin of safety. For the purpose of this subdivision, the pollutant(s) of concern include sediment or a parameter that addresses sediment (such as total suspended solids, turbidity or siltation) and any other pollutant that has been identified as a cause of impairment of any water body that will receive a discharge from the construction activity. The operator must certify to the board that the construction activity will take place, and stormwater discharges will occur, within the drainage area addressed by the TMDL or equivalent analysis.

2. Any other construction activity designated by the either the board or the EPA regional administrator, based on the potential for contribution to a violation of a water quality standard or for significant contribution of pollutants to surface waters.

"Small municipal separate storm sewer system" or "small MS4" means all separate storm sewers that are (i) owned or operated by the United States, a state, city, town, borough, county, parish, 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 special districts under state law such as a sewer district, flood control district or drainage district, or similar entity, or an Indian tribe or an authorized Indian tribal organization, or a designated and approved management agency under § 208 of the CWA that discharges to surface waters and (ii) not defined as "large" or "medium" municipal separate storm sewer systems or designated under 4VAC50-60-380 A 1. This term includes systems similar to separate storm sewer systems in municipalities, such as systems at military bases, large hospital or prison complexes, and highway and other thoroughfares. The term does not include separate storm sewers in very discrete areas, such as individual buildings.

"Source" means any building, structure, facility, or installation from which there is or may be a discharge of pollutants.

"Stable" means, in the context of channels, a channel that has developed an established dimension, pattern, and profile such that over time, these features are maintained.

"State" means the Commonwealth of Virginia.

"State/EPA agreement" means an agreement between the regional administrator and the state that coordinates EPA and state activities, responsibilities and programs including those under the CWA and the Act.

"State project" means any land development project that is undertaken by any state agency, board, commission, authority or any branch of state government, including state-supported institutions of higher learning.

"State Water Control Law" means Chapter 3.1 (§ 62.1-44.2 et seq.) of Title 62.1 of the Code of Virginia.

"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.

"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 conveyance system" means any of the following, either within or downstream of the land-disturbing activity: (i) a manmade stormwater conveyance system, (ii) a natural stormwater conveyance system, or (iii) a restored stormwater conveyance system.

"Stormwater detention basin" or "detention basin" means a stormwater management facility that temporarily impounds runoff and discharges it through a hydraulic outlet structure to a downstream conveyance system. While a certain amount of outflow may also occur via infiltration through the surrounding soil, such amounts are negligible when compared to the outlet structure discharge rates and are, therefore, not considered in the facility's design. Since a detention facility impounds runoff only temporarily, it is normally dry during nonrainfall periods.

"Stormwater discharge associated with construction activity" means a discharge of pollutants in stormwater runoff from areas where land-disturbing activities (e.g., clearing, grading, or excavation); construction materials or equipment storage or maintenance (e.g., fill piles, borrow area, concrete truck washout, fueling); or other industrial stormwater directly related to the construction process (e.g., concrete or asphalt batch plants) are located.

"Stormwater discharge associated with large construction activity" means the discharge of stormwater from large construction activities.

"Stormwater discharge associated with small construction activity" means the discharge of stormwater from small construction activities.

"Stormwater extended detention basin" or "extended detention basin" means a stormwater management facility that temporarily impounds runoff and discharges it through a hydraulic outlet structure over a specified period of time to a downstream conveyance system for the purpose of water quality enhancement or stream channel erosion control. While a certain amount of outflow may also occur via infiltration through the surrounding soil, such amounts are negligible when compared to the outlet structure discharge rates and, therefore, are not considered in the facility's design. Since an extended detention basin impounds runoff only temporarily, it is normally dry during nonrainfall periods.

"Stormwater extended detention basin-enhanced" or "extended detention basin-enhanced" means an extended detention basin modified to increase pollutant removal by providing a shallow marsh in the lower stage of the basin.

"Stormwater management facility" means a device that controls stormwater runoff and changes the characteristics of that runoff including, but not limited to, the quantity and quality, the period of release or the velocity of flow.

"Stormwater management plan" means a document document(s) containing material for describing how existing runoff characteristics will be maintained by a land-disturbing activity and methods for complying with the requirements of the local program or this chapter.

"Stormwater Management Program" means a program established by a locality that is consistent with the requirements of the Virginia Stormwater Management Act, this chapter and associated guidance documents.

"Stormwater management standards" means the minimum criteria for stormwater management programs and land-disturbing activities as set out in Part II (4VAC50-60-40 et seq.) of this chapter.

"Stormwater Pollution Prevention Plan" (SWPPP) or "plan" means a document that is prepared in accordance with good engineering practices and that identifies potential sources of pollution that may reasonably be expected to affect the quality of stormwater discharges from the construction site or its associated land-disturbing activities. In addition the document shall describe and ensure the implementation of best management practices, and shall include, but not be limited to the inclusion of, or the incorporation by reference of, an erosion and sediment control plan, a post-construction stormwater management plan, a spill prevention control and countermeasure (SPCC) plan, and other practices that will be used to reduce pollutants in stormwater discharges from land-disturbing activities and to assure compliance with the terms and conditions of this chapter. All plans incorporated by reference into the SWPPP shall be enforceable under the permit issued.

"Stormwater retention basin" or "retention basin" means a stormwater management facility that includes a permanent impoundment, or normal pool of water, for the purpose of enhancing water quality and, therefore, is normally wet, even during nonrainfall periods. Storm runoff inflows may be temporarily stored above this permanent impoundment for the purpose of reducing flooding, or stream channel erosion.

"Stormwater retention basin I" or "retention basin I" means a retention basin with the volume of the permanent pool equal to three times the water quality volume.

"Stormwater retention basin II" or "retention basin II" means a retention basin with the volume of the permanent pool equal to four times the water quality volume.

"Stormwater retention basin III" or "retention basin III" means a retention basin with the volume of the permanent pool equal to four times the water quality volume with the addition of an aquatic bench.

"Subdivision" means the same as defined in § 15.2-2201 of the Code of Virginia.

"Surface waters" means:

1. All waters that are currently used, were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters that are subject to the ebb and flow of the tide;

2. All interstate waters, including interstate wetlands;

3. All other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds the use, degradation, or destruction of which would affect or could affect interstate or foreign commerce including any such waters:

a. That are or could be used by interstate or foreign travelers for recreational or other purposes;

b. From which fish or shellfish are or could be taken and sold in interstate or foreign commerce; or

c. That are used or could be used for industrial purposes by industries in interstate commerce.

4. All impoundments of waters otherwise defined as surface waters under this definition;

5. Tributaries of waters identified in subdivisions 1 through 4 of this definition;

6. The territorial sea; and

7. Wetlands adjacent to waters (other than waters that are themselves wetlands) identified in subdivisions 1 through 6 of this definition.

Waste treatment systems, including treatment ponds or lagoons designed to meet the requirements of the CWA and the law, are not surface waters. Surface waters do not include prior converted cropland. Notwithstanding the determination of an area's status as prior converted cropland by any other agency, for the purposes of the Clean Water Act, the final authority regarding the Clean Water Act jurisdiction remains with the EPA.

"Total dissolved solids" means the total dissolved (filterable) solids as determined by use of the method specified in 40 CFR Part 136 (2000).

"Total maximum daily load" or "TMDL" means the sum of the individual wasteload allocations for point sources, load allocations (LAs) for nonpoint sources, natural background loading and a margin of safety. TMDLs can be expressed in terms of either mass per time, toxicity, or other appropriate measure. The TMDL process provides for point versus nonpoint source trade-offs.

"Toxic pollutant" means any pollutant listed as toxic under § 307(a)(1) of the CWA or, in the case of sludge use or disposal practices, any pollutant identified in regulations implementing § 405(d) of the CWA.

"Unstable" means, in the context of channels, a channel that is not stable.

"Upset" means an exceptional incident in which there is unintentional and temporary noncompliance with technology based permit effluent limitations because of factors beyond the reasonable control of the operator. An upset does not include noncompliance to the extent caused by operational error, improperly designed treatment facilities, inadequate treatment facilities, lack of preventive maintenance, or careless or improper operation.

"Variance" means any mechanism or provision under § 301 or § 316 of the CWA or under 40 CFR Part 125 (2000), or in the applicable effluent limitations guidelines that allows modification to or waiver of the generally applicable effluent limitation requirements or time deadlines of the CWA. This includes provisions that allow the establishment of alternative limitations based on fundamentally different factors or on § 301(c), § 301(g), § 301(h), § 301(i), or § 316(a) of the CWA.

"Vegetated filter strip" means a densely vegetated section of land engineered to accept runoff as overland sheet flow from upstream development. It shall adopt any natural vegetated form, from grassy meadow to small forest. The vegetative cover facilitates pollutant removal through filtration, sediment deposition, infiltration and absorption, and is dedicated for that purpose.

"Virginia Pollutant Discharge Elimination System (VPDES) permit" or "VPDES permit" means a document issued by the State Water Control Board pursuant to the State Water Control Law authorizing, under prescribed conditions, the potential or actual discharge of pollutants from a point source to surface waters and the use or disposal of sewage sludge.

"Virginia Stormwater Management Act" or "Act" means Article 1.1 (§ 10.1-603.1 et seq.) of Chapter 6 of Title 10.1 of the Code of Virginia.

"Virginia Stormwater Management Handbook" means a collection of pertinent information that provides general guidance for compliance with the Act and associated regulations and is developed by the department with advice from a stakeholder advisory committee.

"Virginia Stormwater Management Program (VSMP)" or "VSMP" means the Virginia program for issuing, modifying, revoking and reissuing, terminating, monitoring and enforcing permits, and imposing and enforcing requirements pursuant to the federal Clean Water Act CWA, the Virginia Stormwater Management Act, this chapter, and associated guidance documents.

"Virginia Stormwater Management Program (VSMP) permit" or "VSMP permit" means a document issued by the permit-issuing authority pursuant to the Virginia Stormwater Management Act and this chapter authorizing, under prescribed conditions, the potential or actual discharge of pollutants from a point source to surface waters. Under the approved state program, a VSMP permit is equivalent to a NPDES permit.

"VSMP application" or "application" means the standard form or forms, including any additions, revisions or modifications to the forms, approved by the administrator and the board for applying for a VSMP permit.

"Wasteload allocation" or "wasteload" or "WLA" means the portion of a receiving surface water's loading or assimilative capacity allocated to one of its existing or future point sources of pollution. WLAs are a type of water quality-based effluent limitation.

"Water quality standards" or "WQS" means provisions of state or federal law that consist of a designated use or uses for the waters of the Commonwealth and water quality criteria for such waters based on such uses. Water quality standards are to protect the public health or welfare, enhance the quality of water, and serve the purposes of the State Water Control Law (§ 62.1-44.2 et seq. of the Code of Virginia), the Virginia Stormwater Management Act (§ 10.1-603.1 et seq. of the Code of Virginia), and the federal Clean Water Act CWA (33 USC § 1251 et seq.).

"Water quality volume" means the volume equal to the first 1/2 inch of runoff multiplied by the impervious surface of the land development project.

"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 the water drains may be considered the single outlet for the watershed.

"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.

"Whole effluent toxicity" means the aggregate toxic effect of an effluent measured directly by a toxicity test.

4VAC50-60-20. Purposes.

The purposes of this chapter are to provide a framework for the administration, implementation and enforcement of the Virginia Stormwater Management Act (Act) and to delineate the procedures and requirements to be followed in connection with VSMP permits issued by the board or its designee pursuant to the Clean Water Act (CWA) and the Virginia Stormwater Management Act, while at the same time providing flexibility for innovative solutions to stormwater management issues. The chapter also establishes the board's procedures for the authorization of a qualifying local program, board and department oversight authorities for an authorized qualifying local program, the board's procedures for utilization by the department in administering a local program in localities where no qualifying local program is authorized, and the components of a stormwater management program including but not limited to stormwater management standards.

4VAC50-60-30. Applicability.

This chapter is applicable to:

1. Every private, local, state, or federal entity that establishes a stormwater management program or a MS4 program;

2. The department in its oversight of locally administered programs or in its administration of a local program;

2. 3. Every state agency project regulated under the Act and this chapter; and

3. 4. Every land-disturbing activity regulated under § 10.1-603.8 of the Code of Virginia unless otherwise exempted in § 10.1-603.8 B.

Part II
Stormwater Management Program Technical Criteria

4VAC50-60-40. Applicability Authority and applicability.

This part specifies technical criteria for every stormwater management program and land-disturbing activity.

Pursuant to the Virginia Stormwater Management Act (§ 10.1-603.2 et seq. of the Code of Virginia), the board is required to take actions ensuring the general health, safety, and welfare of the citizens of the Commonwealth as well as protecting the quality and quantity of state waters from the potential harm of unmanaged stormwater. In addition to other authority granted to the board under the Stormwater Management Act, the board is authorized pursuant to §§ 10.1-603.2:1 and 10.1-603.4 to adopt regulations that specify minimum technical criteria for stormwater management programs in Virginia, to establish statewide standards for stormwater management from land-disturbing activities, and to protect properties, the quality and quantity of state waters, the physical integrity of stream channels, and other natural resources.

In accordance with the board's authority, this part establishes the minimum technical criteria and stormwater management standards that shall be employed by a state agency in accordance with an implementation schedule set by the board, or by a qualifying local program or department-administered local stormwater management program that has been approved by the board, to protect the quality and quantity of state waters from the potential harm of unmanaged stormwater runoff resulting from land-disturbing activities.

For those localities required to adopt a local stormwater management program pursuant to § 10.1-603.3 of the Code of Virginia, until a local program is approved by the board, the technical criteria required shall be that found at 4VAC50-60-1180 through 4VAC50-60-1190.

4VAC50-60-50. General. (Repealed.)

A. Determination of flooding and channel erosion impacts to receiving streams due to land-disturbing activities shall be measured at each point of discharge from the land disturbance and such determination shall include any runoff from the balance of the watershed which also contributes to that point of discharge.

B. The specified design storms shall be defined as either a 24-hour storm using the rainfall distribution recommended by the U.S. Department of Agriculture's Natural Resources Conservation Service (NRCS) when using NRCS methods or as the storm of critical duration that produces the greatest required storage volume at the site when using a design method such as the Modified Rational Method.

C. For purposes of computing runoff, all pervious lands in the site shall be assumed prior to development to be in good condition (if the lands are pastures, lawns, or parks), with good cover (if the lands are woods), or with conservation treatment (if the lands are cultivated); regardless of conditions existing at the time of computation.

D. Construction of stormwater management facilities or modifications to channels shall comply with all applicable laws and regulations. Evidence of approval of all necessary permits shall be presented.

E. Impounding structures that are not covered by the Impounding Structure Regulations (4VAC50-20) shall be engineered for structural integrity during the 100-year storm event.

F. Pre-development and post-development runoff rates shall be verified by calculations that are consistent with good engineering practices.

G. Outflows from a stormwater management facility or stormwater conveyance system, shall be discharged to an adequate channel.

H. Proposed residential, commercial, or industrial subdivisions shall apply these stormwater management criteria to the land disturbance as a whole. Individual lots in new subdivisions shall not be considered separate land-disturbing activities, but rather the entire subdivision shall be considered a single land development project. Hydrologic parameters shall reflect the ultimate land disturbance and shall be used in all engineering calculations.

I. All stormwater management facilities shall have an inspection and maintenance plan that identifies the owner and the responsible party for carrying out the inspection and maintenance plan.

J. Construction of stormwater management impoundment structures within a Federal Emergency Management Agency (FEMA) designated 100-year floodplain shall be avoided to the extent possible. When this is unavoidable, all stormwater management facility construction shall be in compliance with all applicable regulations under the National Flood Insurance Program, 44 CFR Part 59.

K. Natural channel characteristics shall be preserved to the maximum extent practicable.

L. Land-disturbing activities shall comply with the Virginia Erosion and Sediment Control Law (§ 10.1-560 et seq. of the Code of Virginia) and attendant regulations.

M. Flood control and stormwater management facilities that drain or treat water from multiple development projects or from a significant portion of a watershed may be allowed in Resource Protection Areas defined in the Chesapeake Bay Preservation Act, provided that (i) the local government has conclusively established that the location of the facility within the Resource Protection Area is the optimum location; (ii) the size of the facility is the minimum necessary to provide necessary flood control, stormwater treatment, or both; and, (iii) the facility must be consistent with a stormwater management program that has been approved by the board.

4VAC50-60-53. General requirements.

The physical, chemical, biological, and hydrologic characteristics and the water quality and quantity of the receiving state waters shall be maintained, protected, or improved in accordance with the requirements of this part. Objectives include, but are not limited to, supporting state designated uses and water quality standards. All control measures used shall be employed in a manner that minimizes impacts on receiving state waters.

4VAC50-60-56. Applicability of other laws and regulations.

Nothing in this chapter shall be construed as limiting the applicability of other laws and regulations, including, but not limited to, the CWA, Virginia Stormwater Management Act, Virginia Erosion and Sediment Control Law, and the Chesapeake Bay Preservation Act, except as provided in § 10.1-603.3 I of the Code of Virginia and all applicable regulations adopted in accordance with those laws, or the rights of other federal agencies, state agencies, or local governments to impose more stringent technical criteria or other requirements as allowed by law.

4VAC50-60-60. Water quality. (Repealed.)

A. Compliance with the water quality criteria may be achieved by applying the performance-based criteria or the technology-based criteria to either the site or a planning area.

B. Performance-based criteria. For land-disturbing activities, the calculated post-development nonpoint source pollutant runoff load shall be compared to the calculated pre-development load based upon the average land cover condition or the existing site condition. A BMP shall be located, designed, and maintained to achieve the target pollutant removal efficiencies specified in Table 1 to effectively reduce the pollutant load to the required level based upon the following four applicable land development situations for which the performance criteria apply:

1. Situation 1 consists of land-disturbing activities where the existing percent impervious cover is less than or equal to the average land cover condition and the proposed improvements will create a total percent impervious cover which is less than the average land cover condition.

Requirement: No reduction in the after disturbance pollutant discharge is required.

2. Situation 2 consists of land-disturbing activities where the existing percent impervious cover is less than or equal to the average land cover condition and the proposed improvements will create a total percent impervious cover which is greater than the average land cover condition.

Requirement: The pollutant discharge after disturbance shall not exceed the existing pollutant discharge based on the average land cover condition.

3. Situation 3 consists of land disturbing activities where the existing percent impervious cover is greater than the average land cover condition.

Requirement: The pollutant discharge after disturbance shall not exceed (i) the pollutant discharge based on existing conditions less 10% or (ii) the pollutant discharge based on the average land cover condition, whichever is greater.

4. Situation 4 consists of land disturbing activities where the existing percent impervious cover is served by an existing stormwater management BMP that addresses water quality.

Requirement: The pollutant discharge after disturbance shall not exceed the existing pollutant discharge based on the existing percent impervious cover while served by the existing BMP. The existing BMP shall be shown to have been designed and constructed in accordance with proper design standards and specifications, and to be in proper functioning condition.

C. Technology-based criteria. For land-disturbing activities, the post-developed stormwater runoff from the impervious cover shall be treated by an appropriate BMP as required by the post-developed condition percent impervious cover as specified in Table 1. The selected BMP shall be located, designed, and maintained to perform at the target pollutant removal efficiency specified in Table 1. Design standards and specifications for the BMPs in Table 1 that meet the required target pollutant removal efficiency will be available at the department.

Table 1*

Water Quality BMP*

Target Phosphorus Removal Efficiency

Percent Impervious Cover

Vegetated filter strip

Grassed Swale

10%

15%

16-21%

Constructed wetlands

Extended detention (2 x WQ Vol)

Retention basin I (3 x WQ Vol)

20%

35%

40%

22-37%

Bioretention basin

Bioretention filter

Extended detention-enhanced

Retention basin II (4 x WQ Vol)

Infiltration (1 x WQ Vol)

50%

50%

50%

50%

50%

38-66%

Sand filter

Infiltration (2 x WQ Vol)

Retention basin III (4 x WQ Vol with aquatic bench)

65%

65%

65%

67-100%

*Innovative or alternate BMPs not included in this table may be allowed at the discretion of the local program administrator or the department. Innovative or alternate BMPs not included in this table which target appropriate nonpoint source pollution other than phosphorous may be allowed at the discretion of the local program administrator or the department.

4VAC50-60-63. Water quality criteria requirements.

In order to protect the quality of state waters and to control nonpoint source pollution, the following minimum technical criteria and statewide standards for stormwater management shall be applied to the site of a land-disturbing activity. The local program shall have discretion to allow for application of the criteria to each drainage area of the site. However, where a site drains to more than one HUC, the pollutant load reduction requirements shall be applied independently within each HUC unless reductions are achieved in accordance with a comprehensive watershed stormwater management plan in accordance with 4VAC50-60-96.

1. New development. The total phosphorus load of new development projects shall not exceed 0.28 pounds per acre per year, as calculated pursuant to 4VAC50-60-65.

2. Development on prior developed lands. The total phosphorus load of projects occurring on prior developed lands shall be reduced to an amount at least 20% below the predevelopment total phosphorus load. However, the total phosphorus load shall not be required to be reduced to below 0.28 pounds per acre per year unless a more stringent standard has been established by a qualifying local program.

3. Compliance with 4VAC50-60-65 shall constitute compliance with subdivisions 1 and 2 of this section.

4. TMDL. In addition to the above requirements, if a specific WLA for a pollutant has been established in a TMDL and is assigned to stormwater discharges from a construction activity, necessary control measures must be implemented by the operator to meet the WLA in accordance with the requirements established in the General Permit for Discharges of Stormwater from Construction Activities or an individual permit, which address both construction and postconstruction discharges.

4VAC50-60-65. Water quality compliance.

A. Compliance with the water quality criteria set out in subdivisions 1 and 2 of 4VAC50-60-63 shall be determined by utilizing the Virginia Runoff Reduction Method or another methodology that is demonstrated by the qualifying local program to achieve equivalent or more stringent results and is approved by the board.

B. The BMPs listed in Table 1 or the BMPs available on the Virginia Stormwater BMP Clearinghouse website shall be utilized as necessary to effectively reduce the phosphorus load in accordance with the Virginia Runoff Reduction Method. Design specifications for the BMPs listed in Table 1 can be found at http://www.vwrrc.vt.edu/swc.

TABLE 1
BMP Pollutant Removal Efficiencies

Practice

Removal of Total Phosphorus by Runoff Volume Reduction (RR, as %) (based upon 1 inch of rainfall --90% storm)

Removal of Total Phosphorus by Treatment -- Pollutant Concentration Reduction (PR, as %)

Total Removal of Total Phosphorus (TR, as %)

Green Roof 1

45

0

45

Green Roof 2

60

0

60

Rooftop Disconnection 1

25

0

25

Rooftop Disconnection 2

50

0

50

Rain Tanks/
Cisterns 1

actual volume x .75

0

actual volume x .75

Soil Amendments 1

50

0

50

Soil Amendments 2

75

0

75

Permeable Pavement 1

45

25

59

Permeable Pavement 2

75

25

81

Grass Channel 1

10

15

23

Grass Channel 2

20

15

32

Bioretention 1

40

25

55

Bioretention 2

80

50

90

Infiltration 1

50

25

63

Infiltration 2

90

25

93

Dry Swale 1

40

20

52

Dry Swale 2

60

40

76

Wet Swale 1

0

20

20

Wet Swale 2

0

40

40

Sheet Flow to Conserved Open Space 1

0

50

50

Sheet Flow to Conserved Open Space 2

0

75

75

Extended Detention
Pond 1

0

15

15

Extended Detention
Pond 2

15

15

28

Filtering Practice 1

0

60

60

Filtering Practice 2

0

65

65

Constructed Wetland 1

0

50

50

Constructed Wetland 2

0

75

75

Wet Pond 1

0

50

50

Wet Pond 2

0

75

75

C. BMPs differing from those listed in Table 1 shall be reviewed and approved by the director in accordance with procedures established by the BMP Clearinghouse Committee and approved by the board.

D. A qualifying local program may establish use limitations on specific BMPs following the submission of the proposed use limitation and written justification to the department.

E. Where the land-disturbing activity only occurs on a portion of the site, the local program may review the stormwater management plan based upon the portion of the site that is proposed to be developed, provided that the local program has established guidance for such a review. Such portion shall be deemed to include any area left undeveloped pursuant to any local requirement or proffer accepted by a locality. Any such guidance shall be provided to the department.

F. If a comprehensive watershed stormwater management plan has been adopted pursuant to 4VAC50-60-96 for the watershed within which a project is located, then the qualifying local program may allow offsite controls in accordance with the plan to achieve the postdevelopment pollutant load water quality technical criteria set out in subdivisions 1 and 2 of 4VAC50-60-63. Such offsite controls shall achieve the required pollutant reductions either completely offsite in accordance with the plan or in a combination of onsite and offsite controls.

G. Where no plan exists pursuant to subsection F of this section, offsite controls may be used to meet the postdevelopment pollutant load water quality technical criteria set out in subdivisions 1 and 2 of 4VAC50-60-63 provided:

1. The local program allows for offsite controls;

2. The applicant demonstrates to the satisfaction of the local program that offsite reductions equal to or greater than those that would otherwise be required for the site are achieved;

3. The applicant demonstrates to the satisfaction of the local program that the development's runoff and the runoff from any offsite treatment area shall be controlled in accordance with 4VAC50-60-66;

4. Offsite controls must be located within the same HUC or the adjacent downstream HUC to the land-disturbing site; and

5. The applicant demonstrates to the satisfaction of the local program that the right to utilize the offsite control area and any necessary easements has been obtained and maintenance agreements for the stormwater management facilities have been established pursuant to 4VAC50-60-124.

H. Alternatively, the local program may waive the requirements of subdivisions 1 and 2 of 4VAC50-60-63 through the granting of an exception pursuant to 4VAC50-60-122.

4VAC50-60-66. Water quantity.

A. Channel protection and flood protection shall be addressed in accordance with the minimum standards set out in this section, which are established pursuant to the requirements of subdivision 7 of § 10.1-603.4 of the Code of Virginia.

B. Channel protection. Concentrated stormwater flow from the site and offsite contributing areas shall be released into a stormwater conveyance system and shall meet one of the following criteria as demonstrated by use of accepted hydrologic and hydraulic methodologies:

1. Concentrated stormwater flow to manmade stormwater conveyance systems. The point of discharge releases stormwater into a manmade stormwater conveyance system that, following the land-disturbing activity, conveys the postdevelopment peak flow rate from the two-year 24-hour storm without causing erosion of the system.

2. Concentrated stormwater flow to restored stormwater conveyance systems. The point of discharge releases stormwater into a stormwater conveyance system that (i) has been restored and is functioning as designed or (ii) will be restored. The applicant must demonstrate that the runoff following the land-disturbing activity, in combination with other existing stormwater runoff, will not exceed the design of the restored stormwater conveyance system nor result in instability of the system.

3. Concentrated stormwater flow to stable natural stormwater conveyance systems. The point of discharge releases stormwater into a natural stormwater conveyance system that is stable and, following the land-disturbing activity, (i) will not become unstable as a result of the discharge from the one-year 24-hour storm, and (ii) provides a peak flow rate from the one-year 24-hour storm calculated as follows or in accordance with another methodology that is demonstrated by the local program to achieve equivalent results and is approved by the board:

QDeveloped* RVDeveloped ≤ QPre-Developed * RVPre-Developed, where

QDeveloped = The allowable peak flow rate of runoff from the developed site.

QPre-Developed = The peak flow rate of runoff from the site in the predeveloped condition.

RVPre-Developed = The volume of runoff from the site in the predeveloped condition.

RVDeveloped = The volume of runoff from the developed site.

4. Concentrated stormwater flow to unstable natural stormwater conveyance systems. Where the point of discharge releases stormwater into a natural stormwater conveyance system that is unstable, stormwater runoff following a land-disturbing activity shall be released into a channel at or below a peak flow rate (QDeveloped) based on the one-year 24-hour storm, calculated as follows or in accordance with another methodology that is demonstrated by the local program to achieve equivalent or more stringent results and is approved by the board:

QDeveloped* RVDeveloped ≤ QForested * RVForested, where

QDeveloped = The allowable peak flow rate from the developed site.

QForested = The peak flow rate from the site in a forested condition.

RVForested = The volume of runoff from the site in a forested condition.

RVDeveloped = The volume of runoff from the developed site.

C. Flood protection. Concentrated stormwater flow shall be released into a stormwater conveyance system and shall meet one of the following criteria as demonstrated by use of accepted hydrologic and hydraulic methodologies:

1. Concentrated stormwater flow to manmade stormwater conveyance systems. The point of discharge releases stormwater into a manmade stormwater conveyance system that, following the land-disturbing activity, confines the postdevelopment peak flow rate from the 10-year 24-hour storm within the manmade stormwater conveyance system.

2. Concentrated stormwater flow to restored stormwater conveyance systems. The point of discharge releases stormwater into a stormwater conveyance system that (i) has been restored and is functioning as designed or (ii) will be restored. The applicant must demonstrate that the peak flow rate from the 10-year 24-hour storm following the land-disturbing activity will be confined within the system.

3. Concentrated stormwater flow to natural stormwater conveyance systems. The point of discharge releases stormwater into a natural stormwater conveyance system that currently does not flood during the 10-year 24-hour storm and, following the land-disturbing activity, confines the postdevelopment peak flow rate from the 10-year 24-hour storm within the system.

4. Concentrated stormwater flow to natural stormwater conveyance systems where localized flooding exists during the 10-year 24-hour storm. The point of discharge releases a postdevelopment peak flow rate for the 10-year 24-hour storm that shall not exceed the predevelopment peak flow rate from the 10-year 24-hour storm based on forested conditions.

5. A local program may adopt alternate flood protection design criteria that (i) achieve equivalent or more stringent results, (ii) are based upon geographic, land use, topographic, geologic, or other downstream conveyance factors, and (iii) are approved by the board.

D. One percent rule. If either of the following criteria are met, subsections A and B of this section do not apply:

1. Based on area. Prior to any land disturbance, the site's contributing drainage area to a point of discharge from the site is less than or equal to 1.0% of the total watershed area draining to that point of discharge; or

2. Based on peak flow rate. Based on the postdevelopment land cover conditions prior to the implementation of any stormwater quantity control measures, the development of the site results in an increase in the peak flow rate from the one-year 24-hour storm that is less than 1.0% of the existing peak flow rate from the one-year 24-hour storm generated by the total watershed area draining to that point of discharge.

E. Increased volumes of sheet flow resulting from pervious or disconnected impervious areas, or from physical spreading of concentrated flow through level spreaders, must be identified and evaluated for potential impacts on down gradient properties or resources. Increased volumes of sheet flow that will cause or contribute to erosion, sedimentation, or flooding of down gradient properties or resources shall be diverted to a detention facility or a stormwater conveyance system that conveys the runoff without causing down gradient erosion, sedimentation, or flooding. If all runoff from the site is sheet flow and the conditions of this subsection are met, no further water quantity controls are required.

F. For purposes of computing predevelopment runoff from prior developed sites, all pervious lands on the site shall be assumed to be in good hydrologic condition in accordance with the U.S. Department of Agriculture's Natural Resources Conservation Service (NRCS) standards, regardless of conditions existing at the time of computation. Predevelopment runoff calculations utilizing other hydrologic conditions may be utilized provided that it is demonstrated to and approved by the local program that actual site conditions warrant such considerations.

G. Predevelopment runoff characteristics and site hydrology shall be verified by site inspections, topographic surveys, available soil mapping or studies, and calculations consistent with good engineering practices in accordance with guidance provided in the Virginia Stormwater Management Handbook and by the qualifying local program.

H. Except where the compliance options under subdivisions B 4 and C 4 of this section are utilized, flooding and channel erosion impacts to stormwater conveyance systems shall be analyzed for each point of discharge in accordance with channel analysis guidance provided in Technical Bulletin # 1, Stream Channel Erosion Control, or in accordance with more stringent channel analysis guidance established by the qualifying local program and provided to the department. Such analysis shall include estimates of runoff from the developed site and the entire upstream watershed that contributes to that point of discharge. Good engineering practices and calculations in accordance with department guidance shall be used to evaluate postdevelopment runoff characteristics and site hydrology, and flooding and channel erosion impacts.

If the downstream owner or owners refuse to give permission to access the property for the collection of data, evidence of this refusal shall be given and arrangements made satisfactory to the local program to provide an alternative method for the collection of data to complete the analysis, such as through the use of photos, aerial surveys, "as built" plans, topographic maps, soils maps, and any other relevant information.

4VAC50-60-70. Stream channel erosion. (Repealed.)

A. Properties and receiving waterways downstream of any land-disturbing activity shall be protected from erosion and damage due to changes in runoff rate of flow and hydrologic characteristics, including but not limited to, changes in volume, velocity, frequency, duration, and peak flow rate of stormwater runoff in accordance with the minimum design standards set out in this section.

B. The permit-issuing authority shall require compliance with subdivision 19 of 4VAC50-30-40 of the Erosion and Sediment Control Regulations, promulgated pursuant to Article 4 (§ 10.1-560 et seq.) of Chapter 5 of Title 10.1 of the Code of Virginia.

C. The permit-issuing authority may determine that some watersheds or receiving stream systems require enhanced criteria in order to address the increased frequency of bankfull flow conditions (top of bank) brought on by land-disturbing activities. Therefore, in lieu of the reduction of the two-year post-developed peak rate of runoff as required in subsection B of this section, the land development project being considered shall provide 24-hour extended detention of the runoff generated by the one-year, 24-hour duration storm.

D. In addition to subsections B and C of this section permit-issuing authorities, by local ordinance may, or the board by state regulation may, adopt more stringent channel analysis criteria or design standards to ensure that the natural level of channel erosion, to the maximum extent practicable, will not increase due to the land-disturbing activities. These criteria may include, but are not limited to, the following:

1. Criteria and procedures for channel analysis and classification.

2. Procedures for channel data collection.

3. Criteria and procedures for the determination of the magnitude and frequency of natural sediment transport loads.

4. Criteria for the selection of proposed natural or man-made channel linings.

4VAC50-60-72. Design storms and hydrologic methods.

A. Unless otherwise specified, the prescribed design storms are the one-year, two-year, and 10-year 24-hour storms using the site-specific rainfall precipitation frequency data recommended by the U.S. National Oceanic and Atmospheric Administration (NOAA) Atlas 14. Partial duration time series shall be used for the precipitation data.

B. All hydrologic analyses shall be based on the existing watershed characteristics and the ultimate development condition of the subject project.

C. The U.S. Department of Agriculture's Natural Resources Conservation Service (NRCS) synthetic 24-hour rainfall distribution and models, including, but not limited to TR-55 and TR-20; hydrologic and hydraulic methods developed by the U.S. Army Corps of Engineers; or other standard hydrologic and hydraulic methods, shall be used to conduct the analyses described in this part.

D. The local program may allow for the use of the Rational Method for evaluating peak discharges or the Modified Rational Method for evaluating volumetric flows to stormwater conveyances with drainage areas of 200 acres or less.

4VAC50-60-74. Stormwater harvesting.

In accordance with § 10.1-603.4 of the Code of Virginia, stormwater harvesting is encouraged for the purposes of landscape irrigation systems, fire protection systems, flushing water closets and urinals, and other water handling systems to the extent such systems are consistent with federal, state, and local regulatory authorities.

4VAC50-60-76. Linear development projects.

Unless exempt pursuant to § 10.1-603.8 B of the Code of Virginia, linear development projects shall control postdevelopment stormwater runoff in accordance with a site-specific stormwater management plan or a comprehensive watershed stormwater management plan developed in accordance with these regulations.

4VAC50-60-80. Flooding. (Repealed.)

A. Downstream properties and waterways shall be protected from damages from localized flooding due to changes in runoff rate of flow and hydrologic characteristics, including but not limited to, changes in volume, velocity, frequency, duration, and peak flow rate of stormwater runoff in accordance with the minimum design standards set out in this section.

B. The 10-year post-developed peak rate of runoff from the development site shall not exceed the 10-year pre-developed peak rate of runoff.

C. In lieu of subsection B of this section, localities may, by ordinance, adopt alternate design criteria based upon geographic, land use, topographic, geologic factors or other downstream conveyance factors as appropriate.

D. Linear development projects shall not be required to control post-developed stormwater runoff for flooding, except in accordance with a watershed or regional stormwater management plan.

4VAC50-60-85. Stormwater management impoundment structures or facilities.

A. Construction of stormwater management impoundment structures or facilities within tidal or nontidal wetlands and perennial streams is not recommended.

B. Construction of stormwater management impoundment structures or facilities within a Federal Emergency Management Agency (FEMA) designated 100-year floodplain is not recommended.

C. Stormwater management wet ponds and extended detention ponds that are not covered by the Impounding Structure Regulations (4VAC50-20) shall be engineered for structural integrity and spillway design for the 100-year storm event.

D. Construction of stormwater management impoundment structures or facilities may occur in karst areas only after a geological study of the area has been conducted to determine the presence or absence of karst features that may be impacted by stormwater runoff and BMP placement.

E. Discharge of stormwater runoff to a karst feature shall meet the water quality criteria set out in 4VAC50-60-63 and the water quantity criteria set out in 4VAC50-60-66. Permanent stormwater management impoundment structures or facilities shall only be constructed in karst features after completion of a geotechnical investigation that identifies any necessary modifications to the BMP to ensure its structural integrity and maintain its water quality and quantity efficiencies. The person responsible for the land-disturbing activity is encouraged to screen for known existence of heritage resources in the karst features. Any Class V Underground Injection Control Well registration statements for stormwater discharges to improved sinkholes shall be included in the SWPPP.

4VAC50-60-90. Regional (watershed-wide) stormwater management plans. (Repealed.)

This section enables localities to develop regional stormwater management plans. State agencies intending to develop large tracts of land such as campuses or prison compounds are encouraged to develop regional plans where practical.

The objective of a regional stormwater management plan is to address the stormwater management concerns in a given watershed with greater economy and efficiency by installing regional stormwater management facilities versus individual, site-specific facilities. The result will be fewer stormwater management facilities to design, build and maintain in the affected watershed. It is also anticipated that regional stormwater management facilities will not only help mitigate the impacts of new development, but may also provide for the remediation of erosion, flooding or water quality problems caused by existing development within the given watershed.

If developed, a regional plan shall, at a minimum, address the following:

1. The specific stormwater management issues within the targeted watersheds.

2. The technical criteria in 4VAC50-60-40 through 4VAC50-60-80 as needed based on subdivision 1 of this section.

3. The implications of any local comprehensive plans, zoning requirements, local ordinances pursuant to the Chesapeake Bay Preservation Area Designation and Management Regulations adopted pursuant to the Chesapeake Bay Preservation Act, and other planning documents.

4. Opportunities for financing a watershed plan through cost sharing with neighboring agencies or localities, implementation of regional stormwater utility fees, etc.

5. Maintenance of the selected stormwater management facilities.

6. Future expansion of the selected stormwater management facilities in the event that development exceeds the anticipated level.

4VAC50-60-93. Stormwater management plan development.

A. A stormwater management plan for a land-disturbing activity shall apply these stormwater management technical criteria to the entire land-disturbing activity.

B. Individual lots or planned phases of developments shall not be considered separate land-disturbing activities, but rather the entire development shall be considered a single land-disturbing activity.

C. The stormwater management plan shall consider all sources of surface runoff and all sources of subsurface and groundwater flows converted to surface runoff.

4VAC50-60-96. Comprehensive watershed stormwater management plans.

A. Local programs may develop comprehensive watershed stormwater management plans to be approved by the department that meet the water quality objectives, quantity objectives, or both of this chapter:

1. Such plans shall ensure that offsite reductions equal to or greater than those that would be required on each contributing land-disturbing site are achieved within the same HUC or within another locally designated watershed. Pertaining to water quantity objectives, the plan may provide for implementation of a combination of channel improvement, stormwater detention, or other measures that are satisfactory to the local program to prevent downstream erosion and flooding.

2. If the land use assumptions upon which the plan was based change or if any other amendments are deemed necessary by the local program, the local program shall provide plan amendments to the board for review and approval.

3. During the plan's implementation, the local program shall account for nutrient reductions accredited to the BMPs specified in the plan.

4. State and federal agencies may participate in comprehensive watershed stormwater management plans where practicable and permitted by the local program.

B. If the qualifying local program allows for a pro rata fee in accordance with § 15.2-2243 of the Code of Virginia, then the reductions required for a site by this chapter may be achieved by the payment of a pro rata fee sufficient to fund improvements necessary to adequately achieve those requirements in accordance with that section of the Code of Virginia and this chapter.

Part III
Local Programs

4VAC50-60-100. Applicability. (Repealed.)

This part specifies technical criteria, minimum ordinance requirements, and administrative procedures for all localities operating local stormwater management programs.

Part III A
Local Programs

4VAC50-60-102. Authority and applicability.

If a locality has adopted a local stormwater management program in accordance with the Virginia Stormwater Management Act (§ 10.1-603.2 et seq. of the Code of Virginia) and the board has deemed such program adoption consistent with the Virginia Stormwater Management Act and these regulations in accordance with § 10.1-603.3 F of the Code of Virginia, the board may authorize a locality to administer a qualifying local program. Pursuant to § 10.1-603.4, the board is required to establish standards and procedures for such an authorization.

This part specifies the minimum technical criteria and the local government ordinance requirements for a local program to be considered a qualifying local program. Such criteria include but are not limited to administration, plan review, issuance of coverage under the Virginia Stormwater Management Program (VSMP) General Permit for Discharges of Stormwater from Construction Activities, inspection, and enforcement.

4VAC50-60-104. Technical criteria for qualifying local programs.

A. All qualifying local programs shall require compliance with the provisions of Part II (4VAC50-60-40 et seq.) of this chapter unless an exception is granted pursuant to 4VAC50-60-122 and shall comply with the requirements of 4VAC50-60-460 L.

B. When a locality operating a qualifying local program has adopted requirements more stringent than those imposed by this chapter in accordance with § 10.1-603.7 of the Code of Virginia or implemented a comprehensive stormwater management plan, the department shall consider such requirements in its review of state projects within that locality in accordance with Part IV (4VAC50-60-160 et seq.) of this chapter.

C. Nothing in this part shall be construed as authorizing a locality to regulate, or to require prior approval by the locality for, a state project.

4VAC50-60-106. Qualifying local program administrative requirements.

A. A qualifying local program shall provide for the following:

1. Identification of the authority authorizing coverage under the VSMP General Permit for Discharges of Stormwater from Construction Activities, the plan reviewing authority, the plan approving authority, the inspection authority, and the enforcement authority;

2. Technical criteria to be used in the qualifying local program;

3. Procedures for the submission and approval of plans;

4. Inspection and monitoring of land-disturbing activities covered by a permit for compliance;

5. Procedures or policies for long-term inspection and maintenance of stormwater management facilities; and

6. Enforcement.

B. A locality shall adopt an ordinance(s) that incorporates the components set out in subsection A of this section and consent to follow procedures provided by the department for the issuance, denial, revocation, termination, reissuance, transfer, or modifications of coverage under the VSMP General Permit for Discharges of Stormwater from Construction Activities.

C. A qualifying local program shall report to the department information related to the administration and implementation of the qualifying local program in accordance with 4VAC50-60-126.

D. A qualifying local program may require the submission of a reasonable performance bond or other financial surety and provide for the release of such sureties in accordance with the criteria set forth in § 10.1-603.8 of the Code of Virginia.

4VAC50-60-108. Qualifying local program stormwater management plan review.

A. A qualifying local program shall require stormwater management plans to be submitted for review and be approved prior to commencement of land-disturbing activities.

B. A qualifying local program shall approve or disapprove a stormwater management plan and required accompanying information according to the following:

1. Stormwater management plan review shall begin upon submission of a complete plan. A complete plan shall include the following elements:

a. The location of all points of stormwater discharge, receiving surface waters or karst features into which the stormwater discharges, and predevelopment and postdevelopment conditions for drainage areas, including final drainage patterns and changes to existing contours;

b. Contact information including the name, address, and telephone number of the property owner and the tax reference number and parcel number of the property or properties affected;

c. A narrative that includes a description of current site conditions and proposed development and final site conditions, including proposed stormwater management facilities and the mechanism, including an identification of financially responsible parties, through which the facilities will be operated and maintained during and after construction activity;

d. The location and the design of the proposed stormwater management facilities;

e. Information identifying the hydrologic characteristics and structural properties of soils utilized with the installation of stormwater management facilities;

f. Hydrologic and hydraulic computations of the predevelopment and postdevelopment runoff conditions for the required design storms;

g. Good engineering practices and calculations verifying compliance with the water quality and quantity requirements of this chapter;

h. A map or maps of the site that depicts the topography of the site and includes:

(1) All contributing drainage areas;

(2) Receiving surface waters or karst features into which stormwater will be discharged;

(3) Existing streams, ponds, culverts, ditches, wetlands, and other water bodies;

(4) Soil types, geologic formations, forest cover, and other vegetative areas;

(5) Current land use including existing structures, roads, and locations of known utilities and easements;

(6) Sufficient information on adjoining parcels to assess the impacts of stormwater from the site;

(7) The limits of clearing and grading, and the proposed drainage patterns on the site;

(8) Proposed buildings, roads, parking areas, utilities, and stormwater management facilities; and

(9) Proposed land use with tabulation of the percentage of surface area to be adapted to various uses, including but not limited to planned locations of utilities, roads, and easements.

i. 50% of the required fee in accordance with 4VAC50-60-820, and the required fee form must have been submitted.

2. Elements of the stormwater management plans shall be appropriately sealed and signed by a professional in adherence to all minimum standards and requirements pertaining to the practice of that profession in accordance with Chapter 4 (§ 54.1-400 et seq.) of Title 54.1 of the Code of Virginia and attendant regulations.

3. Completeness of a plan and required accompanying information shall be determined by the qualifying local program, and the applicant shall be notified of any determination, within 15 calendar days of receipt.

a. If within those 15 days the plan is deemed to be incomplete based on the criteria set out in this subsection, the applicant shall be notified in writing of the reasons the plan is deemed incomplete.

b. If a determination of completeness is made and communicated to the applicant within the 15 calendar days, an additional 60 calendar days from the date of the communication will be allowed for the review of the plan.

c. If a determination of completeness is not made and communicated to the applicant within the 15 calendar days, the plan shall be deemed complete as of the date of submission and a total of 60 calendar days from the date of submission will be allowed for the review of the plan.

d. The qualifying local program shall act within 45 days on any plan that has been previously disapproved and resubmitted.

4. During the review period, the plan shall be approved or disapproved and the decision communicated in writing to the person responsible for the land-disturbing activity or his designated agent. If the plan is not approved, the reasons for not approving the plan shall be provided in writing. Approval or denial shall be based on the plan's compliance with the requirements of this chapter and of the qualifying local program.

5. If a plan meeting all requirements of this chapter and of the qualifying local program is submitted and no action is taken within the time specified above, the plan shall be deemed approved.

C. Notwithstanding the requirements of subsection A of this section, if allowed by the qualifying local program, an initial stormwater management plan may be submitted for review and approval when it is accompanied by an erosion and sediment control plan, preliminary stormwater design for the current and future site work, fee form, and 50% of the fee required by 4VAC50-60-820. Such plans shall be limited to the initial clearing and grading of the site unless otherwise allowed by the qualifying local program. Approval by the qualifying local program of an initial plan does not supersede the need for the submittal and approval of a complete stormwater management plan and the updating of the SWPPP prior to the commencement of activities beyond initial clearing and grading and other activities approved by the local program. The initial plan shall include information detailed in subsection B of this section to the extent required by the qualifying local program and such other information as may be required by the qualifying local program.

D. Each approved plan may be modified in accordance with the following:

1. Modifications to an approved stormwater management plan shall be allowed only after review and written approval by the qualifying local program. The qualifying local program shall have 60 calendar days to respond in writing either approving or disapproving such requests.

2. Based on an inspection, the qualifying local program may require amendments to the approved stormwater management plan to address the noted deficiencies and notify the permittee of the required modifications.

4VAC50-60-110. Technical criteria for local programs. (Repealed.)

A. All local stormwater management programs shall comply with the general technical criteria as outlined in 4VAC50-60-50.

B. All local stormwater management programs which contain provisions for stormwater runoff quality shall comply with 4VAC50-60-60. A locality may establish criteria for selecting either the site or a planning area on which to apply the water quality criteria. A locality may opt to calculate actual watershed specific or locality wide values for the average land cover condition based upon:

1. Existing land use data at time of local Chesapeake Bay Preservation Act Program or department stormwater management program adoption, whichever was adopted first;

2. Watershed or locality size; and

3. Determination of equivalent values of impervious cover for nonurban land uses which contribute nonpoint source pollution, such as agriculture, forest, etc.

C. All local stormwater management programs which contain provisions for stream channel erosion shall comply with 4VAC50-60-70.

D. All local stormwater management programs must contain provisions for flooding and shall comply with 4VAC50-60-80.

E. All local stormwater management programs which contain provisions for watershed or regional stormwater management plans shall comply with 4VAC50-60-110.

F. A locality that has adopted more stringent requirements or implemented a regional (watershed-wide) stormwater management plan may request, in writing, that the department consider these requirements in its review of state projects within that locality.

G. Nothing in this part shall be construed as authorizing a locality to regulate, or to require prior approval by the locality for, a state project.

4VAC50-60-112. Qualifying local program authorization of coverage under the VSMP General Permit for Discharges of Stormwater from Construction Activities.

A. Coverage shall be authorized by the qualifying local program under the VSMP General Permit for Discharges of Stormwater from Construction Activities in accordance with the following:

1. The applicant must have an approved initial stormwater management plan or an approved stormwater management plan for the land-disturbing activity.

2. The applicant must have submitted proposed right-of-entry agreements or easements from the owner for purposes of inspection and maintenance and proposed maintenance agreements, including inspection schedules, in accordance with 4VAC50-60-124.

3. The applicant must have an approved registration statement for the VSMP General Permit for Discharges of Stormwater from Construction Activities.

4. The applicant must have submitted the required fee form and total fee required by 4VAC50-60-820.

5. Applicants submitting registration statements deemed to be incomplete must be notified within 15 working days of receipt by the qualifying local program that the registration statement is not complete and be notified (i) of what material needs to be submitted to complete the registration statement, and (ii) that the land-disturbing activity does not have coverage under the VSMP General Permit for Discharges of Stormwater from Construction Activities.

B. Coverage or termination of coverage shall be authorized through a standardized database or other method provided by the department. Such database shall include, at a minimum, permit number, operator name, activity name, acres disturbed, date of permit coverage, and site address and location as well as date of termination.

C. Coverage information pertaining to the VSMP General Permit for Discharges of Stormwater from Construction Activities shall be reported to the department in accordance with 4VAC50-60-126 by the qualifying local program.

D. The applicant shall be notified of authorization of permit coverage by the qualifying local program.

4VAC50-60-114. Inspections.

A. The qualifying local program or its designee shall inspect the land-disturbing activity during construction for compliance with the VSMP General Permit for Discharges of Stormwater from Construction Activities.

B. The person responsible for the development project or their designated agent shall submit to a qualifying local program a construction record drawing for permanent stormwater management facilities, appropriately sealed, and signed by a professional in accordance with all minimum standards and requirements pertaining to the practice of that profession pursuant to Chapter 4 (§ 54.1-400 et seq.) of Title 54.1 of the Code of Virginia and attendant regulations, certifying that the stormwater management facilities have been constructed in accordance with the approved plan. The qualifying local program shall have the construction record drawing and certification on file prior to the release of the portion of the performance bond or surety associated with the stormwater management facility.

C. The owners of stormwater management facilities shall be required to conduct inspections in accordance with an inspection schedule in a recorded maintenance agreement, and shall submit written inspection and maintenance reports to the qualifying local program upon request. Such reports, if consistent with a board-approved inspection program established in subsection D of this section, may be utilized by the qualifying local program if the inspection is conducted by a person who is licensed as a professional engineer, architect, certified landscape architect, or land surveyor pursuant to Article 1 (§ 54.1-400 et seq.) of Chapter 4 of Title 54.1 or who holds a certificate of competence from the board. The reports, if so utilized, must be kept on file with the qualifying local program

D. A qualifying local program shall establish an inspection program that ensures that the stormwater management facilities are being maintained as designed. Any inspection program shall be:

1. Approved by the board prior to implementation;

2. Established in writing;

3. Based on a system of priorities that takes into consideration the purpose and type of the facility, ownership and the existence of a recorded maintenance agreement and inspection schedule, the contributing drainage area, and downstream conditions;

4. Demonstrated to be an enforceable inspection program that meets the intent of the regulations and ensures that each stormwater management facility is inspected by the qualifying local program or its designee, not to include the owner, except as provided in subsection C of this section, at least every five years; and

5. Documented by inspection records.

E. Inspection reports shall be generated and kept on file in accordance with 4VAC50-60-126 for all stormwater management facilities inspected by the qualifying local program.

4VAC50-60-116. Qualifying local program enforcement.

A. A qualifying local program may incorporate the following components:

1. Informal and formal administrative enforcement procedures including:

a. Verbal warnings and inspection reports;

b. Notices of corrective action;

c. Consent special orders and civil charges in accordance with subdivision 7 of § 10.1-603.2:1 and § 10.1-603.14 D 2 of the Code of Virginia;

d. Notices to comply in accordance with § 10.1-603.11 of the Code of Virginia;

e. Special orders in accordance with subdivision 7 of § 10.1-603.2:1 of the Code of Virginia;

f. Emergency special orders in accordance with subdivision 7 of § 10.1-603.2:1 of the Code of Virginia; and

g. Public notice and comment periods pursuant to 4VAC50-60-660.

2. Civil and criminal judicial enforcement procedures including:

a. Schedule of civil penalties set out in subsection D of this section;

b. Criminal penalties in accordance with § 10.1-603.14 B and C of the Code of Virginia; and

c. Injunctions in accordance with §§ 10.1-603.12:4, 10.1-603.2:1 and 10.1-603.14 D 1 of the Code of Virginia.

B. A qualifying local program shall develop policies and procedures that outline the steps to be taken regarding enforcement actions under the Stormwater Management Act and attendant regulations and the local ordinance.

C. A qualifying local program may utilize the department's Stormwater Management Enforcement Manual as guidance in establishing policies and procedures.

D. A court may utilize as guidance the following Schedule of Civil Penalties set by the board in accordance with § 10.1-603.14 A of the Code of Virginia. The range contained within the schedule reflects the degree of harm caused by the violation, which is site-specific and may vary greatly from case to case, as may the economic benefit of noncompliance to the violator. Each day of violation of each requirement shall constitute a separate offense. Assignment of the degree of harm is a qualitative decision subject to the court's discretion. The court has the discretion to impose a maximum penalty of $32,500 per violation per day in accordance with § 10.1-603.14 A of the Code of Virginia.


1. Gravity-based Component

Marginal

Moderate

Serious

Violations* and Frequency of Occurrence **

$$ x occurrences

$$ x occurrences

$$ x occurrences

SUBTOTAL

No Permit Registration (each month w/o coverage = 1 occurrence)

500 x ____

1,000 x ____

2,000 x ____

No SWPPP

(No SWPPP components including E&S Plan)

(each month of land-disturbing without SWPPP = 1 occurrence)

1,000 x ____

1,500 x ____

2,000 x ____

Incomplete SWPPP

300 x ____

500 x ____

1,000 x ____

SWPPP not on site

100 x ____

300 x ____

500 x ____

No approved Erosion and Sediment Control Plan

500 x ____

1,000 x ____

2,000 x ____

Failure to install stormwater BMPs or erosion and sediment ("E&S") controls

300 x ____

500 x ____

1,000 x ____

Stormwater BMPs or E&S controls improperly installed or maintained

250 x ____

500 x ____

750 x ____

Operational deficiencies (e.g., failure to initiate stabilization measures as soon as practicable; unauthorized discharges of stormwater; failure to implement control measures for construction debris)

1,000 x ____

2,000 x ____

5,000 x ____

Failure to conduct required inspections

500 x ____

2,000 x____

3,000 x ____

Incomplete, improper or missed inspections (e.g., inspections not conducted by qualified personnel; site inspection reports do not include date, weather information, location of discharge, or are not certified, etc.)

300 x____

500 x ___

1,000 x ____

Subtotal #1

2. Estimated Economic Benefit of Noncompliance (if applicable)

Subtotal #2

3. Recommended civil penalty

Total (#1 and #2)

* Each stormwater BMP or E&S control that is either not installed or improperly installed or maintained is a separate violation.

** The frequency of occurrence is per event unless otherwise noted.


E. Pursuant to subdivision 2 of § 10.1-603.2:1 of the Code of Virginia, authorization to administer a qualifying local program shall not remove from the board the authority to enforce the provisions of the Virginia Stormwater Management Act and attendant regulations.

F. Pursuant to § 10.1-603.14 A of the Code of Virginia, amounts recovered by a qualifying local program shall be paid into the treasury of the locality in which the violation occurred and 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.

4VAC50-60-118. Hearings.

A qualifying local program shall ensure that any permit applicant or permittee shall have a right to a hearing pursuant to § 10.1-603.12:6 of the Code of Virginia and shall ensure that all hearings held under this chapter shall be conducted in accordance with § 10.1-603.12:7 of the Code of Virginia or as otherwise provided by law.

4VAC50-60-120. Requirements for local program and ordinance. (Repealed.)

A. At a minimum, the local stormwater management program and implementing ordinance shall meet the following:

1. The ordinance shall identify the plan-approving authority and other positions of authority within the program, and shall include the regulations and technical criteria to be used in the program.

2. The ordinance shall include procedures for submission and approval of plans, issuance of permits, monitoring and inspections of land development projects. The party responsible for conducting inspections shall be identified. The local program authority shall maintain, either on-site or in local program files, a copy of the approved plan and a record of all inspections for each land development project.

B. The department shall periodically review each locality's stormwater management program, implementing ordinance, and amendments. Subsequent to this review, the department shall determine if the program and ordinance are consistent with the state stormwater management regulations and notify the locality of its findings. To the maximum extent practicable the department will coordinate the reviews with other local government program reviews to avoid redundancy. The review of a local program shall consist of the following:

1. A personal interview between department staff and the local program administrator or his designee;

2. A review of the local ordinance and other applicable documents;

3. A review of plans approved by the locality and consistency of application;

4. An inspection of regulated activities; and

5. A review of enforcement actions.

C. Nothing in this chapter shall be construed as limiting the rights of other federal and state agencies from imposing stricter technical criteria or other requirements as allowed by law.

4VAC50-60-122. Qualifying local program exceptions.

A. A qualifying local program may grant exceptions to the provisions of Part II (4VAC50-60-40 et seq.) of this chapter through an administrative process. A request for an exception, including the reasons for making the request, shall be submitted in writing to the qualifying local program. An exception may be granted provided that (i) the exception is the minimum necessary to afford relief, (ii) reasonable and appropriate conditions shall be imposed as necessary upon any exception granted so that the intent of the Act and this chapter are preserved, (iii) granting the exception will not confer on the permittee any special privileges that are denied to other permittees who present similar circumstances, and (iv) exception requests are not based upon conditions or circumstances that are self-imposed or self-created.

B. Economic hardship alone is not sufficient reason to grant an exception from the requirements of this chapter.

C. Under no circumstance shall the qualifying local program grant an exception to the requirement that the land-disturbing activity obtain a permit.

D. A record of all exceptions granted shall be maintained by the qualifying local program and reported to the department in accordance with 4VAC50-60-126.

4VAC50-60-124. Qualifying local program stormwater management facility maintenance.

A. Responsibility for the operation and maintenance of stormwater management facilities in accordance with this chapter, unless assumed by a governmental agency, shall remain with the property owner or other legally established entity and shall pass to any successor. The government entity implementing the qualifying local program shall be a party to each maintenance agreement. Such maintenance agreement shall include a schedule for inspections by the owner, and, in addition to ensuring that each facility is maintained as designed, shall ensure that the designed flow and drainage patterns from the site to a permanent facility are maintained. Such agreements may also contain provisions specifying that, where maintenance or repair of a stormwater management facility located on the owner's property is neglected, or the stormwater management facility becomes a public health or safety concern and the owner has failed to perform the necessary maintenance and repairs after receiving notice from the locality, the qualifying local program may perform the necessary maintenance and repairs and recover the costs from the owner. In the specific case of a public health or safety danger, the agreement may provide that the written notice may be waived by the locality.

B. The qualifying local program shall be notified of any transfer or conveyance of ownership or responsibility for maintenance of a stormwater management facility.

C. The qualifying local program shall require right-of-entry agreements or easements from the property owner for purposes of inspection and maintenance.

4VAC50-60-126. Qualifying local program report and recordkeeping.

A. On a fiscal year basis (July 1 to June 30), a qualifying local program shall report to the department by October 1 of each year in a format provided by the department. The information to be provided shall include the following:

1. Information on each permanent stormwater management facility completed during the fiscal year to include type of stormwater management facility, coordinates, acres treated, and the surface waters or karst features into which the stormwater management facility will discharge;

2. Number of VSMP General Permit for Discharges of Stormwater from Construction Activities projects inspected and the total number of inspections by acreage categories determined by the department during the fiscal year;

3. Number and type of enforcement actions during the fiscal year; and

4. Number of exceptions applied for and the number granted or denied during the fiscal year.

B. A qualifying local program shall make information set out in subsection A of this section available to the department upon request.

C. A qualifying local program shall keep records in accordance with the following:

1. Permit files shall be kept for three years after permit termination. After three years, the permit file shall be delivered to the department by October 1 of each year.

2. Stormwater maintenance facility inspection reports shall be kept for five years from the date of inspection.

3. Stormwater maintenance agreements, design standards and specifications, postconstruction surveys, and maintenance records shall be maintained in perpetuity.

Part III B
Department of Conservation and Recreation Administered Local Programs

4VAC50-60-128. Authority and applicability.

In the absence of a qualifying local program, the department, in accordance with an adoption and implementation schedule set by the board and upon board approval, shall administer the local stormwater management program in a locality in accordance with § 10.1-603.3 C of the Code of Virginia. This part specifies the minimum technical criteria for a department-administered local stormwater management program in accordance with the Virginia Stormwater Management Act (§ 10.1-603.2 et seq. of the Code of Virginia), and the standards and criteria established in these regulations by the board pursuant to its authority under that article. Such criteria include but are not limited to administration, plan review, issuance of coverage under the Virginia Stormwater Management Program (VSMP) General Permit for Discharges of Stormwater from Construction Activities, issuance of individual permits, inspection, enforcement, and education and outreach components.

4VAC50-60-130. Administrative procedures: stormwater management plans. (Repealed.)

A. Localities shall approve or disapprove stormwater management plans according to the following:

1. A maximum of 60 calendar days from the day a complete stormwater management plan is accepted for review will be allowed for the review of the plan. During the 60-day review period, the locality shall either approve or disapprove the plan and communicate its decision to the applicant in writing. Approval or denial shall be based on the plan's compliance with the locality's stormwater management program.

2. A disapproval of a plan shall contain the reasons for disapproval.

B. Each plan approved by a locality shall be subject to the following conditions:

1. The applicant shall comply with all applicable requirements of the approved plan, the local program, this chapter and the Act, and shall certify that all land clearing, construction, land development and drainage will be done according to the approved plan.

2. The land development project shall be conducted only within the area specified in the approved plan.

3. The locality shall be allowed, after giving notice to the owner, occupier or operator of the land development project, to conduct periodic inspections of the project.

4. The person responsible for implementing the approved plan shall conduct monitoring and submit reports as the locality may require to ensure compliance with the approved plan and to determine whether the plan provides effective stormwater management.

5. No changes may be made to an approved plan without review and written approval by the locality.

4VAC50-60-132. Technical criteria.

A. The department-administered local stormwater management programs shall require compliance with the provisions of Part II (4VAC50-60-40 et seq.) of this chapter unless an exception is granted pursuant to 4VAC50-60-142 D and shall comply with the requirements of 4VAC50-60-460 L.

B. When reviewing a federal project, the department shall apply the provisions of this chapter.

C. Nothing in this chapter shall be construed as limiting the rights of other federal and state agencies to impose stricter technical criteria or other requirements as allowed by law.

4VAC50-60-134. Administrative authorities.

A. The department is the permit-issuing authority, plan approving authority, and the enforcement authority.

B. The department or its designee is the plan reviewing authority and the inspection authority.

C. The department shall assess and collect fees.

D. The department may require the submission of a reasonable performance bond or other financial surety in accordance with the criteria set forth in § 10.1-603.8 of the Code of Virginia prior to the issuance of coverage under the VSMP General Permit for Discharges of Stormwater from Construction Activities and in accordance with the following:

1. The amount of the installation performance security shall be the total estimated construction cost of the stormwater management BMPs approved under the stormwater management plan, plus 25%;

2. The performance security shall contain forfeiture provisions for failure, after proper notice, to complete work within the time specified, or to initiate or maintain appropriate actions that may be required in accordance with the approved stormwater management plan;

3. Upon failure by the applicant to take such action as required, the department may act and may collect from the applicant the difference should the amount of the reasonable cost of such action exceed the amount of the security held; and

4. Within 60 days of the completion of the requirements and conditions of the VSMP General Permit for Discharges of Stormwater from Construction Activities and the department's acceptance of the Notice of Termination, such bond, cash escrow, letter of credit, or other legal arrangement shall be refunded to the applicant.

4VAC50-60-136. Stormwater management plan review.

A. Stormwater management plans shall be reviewed and approved by the department prior to commencement of land-disturbing activities.

B. The department shall approve or disapprove a stormwater management plan and required accompanying information according to the criteria set out for a qualifying local program in 4VAC50-60-108 B.

C. The department shall not accept initial stormwater management plans.

D. Each approved stormwater management plan may be modified in accordance with the criteria set out for a qualifying local program in 4VAC50-60-108 D.

4VAC50-60-138. Issuance of coverage under the VSMP General Permit for Discharges of Stormwater from Construction Activities.

The department shall issue coverage under the VSMP General Permit for Discharges of Stormwater from Construction Activities in accordance with the following:

1. The applicant must have a department-approved stormwater management plan for the land-disturbing activity.

2. The applicant must have submitted a complete registration statement for the VSMP General Permit for Discharges of Stormwater from Construction Activities in accordance with Part VII (4VAC50-60-360 et seq.) of this chapter and the requirements of the VSMP General Permit for Discharges of Stormwater from Construction Activities, which acknowledges that a SWPPP has been developed and will be implemented, and the registration statement must have been reviewed and approved prior to the commencement of land disturbance.

3. The applicant must have submitted the required fee form and fee for the registration statement seeking coverage under the VSMP General Permit for Discharges of Stormwater from Construction Activities.

4. Applicants submitting registration statements deemed to be incomplete must be notified within 15 working days of receipt by the department that the registration statement is not complete and be notified (i) of what material needs to be submitted to complete the registration statement, and (ii) that the land-disturbing activity does not have coverage under the VSMP General Permit for Discharges of Stormwater from Construction Activities.

5. The applicant shall be notified of authorization of permit coverage by the department.

6. Individual permits for qualifying land-disturbing activities may be issued at the discretion of the board or its designee pursuant to 4VAC50-60-410 B 3.

4VAC50-60-140. Administrative procedures: exceptions. (Repealed.)

A. A request for an exception shall be submitted, in writing, to the locality. An exception from the stormwater management regulations may be granted, provided that: (i) exceptions to the criteria are the minimum necessary to afford relief and (ii) reasonable and appropriate conditions shall be imposed as necessary upon any exception granted so that the intent of the Act and this chapter are preserved.

B. Economic hardship is not sufficient reason to grant an exception from the requirements of this chapter.

4VAC50-60-142. Inspections, enforcement, hearings, exceptions, and stormwater management facility maintenance.

A. Inspections shall be conducted by the department in accordance with 4VAC50-60-114.

B. Enforcement actions shall be conducted by the department in accordance with 4VAC50-60-116. The department's Stormwater Management Enforcement Manual shall serve as guidance to be utilized in enforcement actions under the Stormwater Management Act and attendant regulations. Any amounts assessed by a court as a result of a summons issued by the board or the department shall be paid into the state treasury and deposited by the State Treasurer into the Virginia Stormwater Management Fund established pursuant to § 10.1-603.4:1 of the Code of Virginia.

C. Hearings shall be conducted by the department in accordance with 4VAC50-60-118.

D. Exceptions may be granted by the department in accordance with 4VAC50-60-122.

E. Stormwater management facility maintenance shall be conducted in accordance with 4VAC50-60-124.

4VAC50-60-150. Administrative procedures: maintenance and inspections. (Repealed.)

A. Responsibility for the operation and maintenance of stormwater management facilities, unless assumed by a governmental agency, shall remain with the property owner and shall pass to any successor or owner. If portions of the land are to be sold, legally binding arrangements shall be made to pass the basic responsibility to successors in title. These arrangements shall designate for each project the property owner, governmental agency, or other legally established entity to be permanently responsible for maintenance.

B. In the case of developments where lots are to be sold, permanent arrangements satisfactory to the locality shall be made to ensure continued performance of this chapter.

C. A schedule of maintenance inspections shall be incorporated into the local ordinance. Ordinances shall provide that in cases where maintenance or repair is neglected, or the stormwater management facility becomes a danger to public health or safety, the locality has the authority to perform the work and to recover the costs from the owner.

D. Localities may require right-of-entry agreements or easements from the applicant for purposes of inspection and maintenance.

E. Periodic inspections are required for all stormwater management facilities. Localities shall either:

1. Provide for inspection of stormwater management facilities on an annual basis; or

2. Establish an alternative inspection program which ensures that stormwater management facilities are functioning as intended. Any alternative inspection program shall be:

a. Established in writing;

b. Based on a system of priorities that, at a minimum, considers the purpose of the facility, the contributing drainage area, and downstream conditions; and

c. Documented by inspection records.

F. During construction of the stormwater management facilities, localities shall make inspections on a regular basis.

G. Inspection reports shall be maintained as part of a land development project file.

4VAC50-60-154. Reporting and recordkeeping.

A. The department shall maintain a current database of permit coverage information for all projects that includes permit number, operator name, activity name, acres disturbed, date of permit coverage, and site address and location.

B. On a fiscal year basis (July 1 to June 30), a local program shall report to the department by October 1 in accordance with 4VAC50-60-126 A.

C. On a fiscal year basis (July 1 to June 30), the department shall compile information provided by local programs.

D. Records shall be maintained by the department in accordance with 4VAC50-60-126 C.

Part III C
Department of Conservation and Recreation Procedures for Review of Qualifying Local Programs

4VAC50-60-156. Authority and applicability.

This part specifies the criteria that the department will utilize in reviewing a locality's administration of a qualifying local program pursuant to § 10.1-603.12 of the Code of Virginia following the board's approval of such program in accordance with the Virginia Stormwater Management Act and these regulations.

4VAC50-60-157. Stormwater management program review.

A. The department shall review each board-approved qualifying local program at least once every five years on a review schedule approved by the board. The department may review a qualifying local program on a more frequent basis if deemed necessary by the board and shall notify the local government if such review is scheduled.

B. The review of a board-approved qualifying local program shall consist of the following:

1. An interview between department staff and the qualifying local program administrator or his designee;

2. A review of the local ordinance(s) and other applicable documents;

3. A review of a subset of the plans approved by the qualifying local program and consistency of application including exceptions granted;

4. An accounting of the receipt and of the expenditure of fees received;

5. An inspection of regulated activities; and

6. A review of enforcement actions and an accounting of amounts recovered through enforcement actions.

C. To the extent practicable, the department will coordinate the reviews with other local government program reviews to avoid redundancy.

D. The department shall provide its recommendations to the board within 90 days of the completion of a review. Such recommendations shall be provided to the locality in advance of the meeting.

E. The board shall determine if the qualifying local program and ordinance are consistent with the Act and state stormwater management regulations and notify the qualifying local program of its findings.

F. If the board determines that the deficiencies noted in the review will cause the qualifying local program to be out of compliance with the Stormwater Management Act and its attendant regulations, the board shall notify the qualifying local program concerning the deficiencies and provide a reasonable period of time for corrective action to be taken. If the qualifying local program agrees to the corrective action recommended by the board, the qualifying local program will be considered to be conditionally compliant with the Stormwater Management Act and its attendant regulations until a subsequent finding is issued by the board. If the qualifying local program fails to take the corrective action within the specified time, the board may take action pursuant to § 10.1-603.12 of the Code of Virginia.

Part III D
Virginia Soil and Water Conservation Board Authorization for Qualifying Local Programs

4VAC50-60-158. Authority and applicability.

Subdivision 1 of § 10.1-603.4 of the Code of Virginia requires that the board establish standards and procedures for authorizing a locality to administer a stormwater management program. In accordance with that requirement, and with the further authority conferred upon the board by the Virginia Stormwater Management Act (§ 10.1-603.2 et seq. of the Code of Virginia), this part specifies the procedures the board will utilize in authorizing a locality to administer a qualifying local program.

4VAC50-60-159. Authorization procedures for qualifying local programs.

A. A locality required to adopt a program in accordance with § 10.1-603.3 A of the Code of Virginia or those electing to seek authorization to administer a qualifying local program must submit to the board an application package which, at a minimum, contains the following:

1. The local program ordinance(s);

2. A funding and staffing plan based on the projected permitting fees; and

3. The policies and procedures, including but not limited to, agreements with Soil and Water Conservation Districts, adjacent localities, or other entities, for the administration, plan review, permit issuance, inspection, and enforcement components of the program.

B. Upon receipt of an application package, the board or its designee shall have 20 calendar days to determine the completeness of the application package. If an application package is deemed to be incomplete based on the criteria set out in subsection A of this section, the board or its designee must identify in writing the reasons the application package is deemed deficient.

C. Upon receipt of a complete application package, the board or its designee shall have 90 calendar days for the review of the application package. During the 90-day review period, the board or its designee shall either approve or disapprove the application, or notify the locality of a time extension for the review, and communicate its decision to the locality in writing. If the application is not approved, the reasons for not approving the application shall be provided to the locality in writing. Approval or denial shall be based on the application's compliance with the Virginia Stormwater Management Act and these regulations.

D. A locality required to adopt a qualifying local program in accordance with § 10.1-603.3 A of the Code of Virginia shall submit a complete application package for the board's review pursuant to a schedule set by the board in accordance with § 10.1-603.3 and shall adopt a qualifying local program consistent with the Act and this chapter within the timeframe established pursuant to § 10.1-603.3.

E. A locality not required to adopt a qualifying local program in accordance with § 10.1-603.3 A but electing to adopt a qualifying local program shall notify the board in accordance with the following:

1. A locality electing to adopt a qualifying local program may notify the board of its intention within six months of the effective date of these regulations. Such locality shall submit a complete application package for the board's review pursuant to a schedule set by the board and shall adopt a qualifying local program within the timeframe established by the board.

2. A locality electing to adopt a qualifying local program that does not notify the board within the initial six-month period of its intention may thereafter notify the board at any regular meeting of the board. Such notification shall include a proposed schedule for adoption of a qualifying local program within a timeframe agreed upon by the board.

F. The department shall administer the responsibilities of the Act and this chapter in any locality in which a qualifying local program has not been adopted. The department shall develop a schedule, to be approved by the board, for adoption and implementation of the requirements of this chapter in such localities. Such schedule may include phases of implementation and shall be based upon considerations including the typical number of permitted projects located within a locality, total number of acres disturbed by such permitted projects, and such other considerations as may be deemed necessary by the board.

DOCUMENTS INCORPORATED BY REFERENCE (4VAC50-60)

Illicit Discharge Detection and Elimination – A Guidance Manual for Program Development and Technical Assessments, EPA Cooperative Agreement X-82907801-0, October 2004, by Center for Watershed Protection and Robert Pitt, University of Alabama, available on the Internet at http://www.cwp.org/idde_verify.htm.

Getting in Step – A Guide for Conducting Watershed Outreach Campaigns, EPA-841-B-03-002, December 2003, U.S. Environmental Protection Agency, Office of Wetlands, Oceans, and Watersheds, available on the Internet at http://www.epa.gov/owow/watershed/outreach/documents/getnstep.pdf, or may be ordered from National Service Center for Environmental Publications, telephone 1-800-490-9198.

Municipal Stormwater Program Evaluation Guidance, EPA-833-R-07-003, January 2007 (field test version), U.S. Environmental Protection Agency, Office of Wastewater Management, available on the Internet at http://cfpub.epa.gov/npdes/docs.cfm?program_id=6&view=allprog&sort=name#ms4_guidance, or may be ordered from National Technical Information Service, 5285 Port Royal Road, Springfield, VA 22161, telephone 1-800-553-6847 or (703) 605-6000.

Technical Bulletin #1 - Stream Channel Erosion Control, Virginia Department of Conservation and Recreation, 2000.

Technical Memorandum – The Runoff Reduction Method, April 2008, and beta-version addendum, September 2008.

Virginia Runoff Reduction Method Worksheet, September 2008.

VA.R. Doc. No. R08-587; Filed June 2, 2009, 2:36 p.m.
TITLE 8. EDUCATION
STATE BOARD OF EDUCATION
Final Regulation

REGISTRAR'S NOTICE: Pursuant to § 2.2-4007.06 of the Code of Virginia, the final regulations published in 25:16 VA.R. 2872-2968 April 13, 2009, were suspended in order to solicit additional public comments. Notice of the suspension was published in 25:16 VA.R. 2968 April 13, 2009. On May 28, 2009, the Board of Education readopted the previously published final regulations without change. Therefore, pursuant to § 2.2-4031 A of the Code of Virginia, the text of the final regulations is not set out. Refer to 25:16 VA.R. 2872-2968 April 13, 2009, for the full text of the final regulations that becomes effective on July 7, 2009.

Titles of Regulations: 8VAC20-80. Regulations Governing Special Education Programs for Children with Disabilities in Virginia (repealing 8VAC20-80-10 through 8VAC20-80-190).

8VAC20-81. Regulations Governing Special Education Programs for Children with Disabilities in Virginia (adding 8VAC20-81-10 through 8VAC20-81-340).

Statutory Authority: §§ 22.1-16 and 22.1-214 of the Code of Virginia; 20 USC § 1400 et seq.; 34 CFR Part 300.

Effective Date: July 7, 2009.

Agency Contact: Melissa Smith, Coordinator of Administrative Services, Department of Education, P.O. Box 2120, Richmond, VA 23218-2120, telephone (804) 371-0524, or email melissa.smith@doe.virginia.gov.

Summary:

This action represents the Board of Education's readoption of the final regulations on May 28, 2009, with no changes from its adoption at the September 28, 2008, Board of Education meeting. Refer to 25:16 VA.R. 2872-2968 April 13, 2009, for the full text of the final regulations that becomes effective on July 7, 2009.

The Board of Education is repealing the text of the current regulations (8VAC20-80) and promulgating new regulations (8VAC20-81). There are a number of substantive changes in the regulations, including the following areas: (i) functions of the Virginia Department of Education (VDOE); (ii) responsibilities of local school divisions and state-operated programs; (iii) qualifications for educational interpreters; (iv) child find; (v) eligibility determinations; (vi) development, review and revision of a student's individualized education program (IEP); (vii) parentally placed private school students; (viii) discipline; (ix) procedural safeguards, including the appointment of surrogate parents and dispute resolution; (x) local educational agency administration and governance; (xi) funding; and (xii) requirements regarding highly qualified personnel.

In response to public comments received, several provisions that were proposed to be significantly revised or deleted have been retained, including provisions regarding parental consent for the termination of special education and related services and the current administration of the due process system.

Summary of Public Comments and Agency's Response: A summary of comments made by the public and the agency's response may be obtained from the promulgating agency or viewed at the office of the Registrar of Regulations.

VA.R. Doc. No. R07-95; Filed June 3, 2009, 10:50 a.m.
TITLE 8. EDUCATION
STATE BOARD OF EDUCATION
Final Regulation

REGISTRAR'S NOTICE: Pursuant to § 2.2-4007.06 of the Code of Virginia, the final regulations published in 25:16 VA.R. 2872-2968 April 13, 2009, were suspended in order to solicit additional public comments. Notice of the suspension was published in 25:16 VA.R. 2968 April 13, 2009. On May 28, 2009, the Board of Education readopted the previously published final regulations without change. Therefore, pursuant to § 2.2-4031 A of the Code of Virginia, the text of the final regulations is not set out. Refer to 25:16 VA.R. 2872-2968 April 13, 2009, for the full text of the final regulations that becomes effective on July 7, 2009.

Titles of Regulations: 8VAC20-80. Regulations Governing Special Education Programs for Children with Disabilities in Virginia (repealing 8VAC20-80-10 through 8VAC20-80-190).

8VAC20-81. Regulations Governing Special Education Programs for Children with Disabilities in Virginia (adding 8VAC20-81-10 through 8VAC20-81-340).

Statutory Authority: §§ 22.1-16 and 22.1-214 of the Code of Virginia; 20 USC § 1400 et seq.; 34 CFR Part 300.

Effective Date: July 7, 2009.

Agency Contact: Melissa Smith, Coordinator of Administrative Services, Department of Education, P.O. Box 2120, Richmond, VA 23218-2120, telephone (804) 371-0524, or email melissa.smith@doe.virginia.gov.

Summary:

This action represents the Board of Education's readoption of the final regulations on May 28, 2009, with no changes from its adoption at the September 28, 2008, Board of Education meeting. Refer to 25:16 VA.R. 2872-2968 April 13, 2009, for the full text of the final regulations that becomes effective on July 7, 2009.

The Board of Education is repealing the text of the current regulations (8VAC20-80) and promulgating new regulations (8VAC20-81). There are a number of substantive changes in the regulations, including the following areas: (i) functions of the Virginia Department of Education (VDOE); (ii) responsibilities of local school divisions and state-operated programs; (iii) qualifications for educational interpreters; (iv) child find; (v) eligibility determinations; (vi) development, review and revision of a student's individualized education program (IEP); (vii) parentally placed private school students; (viii) discipline; (ix) procedural safeguards, including the appointment of surrogate parents and dispute resolution; (x) local educational agency administration and governance; (xi) funding; and (xii) requirements regarding highly qualified personnel.

In response to public comments received, several provisions that were proposed to be significantly revised or deleted have been retained, including provisions regarding parental consent for the termination of special education and related services and the current administration of the due process system.

Summary of Public Comments and Agency's Response: A summary of comments made by the public and the agency's response may be obtained from the promulgating agency or viewed at the office of the Registrar of Regulations.

VA.R. Doc. No. R07-95; Filed June 3, 2009, 10:50 a.m.
TITLE 8. EDUCATION
STATE BOARD OF EDUCATION
Final Regulation

Final Regulation

Title of Regulation: 8VAC20-131. Regulations Establishing Standards for Accrediting Public Schools in Virginia (amending 8VAC20-131-5, 8VAC20-131-30, 8VAC20-131-50, 8VAC20-131-60, 8VAC20-131-80, 8VAC20-131-100, 8VAC20-131-140, 8VAC20-131-210, 8VAC20-131-270, 8VAC20-131-280, 8VAC20-131-290, 8VAC20-131-300, 8VAC20-131-310, 8VAC20-131-325, 8VAC20-131-360).

Statutory Authority: §§ 22.1-19 and 22.1-253.13:3 of the Code of Virginia.

Effective Date: July 31, 2009.

Agency Contact: Anne Wescott, Assistant Superintendent, Policy and Communications, Department of Education, P.O. Box 2120, Richmond, VA 23218-2120, telephone (804) 225-2403, FAX (804) 225-2524, or email anne.wescott@doe.virginia.gov.

Summary:

The amendments (i) establish requirements for the Standard Technical and Advanced Technical Diplomas pursuant to Chapters 859 and 919 of the 2007 Acts of Assembly; (ii) establish a graduation and completion index where each school with a graduating class must achieve a minimum of 85 percentage points on the board's index in order to be rated Fully Accredited, (iii) establish a new accreditation rating called "Provisionally Accredited-Graduation Rate" to allow a phase-in period for achieving the 85 points needed on the graduation and completion index; (iv) prohibit schools from administering to any student more than one test in any content area in each year; (v) require two additional standard credits for the Advanced Studies Diploma; (vi) beginning with seventh graders in the 2010-2011 academic year, require schools to develop a personal Academic and Career Plan for each student by the fall of the student's eighth-grade year; (vii) require that principals notify the parents of students removed from class for disciplinary reasons for two or more consecutive days; and (viii) add language to permit school divisions to receive recognitions and rewards established for the Virginia Index of Performance incentive program for accountability performance.

Summary of Public Comments and Agency's Response: A summary of comments made by the public and the agency's response may be obtained from the promulgating agency or viewed at the office of the Registrar of Regulations.

Part I
Definitions and Purpose

8VAC20-131-5. Definitions.

The following words and terms apply only to these regulations and do not supersede those definitions used for federal reporting purposes or for the calculation of costs related to the Standards of Quality (§ 22.1-253.13:1 et seq. of the Code of Virginia). When used in these regulations, these words shall have the following meanings, unless the context clearly indicates otherwise:

"Accreditation" means a process used by the Virginia Department of Education (hereinafter "department") to evaluate the educational performance of public schools in accordance with these regulations.

"Additional test" means a test, including substitute tests approved by the Board of Education that students may use in lieu of a Standards of Learning test to obtain verified credit.

"Class period" means a segment of time in the school day that is approximately 1/6 of the instructional day.

"Combined school" means a public school that contains any combination of or all of the grade levels from kindergarten through grade 12. This definition does not include those schools defined as elementary, middle, or secondary schools.

"Elementary school" means a public school with any grades kindergarten through five.

"Eligible students" means the total number of students of school age enrolled in the school at a grade or course for which a Standards of Learning test is required unless excluded under the provisions of 8VAC20-131-30 F and 8VAC20-131-280 D relative to limited English proficient (LEP) students.

"Enrollment" means the act of complying with state and local requirements relative to the registration or admission of a child for attendance in a school within a local school division. This term also means registration for courses within the student's home school or within related schools or programs.

"First time" means the student has not been enrolled in the school at any time during the current school year (for purposes of 8VAC20-131-60 with reference to students who transfer in during the school year).

"Four core areas" or "four core academic areas" means English, mathematics, science, and history and social science for purposes of testing for the Standards of Learning.

"Graduate" means a student who has earned a Board of Education recognized diploma, which includes the Advanced Studies, Advanced Technical, Standard, Standard Technical, Modified Standard, Special, and General Achievement diplomas.

"Homebound instruction" means academic instruction provided to students who are confined at home or in a health care facility for periods that would prevent normal school attendance based upon certification of need by a licensed physician or a licensed clinical psychologist.

"Locally awarded verified credit" means a verified unit of credit awarded by a local school board in accordance with 8VAC20-131-110.

"Middle school" means a public school with any grades 6 through 8.

"Planning period" means one class period per day or the equivalent unencumbered of any teaching or supervisory duties.

"Recess" means a segment of free time exclusive of time provided for meals during the standard school day in which students are given a break from instruction.

"Reconstitution" means a process that may be used to initiate a range of accountability actions to improve pupil performance, curriculum, and instruction to address deficiencies that caused a school to be rated Accreditation Denied that may include, but not be limited to, restructuring a school's governance, instructional program, staff or student population.

"School" means a publicly funded institution where students are enrolled for all or a majority of the instructional day and:

1. Those students are reported in fall membership at the institution; and

2. At a minimum, the institution meets the preaccreditation eligibility requirements of these regulations as adopted by the Board of Education.

"Secondary school" means a public school with any grades 9 through 12.

"Standard school day" means a calendar day that averages at least five and one-half instructional hours for students in grades 1 through 12, excluding breaks for meals and recess, and a minimum of three instructional hours for students in kindergarten.

"Standard school year" means a school year of at least 180 teaching days or a total of at least 990 teaching hours per year.

"Standard unit of credit" or "standard credit" means credit awarded for a course in which the student successfully completes 140 clock hours of instruction and the requirements of the course. Local school boards may develop alternatives to the requirement for 140 clock hours of instruction as provided for in 8VAC20-131-110.

"Standards of Learning (SOL) tests" means those criterion referenced assessments approved by the Board of Education for use in the Virginia assessment program that measure attainment of knowledge and skills required by the Standards of Learning.

"Student" means a person of school age as defined by § 22.1-1 of the Code of Virginia, a child with disabilities as defined in § 22.1-213 of the Code of Virginia, and a person with limited English proficiency in accordance with § 22.1-5 of the Code of Virginia.

"Student periods" means the number of students a teacher instructs per class period multiplied by the number of class periods taught.

"Verified unit of credit" or "verified credit" means credit awarded for a course in which a student earns a standard unit of credit and achieves a passing score on a corresponding end-of-course SOL test or an additional test approved by the Board of Education as part of the Virginia assessment program.

"Virginia assessment program" means a system used to evaluate student achievement that includes Standards of Learning tests and additional tests that may be approved from time to time by the Board of Education.

Part III
Student Achievement

8VAC20-131-30. Student achievement expectations.

A. Each student should learn the relevant grade level/course subject matter before promotion to the next grade. The division superintendent shall certify to the Department of Education that the division's promotion/retention policy does not exclude students from membership in a grade, or participation in a course, in which SOL tests are to be administered. Each school shall have a process, as appropriate, to identify and recommend strategies to address the learning, behavior, communication, or development of individual children who are having difficulty in the educational setting.

B. In kindergarten through eighth grade, where the administration of Virginia assessment program tests are required by the Board of Education, each student shall be expected to take the tests; students who are accelerated should shall take the [ test tests ] of the grade level enrolled or the tests for the grade level of the content received in instruction. No student shall [ be required to ] take more than one test in any [ single ] content area in [ any tested grade each year ]. Schools shall use the Virginia assessment program test results in kindergarten through eighth grade as part of a set of multiple criteria for determining the promotion or retention of students. Students promoted to high school from eighth grade should have attained basic mastery of the Standards of Learning in English, history and social science, mathematics, and science and should be prepared for high school work. Students shall not be required to retake the Virginia assessment program tests unless they are retained in grade and have not previously passed the related tests.

C. In kindergarten through grade 12, students may participate in a remediation recovery program as established by the board in English (Reading) or mathematics or both.

D. The board recommends that students in kindergarten through grade 8 not be required to attend summer school or weekend remediation classes solely based on failing a SOL test in science or history/social science.

E. Each student in middle and secondary schools shall take all applicable end-of-course SOL tests following course instruction. Students who achieve a passing score on an end-of-course SOL test shall be awarded a verified unit of credit in that course in accordance with the provisions of 8VAC20-131-110. Students may earn verified units of credit in any courses for which end-of-course SOL tests are available. Middle and secondary schools may consider the student's end-of-course SOL test score in determining the student's final course grade. However, no student who has failed an end-of-course SOL test but passed the related course shall be prevented from taking any other course in a content area and from taking the applicable end-of-course SOL test. The board may approve additional tests to verify student achievement in accordance with guidelines adopted for verified units of credit described in 8VAC20-131-110.

F. Participation in the Virginia assessment program by students with disabilities shall be prescribed by provisions of their Individualized Education Program (IEP) or 504 Plan. All students with disabilities shall be assessed with appropriate accommodations and alternate assessments where necessary.

G. All students identified as limited English proficient (LEP) shall participate in the Virginia assessment program. A school-based committee shall convene and make determinations regarding the participation level of LEP students in the Virginia assessment program. In kindergarten through eighth grade, limited English proficient students may be granted a one-time exemption from SOL testing in the areas of writing, science, and history and social science.

H. Students identified as foreign exchange students taking courses for credit shall be required to take the relevant Virginia assessment program tests. Foreign exchange students who are auditing courses and who will not receive a standard unit of credit for such courses shall not be required to take the Standards of Learning tests for those courses.

8VAC20-131-50. Requirements for graduation.

A. The requirements for a student to earn a diploma and graduate from a Virginia high school shall be those in effect when that student enters the ninth grade for the first time. Students shall be awarded a diploma upon graduation from a Virginia high school.

When students below the ninth grade successfully complete courses offered for credit in grades 9 through 12, credit shall be counted toward meeting the standard units required for graduation provided the courses are equivalent in content and academic rigor as those courses offered at the secondary level. To earn a verified unit of credit for these courses, students must meet the requirements of 8VAC20-131-110.

The following requirements shall be the only requirements for a diploma, unless a local school board has prescribed additional requirements that have been approved by the Board of Education. All additional requirements prescribed by local school boards that have been approved by the Board of Education remain in effect until such time as the local school board submits a request [ to the board ] to amend or discontinue them.

B. Requirements for a Standard Diploma.

1. Beginning with the ninth-grade [ classes class ] of 2003-04 [ 2009-2010 2010-2011 ] and beyond, students shall earn the required standard and verified units of credit described in subdivision 2 of this subsection.

2. Credits required for graduation with a Standard Diploma.

Discipline Area

Standard Units of Credit Required

Verified Credits Required

English

4

2

Mathematics1

3

1

Laboratory Science2,6

3

1

History and Social Sciences3,6

3

1

Health and Physical Education

2

[ Foreign Language, ] Fine Arts or Career and Technical Education [ 7 ]

[ 1 2 ]

[ Foreign Language, ] Economics [ or and ] Personal Finance

1

Electives4

6 [ 5 4 ]

Student Selected Test5

1

Total

22

6

1Courses completed to satisfy this requirement shall be at or above the level of algebra and shall include at least two [ different ] course selections from among: Algebra I, Geometry, Algebra, Functions, and Data Analysis, Algebra II, or other mathematics courses above the level of algebra and geometry Algebra II. The board may shall approve additional courses to satisfy this requirement.

2Courses completed to satisfy this requirement shall include course selections from at least two different science disciplines: earth sciences, biology, chemistry, or physics [ , or completion of the sequence of science courses required for the International Baccalaureate Diploma ]. The board may shall approve additional courses to satisfy this requirement.

3Courses completed to satisfy this requirement shall include U.S. and Virginia History, U.S. and Virginia Government, and one course in either world history or geography or both. The board may shall approve additional courses to satisfy this requirement.

4Courses to satisfy this requirement shall include at least two sequential electives as required by the Standards of Quality.

5A student may utilize additional tests for earning verified credit in computer science, technology, career and technical education, economics or other areas as prescribed by the board in 8VAC20-131-110.

6Students who complete a career and technical education program sequence and pass an examination or occupational competency assessment in a career and technical education field that confers certification or an occupational competency credential from a recognized industry, or trade or professional association, or acquires a professional license in a career and technical education field from the Commonwealth of Virginia may substitute the certification, competency credential, or license for (i) the student-selected verified credit and (ii) either a science or history and social science verified credit when the certification, license, or credential confers more than one verified credit. The examination or occupational competency assessment must be approved by the Board of Education as an additional test to verify student achievement.

[ 7Pursuant to § 22.1-253.13:4 of the Code of Virginia, credits earned for this requirement shall include one credit in fine or performing arts or career and technical education. ]

Students completing the requirements for the Standard Diploma may be eligible to receive an honor deemed appropriate by the local school board as described in subsection I K of this section.

C. Requirements for a Standard Technical Diploma.

[ 1. Beginning with the ninth-grade class of 2010-2011 and beyond, students shall earn the required standard and verified units of credit described in subdivision 2 of this subsection.

2. ] Credits required for graduation with a Standard Technical Diploma.

Discipline Area

Standard Units of Credit Required

Verified Credits Required

English

4

2

Mathematics1

3

1

Laboratory Science2,5

3

1

History and Social Sciences3,5

3

1

Health and Physical Education

2

Fine Arts [ , or ] Foreign Language [ , Economics or Personal Finance ]

1

[ Economics and Personal Finance ]

[ 1 ]

Career and Technical Education4

4

Electives

[ 2 1 ]

Student Selected6

1

Total

22

6

1Courses completed to satisfy this requirement shall include at least three [ different ] course selections from among: Algebra I, Geometry, Algebra Functions and Data Analysis, or Algebra II or other mathematics courses above the level of Algebra II. The board shall approve courses to satisfy this requirement.

2Courses completed to satisfy this requirement shall include course selections from at least three different science disciplines from among: earth sciences, biology, chemistry, or physics, or completion of the sequence of science courses required for the International Baccalaureate Diploma. The board shall approve courses to satisfy this requirement.

3Courses completed to satisfy this requirement shall include U.S. and Virginia History, U.S. and Virginia Government, and one course in either world history or geography or both. The board shall approve courses to satisfy this requirement.

4Courses completed to satisfy this requirement must include a career concentration as approved by the board. [ For concentrations that require less than four courses students must complete additional courses that are related to the student's career concentration. If a career concentration includes a specific assessment approved by the board and the student is eligible to take the assessment, then the student must take this assessment. ]

5Students who complete a career and technical education program sequence and pass an examination or occupational competency assessment in a career and technical education field that confers certification or an occupational competency credential from a recognized industry or trade or professional association or acquires a professional license in a career and technical education field from the Commonwealth of Virginia may substitute the certification competency credential or license for (i) the student selected verified credit and (ii) either a science or history and social science verified credit when the certification license or credential confers more than one verified credit. The examination or occupational competency assessment must be approved by the board as an additional test to verify student achievement. [ If a career concentration includes a specific assessment approved by the board, then the student must take this assessment. ]

6A student may utilize additional tests for earning verified credit in computer science, technology, career and technical education, economics or other areas as prescribed by the board in 8VAC20-131-110.

Students completing the requirements for the Standard Technical Diploma may be eligible to receive an honor deemed appropriate by the local school board as described in subsection K of this section.

C. D. Requirements for an Advanced Studies Diploma. [ (*Contingent upon passage of the VDOE legislative proposal ] Any student who meets the requirements for both the Advanced Studies and the Advanced Technical diploma may choose between these two diplomas.)

[ 1. Beginning with the ninth-grade class of 2010-2011 and beyond, students shall earn the required standard and verified units of credit described in subdivision 2 of this subsection.

2. ] Credits required for graduation with an Advanced Studies Diploma.

Discipline Area

Standard Units of Credit Required

Verified Credits Required

English

4

2

Mathematics1

4

2

Laboratory Science2

4

2

History and Social Sciences3

4

2

Foreign Language4

3

Health and Physical Education

2

Fine Arts or Career and Technical Education

1

Economics [ or and ] Personal Finance

1

Electives

2 3

Student Selected Test5

1

Total

24 26

9

1Courses completed to satisfy this requirement shall be at or above the level of algebra and shall include at least three different course selections from among: Algebra I, Geometry, Algebra II, or other mathematics courses above the level of Algebra II. The board may shall approve additional courses to satisfy this requirement.

2Courses completed to satisfy this requirement shall include course selections from at least three different science disciplines from among: earth sciences, biology, chemistry, or physics or completion of the sequence of science courses required for the International Baccalaureate Diploma. The board may shall approve additional courses to satisfy this requirement.

3Courses completed to satisfy this requirement shall include U.S. and Virginia History, U.S. and Virginia Government, and two courses in either world history or geography or both. The board may shall approve additional courses to satisfy this requirement.

4Courses completed to satisfy this requirement shall include three years of one language or two years of two languages.

5A student may utilize additional tests for earning verified credit in computer science, technology, career or technical education, economics or other areas as prescribed by the board in 8VAC20-131-110.

Students completing the requirements for the Advanced Studies Diploma may be eligible to receive an honor deemed appropriate by the local school board as described in subsection I K of this section.

E. Requirements for an Advanced Technical Diploma. [ (*Contingent upon passage of the VDOE legislative proposal.) ] Any student who meets the requirements for both the Advanced Studies and the Advanced Technical diploma may choose between these two diplomas.

[ 1. Beginning with the ninth-grade class of 2010-2011 and beyond, students shall earn the required standard and verified units of credit described in subdivision 2 of this subsection.

2. ] Credits required for graduation with an Advanced Technical Diploma.

Discipline Area

Standard Units of Credit Required

Verified Credits Required

English

4

2

Mathematics1

4

2

Laboratory Science2

4

2

History and Social Sciences3

4

2

Foreign Language4

3

Health and Physical Education

2

[ Economics and Personal Finance ]

[ 1 ]

Fine Arts or [ Economics Career and Technical Education ]

1

Career and Technical Education5

[ 4 3 ]

Student Selected Test6

1

Total

26

9

1Courses completed to satisfy this requirement shall include at least three different course selections from among: Algebra I, Geometry, Algebra II, or other mathematics courses above the level of Algebra II. The board shall approve courses to satisfy this requirement.

2Courses completed to satisfy this requirement shall include course selections from at least three different science disciplines from among: earth sciences, biology, chemistry, or physics or completion of the sequence of science courses required for the International Baccalaureate Diploma. The board shall approve courses to satisfy this requirement.

3Courses completed to satisfy this requirement shall include U.S. and Virginia History, U.S. and Virginia Government, and two courses in either world history or geography or both. The board shall approve courses to satisfy this requirement.

4Courses completed to satisfy this requirement shall include three years of one language or two years of two languages.

5Courses completed to satisfy this requirement must include a career concentration as approved by the board. [ For concentrations that require less than four courses, students must complete additional courses that are related to the student's career concentration. ] If a career concentration includes a specific assessment approved by the board, [ and the student is eligible to take the assessment, ] then the student must take this assessment [ to fulfill this requirement ].

6A student may utilize additional tests for earning verified credit in computer science, technology, career or technical education, economics, or other areas as prescribed by the board in 8VAC20-131-110.

Students completing the requirements for the Advanced Technical Diploma may be eligible to receive an honor deemed appropriate by the local school board as described in subsection K of this section.

D. F. Requirements for the Modified Standard Diploma.

1. Every student shall be expected to pursue a Standard Diploma or, Standard Technical Diploma, Advanced Studies Diploma, or Advanced Technical Diploma. The Modified Standard Diploma program is intended for certain students at the secondary level who have a disability and are unlikely to meet the credit requirements for a Standard Diploma. Eligibility and participation in the Modified Standard Diploma program shall be determined by the student's Individualized Education Program (IEP) team including the student, where appropriate, at any point after the student's eighth grade year.

2. The school must secure the informed written consent of the parent/guardian and the student to choose this diploma program after review of the student's academic history and the full disclosure of the student's options.

3. The student who has chosen to pursue a Modified Standard Diploma shall also be allowed to pursue the Standard Diploma, or Standard Technical Diploma, Advanced Studies Diploma or Advanced Technical Diploma at any time throughout that student's high school career, and the student must not be excluded from courses and tests required to earn a Standard or Advanced Studies Diploma.

4. Students pursuing the Modified Standard Diploma shall pass literacy and numeracy competency assessments prescribed by the board.

5. Credits required for graduation with a Modified Standard Diploma.

Discipline Area

Standard Units of Credit Required

English

4

Mathematics1

3

Science2

2

History and Social Sciences3

2

Health and Physical Education

2

Fine Arts or Career and Technical Education

1

Electives4

6

Total

20

1Courses completed to satisfy this requirement shall include content from among applications of algebra, geometry, personal finance, and [ probability and ] statistics in courses that have been approved by the board.

2Courses completed shall include content from at least two of the following: applications of earth science, biology, chemistry, or physics in courses approved by the board.

3Courses completed to satisfy this requirement shall include one unit of credit in U.S. and Virginia History and one unit of credit in U.S. and Virginia Government in courses approved by the board.

4Courses to satisfy this requirement shall include at least two sequential electives in the same manner required for the Standard Diploma.

6. The student must meet any additional criteria established by the Board of Education.

E. G. In accordance with the requirements of the Standards of Quality, students with disabilities who complete the requirements of their Individualized Education Program (IEP) and do not meet the requirements for other diplomas shall be awarded Special Diplomas.

F. H. In accordance with the requirements of the Standards of Quality, students who complete prescribed programs of studies defined by the local school board but do not qualify for Standard, Standard Technical, Advanced Studies, Advanced Technical, Modified Standard, Special, or General Achievement diplomas shall be awarded Certificates of Program Completion. The requirements for Certificates of Program Completion are developed by local school boards in accordance with the Standards of Quality. Students receiving a general achievement diploma shall comply with 8VAC20-680, Regulations Governing the General Achievement Diploma.

G. I. In accordance with the provisions of the compulsory attendance law and 8VAC20-360, Regulations Governing General Educational Development Certificates, students who do not qualify for diplomas may earn a high school equivalency credential.

H. J. At a student's request, the local school board shall communicate or otherwise make known to institutions of higher education, potential employers, or other applicable third parties, in a manner that the local school board deems appropriate, that a student has attained the state's academic expectations by earning a Virginia diploma and that the value of such a diploma is not affected in any way by the accreditation status of the student's school.

I. K. Awards for exemplary student performance. Students who demonstrate academic excellence and/or outstanding achievement may be eligible for one or more of the following awards:

1. Students who complete the requirements for an Advanced Studies Diploma or Advanced Technical Diploma with an average grade of "B" or better, and successfully complete college-level coursework that will earn the student at least nine transferable college credits in Advanced Placement (AP), International Baccalaureate (IB), Cambridge, or dual enrollment courses shall receive the Governor's Seal on the diploma.

2. Students who complete the requirements for a Standard Diploma or, Standard Technical Diploma, Advanced Studies Diploma or Advanced Technical Diploma with an average grade of "A" shall receive a Board of Education Seal on the diploma.

3. The Board of Education's Career and Technical Education Seal will be awarded to students who earn a Standard or Diploma, Standard Technical Diploma, Advanced Studies Diploma or Advanced Technical Diploma and complete a prescribed sequence of courses in a career and technical education concentration or specialization that they choose and maintain a "B" or better average in those courses; or (i) pass an examination or an occupational competency assessment in a career and technical education concentration or specialization that confers certification or occupational competency credential from a recognized industry, trade or professional association or (ii) acquire a professional license in that career and technical education field from the Commonwealth of Virginia. The Board of Education shall approve all professional licenses and examinations used to satisfy these requirements.

4. The Board of Education's Seal of Advanced Mathematics and Technology will be awarded to students who earn either a Standard or Diploma, Standard Technical Diploma [ , ] Advanced Studies Diploma or Advanced Technical Diploma and (i) satisfy all of the mathematics requirements for the Advanced Studies Diploma or Advanced Technical Diploma (four units of credit including Algebra II; two verified units of credit) with a "B" average or better; and (ii) either (a) pass an examination in a career and technical education field that confers certification from a recognized industry, or trade or professional association; (b) acquire a professional license in a career and technical education field from the Commonwealth of Virginia; or (c) pass an examination approved by the board that confers college-level credit in a technology or computer science area. The Board of Education shall approve all professional licenses and examinations used to satisfy these requirements.

5. The Board of Education's Seal for Excellence in Civics Education will be awarded to students who earn either a Standard or Diploma, Standard Technical Diploma, Advanced Studies Diploma [ , ] or Advanced Technical Diploma and (i) complete Virginia and United States History and Virginia and United States Government courses with a grade of "B" or higher; (ii) have good attendance and no disciplinary infractions as determined by local school board policies; and (iii) complete 50 hours of voluntary participation in community service or extracurricular activities. Activities that would satisfy the requirements of clause (iii) of this subdivision include: (a) volunteering for a charitable or religious organization that provides services to the poor, sick or less fortunate; (b) participating in Boy Scouts, Girl Scouts, or similar youth organizations; (c) participating in JROTC; (d) participating in political campaigns or government internships, or Boys State, Girls State, or Model General Assembly; or (e) participating in school-sponsored extracurricular activities that have a civics focus. Any student who enlists in the United States military prior to graduation will be deemed to have met this community service requirement.

6. Students may receive other seals or awards for exceptional academic, career and technical, citizenship, or other exemplary performance in accordance with criteria defined by the local school board.

J. L. Students completing graduation requirements in a summer school program shall be eligible for a diploma. The last school attended by the student during the regular session shall award the diploma unless otherwise agreed upon by the principals of the two schools.

K. M. Students who complete Advanced Placement courses, college-level courses, or courses required for an International Baccalaureate Diploma shall be deemed to have completed the requirements for graduation under these standards provided they have earned the standard units of credit and earned verified units of credit in accordance with the requirements of subsections B and C of this section.

L. N. Students shall be counseled annually regarding the opportunities for using additional tests for earning verified credits as provided in accordance with the provisions of 8VAC20-131-110, and the consequences of failing to fulfill the obligations to complete the requirements for verified units of credit.

8VAC20-131-60. Transfer students.

A. The provisions of this section pertain generally to students who transfer into Virginia high schools. Students transferring in grades K-8 from Virginia public schools or nonpublic schools accredited by one of the approved accrediting constituent members of the Virginia Council for Private Education shall be given recognition for all grade-level work completed. The academic record of students transferring from all other schools shall be evaluated to determine appropriate grade placement in accordance with policies adopted by the local school board. [ The State Testing Identifier (STI) for students who transfer into a Virginia public school from another Virginia public school shall be retained by the receiving school. ]

B. For the purposes of this section, the term "beginning" means within the first 20 hours of instruction per course. The term "during" means after the first 20 hours of instruction per course.

C. Standard or verified units of credit earned by a student in a Virginia public school shall be transferable without limitation regardless of the accreditation status of the Virginia public school in which the credits were earned. Virginia public schools shall accept standard and verified units of credit from other Virginia public schools [ , Virginia's virtual learning program, Virtual Virginia, ] and state-operated programs. Standard units of credit also shall be accepted for courses satisfactorily completed in accredited colleges and universities when prior written approval of the principal has been granted or the student has been given credit by the previous school attended.

D. A secondary school shall accept credits toward graduation received from Virginia nonpublic schools accredited by one of the approved accrediting constituent members of the Virginia Council for Private Education (VCPE). The Board of Education will maintain contact with the VCPE and may periodically review its accrediting procedures and policies as part of its policies under this section.

Nothing in these standards shall prohibit a public school from accepting standard units of credit toward graduation awarded to students who transfer from all other schools when the courses for which the student receives credit generally match the description of or can be substituted for courses for which the receiving school gives standard credit, and the school from which the child transfers certifies that the courses for which credit is given meet the requirements of 8VAC20-131-110 A.

Students transferring into a Virginia public school shall be required to meet the requirements prescribed in 8VAC20-131-50 to receive a Standard, Standard Technical, Advanced Studies, Advanced Technical or Modified Standard Diploma, except as provided by subsection G of this section. To receive a Special Diploma or Certificate of Program Completion, a student must meet the requirements prescribed by the Standards of Quality.

E. The academic record of a student transferring from other Virginia public schools shall be sent directly to the school receiving the student upon request of the receiving school in accordance with the provisions of the 8VAC20-150, Management of the Student's Scholastic Record in the Public Schools of Virginia. [ The State Testing Identifier (STI) for students who transfer into a Virginia public school from another Virginia public school shall be retained by the receiving school. ]

F. The academic record of a student transferring into Virginia public schools from other than a Virginia public school shall be evaluated to determine the number of standard units of credit that have been earned, including credit from schools outside the United States, and the number of verified units of credit needed to graduate in accordance with subsection G of this section. Standard units of credit also shall be accepted for courses satisfactorily completed in accredited colleges and universities when the student has been given credit by the previous school attended.

Students transferring above the tenth grade from schools or other education programs that do not require or give credit for health and physical education shall not be required to take these courses to meet graduation requirements.

G. Students entering a Virginia public high school for the first time after the tenth grade shall earn as many credits as possible toward the graduation requirements prescribed in 8VAC20-131-50. However, schools may substitute courses required in other states in the same content area if the student is unable to meet the specific content requirements of 8VAC20-131-50 without taking a heavier than normal course load in any semester, by taking summer school, or by taking courses after the time when he otherwise would have graduated. In any event, no such student shall earn fewer than the following number of verified units, nor shall such students be required to take SOL tests or additional tests as defined in 8VAC20-131-110 for verified units of credit in courses previously completed at another school or program of study, unless necessary to meet the requirements listed in subdivisions 1 and 2 of this subsection:

1. For a Standard Diploma or Standard Technical Diploma:

a. Students entering a Virginia high school for the first time during the ninth grade or at the beginning of the tenth grade shall earn credit as prescribed in 8VAC20-131-50;

b. Students entering a Virginia high school for the first time during the tenth grade or at the beginning of the eleventh grade shall earn a minimum of four verified units of credit: one each in English, mathematics, history, and science. Students who complete a career and technical education program sequence may substitute a certificate, occupational competency credential or license for either a science or history and social science verified credit pursuant to 8VAC20-131-50; and

c. Students entering a Virginia high school for the first time during the eleventh grade or at the beginning of the twelfth grade shall earn a minimum of two verified units of credit: one in English and one of the student's own choosing.

2. For an Advanced Studies Diploma or Advanced Technical Diploma:

a. Students entering a Virginia high school for the first time during the ninth grade or at the beginning of the tenth grade shall earn credit as prescribed in 8VAC20-131-50;

b. Students entering a Virginia high school for the first time during the tenth grade or at the beginning of the eleventh grade shall earn a minimum of six verified units of credit: two in English and one each in mathematics, history, and science and one of the student's own choosing; and

c. Students entering a Virginia high school for the first time during the eleventh grade or at the beginning of the twelfth grade shall earn a minimum of four verified units of credit: one in English and three of the student's own choosing.

H. Students entering a Virginia high school for the first time after the first semester of their eleventh grade year must meet the requirements of subdivision [ G ] 1 c or [ G 2 ] c of this  [ section subsection ]. Students transferring after 20 instructional hours per course of their senior or twelfth grade year shall be given every opportunity to earn a Standard, Advanced Studies, or Modified Standard Diploma. If it is not possible for the student to meet the requirements for a diploma, arrangements should be made for the student's previous school to award the diploma. If these arrangements cannot be made, a waiver of the verified unit of credit requirements may be available to the student. The Department of Education may grant such waivers upon request by the local school board in accordance with guidelines prescribed by the Board of Education.

I. Any local school division receiving approval to increase its course credit requirements for a diploma may not deny either the Standard, Advanced Studies, or Modified Standard Diploma to any transfer student who has otherwise met the requirements contained in these standards if the transfer student can only meet the division's additional requirements by taking a heavier than normal course load in any semester, by taking summer school, or by taking courses after the time when he otherwise would have graduated.

J. The transcript of a student who graduates or transfers from a Virginia secondary school shall conform to the requirements of 8VAC20-160, Regulations Governing Secondary School Transcripts.

K. The accreditation status of a high school shall not be included on the student transcript provided to colleges, universities, or employers. The board expressly states that any student who has met the graduation requirements established in 8VAC20-131-50 and has received a Virginia diploma holds a diploma that should be recognized as equal to any other Virginia diploma of the same type, regardless of the accreditation status of the student's high school. It is the express policy of the board that no student shall be affected by the accreditation status of the student's school. The board shall take appropriate action, from time to time, to ensure that no student is affected by the accreditation status of the student's school.

[ 8VAC20-131-80. Instructional program in elementary schools.

A. The elementary school shall provide each student a program of instruction that corresponds to the Standards of Learning for English, mathematics, science, and history/social science. In addition, each school shall provide instruction in art, music, and physical education and health and shall require students to participate in a program of physical fitness during the regular school year in accordance with guidelines established by the Board of Education.

B. In kindergarten through grade 3, reading, writing, spelling, and mathematics shall be the focus of the instructional program. Schools shall maintain, in a manner prescribed by the Board of Education, an early skills and knowledge achievement record in reading and mathematics for each student in grades kindergarten through grade 3 to monitor student progress and to promote successful achievement on the third grade SOL tests. This record shall be included with the student's records if the student transfers to a new school.

C. To provide students with sufficient opportunity to learn, a minimum of 75% of the annual instructional time of 990 hours shall be given to instruction in the disciplines of English, mathematics, science, and history/social science. Students who are not successfully progressing in early reading proficiency or who are unable to read with comprehension the materials used for instruction shall receive additional instructional time in reading, which may include summer school.

D. Elementary schools are encouraged to provide instruction in foreign languages. ]

[ 8VAC20-131-100. Instructional program in secondary schools.

A. The secondary school shall provide each student a program of instruction in the academic areas of English, mathematics, science, and history/social science that enables each student to meet the graduation requirements described in 8VAC20-131-50 and shall offer opportunities for students to pursue a program of studies in foreign languages, fine arts, and career and technical areas including:

1. Career and technical education choices that prepare the student as a career and technical education program completer in one of three or more occupational areas and that prepare the student for technical or preprofessional postsecondary programs;

2. Coursework and experiences that prepare the student for college-level studies including access to at least three Advanced Placement (AP) courses, college-level courses for degree credit, International Baccalaureate (IB) courses, Cambridge courses, or any combination thereof;

3. Preparation for college admissions tests; and

4. Opportunities to study and explore the fine arts and foreign languages.

B. Minimum course offerings for each secondary school shall provide opportunities for students to meet the graduation requirements stated in 8VAC20-131-50 and must include:

English

4

Mathematics

4

Science (Laboratory)

4

History and Social Sciences

4

Foreign Language

3

Electives

4 3

Career and Technical Education

11

Fine Arts

2

Health and Physical Education

2

Economics and Personal Finance

1

Total Units

38

C. Classroom driver education may count for 36 class periods of health education. Students shall not be removed from classes other than health and physical education for the in-car phase of driver education.

D. Each school shall ensure that students who are unable to read with comprehension the materials used for instruction receive additional instruction in reading, which may include summer school. ]

8VAC20-131-140. College and career preparation programs and opportunities for postsecondary credit.

Each middle and secondary school shall provide for the early identification and enrollment of students in a college preparation program with a range of educational and academic experiences in and outside the classroom, including an emphasis on experiences that will motivate disadvantaged and minority students to attend college.

Beginning in the middle school years, students shall be counseled on opportunities for beginning postsecondary education and opportunities for obtaining industry certifications, occupational competency credentials, or professional licenses in a career and technical education field prior to high school graduation. Such opportunities shall include access to at least three Advanced Placement courses or three college-level courses for degree credit pursuant to 8VAC20-131-100. Students taking advantage of such opportunities shall not be denied participation in school activities for which they are otherwise eligible. Wherever possible, students shall be encouraged and afforded opportunities to take college courses simultaneously for high school graduation and college degree credit (dual enrollment), under the following conditions:

1. Written approval of the high school principal prior to participation in dual enrollment must be obtained;

2. The college must accept the student for admission to the course or courses; and

3. The course or courses must be given by the college for degree credits (no remedial courses will be accepted).

Schools that comply with this standard shall not be penalized in receiving state appropriations.

Beginning with the [ 2009-2010 2010-2011 ] academic year, all [ middle ] schools shall [ develop and maintain begin development of ] a personal Academic and Career Plan for each [ seventh- and eighth-grade that includes specific components established by the Board of Education. Beginning with the 2010-2011 academic year, students seventh-grade student with completion by the fall of the student's eighth-grade year. Students who transfer from other than a Virginia public school into the eighth grade shall have the Plan developed as soon as practicable following enrollment. Beginning with the 2011-2012 academic year, students ] who transfer into a Virginia public school after their eighth-grade year shall have an Academic and Career Plan developed upon enrollment. The components of the Plan shall include, but not be limited to, the student's [ educational goals and ] program of study for high school graduation and a postsecondary career pathway based on the student's academic and career interests. The Academic and Career Plan shall be developed [ in accordance with guidelines established by the Board of Education ] and signed by the student, student's parent or guardian, and school official(s) designated by the principal. The Plan shall be included in the student's record and shall be reviewed and updated, if necessary, before the student enters the ninth and eleventh grades. The school shall have met its obligation for parental involvement if it makes a good faith effort to notify the parent or guardian of the responsibility for the development and approval of the Plan. [ Any personal academic and career plans prescribed by local school boards for students in grades 7 through 12 and in effect as of June 30, 2009, are approved to continue without further action by the board. ]

Part V
School and Instructional Leadership

8VAC20-131-210. Role of the principal.

A. The principal is recognized as the instructional leader of the school and is responsible for effective school management that promotes positive student achievement, a safe and secure environment in which to teach and learn, and efficient use of resources. As a matter of policy, the board, through these standards, recognizes the critically important role of principals to the success of public schools and the students who attend those schools and recommends that local school boards provide principals with the maximum authority available under law in all matters affecting the school including, but not limited to, instruction and personnel, in a manner that allows the principal to be held accountable in a fair and consistent manner for matters under his direct control.

B. As the instructional leader, the principal is responsible for ensuring that students are provided an opportunity to learn and shall:

1. Protect the academic instructional time from unnecessary interruptions and disruptions and enable the professional teaching staff to spend the maximum time possible in the teaching/learning process by keeping to a minimum clerical responsibility and the time students are out of class;

2. Ensure that the school division's student code of conduct is enforced and seek to maintain a safe and secure school environment;

3. Analyze the school's test scores annually, by grade and by discipline, to:

a. Direct and require appropriate prevention, intervention, and/or remediation to those students performing below grade level or not passing the SOL tests;

b. Involve the staff of the school in identifying the types of staff development needed to improve student achievement and ensure that the staff participate in those activities; and

c. Analyze classroom practices and methods for improvement of instruction;

4. Ensure that students' records are maintained and that criteria used in making placement and promotion decisions, as well as any instructional interventions used to improve the student's performance, are included in the record;

5. Monitor and evaluate the quality of instruction, provide staff development, provide support that is designed to improve instruction, and seek to ensure the successful attainment of the knowledge and skills required for students by the SOL tests;

6. Maintain records of students who drop out of school, including their reasons for dropping out and actions taken to prevent these students from dropping out; and

7. Notify the parents of rising eleventh-grade and twelfth-grade students of:

a. The number of standard and verified units of credit required for graduation; and

b. The remaining number of such units of credit the individual student requires for graduation; and

8. Notify the [ parents parent or guardian ] of students removed from class for disciplinary reasons for two or more consecutive days in whole or in part. [ The school shall have met its obligation if it makes a good faith effort to notify the parent or guardian. ]

C. As the school manager, the principal shall:

1. Work with staff to create an atmosphere of mutual respect and courtesy and to facilitate constructive communication by establishing and maintaining a current handbook of personnel policies and procedures;

2. Work with the community to involve parents and citizens in the educational program and facilitate communication with parents by maintaining and disseminating a current student handbook of policies and procedures that includes the school division's standards of student conduct and procedures for enforcement, along with other matters of interest to parents and students;

3. Maintain a current record of licensure, endorsement, and in-service training completed by staff; and

4. Maintain records of receipts and disbursements of all funds handled. These records shall be audited annually by a professional accountant approved by the local school board.

Part VII
School and Community Communications

8VAC20-131-270. School and community communications.

A. Each school shall promote communication and foster mutual understanding with parents and the community. Each school shall:

1. Involve parents, citizens, community agencies, and representatives from business and industry in developing, disseminating, and explaining the biennial school plan; on advisory committees; in curriculum studies; and in evaluating the educational program.

2. Provide annually to the parents and the community the School Performance Report Card in a manner prescribed by the board. The information contained therein will be for the most recent three-year period. Such information shall include but not be limited to:

a. Virginia assessment program results [ including the percentage of students tested, as well as the percentage of students not tested by percentage of participation and proficiency and disaggregated by student subgroups ].

[ b. Performance of student subgroups on the Virginia assessment program as appropriate.

c. b. ] The accreditation rating [ awarded to earned by ] the school.

[ d. c. ] Attendance rates for students.

[ e. d. ] Information related to school safety to include, but not limited to, incidents of [ physical crime and ] violence [ (including fighting and other serious offenses), possession of firearms, and possession of other weapons ].

[ f. e. ] Information related to qualifications and [ experience educational attainment ] of the teaching staff [ including the percentage of the school's teachers endorsed in the area of their primary teaching assignment ].

[ g. f. ] In addition, secondary schools' School Performance Report Cards shall include the following:

(1) Advanced Placement (AP) information to include percentage of students who take AP courses and percentage of [ those ] students who take AP tests;

(2) International Baccalaureate (IB) and Cambridge course information to include percentage of students who are enrolled in IB or Cambridge programs and percentage of students who receive IB or Cambridge Diplomas;

(3) College-level course information to include percentage of students who take college-level courses including dual enrollment courses;

(4) [ Percentage Number and percentage ] of (i) graduates by diploma type as prescribed by the Board of Education, (ii) certificates awarded to the senior class including GED credentials, and (iii) students who do not complete high school;

(5) [ Information on the The ] number of students obtaining industry certifications, and passing state licensure examinations and occupational competency assessments while still in high school; and

(6) [ Percentage Number and percentage ] of drop-outs.

3. Cooperate with business and industry in formulating career and technical educational programs and conducting joint enterprises involving personnel, facilities, training programs, and other resources.

4. Encourage and support the establishment and/or continuation of a parent-teacher association or other organization and work cooperatively with it.

B. At the beginning of each school year, each school shall provide to its students' parents or guardians information on the availability of and source for receiving:

1. The learning objectives developed in accordance with the provisions of 8VAC20-131-70 to be achieved at their child's grade level or, in high school, a copy of the syllabus for each of their child's courses, and a copy of the school division promotion, retention, and remediation policies;

2. The Standards of Learning applicable to the child's grade or course requirements and the approximate date and potential impact of the child's next SOL testing; and

3. An annual notice to students in all grade levels of all requirements for Standard, Standard Technical, Advanced Studies, Advanced Technical and Modified Standard Diplomas, and the board's policies on promotion and retention as outlined in 8VAC20-131-30.

The division superintendent shall report to the department compliance with this subsection through the preaccreditation eligibility procedures in 8VAC20-131-290.

Part VIII
School Accreditation

8VAC20-131-280. Expectations for school accountability.

A. Schools will be accredited annually based on compliance with preaccreditation eligibility requirements and achievement of the school accountability requirements of 8VAC20-131-300 C.

B. Each school shall be accredited based, primarily, on achievement of the criteria established in 8VAC20-131-30 and in 8VAC20-131-50 as specified below:

1. The percentage of students passing the Virginia assessment program tests in the four core academic areas administered in the school with the accreditation rating calculated on a trailing three-year average that includes the current year scores and the scores from the two most recent years in each applicable academic area, or on the current year's scores, whichever is higher.

2. The percentage of students graduating from or completing high school based on a graduation and completion index prescribed by the Board of Education. The accreditation rating of any school with a twelfth grade shall be determined based on achievement of required SOL pass rates and percentage points on the board's graduation and completion index. School accreditation shall be determined by the school's current year index points or a trailing three-year average of index points that includes the current year and the two most recent years, whichever is higher. The Board of Education's graduation and completion index shall include weighted points for diploma graduates (100 points), GED recipients (75 points), students not graduating but still in school (70 points), and students earning certificates of program completion [ (60 25 ] points). The Board of Education's graduation and completion index shall account for all students in the graduating class's ninth-grade cohort, plus students transferring in, minus students transferring out and deceased students. Those students who are not included in one of the preceding categories [ (i.e. students who dropout) ] will also be included in the index.

2. 3. The number of students who successfully complete a remediation recovery program.

3. 4. Schools, with grade configurations that do not house a grade or offer courses for which SOL tests or additional tests approved by the Board of Education as outlined in 8VAC20-131-110 are administered, will be paired with another school in the division housing one or more of the grades in which SOL tests are administered. The pairing of such schools will be made upon the recommendation of the local superintendent. The schools should have a "feeder" relationship and the grades should be contiguous.

C. Subject to the provisions of [ 8VAC20-131-330 8VAC20-131-350 ], the governing school board of special purpose schools such as those provided for in § 22.1-26 of the Code of Virginia, Governor's schools, special education schools, alternative schools, or career and technical schools that serve as the student's school of principal enrollment may seek approval of an alternative accreditation plan from the Board of Education. Schools offering alternative education programs and schools with [ an enrollment a graduation cohort of ] 50 or fewer students [ in the ninth grade cohort as defined by the graduation rate formula adopted by the board ] may request that the [ Board of Education board ] approve an alternative accreditation plan to meet the graduation and completion index benchmark. Special purpose schools with alternative accreditation plans shall be evaluated on standards appropriate to the programs offered in the school and approved by the board prior to August 1 of the school year for which approval is requested. Any student graduating from a special purpose school with a Standard, Advanced Studies, or Modified Standard Diploma must meet the requirements prescribed in 8VAC20-131-50.

D. When calculating the passing rates on Virginia assessment program tests for the purpose of school accreditation, the following tolerances for limited English proficient (LEP) and transfer students will apply:

1. The scores of LEP students enrolled in Virginia public schools fewer than 11 semesters may be removed from the calculation used for the purpose of school accreditation required by 8VAC20-131-280 B and 8VAC20-131-300 C. Completion of a semester shall be based on school membership days. Membership days are defined as the days the student is officially enrolled in a Virginia public school, regardless of days absent or present. For a semester to count as a completed semester, a student must have been in membership for a majority of the membership days of the semester. These semesters need not be consecutive.

2. In accordance with the provisions of 8VAC20-131-30, all students who transfer into Virginia public schools are expected to take and pass all applicable SOL tests in the content areas in which they receive instruction.

3. All students who transfer within a school division shall have their scores counted in the calculation of the school's accreditation rating. Students who transfer into a Virginia school from home instruction, or from another Virginia school division, another state, or another country, in grades kindergarten through 8 shall be expected to take all applicable SOL tests or additional tests approved by the board as outlined in 8VAC20-131-110. If the transfer takes place after the 20th instructional day following the opening of school, the scores on these tests may be used in calculating school accreditation ratings.

4. Students who transfer into a Virginia middle or high school from home instruction, or from another state or country, and enroll in a course for which there is an end-of-course SOL test, shall be expected to take the test or additional tests for that course approved by the board as outlined in 8VAC20-131-110. If the transfer takes place after 20 instructional hours per course have elapsed following the opening of school or beginning of the semester, if applicable, the scores on those tests may be used in calculating school accreditation ratings in the year the transfer occurs.

5. Students who enroll on the first day of school and subsequently transfer to a school outside of the division for a total amount of instructional time equal to or exceeding 50% of a current school year or semester, whether the transfer was a singular or multiple occurrence, and return during the same school year shall be expected to take any applicable SOL test. The scores of those tests may be used in calculating the school accreditation rating in the year in which the transfers occur.

6. The board may alter the inclusions and exclusions from the accreditation calculations by providing adequate notice to local school boards.

E. The Board of Education may adopt special provisions related to the administration and use of any Virginia assessment program test in a content area as applied to these regulations. The Board of Education may adopt special provisions related to the administration and use of the graduation and completion index, as prescribed by the board. The Board of Education may also alter the inclusions and exclusions from the accreditation calculations by providing adequate notice to local school boards. [ The board may add new tests or discontinue the use of existing tests in the Virginia Assessment Program by providing adequate notice to local school boards. ]

F. As a prerequisite to the awarding of an accreditation rating as defined in 8VAC20-131-300, each new or existing school shall document, in a manner prescribed by the board, the following: (i) the division's promotion/retention policies developed in accordance with the requirements of 8VAC20-131-30, (ii) compliance with the requirements to offer courses that will allow students to complete the graduation requirements in 8VAC20-131-50, (iii) the ability to offer the instructional program prescribed in 8VAC20-131-70 through 8VAC20-131-100, (iv) the leadership and staffing requirements of 8VAC20-131-210 through 8VAC20-131-240, and (v) the facilities and safety provisions of 8VAC20-131-260. The division superintendent shall report to the department compliance with this subsection through the preaccreditation eligibility procedures in 8VAC20-131-290.

8VAC20-131-290. Procedures for certifying accreditation eligibility.

A. Schools will be accredited under these standards annually based, in part, on compliance with the preaccreditation eligibility requirements described in 8VAC20-131-280 F.

B. To be eligible for accreditation, the principal of each school and the division superintendent shall report to the Department of Education:

1. The extent to which each school continues to meet standards reported as met in the previous year described in 8VAC20-131-280 F.

2. That the SOL have been fully incorporated into the school division's curriculum in all accreditation-eligible schools and the SOL material is being taught to all students eligible to take the SOL tests. This shall be certified by each school division superintendent as part of the preaccreditation eligibility determination process.

3. Actions taken to correct any noncompliance issues cited in the previous year.

4. Compliance with 8VAC20-131-270 B.

The principal of each school and the division superintendent shall submit preaccreditation eligibility reports in a manner prescribed by the board to the Department of Education. Failure to submit the reports on time will constitute grounds for denying accreditation to the school.

C. In keeping with provisions of the Standards of Quality, and in conjunction with the six-year long-range comprehensive plan of the division, each school shall prepare and implement a biennial school plan which shall be available to students, parents, staff, and the public. Each biennial school plan shall be evaluated as part of the development of the next biennial plan. Schools may use other plans to satisfy the requirement for the biennial plan with prior written approval from the Department of Education.

D. With the approval of the local school board, local schools seeking to implement experimental or innovative programs, or both, that are not consistent with these standards shall submit a waiver request, on forms provided, to the board for evaluation and approval prior to implementation. The request must include the following:

1. Purpose and objectives of the experimental/innovative programs;

2. Description and duration of the programs;

3. Anticipated outcomes;

4. Number of students affected;

5. Evaluation procedures; and

6. Mechanisms for measuring goals, objectives, and student academic achievement.

Except as specified below, the board may grant, for a period up to five years, a waiver of these regulations that are not mandated by state or federal law or designed to promote health or safety. The board may grant all or a portion of the request. Waivers of requirements in 8VAC20-131-30, 8VAC20-131-50, 8VAC20-131-70, and 8VAC20-131-280 through 8VAC20-131-340 shall not be granted, and no waiver may be approved for a program which would violate the provisions of the Standards of Quality.

8VAC20-131-300. Application of the standards.

A. Schools that meet the preaccreditation eligibility requirements prescribed in 8VAC20-131-280 F shall be assigned one of the following ratings as described in this section:

1. Fully Accredited;

2. Accredited with Warning in (specified academic area or [ areas) areas and/or in achievement of the minimum threshold for the graduation and completion index) ];

3. Accreditation Denied;

4. Conditionally Accredited;

5. Accreditation Withheld/Improving School Near Accreditation (rating shall not be awarded after academic year ending in 2007, based on tests administered in 2005-2006). Provisionally Accredited-Graduation Rate.

B. Compliance with the student academic achievement expectations shall be documented to the board directly through the reporting of the results of student performance on SOL tests and other alternative means of assessing student academic achievement as outlined in 8VAC20-131-110. [ To facilitate accurate reporting of the graduation and completion index, the State Testing Identifier (STI) for students who transfer into a Virginia public school from another Virginia public school shall be retained by the receiving school. ] Compliance with other provisions of these regulations will be documented in accordance with procedures prescribed by the Board of Education.

C. Accreditation ratings defined. Accreditation ratings awarded in an academic year are based upon Virginia assessment program scores from the academic year immediately prior to the year to which the accreditation rating applies. Accreditation ratings are defined as follows:

1. Fully accredited.

a. With tests administered in the academic year 2005-2006 for the accreditation ratings awarded for academic year 2006-2007, a school will be rated Fully Accredited when its eligible students meet the pass rate of 70% in each of the four core academic areas, except the pass rates required shall be 75% in third-grade and fifth-grade English and 50% in third-grade science and history/social science.

b. a. With tests administered in the academic years 2006-2007, 2007-2008, [ and ] 2008-2009 [ , and 2009-2010 ] for the accreditation ratings awarded for academic years 2007-2008, 2008-2009, [ and ] 2009-2010 [ , and 2010-2011 ] respectively, a school will be rated Fully Accredited when its eligible students meet the pass rate of 70% in each of the four core academic areas except, the pass rates required shall be 75% in third-grade through fifth-grade English and 50% in third-grade science and history/social science.

c. b. For schools housing grade configurations where multiple pass rates apply, the results of the tests may be combined in each of the four core academic areas for the purpose of calculating the school's accreditation rating provided the school chooses to meet the higher pass rate.

d. c. With tests administered beginning in the academic year 2009-10 [ 2009-2010 2010-2011 ] for the accreditation ratings awarded for school year 2010-11 [ 2010-2011 2011-2012 ] and beyond, a school will be rated Fully Accredited when its eligible students meet the pass rate of 75% in English and the pass rate of 70% in mathematics, science, and history and social science. Additionally, each school with a graduating class shall achieve a minimum of [ 80 85 ] percentage points on the Board of Education's graduation and completion index, as described in 8VAC20-131-280 B 2, to be rated Fully Accredited.

e. d. For accreditation purposes, the pass rate will be calculated as single rates for each of the four core academic areas by combining all scores of all tests administered in each subject area.

2. Accredited with Warning (in specific academic area or areas) areas and/or in achievement of the minimum threshold for the graduation and completion index). A school will be Accredited with Warning (in specific academic area or areas) areas and/or in achievement of the minimum threshold for the graduation and completion index) if it has failed to achieve Fully Accredited status. Such a school may remain in the Accredited with Warning status for no more than three consecutive years.

3. Accreditation Denied. Based on a school's academic performance during academic years ending in 2006 and beyond and/or achievement of the minimum threshold for the graduation and completion index, a school shall be rated Accreditation Denied if it fails to meet the requirements to be rated Fully Accredited [ or Provisionally Accredited-Graduation Rate ], for the preceding three consecutive years or for three consecutive years anytime thereafter.

In any school division in which one-third or more of the schools have been rated Accreditation Denied, the superintendent shall be evaluated by the local school board with a copy of such evaluation submitted to the Board of Education no later than December 1 of each year in which such condition exists. In addition, the Board of Education may take action against the local school board as permitted by the Standards of Quality due to the failure of the local board to maintain accredited schools.

4. Accreditation Withheld/Improving School Near Accreditation. A school that has never met the requirements to be rated Fully Accredited by the academic year ending in 2006 and subject to being awarded a rating of Accreditation Denied may apply to the board for this accreditation designation for 2006-2007. To be eligible, the school must meet each of the following criteria:

a. With assessments administered in 2005-2006, at least 70% of its students must have passed the applicable English SOL tests except at third and fifth grade where the requirement is 75%.

b. With assessments administered in 2005-2006, a combined pass rate of 60% of its students must have passed the Virginia assessment program tests in the other three core academic areas.

c. In each academic area in which the pass rate is below the rate required to be rated Fully Accredited, the school's pass rate must have increased by at least 25 percentage points as compared to the pass rates on tests taken during the academic year ending in 1999.

This rating shall not be awarded after the 2006-2007 academic year.

5. 4. Conditionally Accredited. New schools that are comprised of students from one or more existing schools in the division will be awarded [ this a Conditionally Accredited-New ] status for one year pending an evaluation of the school's eligible students' performance on SOL tests or additional tests approved by the Board of Education to be rated Fully Accredited. [ This A Conditionally Accredited-Reconstituted ] rating may [ also ] be awarded to a school that is being reconstituted in accordance with the provisions of 8VAC20-131-340 upon approval by the Board of Education. A school awarded this rating under those circumstances will revert to a status of Accreditation Denied if it fails to meet the requirements to be rated Fully Accredited by the end of the agreed upon term or if it fails to have its annual application for such rating renewed.

5. Provisionally Accredited-Graduation Rate. With tests administered in the academic years [ 2009-2010, ] 2010-2011, 2011-2012, 2012-2013, 2013-2014 [ , 2014-2015 ] for the accreditation ratings awarded for academic years [ 2010-2011, ] 2011-2012, 2012-2013, 2013-2014, [ and ] 2014-2015 [ , and 2015-2016 ] respectively, a school will be rated Provisionally Accredited [ -Graduation Rate ] when its eligible students meet SOL pass rates to be rated Fully Accredited but fails to achieve a minimum of [ 80 85 ] percentage index points on the Board of Education's graduation and completion index, but achieve the following minimum benchmarks for each year:

Graduation and Completion Index Benchmarks for Provisionally Accredited Ratings

Academic Year

Accreditation Year

Index Percentage Points

[ 2009-2010 2010-2011 ]

[ 2010-2011 2011-2012 ]

[ 75 80 ]

[ 2010-2011 2011-2012 ]

[ 2011-2012 2012-2013 ]

[ 76 81 ]

[ 2011-2012 2012-2013]

[ 2012-2013 2013-2014]

[ 77 82 ]

[ 2012-2013 2013-2014]

[ 2013-2014 2014-2015]

[ 78 83 ]

[ 2013-2014 2014-2015]

[ 2014-2015 2015-2016]

[ 79 84 ]

The last year in which this rating shall be awarded is the [ 2014-2015 2015-2016 ] accreditation year, based on tests administered in the [ 2013-2014 2014-2015 ] academic year.

[ 8VAC20-131-310. Action requirements for schools that are Accredited with Warning or Accreditation Withheld/Improving School Near Accreditation Provisionally Accredited-Graduation Rate.

A. With such funds as are appropriated by the General Assembly, the Department of Education shall develop a school academic review process and monitoring plan designed to assist schools rated as Accredited with Warning. All procedures and operations for the academic review process shall be approved and adopted by the board.

Schools rated Accredited with Warning or Accreditation Withheld/Improving School Near Accreditation Provisionally Accredited-Graduation Rate must undergo an academic review in accordance with guidelines adopted by the board and prepare a school improvement plan as required by subsection F of this section.

B. Any school that is rated Accredited with Warning in English or mathematics shall adopt a research-based instructional intervention that has a proven track record of success at raising student achievement in those areas as appropriate.

C. The superintendent and principal shall certify in writing to the Board of Education that such an intervention has been adopted and implemented.

D. The board shall publish a list of recommended instructional interventions, which may be amended from time to time.

E. Adoption of instructional interventions referenced in subsections B and D of this section shall be funded by eligible local, state, and federal funds.

F. A three-year School Improvement Plan must be developed and implemented, based on the results of an academic review of each school that is rated Accredited with Warning or Accreditation Withheld/Improving School Near Accreditation Provisionally Accredited-Graduation Rate upon receipt of notification of the awarding of this rating and receipt of the results of the academic review. The plan:

1. Shall be developed with the assistance of parents and teachers and made available to the public;

2. Must include the components outlined in subsection G of this section; and

3. Must be approved by the division superintendent and the local school board and be designed to assist the school in meeting the student achievement standard to be Fully Accredited as outlined in 8VAC20-131-300.

G. The improvement plan shall include the following:

1. A description of how the school will meet the requirements to be Fully Accredited, for each of the years covered by the plan;

2. Specific measures for achieving and documenting student academic improvement;

3. A description of the amount of time in the school day devoted to instruction in the core academic areas;

4. Instructional practices designed to remediate students who have not been successful on SOL tests;

5. Intervention strategies designed to prevent further declines in student performance and graduation rates;

6. Staff development needed;

7. Strategies to involve and assist parents in raising their child's academic performance;

8. The need for flexibility or waivers to state or local regulations to meet the objectives of the plan; and

9. A description of the manner in which local, state, and federal funds are used to support the implementation of the components of this plan.

As part of its approval of the school improvement plan, the board may grant a local school board a waiver from the requirements of any regulations promulgated by the board when such a waiver is available.

H. The school improvement plan and related annual reports submitted to the board shall provide documentation of the continuous efforts of the school to achieve the requirements to become rated Fully Accredited. The board shall adopt and approve all policies and formats for the submission of annual reports under this section. The reports shall be due no later than October 1 of the school year. ]

8VAC20-131-325. Recognitions and rewards for school and division accountability performance.

A. Schools [ and divisions ] may be recognized by the Board of Education in accordance with guidelines it shall establish [ for the Virginia Index of Performance (VIP) incentive program ]. Such recognition may include:

1. Public announcements recognizing individual schools and divisions;

2. Tangible rewards;

3. Waivers of certain board regulations;

4. Exemptions from certain reporting requirements; or

5. Other commendations deemed appropriate to recognize high achievement.

In addition to board recognition, local school boards shall adopt policies to recognize individual schools through public announcements, media releases, participation in community activities for input purposes when setting policy relating to schools and budget development, as well as other appropriate recognition.

B. A school that maintains a passing rate on Virginia assessment program tests or additional tests approved by the board as outlined in 8VAC20-131-110 of 95% or above in each of the four core academic areas for two consecutive years may, upon application to the Department of Education, receive a waiver from annual accreditation. A school receiving such a waiver shall be Fully Accredited for a three-year period. However, such school shall continue to annually submit documentation in compliance with the preaccreditation eligibility requirements described in 8VAC20-131-280 F.

C. Schools may be eligible to receive the Governor's Award for Outstanding Achievement. This award will be given to schools rated Fully Accredited that significantly increase the achievement of students within student subgroups in accordance with guidelines prescribed by the Board of Education.

8VAC20-131-360. Effective date.

[ The provisions in 8VAC20-131-30 B relating to double testing and the provisions in 8VAC20-131-60 C relating to Virtual Virginia shall become effective July 31, 2009. ] Unless otherwise specified, [ the remainder of ] these regulations shall be effective [ for beginning with ] the 2006-2007 [ 2009-2010 2010-2011 ] academic year.

VA.R. Doc. No. R07-228; Filed June 3, 2009, 10:52 a.m.
TITLE 9. ENVIRONMENT
STATE WATER CONTROL BOARD
Proposed Regulation

REGISTRAR'S NOTICE: The following regulation filed by the State Water Control Board is exempt from the Administrative Process Act in accordance with § 2.2-4006 A 9 of the Code of Virginia, which exempts general permits issued by the State Water Control Board pursuant to the State Water Control Law (§ 62.1-44.2 et seq.), Chapter 24 (§ 62.1-242 et seq.), and Chapter 25 (§ 62.1-254 et seq.) of Title 62.1, if the board (i) provides a Notice of Intended Regulatory Action in conformance with the provisions of § 2.2-4007.01, (ii) following the passage of 30 days from the publication of the Notice of Intended Regulatory Action forms a technical advisory committee composed of relevant stakeholders, including potentially affected citizens groups, to assist in the development of the general permit, (iii) provides notice and receives oral and written comment as provided in § 2.2-4007.03, and (iv) conducts at least one public hearing on the proposed general permit.

Title of Regulation: 9VAC25-630. Virginia Pollution Abatement General Permit Regulation for Poultry Waste Management (amending 9VAC25-630-10 through 9VAC25-630-60; adding 9VAC25-630-70, 9VAC25-630-80).

Statutory Authority: §§ 62.1-44.15 and 62.1-44.17:1.1 of the Code of Virginia.

Public Hearing Information:

July 29, 2009 - 7:30 p.m. - Department of Environmental Quality, Piedmont Regional Office, Training Room, 4949-A Cox Road, Glen Allen, VA

July 31, 2009 - 5 p.m. - Nandua High School, Auditorium, 26350 Lankford Highway, Onley, VA

August 6, 2009 - 7:30 p.m. - Lucy Simms Continuing Education Center, Auditorium, 620 Simms Avenue, Harrisonburg, VA

Public Comments: Public comments may be submitted until 5 p.m. on August 21, 2009.

Agency Contact: Betsy Bowles, Department of Environmental Quality, 629 East Main Street, P.O. Box 1105, Richmond, VA 23218, telephone (804) 698-4059, FAX (804) 698-4116, or email bkbowles@deq.virginia.gov.

Summary:

The State Water Control Board is considering amending the existing Virginia Pollution Abatement (VPA) Permit Regulation for Poultry Waste Management in order to establish requirements for end-users of poultry waste to ensure that poultry waste is being used in a manner in which state waters are being protected and nutrient losses are being reduced and that these reductions can be measured. The proposed amendments include provisions regarding transferred offsite poultry waste used for land application by an entity other than the poultry grower. These provisions will establish end-user requirements such as land application recordkeeping, poultry waste storage, land application timing and rates, and land application buffer requirements. These provisions will also include the option of coverage under a general permit for a poultry waste end-user or poultry waste broker if noncompliance with the requirements of the proposed technical regulations found in 9VAC25-630-60, 9VAC25-630-70, and 9VAC25-630-80 is determined.

Concerns have been expressed by the public, legislature, and executive branch that additional safeguards are necessary to ensure that poultry waste leaving the site and control of the permitted confined poultry feeding operations for land application is managed, applied, and stored in a manner that is protective of water quality.

Currently, the VPA General Permit Regulations for Poultry Waste Management (9VAC25-630) require that poultry waste applied on lands owned by the permitted owner/operator of a confined poultry feeding operation be done in accordance with a nutrient management plan written by a planner certified by the Virginia Department of Conservation and Recreation (DCR). Permitted operations are inspected annually to ensure that poultry waste is stored, applied, and otherwise managed according to the regulations.

However, under the current regulations, poultry waste transferred offsite is only required to be accompanied by waste analysis information and a fact sheet (developed by DEQ and DCR) that provides the recipient with general provisions regarding the storage, management, and application of the poultry waste. The end-user must acknowledge receipt of the fact sheet by signing a separate "Poultry Waste Transfer Records" sheet. Maintenance of records, including the date and amount of the transfer, zip code of the location receiving the offsite poultry waste, and nearest stream or waterbody, is the requirement of the owner/operator of the confined poultry feeding operation (or third-part broker if one was involved in the transaction). Records must be made available to DEQ personnel upon inspection of the confined poultry feeding operation. For offsite application of poultry waste, the present regulation does not require records of (i) the amount of waste received by a single farm, (ii) whether or not the poultry waste will be applied in accordance with a nutrient management plan, (iii) soil test levels on receiving fields, (iv) timing of applications, or (v) a description of receiving crops.

9VAC25-630-10. Definitions.

The words and terms used in this chapter shall have the meanings defined in the State Water Control Law (§ 62.1-44.2 et seq. of the Code of Virginia) and the Permit Regulation (9VAC25-32) unless the context clearly indicates otherwise, except that for the purposes of this chapter:

"Agricultural storm water" means storm water that is not the sole result of land application of manure, litter or process wastewater. Where manure, litter or process wastewater has been applied in accordance with a nutrient management plan approved by the Virginia Department of Conservation and Recreation and in accordance with site-specific nutrient management practices that ensure appropriate agricultural utilization of the nutrients in the manure, litter or process wastewater, a precipitation-related discharge of manure, litter, or process wastewater from land areas under the control of an animal feeding operation or under the control of a poultry waste end-user or poultry waste broker is an agricultural storm water discharge.

"Animal feeding operation" means a lot or facility (other than an aquatic animal production facility) where both of the following conditions are met:

1. Animals (other than aquatic 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 in the normal growing season over any portion of the operation of the lot or facility.

Two or more animal feeding operations under common ownership are a single animal feeding operation for the purpose of determining the number of animals at an operation if they adjoin each other or if they use a common area or system for the disposal of wastes.

"Confined animal feeding operation," for the purposes of this regulation, has the same meaning as an "animal feeding operation."

"Confined poultry feeding operation" means any confined animal feeding operation with 200 or more animal units of poultry. This equates to 20,000 chickens or 11,000 turkeys. These numbers are established regardless of animal age or sex.

"Department" means the Virginia Department of Environmental Quality.

"Director" means the Director of the Virginia Department of Environmental Quality or his designee.

"Fact sheet" means the document that details the requirements regarding utilization, storage, and management of poultry waste by poultry waste end-users and poultry waste brokers. The fact sheet is approved by the department, in consultation with the Department of Conservation and Recreation.

"Nutrient management plan" or "NMP" 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.

"Organic source" means any nutrient source including, but not limited to, manures, biosolids, compost, and waste or sludges from animals, humans, or industrial processes, but for the purposes of this regulation it excludes waste from wildlife.

"Permittee" means the poultry grower whose confined poultry feeding operation is, poultry waste end-user, or poultry waste broker whose poultry waste management activities are covered under the general permit.

"Poultry grower" or "grower" means any person who owns or operates a confined poultry feeding operation.

"Poultry waste" means dry poultry litter and composted dead poultry.

"Poultry waste broker" or "broker" means a person, other than the poultry grower, who possesses more than 10 tons of or controls poultry waste in any 365-day period that is not generated on an animal feeding operation under their operational control and who transfers some or all of the or hauls poultry waste to other persons. If the entity is defined as a broker they cannot be defined as a hauler for the purposes of this regulation.

"Poultry waste end-user" or "end-user" means any recipient of transferred poultry waste who stores or who utilizes the waste as fertilizer, fuel, feedstock, livestock feed, or other beneficial end use for an operation under his control.

"Poultry waste hauler" or "hauler" means a person who provides transportation of transferred poultry waste from one entity to another, and is not otherwise involved in the transfer or transaction of the waste, nor responsible for determining the recipient of the waste. The responsibility of the recordkeeping and reporting remains with the entities to which the service was provided: grower, broker, and end-user.

"Standard rate" means a land application rate for poultry waste approved by the board as specified in this regulation.

"Vegetated buffer" means a permanent strip of dense perennial vegetation established parallel to the contours of and perpendicular to the dominant slope of the field for the purposes of slowing water runoff, enhancing water infiltration, and minimizing the risk of any potential nutrients or pollutants from leaving the field and reaching surface waters.

9VAC25-630-20. Purpose; delegation of authority; effective date of permit.

A. This general permit regulation governs the management of poultry waste at confined poultry feeding operations not covered by a Virginia Pollution Discharge Elimination System (VPDES) permit and poultry waste utilized or stored by poultry waste end-users or poultry waste brokers. It establishes requirements for proper nutrient management, waste storage, and waste tracking and accounting of poultry waste.

B. The Director of the Department of Environmental Quality, or his designee, may perform any act of the board provided under this chapter, except as limited by § 62.1-44.14 of the Code of Virginia.

C. This general permit will become effective on December 1, 2000. This general permit will expire 10 years from the effective date.

9VAC25-630-30. Authorization to manage pollutants.

A. Poultry grower. Any poultry grower governed by this general permit is hereby authorized to manage pollutants at confined poultry feeding operations provided that the poultry grower files the registration statement of 9VAC25-630-40, complies with the requirements of 9VAC25-630-50, and provided that:

1. The poultry grower has not been required to obtain a Virginia Pollution Discharge Elimination System (VPDES) permit or an individual permit according to 9VAC25-32-260 B;

2. The activities of the confined poultry feeding operation shall not contravene the Water Quality Standards, as amended and adopted by the board, or any provision of the State Water Control Law. There shall be no point source discharge of wastewater to surface waters of the state except in the case of a storm event greater than the 25-year, 24-hour storm. Agricultural storm water discharges are permitted. Domestic sewage or industrial waste shall not be managed under this general permit;

3. Confined poultry feeding operations that use disposal pits for routine disposal of daily mortalities shall not be covered under this general permit. The use of a disposal pit by a permittee for routine disposal of daily poultry mortalities shall be considered a violation of this permit. This prohibition shall not apply to the emergency disposal of dead poultry done according to regulations adopted pursuant to § 3.1-726 § 3.2-6002 or Chapter 14 (§ 10.1-1400 et seq.) of Title 10.1 of the Code of Virginia;

4. The Department of Conservation and Recreation must approve a nutrient management plan for the confined poultry feeding operation prior to the submittal of the registration statement. The poultry grower shall attach to the registration statement a copy of the approved nutrient management plan and a copy of the letter from the Department of Conservation and Recreation certifying approval of the nutrient management plan, and if the plan was written after December 31, 2005, that the plan was developed by a certified nutrient management planner in accordance with § 10.1-104.2 of the Code of Virginia. The poultry grower shall implement the approved nutrient management plan;

5. Adjoining property notification.

a. When a poultry grower files a general permit registration statement for a confined poultry feeding operation that proposes construction of poultry growing houses after December 1, 2000, the poultry grower shall also give notice to all owners or residents of property that adjoins the property on which the proposed confined poultry feeding operation will be located. Such notice shall include (i) the types and maximum number of poultry which will be maintained at the facility and (ii) the address and phone number of the appropriate department regional office to which comments relevant to the permit may be submitted.

b. 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 the general permit, 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 poultry grower 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; and

6. Each poultry grower covered by this general permit shall complete the a training program offered or approved by the Department of Conservation and Recreation department within one year of filing the registration statement for general permit coverage. All poultry growers shall complete a training program at least once every five years.

B. Poultry waste end-user, poultry waste broker. Any poultry waste end-user or poultry waste broker who receives transferred poultry waste shall comply with the requirements outlined in 9VAC25-630-60, 9VAC25-630-70, and 9VAC25-630-80 regarding utilization, storage, tracking, and accounting of poultry waste in his possession or under his control.

1. Any poultry waste end-user or poultry waste broker who does not comply with the requirements of 9VAC25-630-60, 9VAC25-630-70, and 9VAC25-630-80 may be required to obtain coverage under the general permit.

2. Any poultry waste end-user or poultry waste broker governed by this general permit is hereby authorized to manage pollutants relating to the utilization and storage of poultry waste provided that the poultry waste end-user or poultry waste broker files the registration statement of 9VAC25-630-40, complies with the requirements of 9VAC25-630-50, and provided that:

a. The poultry waste end-user or poultry waste broker has not been required to obtain a Virginia Pollution Abatement individual permit according to subdivision 2 b of 9VAC25-32-260;

b. The activities of the poultry waste end-user or poultry waste broker shall not contravene the Water Quality Standards, as amended and adopted by the board, or any provision of the State Water Control Law (§ 62.1-44 et seq. of the Code of Virginia). There shall be no point source discharge of wastewater to surface waters of the state except in the case of a storm event greater than the 25-year, 24-hour storm. Agricultural storm water discharges are permitted. Domestic sewage or industrial waste shall not be managed under this general permit;

c. The Department of Conservation and Recreation must approve a nutrient management plan for land application sites where poultry waste will be utilized or stored and managed by the poultry waste end-user or the poultry waste broker prior to the submittal of the registration statement. The poultry waste end-user or the poultry waste broker shall attach to the registration statement a copy of the approved nutrient management plan and a copy of the letter from the Department of Conservation and Recreation certifying approval of the nutrient management plan, and if the plan was written after December 31, 2005, that the plan was developed by a certified nutrient management planner in accordance with § 10.1-104.2 of the Code of Virginia. The poultry waste end-user or the poultry waste broker shall implement the approved nutrient management plan; and

d. Each poultry waste end-user or poultry waste broker covered by this general permit shall complete a training program offered or approved by the department within one year of filing the registration statement for general permit coverage. All permitted end-users or permitted brokers shall complete a training program at least once every five years.

B. C. Receipt of this general permit does not relieve any poultry grower, poultry waste end-user, or poultry waste broker of the responsibility to comply with any other applicable federal, state or local statute, ordinance or regulation.

9VAC25-630-40. Registration statement.

A. Poultry growers. In order to be covered under the general permit, the poultry grower shall file a complete VPA General Permit Registration Statement. The registration statement shall contain the following information:

1. The poultry grower's name, mailing address and telephone number;

2. The location of the confined poultry feeding operation;

3. The name and telephone number of a contact person or operator other than the poultry grower, if necessary;

4. The best time of day and day of the week to contact the poultry grower or contact person;

5. If the facility has an existing VPA permit, the permit number;

6. The types of poultry and the maximum numbers of each type to be grown at the facility at any one time;

7. Identification of the method of dead bird disposal;

8. An indication of whether new poultry growing houses are under construction or planned for construction;

9. A copy of the nutrient management plan approved by the Department of Conservation and Recreation and a ;

10. A copy of the Department of Conservation and Recreation nutrient management plan approval letter certifying approval of the plan; , which also certifies that the plan was developed by a certified nutrient management planner in accordance with § 10.1-104.2 of the Code of Virginia; and

10. 11. The following certification: "I certify that notice of the registration statement for any confined poultry feeding operation that proposes construction of poultry growing houses after December 1, 2000, has been given to all owners or residents of property that adjoins the property on which the confined poultry feeding operation will be located. This notice included the types and numbers of poultry which will be grown at the facility and the address and phone number of the appropriate Department of Environmental Quality regional office to which comments relevant to the permit may be submitted. I certify under penalty of law that all the requirements of the board for the general permit are being met and that this document and all attachments were prepared under my direction or supervision in accordance with a system designed to assure that qualified personnel properly gather and evaluate the information submitted. Based on my inquiry of the person or persons who manage the system or those persons directly responsible for gathering the information, the information submitted is to the best of my knowledge and belief true, accurate, and complete. I am aware that there are significant penalties for submitting false information, including the possibility of fine and imprisonment for knowing violations."

B. Poultry waste end-users or poultry waste brokers. In order to be covered under the general permit, the poultry waste end-user or poultry waste broker shall file a complete VPA General Permit Registration Statement. The registration statement shall contain the following information:

1. The poultry waste end-user's or poultry waste broker's name, mailing address, and telephone number;

2. The location of the operation where the poultry waste will be utilized, stored, or managed;

3. The best time of day and day of the week to contact the poultry waste end-user or poultry waste broker;

4. If the facility has an existing VPA permit, the permit number;

5. If confined poultry are located at the facility, indicate the number of confined poultry;

6. A copy of the nutrient management plan approved by the Department of Conservation and Recreation;

7. A copy of the Department of Conservation and Recreation nutrient management plan approval letter that also certifies that the plan was developed by a certified nutrient management planner in accordance with § 10.1-104.2 of the Code of Virginia; and

8. The following certification: "I certify under penalty of law that all the requirements of the board for the general permit are being met and that this document and all attachments were prepared under my direction or supervision in accordance with a system designed to assure that qualified personnel properly gather and evaluate the information submitted. Based on my inquiry of the person or persons who manage the system or those persons directly responsible for gathering the information, the information submitted is to the best of my knowledge and belief true, accurate, and complete. I am aware that there are significant penalties for submitting false information, including the possibility of fine and imprisonment for knowing violations."

B. C. The registration statement shall be signed in accordance with 9VAC25-32-50.

9VAC25-630-50. Contents of the general permit.

Any poultry grower, poultry waste end-user, or poultry waste broker whose registration statement is accepted by the board will receive the following general permit and shall comply with the requirements therein and be subject to the VPA Permit Regulation, 9VAC25-32.

General Permit No. VPG2

Effective Date: December 1, 2000

Modification Date: January 1, 2006

Expiration Date: November 30, 2010

GENERAL PERMIT FOR POULTRY WASTE MANAGEMENT AT CONFINED POULTRY FEEDING OPERATIONS

AUTHORIZATION TO MANAGE POLLUTANTS UNDER THE VIRGINIA POLLUTION ABATEMENT PROGRAM AND THE VIRGINIA STATE WATER CONTROL LAW

In compliance with the provisions of the State Water Control Law and State Water Control Board regulations adopted pursuant thereto, owners of confined poultry feeding operations having 200 or more animal units, poultry waste end-users, and poultry waste brokers are authorized to manage pollutants within the boundaries of the Commonwealth of Virginia, except where board regulations or policies prohibit such activities.

The authorized pollutant management activities shall be in accordance with the registration statement and supporting documents submitted to the Department of Environmental Quality, this cover page, and Part I—Pollutant Management and Monitoring Requirements for Confined Poultry Feeding Operations and Part II—Conditions Applicable to All VPA Permits and Part III—Pollutant Management and Monitoring Requirements for Poultry Waste End-Users and Poultry Waste Brokers, as set forth herein.

Part I

Pollutant Management and Monitoring Requirements for Confined Poultry Feeding Operations

A. Pollutant management authorization and monitoring requirements.

1. During the period beginning with the permittee's coverage under this general permit and lasting until the permit's expiration date, the permittee is authorized to manage pollutants at the location or locations identified in the registration statement and the facility's approved nutrient management plan.

2. If poultry waste is land applied, it shall be applied at the rates specified in the facility's approved nutrient management plan.

3. Soil at the land application sites shall be monitored as specified below. Additional soils monitoring may be required in the facility's approved nutrient management plan.


SOILS MONITORING

PARAMETERS

LIMITATIONS

UNITS

MONITORING REQUIREMENTS

Frequency

Sample Type

pH

NL

SU

1/3 years

Composite

Phosphorus

NL

ppm or lbs/ac

1/3 years

Composite

Potash

NL

ppm or lbs/ac

1/3 years

Composite

Calcium

NL

ppm or lbs/ac

1/3 years

Composite

Magnesium

NL

ppm or lbs/ac

1/3 years

Composite

NL = No limit, this is a monitoring requirement only.

SU = Standard Units

4. Poultry waste shall be monitored as specified below. Additional waste monitoring may be required in the facility's approved nutrient management plan.

WASTE MONITORING

PARAMETERS

LIMITATIONS

UNITS

MONITORING REQUIREMENTS

Frequency

Sample Type

Total Kjeldahl Nitrogen

NL

*

1/3 years

Composite

Ammonia Nitrogen

NL

*

1/3 years

Composite

Total Phosphorus

NL

*

1/3 years

Composite

Total Potassium

NL

*

1/3 years

Composite

Moisture Content

NL

%

1/3 years

Composite

NL = No limit, this is a monitoring requirement only.

*Parameters for waste may be reported as a percent, as lbs/ton or lbs/1000 gallons, or as ppm where appropriate.


5. Analysis of soil and waste shall be according to methods specified in the facility's approved nutrient management plan.

6. All monitoring data required by Part I A shall be maintained on site in accordance with Part II B. Reporting of results to the department is not required; however, the monitoring results shall be made available to department personnel upon request.

B. Other requirements or special conditions.

1. The confined poultry feeding operation shall be designed and operated to (i) prevent point source discharges of pollutants to state waters except in the case of a storm event greater than the 25-year, 24-hour storm and (ii) provide adequate waste storage capacity to accommodate periods when the ground is ice covered, snow covered 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. Poultry waste shall be stored according to the nutrient management plan and in a manner that prevents contact with surface water and ground water. Poultry waste that is stockpiled outside of the growing house for more than 14 days shall be kept in a facility that provides adequate storage. Adequate storage shall, at a minimum, include the following:

a. Poultry waste shall be covered to protect it from precipitation and wind;

b. Storm water shall not run onto or under the stored poultry waste; and

c. A minimum of two feet separation distance to the seasonal high water table or an impermeable barrier shall be used under the stored poultry waste. All poultry waste storage facilities that use an impermeable barrier shall maintain a minimum of one foot separation between the seasonal high water table and the impermeable barrier. "Seasonal high water table" means that portion of the soil profile where a color change has occurred in the soil as a result of saturated soil conditions or where soil concretions have formed. Typical colors are gray mottlings, solid gray or black. The depth in the soil at which these conditions first occur is termed the seasonal high water table. Impermeable barriers must be constructed of at least 12 inches of compacted clay, at least four inches of reinforced concrete, or another material of similar structural integrity that has a minimum permeability rating of 0.0014 inches per hour (1X10-6 centimeters per second).

3. Poultry waste storage facilities constructed after December 1, 2000, shall not be located within a 100-year floodplain unless the poultry grower has no land outside the floodplain on which to construct the facility and the facility is constructed so that the poultry waste is stored above the 100-year flood elevation or otherwise protected from floodwaters through the construction of berms or similar best management flood control structures. New, expanded or replacement poultry growing houses that are constructed after December 1, 2000, shall not be located within a 100-year floodplain unless they are part of an existing, ongoing confined poultry feeding operation and are constructed so that the poultry and poultry litter are housed above the 100-year flood elevation or otherwise protected from floodwaters through construction of berms or similar best management flood control structures.

4. Poultry waste may be transferred from a permitted poultry grower to another person or broker without the requirement for the identification of identifying the fields where such waste. will be applied utilized in the facility's permitted poultry grower's approved nutrient management plan if the following conditions are met:

a. When a poultry grower transfers to another person more than 10 five or more tons of poultry waste in any 365-day period, the poultry grower shall provide that person a with:

(1) Grower name, address, and permit number;

(2) A copy of the most recent nutrient analysis for of the poultry waste; and a

(3) A fact sheet approved by the department, in consultation with the Department of Conservation and Recreation, that includes appropriate practices for proper storage and management of the waste. The person or broker receiving the waste shall provide the poultry grower:.

(1) His name and address,

(2) Written acknowledgement of receipt of the waste,

(3) The nutrient analysis of the waste, and

(4) The fact sheet.

If the person receiving the waste is a poultry waste broker, then he shall also certify in writing that he will provide a copy of the nutrient analysis and fact sheet to each end user to whom he transfers poultry waste.

b. When a poultry grower transfers to another person more than 10 five or more tons of poultry waste in any 365-day period, the poultry grower shall keep a record of the following:

(1) The recipient name and address;

(1) (2) The amount of poultry waste received by the person,;

(2) (3) The date of the transaction,;

(3) (4) The nutrient analysis of the waste,; and

(4) The locality in which the recipient intends to utilize the waste (i.e. nearest town or city and zip code),

(5) The name of the stream or waterbody known to the recipient that is nearest to the waste utilization site, and

(6) (5) The signed waste transfer acknowledgement. records form acknowledging the receipt of the following:

(a) The waste;

(b) The nutrient analysis of the waste; and

(c) A fact sheet.

These records shall be maintained on site for three years after the transaction and shall be made available to department personnel upon request.

c. Poultry waste generated by this facility shall not be applied to fields owned by or under the operational control of either the poultry grower or a legal entity in which the poultry grower has an ownership interest unless the fields are included in the facility's approved nutrient management plan.

c. When a poultry grower transfers to another person five or more tons of poultry waste in any 365-day period, and the recipient of the waste is someone other than a broker, the poultry grower shall keep a record of the following:

(1) The locality in which the recipient intends to utilize the waste (i.e., nearest town or city and zip code);

(2) The name of the stream or waterbody if known to the recipient that is nearest to the waste utilization or storage site; and

(3) If the waste is utilized for land application, if known indicate the method used to determine the land application rates (i.e., phosphorus crop removal, standard rate, soil test recommendations, or a nutrient management plan).

d. Poultry growers shall submit copies of the records required by Part I B 4 a, b, and c to the department annually, on a form approved by the department. Records for the preceding calendar year shall be submitted to the department not later than February 15. Poultry growers shall maintain the records required by Part I B 4 a, b, and c for at least three years after the transaction and shall make them available to department personnel upon request.

e. Poultry waste generated by this facility shall not be applied to fields owned by or under the operational control of either the poultry grower or a legal entity in which the poultry grower has an ownership interest unless the fields are included in the facility's approved nutrient management plan.

5. Confined poultry feeding operations that use disposal pits for routine disposal of daily mortalities shall not be covered under this general permit. The use of a disposal pit for routine disposal of daily poultry mortalities by a permittee shall be considered a violation of this permit. This prohibition does not apply to the emergency disposal of dead poultry done according to regulations adopted pursuant to § 3.1-726 § 3.2-6002 of the Code of Virginia or Chapter 14 (§ 10.1-1400 et seq.) of Title 10.1 of the Code of Virginia.

6. The poultry grower shall implement a nutrient management plan (NMP) approved by the Department of Conservation and Recreation and maintain the plan on site. All NMP's written after December 31, 2005, shall be developed by a certified nutrient management planner in accordance with § 10.1-104.2 of the Code of Virginia. The NMP shall be enforceable through this permit. The NMP shall contain at a minimum the following information:

a. Site map indicating the location of the waste storage facilities and the fields where waste generated by this facility will be applied by the poultry grower. The location of fields as identified in Part I subdivision B 4 c e shall also be included;

b. Site evaluation and assessment of soil types and potential productivities;

c. Nutrient management sampling including soil and waste monitoring;

d. Storage and land area requirements for the grower's poultry waste management activities;

e. Calculation of waste application rates; and

f. Waste application schedules.

7. When the poultry waste storage facility is no longer needed, the permittee shall close it in a manner that: (i) minimizes the need for further maintenance and (ii) controls, minimizes or eliminates, to the extent necessary to protect human health and the environment, the postclosure escape of uncontrolled leachate, surface runoff, or waste decomposition products to the ground water, surface water or the atmosphere. At closure, the permittee shall remove all poultry waste residue from the waste storage facility. At waste storage facilities without permanent covers and impermeable ground barriers, all residual poultry waste shall be removed from the surface below the stockpile when the poultry waste is taken out of storage. Removed waste materials shall be utilized according to the NMP.

8. Nitrogen application rates contained in the NMP 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, leachate, and volatilization losses, and reduce adverse water quality impacts from nitrogen.

9. For all NMPs developed after October 1, 2001, and on or before December 31, 2005, phosphorus application rates shall not exceed the greater of crop nutrient needs or crop nutrient removal as determined by the Department of Conservation and Recreation. For all NMPs developed after December 31, 2005, phosphorus application rates shall conform solely to the Department of Conservation and Recreation's regulatory criteria and standards in effect at the time the NMP is written. The application of poultry waste shall be managed to minimize runoff and leaching and reduce adverse water quality impacts from phosphorous.

10. The timing of land application of poultry waste shall be according to the schedule contained in the NMP, except that no waste may be applied to ice or snow covered ground or to soils that are saturated. Poultry waste may be applied to frozen ground within the NMP scheduled times only under the following conditions:

a. Slopes are not greater than 6.0%;

b. A minimum of a 200-foot vegetative or adequate crop residue buffer is maintained between the application area and all surface water courses;

c. Only those soils characterized by USDA as "well drained" with good infiltration are used; and

d. At least 60% uniform cover by vegetation or crop residue is present in order to reduce surface runoff and the potential for leaching of nutrients to ground water.

11. Buffer zones at waste application sites shall, at a minimum, be maintained as follows:

a. Distance from occupied dwellings not on the permittee's property: 200 feet (unless the occupant of the dwelling signs a waiver of the buffer zone);

b. Distance from water supply wells or springs: 100 feet;

c. Distance from surface water courses: 100 feet (without a permanent vegetated buffer) or 35 feet (if a permanent vegetated buffer exists).

Other site-specific conservation practices may be approved by the department that will provide pollutant reductions equivalent or better than the reductions that would be achieved by the 100-foot buffer.

d. Distance from rock outcropping (except limestone): 25 feet;

e. Distance from limestone outcroppings: 50 feet; and

f. Waste shall not be applied in such a manner that it would discharge to sinkholes that may exist in the area.

12. Records The following 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.:

a. The identification of the land application field sites where the waste is utilized or stored;

b. The application rate;

c. The application dates; and

d. What crops have been planted.

These records shall be maintained on site for a period of three years after recorded application is made and shall be made available to department personnel upon request.

13. Each poultry grower covered by this general permit shall complete the a training program offered or approved by the Department of Conservation and Recreation department within one year of filing the registration statement has been submitted for general permit coverage. All poultry growers shall complete a training program at least once every five years.

Part II

Conditions Applicable to all VPA Permits

A. Monitoring.

1. Samples and measurements taken as required by this permit shall be representative of the monitored activity.

2. Monitoring shall be conducted according to procedures listed under 40 CFR Part 136 unless other procedures have been specified in this permit.

3. The permittee shall periodically calibrate and perform maintenance procedures on all monitoring and analytical instrumentation at intervals that will ensure accuracy of measurements.

B. Records.

1. Records of monitoring information shall include:

a. The date, exact place, and time of sampling or measurements;

b. The name of the individual(s) who performed the sampling or measurements;

c. The date(s) analyses were performed;

d. The name of the individual(s) who performed the analyses;

e. The analytical techniques or methods used, with supporting information such as observations, readings, calculations and bench data; and

f. The results of such analyses.

2. The permittee shall retain records of all monitoring information, including all calibration and maintenance records and all original strip chart recordings for continuous monitoring instrumentation, copies of all reports required by this permit, and records of all data used to complete the application for this permit for a period of at least three years from the date of the sample, measurement, report or application. This period of retention may be extended by request of the board at any time.

C. Reporting monitoring results.

1. The permittee shall submit the results of the monitoring required by this permit not later than the 10th day of the month after the monitoring takes place, unless another reporting schedule is specified elsewhere in this permit. Monitoring results shall be submitted to the department's regional office.

2. Monitoring results shall be reported on forms provided or specified by the department.

3. If the permittee monitors the pollutant management activity, at a sampling location specified in this permit, for any pollutant more frequently than required by the permit using approved analytical methods, the permittee shall report the results of this monitoring on the monitoring report.

4. If the permittee monitors the pollutant management activity, at a sampling location specified in this permit, for any pollutant that is not required to be monitored by the permit, and uses approved analytical methods, the permittee shall report the results with the monitoring report.

5. Calculations for all limitations that require averaging of measurements shall utilize an arithmetic mean unless otherwise specified in this permit.

D. Duty to provide information. The permittee shall furnish to the department, within a reasonable time, any information which the board may request to determine whether cause exists for modifying, revoking and reissuing, or terminating this permit, or to determine compliance with this permit. The permittee shall also furnish to the department, upon request, copies of records required to be kept by the permittee. Plans, specifications, maps, conceptual reports and other relevant information shall be submitted as requested by the board prior to commencing construction.

E. Compliance schedule reports. Reports of compliance or noncompliance with, or any progress reports on, interim and final requirements contained in any compliance schedule of this permit shall be submitted no later than 14 days following each schedule date.

F. Unauthorized discharges. Except in compliance with this permit, or another permit issued by the board, it shall be unlawful for any person to:

1. Discharge into state waters sewage, industrial wastes, other wastes, or any noxious or deleterious substances; or

2. Otherwise alter the physical, chemical or biological properties of such state waters and make them detrimental to the public health, or to animal or aquatic life, or to the use of such waters for domestic or industrial consumption, or for recreation, or for other uses.

G. Reports of unauthorized discharges. Any permittee 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 in violation of Part II F or (ii) a discharge that may reasonably be expected to enter state waters in violation of Part II F shall notify the department of the discharge immediately upon discovery of the discharge, but in no case later than 24 hours after said discovery. A written report of the unauthorized discharge shall be submitted to the department within five days of discovery of the discharge. The written report shall contain:

1. A description of the nature and location of the discharge;

2. The cause of the discharge;

3. The date on which the discharge occurred;

4. The length of time that the discharge continued;

5. The volume of the discharge;

6. If the discharge is continuing, how long it is expected to continue;

7. If the discharge is continuing, what the expected total volume of the discharge will be; and

8. Any steps planned or taken to reduce, eliminate and prevent a recurrence of the present discharge or any future discharges not authorized by this permit.

Discharges reportable to the department under the immediate reporting requirements of other regulations are exempted from this requirement.

H. Reports of unusual or extraordinary discharges. If any unusual or extraordinary discharge including a bypass or upset should occur from a treatment works and the discharge enters or could be expected to enter state waters, the permittee shall promptly notify, in no case later than 24 hours, the department by telephone after the discovery of the discharge. This notification shall provide all available details of the incident, including any adverse affects on aquatic life and the known number of fish killed. The permittee shall reduce the report to writing and shall submit it to the department within five days of discovery of the discharge in accordance with Part II I 2. Unusual and extraordinary discharges include but are not limited to any discharge resulting from:

1. Unusual spillage of materials resulting directly or indirectly from processing operations;

2. Breakdown of processing or accessory equipment;

3. Failure or taking out of service some or all of the treatment works; and

4. Flooding or other acts of nature.

I. Reports of noncompliance. The permittee shall report any noncompliance which may adversely affect state waters or may endanger public health.

1. An oral report shall be provided within 24 hours from the time the permittee becomes aware of the circumstances. The following shall be included as information which shall be reported within 24 hours under this paragraph:

a. Any unanticipated bypass; and

b. Any upset which causes a discharge to surface waters.

2. A written report shall be submitted within five days and shall contain:

a. A description of the noncompliance and its cause;

b. The period of noncompliance, including exact dates and times, and, if the noncompliance has not been corrected, the anticipated time it is expected to continue; and

c. Steps taken or planned to reduce, eliminate, and prevent reoccurrence of the noncompliance.

The board may waive the written report on a case-by-case basis for reports of noncompliance under Part II I if the oral report has been received within 24 hours and no adverse impact on state waters has been reported.

3. The permittee shall report all instances of noncompliance not reported under Part II I 1 or 2 in writing at the time the next monitoring reports are submitted. The reports shall contain the information listed in Part II I 2.

NOTE: The immediate (within 24 hours) reports required in Parts II F, G and H may be made to the department's regional office. For reports outside normal working hours, leave a message and this shall fulfill the immediate reporting requirement. For emergencies, the Virginia Department of Emergency Services maintains a 24-hour telephone service at 1-800-468-8892.

J. Notice of planned changes.

1. The permittee shall give notice to the department as soon as possible of any planned physical alterations or additions to the design or operation of the pollutant management activity.

2. The permittee shall give at least 10 days advance notice to the department of any planned changes in the permitted facility or activity that may result in noncompliance with permit requirements.

K. Signatory requirements.

1. Applications. All permit applications shall be signed as follows:

a. For a corporation: by a responsible corporate officer. For the purpose of this section, a responsible corporate officer means: (i) a president, secretary, treasurer, or vice-president of the corporation in charge of a principal business function, or any other person who performs similar policy- or decision-making functions for the corporation or (ii) the manager of one or more manufacturing, production, or operating facilities employing more than 250 persons or having gross annual sales or expenditures exceeding $25 million (in second-quarter 1980 dollars), if authority to sign documents has been assigned or delegated to the manager in accordance with corporate procedures;

b. For a partnership or sole proprietorship: by a general partner or the proprietor, respectively; or

c. For a municipality, state, federal, or other public agency: by either a principal executive officer or ranking elected official. For purposes of this section, a principal executive officer of a public agency includes: (i) the chief executive officer of the agency, or (ii) a senior executive officer having responsibility for the overall operations of a principal geographic unit of the agency.

2. Reports, etc. All reports required by permits, and other information requested by the board shall be signed by a person described in Part II K 1, or by a duly authorized representative of that person. A person is a duly authorized representative only if:

a. The authorization is made in writing by a person described in Part II K 1;

b. The authorization specifies either an individual or a position having responsibility for the overall operation of the regulated facility or activity such as the position of plant manager, operator of a well or a well field, superintendent, or a position of equivalent responsibility. A duly authorized representative may thus be either a named individual or any individual occupying a named position; and

c. The written authorization is submitted to the department.

3. Changes to authorization. If an authorization under Part II K 2 is no longer accurate because a different individual or position has responsibility for the overall operation of the facility, a new authorization satisfying the requirements of Part II K 2 shall be submitted to the department prior to or together with any reports, or information to be signed by an authorized representative.

4. Certification. Any person signing a document under Part II K 1 or 2 shall make the following certification: "I certify under penalty of law that this document and all attachments were prepared under my direction or supervision in accordance with a system designed to assure that qualified personnel properly gather and evaluate the information submitted. Based on my inquiry of the person or persons who manage the system, or those persons directly responsible for gathering the information, the information submitted is, to the best of my knowledge and belief, true, accurate, and complete. I am aware that there are significant penalties for submitting false information, including the possibility of fine and imprisonment for knowing violations."

L. Duty to comply. The permittee shall comply with all conditions of this permit. Any permit noncompliance constitutes a violation of the State Water Control Law. Permit noncompliance is grounds for enforcement action; for permit termination, revocation and reissuance, or modification; or denial of a permit renewal application. Compliance with a permit during its term constitutes compliance, for purposes of enforcement, with the State Water Control Law.

M. Duty to reapply. If the permittee wishes to continue an activity regulated by this permit after the expiration date of this permit, the permittee shall apply for and obtain a new permit. All permittees with a currently effective permit shall submit a new application at least 180 days before the expiration date of the existing permit unless permission for a later date has been granted by the board. The board shall not grant permission for applications to be submitted later than the expiration date of the existing permit.

N. Effect of a permit. This permit does not convey any property rights in either real or personal property or any exclusive privileges, nor does it authorize any injury to private property or invasion of personal rights, or any infringement of federal, state or local law or regulations.

O. State law. Nothing in this permit shall be construed to preclude the institution of any legal action under, or relieve the permittee from any responsibilities, liabilities, or penalties established pursuant to any other state law or regulation or under authority preserved by § 510 of the federal Clean Water Act. Except as provided in permit conditions on bypassing (Part II U), and upset (Part II V), nothing in this permit shall be construed to relieve the permittee from civil and criminal penalties for noncompliance.

P. Oil and hazardous substance liability. Nothing in this permit shall be construed to preclude the institution of any legal action or relieve the permittee from any responsibilities, liabilities, or penalties to which the permittee is or may be subject under §§ 62.1-44.34:14 through 62.1-44.34:23 of the State Water Control Law.

Q. Proper operation and maintenance. The permittee shall be responsible for the proper operation and maintenance of all treatment works, systems and controls which are installed or used to achieve compliance with the conditions of this permit. Proper operation and maintenance includes effective plant performance, adequate funding, adequate staffing, and adequate laboratory and process controls, including appropriate quality assurance procedures.

R. Disposal of solids or sludges. Solids, sludges or other pollutants removed in the course of treatment or management of pollutants shall be disposed of in a manner so as to prevent any pollutant from such materials from entering state waters.

S. Duty to mitigate. The permittee shall take all reasonable steps to minimize or prevent any pollutant management activity in violation of this permit which has a reasonable likelihood of adversely affecting human health or the environment.

T. Need to halt or reduce activity not a defense. It shall not be a defense for a permittee in an enforcement action that it would have been necessary to halt or reduce the permitted activity in order to maintain compliance with the conditions of this permit.

U. Bypass.

1. Prohibition. "Bypass" means intentional diversion of waste streams from any portion of a treatment works. A bypass of the treatment works is prohibited except as provided herein.

2. Anticipated bypass. If the permittee knows in advance of the need for a bypass, he shall notify the department promptly at least 10 days prior to the bypass. After considering its adverse effects, the board may approve an anticipated bypass if:

a. The bypass will be unavoidable to prevent loss of human life, personal injury, or severe property damage. "Severe property damage" means substantial physical damage to property, damage to the treatment facilities which causes them to become inoperable, or substantial and permanent loss of natural resources which can reasonably be expected to occur in the absence of a bypass. "Severe property damage" does not mean economic loss caused by delays in production; and

b. There are no feasible alternatives to bypass such as the use of auxiliary treatment facilities, retention of untreated waste, or maintenance during normal periods of equipment downtime. However, if bypass occurs during normal periods of equipment downtime or preventive maintenance and in the exercise of reasonable engineering judgment the permittee could have installed adequate backup equipment to prevent such bypass, this exclusion shall not apply as a defense.

3. Unplanned bypass. If an unplanned bypass occurs, the permittee shall notify the department as soon as possible, but in no case later than 24 hours, and shall take steps to halt the bypass as early as possible. This notification will be a condition for defense to an enforcement action that an unplanned bypass met the conditions in paragraphs U 2 a and b and in light of the information reasonably available to the permittee at the time of the bypass.

V. Upset. A permittee may claim an upset as an affirmative defense to an action brought for noncompliance. In any enforcement proceedings a permittee shall have the burden of proof to establish the occurrence of any upset. In order to establish an affirmative defense of upset, the permittee shall present properly signed, contemporaneous operating logs or other relevant evidence that shows:

1. That an upset occurred and that the cause can be identified;

2. That the permitted facility was at the time being operated efficiently and in compliance with proper operation and maintenance procedures;

3. That the 24-hour reporting requirements to the department were met; and

4. That the permittee took all reasonable steps to minimize or correct any adverse impact on state waters resulting from noncompliance with the permit.

W. Inspection and entry. Upon presentation of credentials, any duly authorized agent of the board may, at reasonable times and under reasonable circumstances:

1. Enter upon any permittee's property, public or private and have access to records required by this permit;

2. Have access to, inspect and copy any records that must be kept as part of permit conditions;

3. Inspect any facility's equipment (including monitoring and control equipment) practices or operations regulated or required under the permit; and

4. Sample or monitor any substances or parameters at any locations for the purpose of assuring permit compliance or as otherwise authorized by the State Water Control Law.

For purposes of this section, the time for inspection shall be deemed reasonable during regular business hours, and whenever the facility is involved in managing pollutants. Nothing contained herein shall make an inspection unreasonable during an emergency.

X. Permit actions. Permits may be modified, revoked and reissued, or terminated for cause upon the request of the permittee or interested persons, or upon the board's initiative. If a permittee files a request for a permit modification, revocation, or termination, or files a notification of planned changes, or anticipated noncompliance, the permit terms and conditions shall remain effective until the request is acted upon by the board. This provision shall not be used to extend the expiration date of the effective VPA permit.

Y. Transfer of permits.

1. Permits are not transferable to any person except after notice to the department. The board may require modification or revocation and reissuance of the permit to change the name of the permittee and to incorporate such other requirements as may be necessary. Except as provided in Part II Y 2, a permit may be transferred by the permittee to a new owner or operator only if the permit has been modified to reflect the transfer or has been revoked and reissued to the new owner or operator.

2. As an alternative to transfers under Part II Y 1, this permit shall be automatically transferred to a new permittee if:

a. The current permittee notifies the department at least 30 days in advance of the proposed transfer of the title to the facility or property;

b. The notice includes a written agreement between the existing and new permittees containing a specific date for transfer of permit responsibility, coverage, and liability between them; and

c. The board does not, within the 30-day time period, notify the existing permittee and the proposed new permittee of its intent to modify or revoke and reissue the permit.

Z. Severability. The provisions of this permit are severable and, if any provision of this permit or the application of any provision of this permit to any circumstance is held invalid, the application of such provision to other circumstances and the remainder of this permit shall not be affected thereby.

Part III

Pollutant Management and Monitoring Requirements for Poultry Waste End-Users and Poultry Brokers

A. Pollutant management authorization and monitoring requirements.

1. During the period beginning with the permittee's coverage under this general permit and lasting until the permit's expiration date, the permittee is authorized to manage pollutants at the location or locations identified in the registration statement and the permittee's approved nutrient management plan.

2. If poultry waste is land applied on land under the permittee's operational control, it shall be applied at the rates specified in the permittee's approved nutrient management plan.

3. Soil at the land application sites shall be monitored as specified below. Additional soils monitoring may be required in the permittee's approved nutrient management plan.


SOILS MONITORING

PARAMETERS

LIMITATIONS

UNITS

MONITORING REQUIREMENTS

Frequency

Sample Type

pH

NL

SU

1/3 years

Composite

Phosphorus

NL

ppm or lbs/ac

1/3 years

Composite

Potash

NL

ppm or lbs/ac

1/3 years

Composite

Calcium

NL

ppm or lbs/ac

1/3 years

Composite

Magnesium

NL

ppm or lbs/ac

1/3 years

Composite

NL = No limit, this is a monitoring requirement only.

SU = Standard Units

4. Poultry waste shall be monitored as specified below. Additional waste monitoring may be required in the permittee's approved nutrient management plan.

WASTE MONITORING

PARAMETERS

LIMITATIONS

UNITS

MONITORING REQUIREMENTS

Frequency

Sample Type

Total Kjeldahl Nitrogen

NL

*

1/3 years

Composite

Ammonia Nitrogen

NL

*

1/3 years

Composite

Total Phosphorus

NL

*

1/3 years

Composite

Total Potassium

NL

*

1/3 years

Composite

Moisture Content

NL

%

1/3 years

Composite

NL = No limit, this is a monitoring requirement only.

*Parameters for waste may be reported as a percent, as lbs/ton or lbs/1000 gallons, or as ppm where appropriate.


5. If waste from two or more poultry waste sources is commingled or stored then a sample that best represents the waste shall be used to calculate the nutrients available in the poultry waste for land application and shall be provided to the end-user of the waste.

6. Analysis of soil and waste shall be according to methods specified in the permittee's approved nutrient management plan.

7. All monitoring data required by Part III A shall be maintained on site in accordance with Part II B. Reporting of results to the department is not required; however, the monitoring results shall be made available to department personnel upon request.

B. Other requirements or special conditions.

1. Poultry waste storage facilities shall be designed and operated to (i) prevent point source discharges of pollutants to state waters except in the case of a storm event greater than the 25-year, 24-hour storm and (ii) provide adequate waste storage capacity to accommodate periods when the ground is ice covered, snow covered 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. Poultry waste shall be stored according to the approved nutrient management plan and in a manner that prevents contact with surface water and ground water. Poultry waste that is stockpiled outside for more than 14 days shall be kept in a facility that provides adequate storage. Adequate storage shall, at a minimum, include the following:

a. Poultry waste shall be covered to protect it from precipitation and wind;

b. Storm water shall not run onto or under the stored poultry waste; and

c. A minimum of two feet separation distance to the seasonal high water table or an impermeable barrier shall be used under the stored poultry waste. All poultry waste storage facilities that use an impermeable barrier shall maintain a minimum of one foot separation between the seasonal high water table and the impermeable barrier. "Seasonal high water table" means that portion of the soil profile where a color change has occurred in the soil as a result of saturated soil conditions or where soil concretions have formed. Typical colors are gray mottlings, solid gray, or black. The depth in the soil at which these conditions first occur is termed the seasonal high water table. Impermeable barriers must be constructed of at least 12 inches of compacted clay, at least four inches of reinforced concrete, or another material of similar structural integrity that has a minimum permeability rating of 0.0014 inches per hour (1X10-6 centimeters per second).

3. Poultry waste storage facilities constructed after December 1, 2000, shall not be located within a 100-year floodplain unless there is no land available outside the floodplain on which to construct the facility and the facility is constructed so that the poultry waste is stored above the 100-year flood elevation or otherwise protected from floodwaters through the construction of berms or similar best management flood control structures.

4. When a poultry waste end-user or poultry waste broker receives, possesses, or has control over five or more tons of transferred poultry waste in any 365-day period, he shall provide the person from whom he received the poultry waste with:

a. The end-user or broker name, address, and permit number;

b. If the recipient of the poultry waste is an end-user, then he shall also provide the person from whom he received the poultry waste the following information:

(1) The locality in which the recipient intends to utilize the waste (i.e., nearest town or city and zip code);

(2) The name of the stream or waterbody if known to the recipient that is nearest to the waste utilization or storage site;

c. Written acknowledgement of receipt of:

(1) The waste;

(2) The nutrient analysis of the waste; and

(3) The fact sheet.

If the person receiving the waste is a poultry waste broker, then he shall also certify in writing that he will provide a copy of the nutrient analysis and fact sheet to each end user to whom he transfers poultry waste.

5. When a poultry waste broker transfers or hauls poultry waste to other persons, he shall provide the person who received the poultry waste with:

a. Broker name, address, and permit number;

b. The nutrient analysis of the waste; and

c. A fact sheet.

6. When a poultry waste end-user or poultry waste broker is a recipient of five or more tons of transferred poultry waste in any 365-day period, the poultry waste end-user or poultry waste broker shall keep a record regarding the transferred poultry waste:

a. The following items shall be recorded regarding the source of the transferred poultry waste:

(1) The source name and address;

(2) The amount of poultry waste received from the source; and

(3) The date the poultry waste was acquired.

b. The following items shall be recorded regarding the recipient of the transferred poultry waste:

(1) The recipient name and address;

(2) The amount of poultry waste received by the person;

(3) The date of the transaction;

(4) The nutrient content of the waste;

(5) The locality in which the recipient intends to utilize the waste (i.e., nearest town or city and zip code);

(6) The name of the stream or waterbody if known to the recipient that is nearest to the waste utilization or storage site;

(7) If the waste is utilized for land application, if known indicate the method used to determine the land application rates (i.e., phosphorus crop removal, standard rate, soil test recommendations, or a nutrient management plan); and

(8) The signed waste transfer records form acknowledging the receipt of the following:

(a) The waste;

(b) The nutrient analysis of the waste; and

(c) A fact sheet.

7. End-users or brokers shall submit copies of the records required by Part III B 6 to the department annually on a form approved by the department. Records for the preceding calendar year shall be submitted to the department not later than February 15. End-users or brokers shall maintain the records required by Part III B 6 for at least three years after the transaction and make them available to department personnel upon request.

8. If poultry waste is also generated by this facility it shall not be applied to fields owned by or under the operational control of either the permittee or a legal entity in which the permittee has an ownership interest unless the fields are included in the permittee's approved nutrient management plan.

9. Poultry feeding operations that use disposal pits for routine disposal of daily mortalities shall not be covered under this general permit. The use of a disposal pit for routine disposal of daily poultry mortalities by a permittee shall be considered a violation of this permit. This prohibition does not apply to the emergency disposal of dead poultry done according to regulations adopted pursuant to § 3.2-6002 of the Code of Virginia or Chapter 14 (§ 10.1-1400 et seq.) of Title 10.1 of the Code of Virginia.

10. The permittee shall implement a nutrient management plan (NMP) approved by the Department of Conservation and Recreation and maintain the plan on site. All NMP's written after December 31, 2005, shall be developed by a certified nutrient management planner in accordance with § 10.1-104.2 of the Code of Virginia. The NMP shall be enforceable through this permit. The NMP shall contain at a minimum the following information:

a. Site map indicating the location of the waste storage facilities and the fields where waste will be applied by the permittee. The location of fields as identified in Part III B 8 shall also be included;

b. Site evaluation and assessment of soil types and potential productivities;

c. Nutrient management sampling including soil and waste monitoring;

d. Storage and land area requirements for the permittee's poultry waste management activities;

e. Calculation of waste application rates; and

f. Waste application schedules.

11. When the poultry waste storage facility is no longer needed, the permittee shall close it in a manner that: (i) minimizes the need for further maintenance and (ii) controls, minimizes, or eliminates, to the extent necessary to protect human health and the environment, the postclosure escape of uncontrolled leachate, surface runoff, or waste decomposition products to the ground water, surface water, or the atmosphere. At closure, the permittee shall remove all poultry waste residue from the waste storage facility. At waste storage facilities without permanent covers and impermeable ground barriers, all residual poultry waste shall be removed from the surface below the stockpile when the poultry waste is taken out of storage. Removed waste materials shall be utilized according to the NMP.

12. Nitrogen application rates contained in the NMP 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, leachate, and volatilization losses, and reduce adverse water quality impacts from nitrogen.

13. Phosphorus application rates shall conform solely to the Department of Conservation and Recreation's regulatory criteria and standards in effect at the time the NMP is written. The application of poultry waste shall be managed to minimize runoff and leaching and reduce adverse water quality impacts from phosphorous.

14. The timing of land application of poultry waste shall be according to the schedule contained in the NMP, except that no waste may be applied to ice- or snow-covered ground or to soils that are saturated. Poultry waste may be applied to frozen ground within the NMP scheduled times only under the following conditions:

a. Slopes are not greater than 6.0%;

b. A minimum of a 200-foot vegetative or adequate crop residue buffer is maintained between the application area and all surface water courses;

c. Only those soils characterized by USDA as "well drained" with good infiltration are used; and

d. At least 60% uniform cover by vegetation or crop residue is present in order to reduce surface runoff and the potential for leaching of nutrients to ground water.

15. Buffer zones at waste application sites shall, at a minimum, be maintained as follows:

a. Distance from occupied dwellings not on the permittee's property: 200 feet (unless the occupant of the dwelling signs a waiver of the buffer zone);

b. Distance from water supply wells or springs: 100 feet;

c. Distance from surface water courses: 100 feet (without a permanent vegetated buffer) or 35 feet (if a permanent vegetated buffer exists). Other site-specific conservation practices may be approved by the department that will provide pollutant reductions equivalent or better than the reductions that would be achieved by the 100-foot buffer;

d. Distance from rock outcropping (except limestone): 25 feet;

e. Distance from limestone outcroppings: 50 feet; and

f. Waste shall not be applied in such a manner that it would discharge to sinkholes that may exist in the area.

16. The following records shall be maintained:

a. The identification of the land application field sites where the waste is utilized or stored;

b. The application rate;

c. The application dates; and

d. What crops have been planted.

These records shall be maintained on site for a period of three years after recorded application is made and shall be made available to department personnel upon request.

17. Each poultry waste end-user or poultry waste broker covered by this general permit shall complete a training program offered or approved by the department within one year of filing the registration statement for general permit coverage. All poultry waste end-users or poultry waste brokers shall complete a training program at least once every five years.

9VAC25-630-60. Tracking and accounting requirements for poultry waste brokers.

A. Poultry waste brokers shall keep a record of the source of the poultry waste in their possession, the amount of poultry waste received from the source, and the date the poultry waste was acquired register with the department by providing their name and address on a form approved by the department prior to transferring poultry waste.

B. When a poultry waste broker transfers to another person more than 10 five or more tons of poultry waste in any 365-day period, the poultry waste broker shall provide to the recipient of the waste copies of the most recent nutrient analysis for the poultry waste and a fact sheet approved by the department that includes appropriate practices for proper storage and management of the waste. The person receiving the waste shall provide the poultry waste broker his name and address and acknowledge in writing receipt of the waste, the nutrient analysis and the fact sheet. information regarding the transfer of poultry waste to both the source and recipient of the waste.

1. The broker name and address shall be provided to the source of the transferred poultry waste:

2. The following items shall be provided to the recipient of the transferred poultry waste:

a. The broker name and address;

b. The most recent nutrient analysis of the poultry waste; and

c. A fact sheet.

C. When a poultry waste broker transfers to another person more than 10 five or more tons of poultry waste in any 365-day period, the poultry waste broker shall keep a record of the amount of poultry waste received by the person, the date of the transaction, the nutrient content of the waste, the locality in which the recipient intends to utilize the waste (i.e., nearest town or city and zip code), the name of the stream or waterbody known to the recipient that is nearest to the waste utilization site, and the signed waste transfer acknowledgement records regarding the transferred poultry waste.

1. The following items shall be recorded regarding the source of the transferred poultry waste:

a. The source name and address;

b. The amount of the poultry waste received from the source; and

c. The date the poultry waste was acquired.

2. The following items shall be recorded regarding the recipient of the transferred poultry waste:

a. The recipient name and address;

b. The amount of poultry waste received by the person;

c. The date of the transaction;

d. The nutrient content of the waste;

e. The locality in which the recipient intends to utilize the waste (i.e., nearest town or city and zip code);

f. The name of the stream of waterbody if known to the recipient that is nearest to the waste utilization or storage site;

g. If the waste is utilized for land application, if known indicate the method used to determine the land application rates (i.e., phosphorus crop removal, standard rate, soil test recommendations, or a nutrient management plan); and

h. The signed waste transfer records form acknowledging the receipt of the following:

(1) The waste;

(2) The nutrient analysis of the waste; and

(3) A fact sheet.

D. Poultry waste brokers shall submit copies of the records required by subsections A and subsection C of this section, except the waste transfer acknowledgement, to the department annually using a form approved by the department. Records for the preceding calendar year shall be submitted to the department not later than February 15. Poultry waste brokers shall maintain the records required by subsections A and subsection C of this section for at least three years and make them available to department personnel upon request.

E. If waste from two or more poultry waste sources is commingled or stored then a sample that best represents the waste shall be used to calculate the nutrients available in the poultry waste for land application and shall be provided to the end-user of the waste.

F. If the poultry waste broker land applies the poultry waste for the end-user then the broker shall provide the end-user with the records regarding land application as required by 9VAC25-630-70.

G. Poultry waste brokers shall complete a training program offered or approved by the department within one year of registering with the department. Poultry waste brokers shall complete a training program at least once every five years.

H. 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 regulation.

9VAC25-630-70. Tracking and accounting requirements for poultry waste end-users.

A. When a poultry waste end-user is the recipient of five or more tons of poultry waste in any 365-day period, the end-user shall maintain records regarding the transfer and land application of poultry waste.

1. The poultry waste end-user shall provide the permitted poultry grower or poultry waste broker with the following items:

a. End-user name and address;

b. The locality in which the end-user intends to utilize the waste (i.e., nearest town or city and zip code);

c. The name of the stream or waterbody if known to the end-user that is nearest to the waste utilization or storage site;

d. If the waste is utilized for land application, if known indicate the method used to determine the land application rates (i.e., phosphorus crop removal, standard rate, soil test recommendations, or a nutrient management plan); and

e. Written acknowledgement of receipt of:

(1) The waste;

(2) The nutrient analysis of the waste; and

(3) A fact sheet.

2. The poultry waste end-user shall record the following items regarding the waste transfer:

a. The source name, address, and permit number (if applicable);

b. The amount of poultry waste that was received;

c. The date of the transaction;

d. The final use of the poultry waste;

e. The locality in which the waste was utilized (i.e., nearest town or city and zip code); and

f. The name of the stream or waterbody if known to the recipient that is nearest to the waste utilization or storage site.

Records regarding poultry waste transfers shall be maintained on site for a period of three years after the transaction. All records shall be made available to department personnel upon request.

3. If waste is land applied, the poultry waste end-user shall keep a record of the following items regarding the land application of the waste:

a. The nutrient analysis of the waste;

b. Maps indicating the poultry waste land application fields and storage sites;

c. The land application rate;

d. The land application dates;

e. What crops were planted;

f. Soil test results, if obtained;

g. NMP, if applicable; and

h. The method used to determine the land application rates (i.e., phosphorus crop removal, standard rate, soil test recommendations, or a nutrient management plan).

Records regarding land application of poultry waste shall be maintained on site for a period of three years after the recorded application is made. All records shall be made available to department personnel upon request.

B. 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 regulation.

9VAC25-630-80. Utilization and storage requirements for transferred poultry waste.

A. Any poultry waste end-user or poultry waste broker who receives poultry waste shall comply with the requirements outlined in the following sections.

B. Storage requirements. Any poultry waste end-user or poultry waste broker who receives poultry waste shall comply with the requirements outlined in this section regarding storage of poultry waste in their possession or under their control.

1. Poultry waste shall be stored in a manner that prevents contact with surface water and ground water. Poultry waste that is stockpiled outside for more than 14 days shall be kept in a facility or at a site that provides adequate storage. Adequate storage shall, at a minimum, include the following:

a. Poultry waste shall be covered to protect it from precipitation and wind;

b. Storm water shall not run onto or under the stored poultry waste;

c. A minimum of two feet separation distance to the seasonal high water table or an impermeable barrier shall be used under the stored poultry waste. All poultry waste storage facilities that use an impermeable barrier shall maintain a minimum of one foot separation between the seasonal high water table and the impermeable barrier. "Seasonal high water table" means that portion of the soil profile where a color change has occurred in the soil as a result of saturated soil conditions or where soil concretions have formed. Typical colors are gray mottlings, solid gray, or black. The depth in the soil at which these conditions first occur is termed the seasonal high water table. Impermeable barriers shall be constructed of at least 12 inches of compacted clay, at least four inches of reinforced concrete, or another material of similar structural integrity that has a minimum permeability rating of 0.0014 inches per hour (1X10-6 centimeters per second); and

d. For poultry waste that is not stored under roof, the storage site must be at least 100 feet from any surface water, intermittent drainage, wells, sinkholes, rock outcrops, and springs.

2. Poultry waste storage facilities constructed after December 1, 2000, shall not be located within a 100-year floodplain unless there is no land available outside the floodplain on which to construct the facility and the facility is constructed so that the poultry waste is stored above the 100-year flood elevation or otherwise protected from floodwaters through the construction of berms or similar best management flood control structures.

C. Land application requirements. Any poultry waste end-user or poultry waste broker who (i) receives five or more tons of poultry waste in any 365-day period and (ii) land applies poultry waste shall follow appropriate land application requirements as outlined in this section. The application of poultry waste shall be managed to minimize adverse water quality impacts.

1. The maximum application rates can be established by the following methods:

a. Phosphorus crop removal application rates can be used when:

(1) Soil test phosphorus levels do not exceed the values listed in the table below:

Region

Soil test P (ppm)

VPI & SU Soil test (Mehlich I) *

Eastern Shore and Lower Coastal Plain

135

Middle and Upper Coastal Plain and Piedmont

136

Ridge and Valley

162

* If results are from another laboratory the Department of Conservation and Recreation approved conversion factors must be used.

(2) The phosphorus crop removal application rates are set forth by regulations promulgated by the Department of Conservation and Recreation in accordance with § 10.1-104.2 of the Code of Virginia.

b. Poultry waste may be applied to any crop at the standard rate of 1.5 tons per acre once every three years when:

(1) In the absence of current soil sample analyses and recommendations; and

(2) Nutrients have not been supplied by an organic source, other than pastured animals, to the proposed land application sites within the previous three years of the proposed land application date of poultry waste.

c. Soil test recommendations can be used when:

(1) Accompanied by analysis results for soil tests that have been obtained from the proposed field or fields in the last three years;

(2) Provided by a laboratory whose procedures and recommendations are approved by the Department of Conservation and Recreation; and

(3) Nutrients from the waste application do not exceed the nitrogen or phosphorus recommendations for the proposed crop or double crops listed on the soil test recommendation.

d. A nutrient management plan developed by a certified nutrient management planner in accordance with § 10.1-104.2 of the Code of Virginia.

2. The timing of land application of poultry waste shall be appropriate for the crop, and in accordance with regulations promulgated by the Department of Conservation and Recreation in accordance with § 10.1-104.2 of the Code of Virginia, except that no waste may be applied to ice- or snow-covered ground or to soils that are saturated. Poultry waste may be applied to frozen ground under the following conditions:

a. Slopes are not greater than 6.0%;

b. A minimum of a 200-foot vegetative or adequate crop residue buffer is maintained between the application area and all surface water courses;

c. Only those soils characterized by USDA as "well drained" with good infiltration are used; and

d. At least 60% uniform cover by vegetation or crop residue is present in order to reduce surface runoff and the potential for leaching of nutrients to ground water.

3. Buffer zones at waste application sites shall, at a minimum, be maintained as follows:

a. Distance from occupied dwellings: 200 feet (unless the occupant of the dwelling signs a waiver of the buffer zone);

b. Distance from water supply wells or springs: 100 feet;

c. Distance from surface water courses: 100 feet (without a permanent vegetated buffer) or 35 feet (if a permanent vegetated buffer exists). Other site-specific conservation practices may be approved by the department that will provide pollutant reductions equivalent or better than the reductions that would be achieved by the 100-foot buffer;

d. Distance from rock outcropping (except limestone): 25 feet;

e. Distance from limestone outcroppings: 50 feet; and

f. Waste shall not be applied in such a manner that it would discharge to sinkholes that may exist in the area.

D. Poultry waste end-users or poultry waste brokers shall maintain the records demonstrating compliance with the requirements of Part III A through C for at least three years and make them available to department personnel upon request.

E. The activities of the poultry waste end-user or poultry waste broker shall not contravene the Water Quality Standards, as amended and adopted by the board, or any provision of the State Water Control Law (§ 62.1-44 et seq. of the Code of Virginia).

F. 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 regulation.

FORMS (9VAC25-630)

Registration Statement, VPA General Permit for Poultry Waste Management for Poultry Growers, RS VPS2 (rev. 12/1/00) VPG2 (rev. 12/09).

Registration Statement, VPA General Permit for Poultry Waste Management for Poultry Waste End-Users and Brokers, RS VPG2 (rev. 12/09).

VA.R. Doc. No. R08-1062; Filed June 2, 2009, 4:24 p.m.
TITLE 12. HEALTH
STATE BOARD OF HEALTH
Fast-Track Regulation

Title of Regulation: 12VAC5-481. Virginia Radiation Protection Regulations (amending 12VAC5-481-451).

Statutory Authority: § 32.1-229 of the Code of Virginia.

Public Hearing Information: No public hearings are scheduled.

Public Comments: Public comments may be submitted until 5 p.m. on July 22, 2009.

Effective Date: August 6, 2009.

Agency Contact: Mike Welling, Director, Radioactive Materials Program, Department of Health, 109 Governor St., 7th Floor, Richmond, VA 23219, telephone (804) 864-8168, or email mike.welling@vdh.virginia.gov.

Basis: Section 32.1-229 of the Code of Virginia authorizes the Board of Health to establish (i) a program of effective regulation of sources of radiation for the protection of the public health and safety; (ii) a program to promote the orderly regulation of radiation within the Commonwealth, among the states and between the federal government and the Commonwealth and to facilitate intergovernmental cooperation with respect to use and regulation of sources of radiation to the end that duplication of regulation may be minimized; and (iii) a program to permit maximum utilization of sources of radiation consistent with the public health and safety.

Purpose: The U.S. Nuclear Regulatory Commission (NRC) submitted a comment to this agency stating: "Virginia needs to add that the licensee must also call the NRC Headquarters Operations Center at 301-816-5100 to 12VAC5-481-451 (B)(2)(d), (B)(3)(a) 5 and (C)(6)."

The NRC also revised the division name and address for submitting fingerprint records.

The purpose of the regulation is to make the fingerprinting requirement more visible and help assure the public that government is making an effort to prevent terrorists from obtaining radioactive materials for their activities.

Rationale for Using Fast-Track Process: To ensure continuity of regulatory activity, the NRC will require VDH to implement the December 5, 2007, NRC Order on the date of signing the state agreement with the NRC for the transfer of authority for regulating radioactive materials, set for March 31, 2009. This deadline cannot be met through the normal regulatory process that requires about two years to complete the adoption of a regulation. The fast-track approach will reduce implementation to less than a year and allow the regulation to be in place on the date transfer of authority is projected to take place.

The regulation should be noncontroversial, since it was previously approved with no objections.

If there is an objection to the fast-track process, VDH will wait until the next revision of 12VAC5-481. We will also include the NRC notification requirement as a license condition.

Substance: This revision includes the NRC Headquarters Operation Office's phone number in three subsections. The NRC needs to be contacted along with this agency under certain situations. Also, the division name and address has changed for where licensees must submit their fingerprint records.

Issues: Primary advantages and disadvantages to the public: The primary advantage to the public is that the fingerprinting requirement is more visible as a regulation than an order issued to specific radioactive material licensees and thus the public is assured that government is making an effort to prevent terrorists from obtaining radioactive materials for their activities.

There are no disadvantages to the public in promulgating the proposed regulation.

Primary advantages and disadvantages to the agency and Commonwealth: Approving the amendment will address NRC's comment ensuring the regulation is compatible and adequate to NRC when the Commonwealth signs an agreement with the NRC for this activity.

There are no disadvantages to the agency and the Commonwealth in promulgating the proposed regulation.

The NRC has implemented the requirements in the proposed regulation by an Order issued on December 5, 2007, and required compliance by June 2, 2008. VDH will need to have these requirements in place on date of agreement with the NRC.

The Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. On March 31, 2009 the Virginia Department of Health (VDH) entered into an agreement with the U.S. Nuclear Regulatory Commission (NRC) for assuming regulatory authority of NRC's licensees located in Virginia. VDH is required to implement federal regulations and orders applicable to radioactive material licensees. Pursuant to NRC rules, VDH proposes to require in these regulations that licensees call NRC: 1) when instances of theft, sabotage, or diversion of radioactive material or of the devices occur or are attempted, 2) when through the course of the investigation, it is determined the shipment has become lost, stolen, or missing, and 3) when the results from an FBI identification and criminal history records check indicate that an individual is identified on the FBI's Terrorist Screening Data Base. These regulations require radioactive material licensees that have certain quantities of radioactive materials of concern to have individuals who have unrestricted access to these materials fingerprinted and their names compared with those on the national terrorist screening database.

Result of Analysis. The benefits likely exceed the costs for all proposed changes.

Estimated Economic Impact. On November 10, 2008 the NRC submitted a comment to VDH stating that "Virginia needs to add that the licensee must also call the NRC Headquarters Operations Center at 301-816-5100 to 12VAC5-481-451 (B)(2)(d), (B)(2)(a) 5 and (C)(6)." Section 451 (B)(2)(d) states that "After initiating appropriate response to any actual or attempted theft, sabotage, or diversion of radioactive material or of the devices, the licensee shall, as promptly as possible, notify the agency at (804) 864-8150 during normal business hours and (804) 674-2400 after hours." Section 451 (B)(3)(a) 5 states that "When, through the course of the investigation, it is determined the shipment has become lost, stolen, or missing, the licensee shall immediately notify the agency at (804) 864-8150 during normal working hours and (804) 674-2400 after hours. If after 24 hours of investigating, the location of the material still cannot be determined, the radioactive material shall be determined missing and the licensee shall immediately notify the agency at (804) 864-8150 during normal working hours and (804) 674-2400 after hours." Section 451 (C)(6) states that "The licensee shall notify the agency at (804) 864-6168 within 24 hours if the results from an FBI identification and criminal history records check indicate that an individual is identified on the FBI's Terrorist Screening Data Base."

According to VDH, calling and speaking to the NRC about incidences would most likely only involve one to five minutes of time. Also, there have been zero instances that would have necessitated such calling since the program started in 2007. Thus, the costs of the proposed new requirements are quite small. Given that the value for national security of NRC promptly becoming informed of such incidences is non-negligible, the benefits of the proposed changes exceed the costs.

Businesses and Entities Affected. The proposed amendments affect the 25 radioactive material licensees in the Commonwealth. About 12 qualify as small businesses.1

Localities Particularly Affected. The locations of licensees are not public information.

Projected Impact on Employment. The proposed amendments do not significantly affect employment.

Effects on the Use and Value of Private Property. The proposed amendments do not significantly affect the use and value of private property.

Small Businesses: Costs and Other Effects. The proposed amendments do not significantly affect costs for small businesses.

Small Businesses: Alternative Method that Minimizes Adverse Impact. The proposed amendments do not significantly affect costs for small businesses.

Real Estate Development Costs. The proposed amendments are unlikely to significantly affect real estate development costs.

Legal Mandate. The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Administrative Process Act and Executive Order Number 36 (06). Section 2.2-4007.04 requires that such economic impact analyses include, but need not be limited to, the projected number of businesses or other entities to whom the regulation would apply, the identity of any localities and types of businesses or other entities particularly affected, the projected number of persons and employment positions to be affected, the projected costs to affected businesses or entities to implement or comply with the regulation, and the impact on the use and value of private property. Further, if the proposed regulation has adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include (i) an identification and estimate of the number of small businesses subject to the regulation; (ii) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the regulation, including the type of professional skills necessary for preparing required reports and other documents; (iii) a statement of the probable effect of the regulation on affected small businesses; and (iv) a description of any less intrusive or less costly alternative methods of achieving the purpose of the regulation. The analysis presented above represents DPB's best estimate of these economic impacts.

_____________________________

1 Data source: Virginia Department of Health

Agency's Response to the Department of Planning and Budget's Economic Impact Analysis: The agency concurs with the economic impact analysis submitted by the Department of Planning and Budget.

Summary:

On March 31, 2009, the Virginia Department of Health (VDH) entered into an agreement with the U.S. Nuclear Regulatory Commission (NRC) for assuming regulatory authority of NRC's licensees located in Virginia. VDH is required to implement federal regulations and orders applicable to radioactive material licensees. Pursuant to NRC rules, the amendments require that licensees call NRC when (i) instances of theft, sabotage, or diversion of radioactive material or of the devices occur or are attempted; (ii) through the course of the investigation, it is determined the shipment has become lost, stolen, or missing; and (iii) the results from an FBI identification and criminal history records check indicate that an individual is identified on the FBI's terrorist screening database. These regulations require radioactive material licensees that have certain quantities of radioactive materials of concern to have individuals who have unrestricted access to these materials fingerprinted and their names compared with those on the national terrorist screening database.

12VAC5-481-451. Increased controls and fingerprinting.

A. Radionuclides of concern.

Radionuclide

Quantity of concern (TBq)1,2

Quantity of concern (Ci)1,2

Am-241

0.6

16

Am-241/Be

0.6

16

Cf-252

0.2

5.4

Cm-244

0.5

14

Co-60

0.3

8.1

Cs-137

1

27

Gd-153

10

270

Ir192

0.8

22

Pm-147

400

11,000

Pu-238

0.6

16

Pu-239/Be

0.6

16

Ra-226

0.4

11

Se-75

2

54

Sr-90 (Y-90)

10

270

Tm-170

200

5,400

Yb-169

3

81

Combinations of radioactive materials listed above3

See footnote below4

1The aggregate activity of multiple, collocated sources of the same radionuclides should be included when the total activity equals or exceeds the quantity of concern.

2The primary values used for compliance are TBq. The curie (Ci) values are rounded to two significant figures for informational purposes only.

3Radioactive materials are to be considered aggregated or collocated if breaching a common physical barrier (e.g., a locked door at the entrance to a storage room) would allow access to the radioactive material or devices containing the radioactive material.

4If several radionuclides are aggregated, the sum of the ratios of the activity of each source, i of radionuclide, n, A (i,n), to the quantity of concern for radionuclide n, Qn, listed for that radionuclide equals or exceeds one. [(aggregated source activity for radionuclide A) / (quantities of concern for radionuclide A)] + [(aggregated source activity for radionuclide B) / (quantities of concern for radionuclide B)] + etc…. ≥ 1.

B. The following increased controls apply to licensees who, at any given time, possess radioactive sources greater than or equal to the quantities of concern of radioactive material listed in subsection A of this section.

1. In order to ensure the safe handling, use, and control of licensed material in use and in storage, each licensee shall control access at all times to radioactive material quantities of concern and devices containing such radioactive material (devices), and limit access to such radioactive material and devices to only approved individuals who require access to perform their duties.

a. The licensee shall allow only trustworthy and reliable individuals, approved in writing by the licensee, to have unescorted access to radioactive material quantities of concern and devices. The licensee shall approve for unescorted access only those individuals with job duties that require access to such radioactive material and devices. Personnel who require access to such radioactive material and devices to perform a job duty, but who are not approved by the licensee for unescorted access, must be escorted by an approved individual.

b. For individuals employed by the licensee for three years or less, and for nonlicensee personnel, such as physicians, physicists, housekeeping personnel, and security personnel under contract, trustworthiness and reliability shall be determined at a minimum, by verifying employment history, education, personal references and fingerprinting and the review of an FBI identification and criminal history records check. The licensee shall also, to the extent possible, obtain independent information to corroborate that provided by the employee (i.e., seeking references not supplied by the individual). For individuals employed by the licensee for longer than three years, trustworthiness and reliability shall be determined, at a minimum, by a review of the employees' employment history with the licensee and fingerprinting and an FBI identification and criminal history records check.

c. Service provider licensee employees shall be escorted unless determined to be trustworthy and reliable by an NRC-required background investigation. Written verification attesting to or certifying the person's trustworthiness and reliability shall be obtained from the licensee providing the service.

d. The licensee shall document the basis for concluding that there is reasonable assurance that an individual granted unescorted access is trustworthy and reliable, and does not constitute an unreasonable risk for unauthorized use of radioactive material quantities of concern. The licensee shall maintain a list of persons approved for unescorted access to such radioactive material and devices by the licensee.

2. In order to ensure the safe handling, use and control of licensed material in use and in storage, each licensee shall have a documented program to monitor and immediately detect, assess, and respond to unauthorized access to radioactive material quantities of concern and devices. Enhanced monitoring shall be provided during periods of source delivery or shipment, where the delivery or shipment exceeds 100 times the limits in subsection A of this section.

a. The licensee shall respond immediately to any actual or attempted theft, sabotage, or diversion of such radioactive material or of the devices. The response shall include requesting assistance from a local law-enforcement agency (LLEA).

b. The licensee shall have a prearranged plan with LLEA for assistance in response to an actual or attempted theft, sabotage, or diversion of such radioactive material or of the devices that is consistent in scope and timing with a realistic potential vulnerability of the sources containing such radioactive material. The prearranged plan shall be updated when changes to the facility design or operation affect the potential vulnerability of the sources. Prearranged LLEA coordination is not required for temporary job sites.

c. The licensee shall have a dependable means to transmit information between, and among, the various components used to detect and identify an unauthorized intrusion, to inform the assessor, and to summon the appropriate responder.

d. After initiating appropriate response to any actual or attempted theft, sabotage, or diversion of radioactive material or of the devices, the licensee shall, as promptly as possible, notify the agency at (804) 864-8150 during normal business hours and (804) 674-2400 after hours and the NRC HQ Operations Center at (301) 816-5100.

e. The licensee shall maintain documentation describing each instance of unauthorized access and any necessary corrective actions to prevent future instances of unauthorized access.

3. Transportation.

a. In order to ensure the safe handling, use, and control of licensed material in transportation for domestic highway and rail shipments by a carrier other than the licensee, for quantities that equal or exceed those in subsection A of this section but are less than 100 times those in subsection A of this section, per consignment, the licensee shall:

(1) Use carriers that:

(a) Use package tracking systems,

(b) Implement methods to assure trustworthiness and reliability of drivers,

(c) Maintain constant control and/or surveillance during transit, and

(d) Have the capability for immediate communication to summon appropriate response or assistance.

(2) Verify and document that the carrier employs the measures listed in subdivision (1) above.

(3) Contact the recipient to coordinate the expected arrival time of the shipment.

(4) Confirm receipt of the shipment.

(5) Initiate an investigation to determine the location of the licensed material if the shipment does not arrive on or about the expected arrival time. When, through the course of the investigation, it is determined the shipment has become lost, stolen, or missing, the licensee shall immediately notify the agency at (804) 864-8150 during normal working hours and (804) 674-2400 after hours and the NRC HQ Operations Center at (301) 816-5100. If after 24 hours of investigating, the location of the material still cannot be determined, the radioactive material shall be determined missing and the licensee shall immediately notify the agency at (804) 864-8150 during normal working hours and (804) 674-2400 after hours and the NRC HQ Operations Center at (301) 816-5100.

b. For domestic highway and rail shipments, prior to shipping licensed radioactive material that exceeds 100 times the quantities in subsection A of this section per consignment, the licensee shall:

(1) Notify the NRC (Director, Office of Nuclear Material Safety and Safeguards, U.S. NRC, Washington, DC 20555), in writing, at least 90 days prior to the anticipated date of shipment. The NRC will issue the Order to implement the Additional Security Measures (ASMs) for the transportation of Radioactive Material Quantities of Concern (RAM QC). The licensee shall not ship this material until the ASMs for the transportation of RAM QC are implemented or the licensee is notified otherwise, in writing, by the NRC.

(2) Once the licensee has implemented the ASMs for the transportation of RAM QC, the notification requirements of subdivision 1 of this subsection shall not apply to future shipments of licensed radioactive material that exceeds 100 times the quantities listed in subsection A of this section. The licensee shall implement the ASMs for the transportation of RAM QC.

c. If a licensee employs a Manufacturer/Distributor (M&D) licensee to take possession at the licensee's location of the licensed radioactive material and ship it under its M&D license, the requirements of subdivision a and b above shall not apply.

d. If the licensee is to receive radioactive material greater than or equal to the quantities listed in subsection A of this section, per consignment, the licensee shall coordinate with the originator to:

(1) Establish an expected time of delivery; and

(2) Confirm receipt of transferred radioactive material. If the material is not received at the expected time of delivery, notify the originator and assist in any investigation.

4. In order to ensure the safe handling, use, and control of licensed material in use and in storage, each licensee that possesses mobile or portable devices containing radioactive material in quantities greater than or equal to the limits in subsection A of this section shall:

a. For portable devices, have two independent physical controls that form tangible barriers to secure the material from unauthorized removal when the device is not under direct control and constant surveillance by the licensee.

b. For mobile devices:

(1) That are only moved outside of the facility (e.g., on a trailer), have two independent physical controls that form tangible barriers to secure the material from unauthorized removal when the device is not under direct control and constant surveillance by the licensee.

(2) That are only moved inside a facility, have a physical control that forms a tangible barrier to secure the material from unauthorized movement or removal when the device is not under direct control and constant surveillance by the licensee.

c. For devices in or on a vehicle or trailer, licensees shall also utilize a method to disable the vehicle or trailer when not under direct control and constant surveillance by the licensee.

5. The licensee shall retain documentation required by this section for three years after these increased controls are no longer effective.

a. The licensee shall retain documentation regarding the trustworthiness and reliability of individual employees for three years after the individual's employment ends.

b. Each time the licensee revises the list of approved persons required in subdivision 1 d of this subsection or the documented program required by subdivision B 2 of this section, the licensee shall retain the previous documentation for three years after the revision.

c. The licensee shall retain documentation on each radioactive material carrier for three years after the licensee discontinues use of that particular carrier.

d. The licensee shall retain documentation on shipment coordination, notifications, and investigations for three years after the shipment or investigation is completed.

e. After the licensee is terminated or amended to reduce possession limits below the quantities of concern, the licensee shall retain all documentation required by this section for three years.

6. Detailed information generated by the licensee that describes the physical protection of radioactive material quantities of concern is sensitive information and shall be protected from unauthorized disclosure.

a. The licensee shall control access to its physical protection information to those persons who have an established need to know the information and are considered to be trustworthy and reliable.

b. The licensee shall develop, maintain and implement policies and procedures for controlling access to, and for proper handling and protection against unauthorized disclosure of, its physical protection information for radioactive material covered by this section. The policies and procedures shall include the following:

(1) General performance requirement that each person who produces, receives, or acquires the licensees sensitive information, protect the information from unauthorized disclosure;

(2) Protection of sensitive information during use, storage, and transit;

(3) Preparation, identification or marking, and transmission;

(4) Access controls;

(5) Destruction of documents;

(6) Use of automatic data processing systems; and

(7) Removal from the licensee's sensitive information category.

C. Fingerprinting.

1. Licensees who possess radionuclides in quantities greater than those listed in subsection A of this section shall establish and maintain a fingerprinting program that meets the following:

a. Each licensee subject to these provisions shall fingerprint each individual who is seeking unescorted access to risk significant radioactive materials equal to or greater than the quantities listed in subsection A of this section. The licensee shall review and use the information received from the Federal Bureau of Investigation (FBI) identification and criminal history records check and ensure that the provisions in this subsection are satisfied;

b. The licensee shall notify each affected individual that the fingerprints will be used to secure a review of his criminal history record and inform the individual of the procedures for revising the record or including an explanation in the record as specified in subdivision 3 of this subsection;

c. Fingerprints for unescorted access need not be taken if an employed individual (e.g., a licensee employee, contractor, manufacturer, or supplier) is relieved from the fingerprinting requirement by 10 CFR 73.61, or any person who has been favorably decided by a U.S. government program involving fingerprinting and an FBI identification and criminal history records check (e.g., National Agency Check, Transportation Worker Identification Credentials in accordance with 49 CFR Part 1572, Bureau of Alcohol Tobacco Firearms and Explosives background checks and clearances in accordance with 27 CFR Part 555, Health and Human Services security risk assessments for possession and use of select agents and toxins in accordance with 42 CFR Part 73, Hazardous Material security threat assessment for hazardous material endorsement to commercial drivers license in accordance with 49 CFR Part 1572, Customs and Border Patrol's Free and Secure Trade Program (Note 1: within the last five calendar years, or any person who has an active federal security clearance provided in the latter two cases that they make available the appropriate documentation; Note 2: Written confirmation from the agency/employer that granted the federal security clearance or reviewed the FBI criminal history records results based upon a fingerprint identification check must be provided. The licensee must retain this documentation for a period of three years from the date the individual no longer requires unescorted access to certain radioactive material associated with the licensee's activities.));

d. All fingerprints obtained by the licensee pursuant to this section must be submitted to the NRC (Division of Facilities and Security, 11545 Rockville Pike, ATTN: Criminal History Program, Mail Stop T-6E46, Rockville, MD 20852) (Office of Administration, Security Processing Unit, Mail Stop TWB-05 B32M, US NRC, Washington, DC 20555-0012) for transmission to the FBI. Additionally, the licensee shall submit a certification of the trustworthiness and reliability of the Trustworthy & Reliability (T & R) Official as determined in accordance with subdivision 5 of this subsection. (See the NRC's website at www.nrc.gov for more information on submitting fingerprints, including pricing and address changes). The licensee shall review the information received from the FBI and consider it, in conjunction with the trustworthiness and reliability requirements of subdivision B 1 of this section, in making a determination whether to grant unescorted access to certain radioactive materials;

e. The licensee shall use any information obtained as part of a criminal history records check solely for the purpose of determining an individual's suitability for unescorted access to risk significant radioactive materials equal to or greater than the quantities listed in subsection A of this section; and

f. The licensee shall document the basis for its determination whether to grant or continue to allow unescorted access to risk significant radioactive materials equal to or greater than those listed in subsection A of this section.

2. Prohibitions. A licensee shall not base a final determination to deny an individual unescorted access to certain radioactive material solely on the basis of information received from the FBI involving: an arrest more than one year old for which there is no information of the disposition of the case, or an arrest that resulted in dismissal of the charge or an acquittal. A licensee shall not use information received from a criminal history check obtained pursuant to this section in a manner that would infringe upon the rights of any individual under the First Amendment to the Constitution of the United States, nor shall the licensee use the information in any way that would discriminate among individuals on the basis of race, religion, national origin, sex, or age.

3. Right to correct and complete information. Prior to any final adverse determination, the licensee shall make available to the individual the contents of any criminal records obtained from the FBI for the purpose of assuring correct and complete information. Written confirmation by the individual of receipt of this notification must be maintained by the licensee for a period of one year from the date of the notification. If, after reviewing the record, an individual believes that it is incorrect or incomplete in any respect and wishes to change, correct, or update the alleged deficiency, or to explain any matter in the record, the individual may initiate challenge procedures. These procedures include either direct application by the individual challenging the record to the agency (i.e., law-enforcement agency) that contributed the questioned information, or direct challenge as to the accuracy or completeness of any entry on the criminal history record to the Assistant Director, Federal Bureau of Investigation Identification Division, Washington, DC 20537-9700. In the latter case, the FBI forwards the challenge to the agency that submitted the data and requests that agency to verify or correct the challenged entry. Upon receipt of an official communication directly from the agency that contributed the original information, the FBI Identification Division makes any changes necessary in accordance with the information supplied by that agency.

The licensee must provide at least 10 days for an individual to initiate an action challenging the results of an FBI identification and criminal history records check after the record is made available for his review. The licensee may make a final unescorted access to certain radioactive material determination based upon the criminal history record only upon receipt of the FBI's ultimate confirmation or correction of the record. Upon a final adverse determination on unescorted access to certain radioactive material, the licensee shall provide the individual its documented basis for denial. Unescorted access to certain radioactive material shall not be granted to an individual during the review process.

4. Protection of information.

a. Each licensee who obtains a criminal history record on an individual pursuant to this section shall establish and maintain a system of files and procedures for protecting the record and the personal information from unauthorized disclosure.

b. The licensee may not disclose the record or personal information collected and maintained to persons other than the subject individual, his representative, or to those who have a need to access the information in performing assigned duties in the process of determining unescorted access to certain radioactive material. No individual authorized to have access to the information may re-disseminate the information to any other individual who does not have a need to know.

c. The personal information obtained on an individual from a criminal history record check may be transferred to another licensee if the licensee holding the criminal history record check receives the individual's written request to re-disseminate the information contained in his file, and the gaining licensee verifies information such as the individual's name, date of birth, social security number, sex, and other applicable physical characteristics for identification purposes.

d. The licensee shall make criminal history records obtained under this section available for examination by an authorized representative of VDH to determine compliance with the regulations.

e. The licensee shall retain all fingerprints and criminal history records from the FBI, or a copy if the individual's file has been transferred, for three years after termination of employment or determination of unescorted access to certain radioactive material (whether unescorted access was approved or denied). After the required three-year period, these documents shall be destroyed by a method that will prevent reconstruction of the information in whole or in part.

5. Trustworthy & Reliability Official.

a. The licensee shall provide under oath or affirmation, a certification to the agency that the T & R Official (an individual with the responsibility to determine the trustworthiness and reliability of another individual requiring unescorted access to the radioactive materials identified in subsection A of this section) is deemed trustworthy and reliable by the licensee as required in subdivision 5 b below.

b. The T & R Official, if he does not require unescorted access, must be deemed trustworthy and reliable by the licensee in accordance with the requirements of subdivision B 1 of this section before making a determination regarding the trustworthiness and reliability of another individual. If the T & R Official requires unescorted access, the licensee must consider the results of fingerprinting and the review of an FBI identification and criminal history records check as a component in approving a T & R Official.

6. The licensee shall notify the agency at (804) 864-6168 and the NRC HQ Operations Center at (301) 816-5100 within 24 hours if the results from an FBI identification and criminal history records check indicate that an individual is identified on the FBI's Terrorist Screening Data Base.

7. Prior to requesting fingerprints from any individual, the licensee shall provide a copy of 12VAC5-481-451 to that individual.

VA.R. Doc. No. R09-1739; Filed May 29, 2009, 10:15 a.m.
TITLE 12. HEALTH
STATE BOARD OF HEALTH
Proposed Regulation

Title of Regulation: 12VAC5-650. State Board of Health Schedule of Civil Penalties (adding 12VAC5-650-10 through 12VAC5-650-100).

Statutory Authority: § 32.1-164 of the Code of Virginia.

Public Hearing Information: No public hearings are scheduled.

Public Comments: Public comments may be submitted until 5 p.m. on August 21, 2009.

Agency Contact: Allen Knapp, Environmental Health Coordinator, Department of Health, 109 Governor St., Richmond, VA 23219, telephone (804) 864-7458, FAX (804) 864-7475, or email allen.knapp@vdh.virginia.gov.

Basis: Section 32.1-164 J (effective July 1, 2009) of the Code of Virginia requires the State Board of Health to establish a uniform schedule of civil penalties for violations of regulations promulgated pursuant to § 32.1-164 B (collection, conveyance, transportation, treatment, and disposal of sewage by onsite sewage systems and alternative discharging sewage systems and the maintenance, inspection, and reuse of alternative onsite sewage systems) that are not remedied within 30 days after service of notice from the Department of Health.

Purpose: The proposed regulation, while fulfilling specific statutory requirements, allows the Department of Health to employ civil penalties to enhance existing regulatory programs for supervising and controlling the safe and sanitary treatment and disposal of sewage. Currently, the department may ask for criminal penalties (Class I misdemeanor), may initiate civil proceedings, and may collect civil charges only with the consent of the affected party. Under the proposed regulation, the department may charge civil penalties in amounts that are relatively small in comparison to existing penalties. The goal of the regulation is to enhance the department's ability to protect public health and the environment by providing an enforcement tool that may be scaled to match the seriousness of a violation.

Substance: The proposed regulation specifies uniform penalties for violations of the board's regulations. The penalty for any one violation may not exceed $100 for the initial violation and $150 for each additional violation. Each day during which a violation is found to exist will constitute a separate offense; however, violations arising from the same set of operative facts may not be charged more than once in any 10-day period. A series of violations arising from the same set of operative facts may not result in civil penalties exceeding a total of $3,000. The department may not charge civil penalties in cases where an unoccupied structure does not contribute to pollution of public or private water supplies or to the contraction or spread of disease. The department may pursue other remedies as provided by law; however, civil penalties must be in lieu of criminal penalties, except where a violation contributes to or is likely to contribute to the pollution of public or private water supplies or the contraction or spread of disease. The department may issue a civil summons ticket as provided by law for a scheduled violation.

Issues: The primary advantage to the public comes from improving the department's ability to protect citizens and the environment from the harmful effects of sewage. As the number of alternative onsite sewage systems in the Commonwealth continues to increase, citizens, local governments, regulators, and onsite sewage professionals agree that ongoing operation, maintenance, and monitoring of these systems is essential to ensure that they function properly. When these systems are not properly maintained and operated, they may discharge untreated or partially treated sewage directly into the Commonwealth's ground and surface waters. The board's regulations and policies increasingly require owners of alternative onsite sewage systems to perform certain activities, such as monitoring inspections and maintenance, to ensure that systems are operating properly. The ability to assess civil penalties, as an alternative to criminal enforcement, is a more effective enforcement strategy to employ in such a "performance-based" regulatory program. A disadvantage, expressed by some in the regulated communities, is that department staff may misuse or abuse the new penalties.

Civil penalties will improve the department's ability to enforce the board's regulations by providing another enforcement tool. Existing statutes provide for enforcement actions via the Administrative Process Act (APA) such as informal fact-finding conferences to make case decisions, e.g., permit suspension, revocation, the issuance of orders by the board, civil actions in circuit courts, and criminal actions. These are relatively "heavy" actions that are appropriate in some cases. Currently, civil charges can only be collected with the consent of the affected party and are employed in conjunction with a consent order. Properly used, civil penalties can be viable alternatives when existing enforcement tools are too heavy-handed for many routine enforcement actions. Civil penalties are not intended to be punitive, but are intended to encourage compliance with environmental health regulations before a situation deteriorates to the point that heavier enforcement is warranted. A disadvantage to the agency will be the perceived drains on agency staff and resources required to implement the new civil penalties.

Civil penalties are particularly critical for managing the onsite sewage and alternative discharging sewage system programs. Several local governments have enacted ordinances requiring operation and maintenance of alternative onsite sewage systems. The department is currently developing new regulations for the board that will require routine monitoring, maintenance, and reporting for alternative onsite systems. These are already required in the alternative discharging system program. Typically, an owner is responsible for maintaining a contract with a private-sector provider to perform routine inspections, tests, and maintenance. The owner (or the provider) must forward inspection reports and test results to the department. Criminal or other "heavy" enforcement actions are not appropriate for situations, such as the failure to submit a report or keep a maintenance contract in effect. Civil penalties will provide options for the department to scale its enforcement actions to the seriousness of a particular situation. The department will develop administrative guidelines for implementing the civil penalties. These guidelines will seek to ensure that the penalties are not abused or misused by staff.

The Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. Pursuant to Chapter 514 of the 2007 Virginia Acts of Assembly the State Board of Health (Board) is proposing to establish a uniform schedule of civil penalties for violations of regulations pertaining to onsite sewage and alternative discharge sewage treatment systems.

Result of Analysis. The benefits likely exceed the costs for all proposed changes.

Estimated Economic Impact. Chapter 514 of the 2007 Virginia Acts of Assembly amended Virginia Code § 32.1-164 to state that:

The Board shall establish a uniform schedule of civil penalties for violations of regulations (concerning the collection, conveyance, transportation, treatment and disposal of sewage by onsite sewage systems and alternative discharging sewage systems)… that are not remedied within 30 days after service of notice from the Department (of Health). Civil penalties collected pursuant to this chapter shall be credited to the Environmental Health Education and Training Fund ….

Further,

This schedule of civil penalties shall be uniform for each type of specified violation, and the penalty for any one violation shall be not more than $100 for the initial violation and not more than $150 for each additional violation. Each day during which the violation is found to have existed shall constitute a separate offense. However, specified violations arising from the same operative set of facts shall not be charged more than once in any 10-day period, and a series of specified violations arising from the same operative set of facts shall not result in civil penalties exceeding a total of $3,000.

The Board proposes the following civil penalties, which are consistent with the statute:

• For installation, modification, use, or operation without a permit, $100 for the first violation, $150 for each additional violation.

• For the discharge of sewage onto the ground or into water without a permit, $100 for the first violation, $150 for each additional violation.

• For failure to obtain or maintain a contract in accordance with board regulations, $50 for the first violation, $100 for each additional violation.

• For failure to submit a test result or report in accordance with board regulations, $50 for the first violation, $100 for each additional violation.

• For engaging in unlawful transportation or handling of sewage or septage, $100 for the first violation, $150 for each additional violation.

• For other unlawful acts described in the regulations, $25 for the first violation, $50 for each additional violation.

Prior to the establishment of civil penalties, the Virginia Department of Health may only enforce the Board's regulations via permit suspension or revocation, the issuance of orders by the Board, civil actions in circuit courts, or by criminal actions, which are all relatively heavy-handed punishments. The Department and Board have at times been reluctant to issue these heavy-handed punishments for routine enforcement actions. Additionally, civil charges can only be collected with the consent of the affected party and are employed in conjunction with a consent order. The proposed civil penalties, which do not require a consent order, may be enough to discourage violations that put public health at risk and cause less harm to recipients (of the penalties) than the more heavy-handed options. Thus, providing this tool to the Board and Department will likely provide a net benefit.

Businesses and Entities Affected. The proposed amendments potentially affect homeowners and businesses who own onsite and alternative discharging sewage systems, onsite sewage system installers, and individuals and businesses that provide maintenance services such as pumpouts, and repair or replacement of systems or system components. The Virginia Department of Health estimates that between 175 and 350 entities may be affected each year because of a sewage system malfunction that is not remedied within 30 days, and approximately 66 entities may incur a civil penalty.

Localities Particularly Affected. The proposed amendments do not disproportionately affect particular localities.

Projected Impact on Employment. The proposal to establish a uniform schedule of civil penalties for violations of regulations pertaining to onsite sewage and alternative discharge sewage treatment systems will not likely significantly affect employment.

Effects on the Use and Value of Private Property. The proposal to establish a uniform schedule of civil penalties for violations of regulations pertaining to onsite sewage and alternative discharge sewage treatment systems may result in some homeowners and businesses receiving civil penalties who may not have otherwise been so fined. Thus, they may have a moderate reduction in property value. On the other hand, the threat of civil penalties may encourage homeowners and businesses to not violate the Board's regulations which could result in higher property values for neighboring properties.

Small Businesses: Costs and Other Effects. The proposal to establish a uniform schedule of civil penalties for violations of regulations pertaining to onsite sewage and alternative discharge sewage treatment systems may result in some small businesses receiving civil penalties who may not have otherwise been so fined. On the other hand, the threat of civil penalties may encourage homeowners and businesses to not violate the Board regulations which could result in higher property values for neighboring small businesses.

Small Businesses: Alternative Method that Minimizes Adverse Impact. There is no clear alternative that would produce less cost while still reaping the same benefits.

Real Estate Development Costs. For firms and other entities that abide by the Board's regulations pertaining to onsite sewage and alternative discharge sewage treatment systems, the proposal to establish a uniform schedule of civil penalties for violations produces no cost. To the extent that the civil penalties discourage sewage violations from neighbors and previous property owners, the proposal to establish a uniform schedule of civil penalties for violations of regulations pertaining to onsite sewage and alternative discharge sewage treatment systems may reduce real estate development costs.

Legal Mandate. The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Administrative Process Act and Executive Order Number 36 (06). Section 2.2-4007.04 requires that such economic impact analyses include, but need not be limited to, the projected number of businesses or other entities to whom the regulation would apply, the identity of any localities and types of businesses or other entities particularly affected, the projected number of persons and employment positions to be affected, the projected costs to affected businesses or entities to implement or comply with the regulation, and the impact on the use and value of private property. Further, if the proposed regulation has adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include (i) an identification and estimate of the number of small businesses subject to the regulation; (ii) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the regulation, including the type of professional skills necessary for preparing required reports and other documents; (iii) a statement of the probable effect of the regulation on affected small businesses; and (iv) a description of any less intrusive or less costly alternative methods of achieving the purpose of the regulation. The analysis presented above represents DPB's best estimate of these economic impacts.

Agency's Response to the Department of Planning and Budget's Economic Impact Analysis: The agency concurs with the economic impact analysis submitted by the Department of Planning and Budget.

Summary:

This proposed regulation establishes a uniform schedule of civil penalties for violations of the Board of Health's regulations pertaining to conventional and alternative onsite sewage systems, and for violations of the Board of Health's regulations pertaining to alternative discharging sewage treatment systems for individual single family homes.

CHAPTER 650
STATE BOARD OF HEALTH SCHEDULE OF CIVIL PENALTIES

12VAC5-650-10. Definitions.

The following words and terms used in this chapter have the following meanings unless the context clearly indicates otherwise:

"Board" means the State Board of Health.

"Department" means the Virginia Department of Health.

"Transportation of sewage or septage" means actions associated with removing septage, sludge, or sewage from an onsite sewage system, a sewerage system, or other treatment works, including, but not limited to, using a pump or other device or gravity flow to collect septage, sludge, or sewage in a tank or other vessel intended to contain the septage, sludge, or sewage during transport to another location.

12VAC5-650-20. Purpose and authority.

The board has promulgated this chapter to:

1. Establish a uniform schedule of civil penalties for violations of 12VAC5-610, the Sewage Handling and Disposal Regulations (or successor), and 12VAC5-640, the Alternative Discharging Sewage Treatment Regulations for Individual Single Family Dwellings (or successor);

2. Support enforcement activities necessary to discharge the board's responsibility to supervise and control the safe and sanitary collection, conveyance, transportation, treatment, and disposal of sewage as they affect the public health and welfare;

3. Support enforcement activities necessary to discharge the board's responsibility to exercise due diligence to protect the quality of ground and surface waters; and

4. Guide the State Health Commissioner in charging civil penalties.

12VAC5-650-30. Applicability.

A. This chapter applies only in those localities where the local government has entered into a contract with the department for the operation of local and district health departments. It does not apply in any locality that has not entered into such a contract.

B. This chapter applies to those activities conducted pursuant to 12VAC5-610 and 12VAC5-640 or successor regulations promulgated by the board as described herein. Except as provided in § 32.1-164 J of the Code of Virginia, this chapter may not be construed to limit the board's or the commissioner's authority to enforce any law or regulation administered by the board or to enforce any order of the board.

12VAC5-650-40. Administration.

A. The board has the responsibility to promulgate, amend, and repeal regulations necessary to ensure the safe and sanitary handling and disposal of sewage via onsite sewage systems and alternative discharging sewage systems as these affect public health. Nothing in this chapter may be construed to limit the board's authority to enforce any law administered by it, any regulation promulgated by it, or any case decision rendered by it or by the commissioner.

B. The State Health Commissioner is the chief executive officer of the department. The commissioner has the authority to act, within the scope of regulations promulgated by the board, for the board when it is not in session. The department is designated as the primary agent of the commissioner for the purpose of administering this chapter. The commissioner may delegate his powers under this chapter.

C. Section 32.1-30 of the Code of Virginia requires each county and city to establish and maintain a local department of health that is responsible for enforcing all health laws of the Commonwealth and regulations of the board. With the concurrence of each county and city government affected, the commissioner may create a district health department composed of such local health departments. The commissioner appoints the local or district health director in those localities that enter into a contract with the department for the operation of the local or district health department. In such localities the local or district health director is responsible for implementing this chapter. The authority to implement this chapter is hereby delegated to local and district health directors who are employees of the department; such local and district health directors may delegate to subordinates as they deem necessary. Nothing in this section may be construed as limiting the commissioner's authority to delegate his powers as provided in law.

12VAC5-650-50. Conduct declared unlawful.

The following conduct is hereby declared unlawful and subject to civil penalties in accordance with this chapter:

1. Violation of any provision of 12VAC5-610, the Sewage Handling and Disposal Regulations or successor regulation promulgated by the board, including failure to comply with the provisions, requirements, conditions, or standards contained in a construction permit or in an operating permit.

2. Violation of any provision of 12VAC5-640, the Alternative Discharging Sewage Treatment Regulations for Individual Single Family Dwellings or successor regulation promulgated by the board, including failure to comply with the provisions, requirements, conditions, or standards contained in a construction permit or in an operating permit.

3. Failure to comply with any order issued by the board or commissioner.

12VAC5-650-60. Uniform schedule of civil penalties.

A. There is hereby established a uniform schedule of civil penalties for the following violations of the board's regulations:

1. Install or cause to install, modify or cause to modify, use or operate an onsite or alternative discharging sewage system without a permit issued by the commissioner: $100 for the first violation, $150 for each additional violation.

2. Discharge treated or untreated sewage on the surface of the ground or into the waters of the Commonwealth without a permit: $100 for the initial violation, $150 for each additional violation.

3. Fail to obtain or keep a contract for operation, maintenance, or monitoring of an onsite or alternative discharging system to the extent that such contract is a requirement of the board's regulations: $50 for the initial violation, $100 for each additional violation.

4. Fail to submit to the department a laboratory test result, or an inspection or other report to the extent that such report is a requirement of the board's regulations: $50 for the initial violation, $100 for each additional violation.

5. To the extent such activities are not regulated by another agency of the Commonwealth, engage in unlawful transportation or handling of sewage or septage: $100 for the initial violation, $150 for each additional violation.

6. Any unlawful act described in 12VAC5-650-60 not specifically described in this subsection: $25 for the initial violation, $50 for each additional violation.

B. The department may not charge civil penalties pursuant to this chapter for activities related to land development.

C. The department may not charge civil penalties pursuant to this chapter for an unoccupied structure unless such structure contributes to the pollution of public or private water supplies or the contraction or spread of infectious, contagious, or dangerous diseases.

12VAC5-650-70. Criminal prosecution precluded.

In accordance with § 32.1-164 J of the Code of Virginia, designation of a particular violation for a civil penalty pursuant to this chapter must be in lieu of criminal penalties, except for any violation that contributes to or is likely to contribute to the pollution of public or private water supplies or the contraction or spread of infectious, contagious, or dangerous diseases.

12VAC5-650-80. Civil summons ticket.

A. The department must prepare a civil summons ticket for use in implementing this chapter.

B. In addition to any information the department deems necessary, the ticket must contain the following information:

1. A statement notifying the recipient that he may make an appearance in person or in writing by mail to the department prior to the date fixed for trial in court;

2. A statement that any person so appearing may enter a waiver of trial, admit liability, and pay the civil penalty established for the offense charged;

3. The physical address, hours of operation, and mailing address for the local or district health department responsible for issuing the civil summons;

4. A statement that civil penalties may be paid only by cashier's check or certified check made payable to the Treasurer of Virginia; and

5. The date fixed for trial in general district court.

12VAC5-650-90. Authority to issue civil summons ticket; penalties collected.

A. Any employee of the department who has been delegated authority pursuant to this chapter may issue a civil summons ticket in accordance with this chapter.

1. The civil summons ticket may be delivered in person after presentation of proper credentials.

2. The department may deliver a civil summons ticket in any other manner provided by law.

B. All civil penalties collected pursuant to this chapter shall be credited to the Environmental Health Education and Training Fund established pursuant to § 32.1-248.3 of the Code of Virginia.

12VAC5-650-100. Requirements for civil summons ticket.

A. Before the department may issue any civil summons ticket pursuant to this chapter, the following must occur:

1. The department shall notify the alleged violator as required in the board's regulations;

2. At least 30 days shall have passed from the date the alleged violator received notice of the violation; and

3. The violation must remain uncorrected.

B. Violations arising from the same operative set of facts shall not be charged more than once in any 10-day period nor shall the department charge more than one civil penalty from the same set of operative facts.

VA.R. Doc. No. R08-1522; Filed June 1, 2009, 12:03 p.m.
TITLE 12. HEALTH
DEPARTMENT OF MEDICAL ASSISTANCE SERVICES
Final Regulation

Titles of Regulations: 12VAC30-10. State Plan Under Title XIX of the Social Security Act Medical Assistance Program; General Provisions (amending 12VAC30-10-560).

12VAC30-20. Administration of Medical Assistance Services (adding 12VAC30-20-141; repealing 12VAC30-20-140).

Statutory Authority: §§ 32.1-324 and 32.1-325 of the Code of Virginia.

Effective Date: July 23, 2009.

Agency Contact: Kathy Colley, Fiscal Division, Department of Medical Assistance Services, 600 East Broad Street, Suite 1300, Richmond, VA 23219, telephone (804) 786-3839, FAX (804) 786-1680, or email kathy.colley@dmas.virginia.gov.

Summary:

The amendments update and clarify the current regulations regarding Medicaid estate recovery carried out by the Department of Medical Assistance Services. This regulatory action more closely reflects current agency practice based upon language provided by the federal Medicaid agency, the Centers for Medicare and Medicaid Services, in its guidance document publication titled "State Medicaid Manual." This change repeals 12VAC30-20-140 (Estate Recoveries) in order to repromulgate this section in a restructured and revised format as 12VAC30-20-141. This regulatory action adds new definitions for "cost effective" and "homestead of modest value." The definitions for "estate" and "applicable medical payments" are deleted from 12VAC30-10-560 and moved into new 12VAC30-20-141. This revision also includes the exemption from Medicaid estate recovery for American Indian/Alaska Native income, resources, and property as defined in the federal State Medicaid Manual. Consistent with the State Medicaid Manual, assets or resources that were disregarded due to an authorized state long-term medicaid insurance partnership policy are being exempted from estate recovery actions.

In response to public comment, changes reflected in the final regulation include (i) modifying the definition of "homestead of modest value" to incorporate the term "median" in addition to "average price"; (ii) clarifying new policies by adding references concerning their application to services received by recipients age 55 or older; (iii) clarifying new policies by using specific terms more consistently; and (iv) correcting regulatory text to show that anyone can apply for a hardship waiver, but DMAS will decide, pursuant to its regulations, if such an application has merit.

Summary of Public Comments and Agency's Response: No public comments were received by the promulgating agency.

12VAC30-10-560. Liens and recoveries.

Liens are not imposed against an individual's property.

A. Adjustments or recoveries for Medicaid claims correctly paid are as follows: See 12VAC30-20-140 12VAC30-20-141.

1. For permanently institutionalized individuals, adjustments or recoveries are made from the individual's estate.

2. For any individual who received medical assistance at age 55 or older, recovery of payments are made for nursing facility services, home- and community-based services, and related hospital and prescription drug services.

Payments are recovered for all services covered under the plan which are provided to individuals at age 55.

3. For any individual with long-term care insurance policies, if assets or resources are disregarded, recovery is made for all Medicaid costs for nursing facility and other long-term care services from the estate of persons who have such policies.

4. 3. If an individual covered under a qualified long-term care partnership insurance policy pursuant to § 32.1-325 of the Code of Virginia received benefits for which assets or resources were disregarded as provided for in 12VAC30-40-290 G, the state Commonwealth does not seek adjustment or recovery from the individual's estate for the amount of assets or resources disregarded.

B. No money payments under another program are reduced as a means of recovering Medicaid claims incorrectly paid.

C. Liens. See 12VAC30-20-130.

1. Specifies the process for determining that an institutionalized individual cannot reasonably be expected to be discharged from the medical institution and return home; the description of the process meets the requirements of 42 CFR 433.36(d).

The Commonwealth does not impose liens [ ; ] therefore [ , ] this subsection is not applicable.

2. Specifies the criteria by which a son or daughter can establish that he or she has been providing care under 42 CFR 433.36(f).

[ The Commonwealth does not impose liens; therefore, this subsection is not applicable. ]

3. Definitions: individual's home; equity interest in home; residing in home for at least 1 or 2 years, on a continuing basis; discharge from the medical institution and return home; and lawfully residing.

The Commonwealth does not impose liens [ ; ] therefore [ , ] this subsection is not applicable.

D. Estate recoveries. 1. Definitions.

"Applicable medical assistance payments" means the amount of any medical assistance payments made on behalf of an individual under Title XIX of the Social Security Act.

"Estate" means with respect to a deceased individual, (i) all real and personal property and other assets held by the individual at the time of death and (ii) any other real and personal property and other assets in which the individual had any legal title or interest (to the extent of such interest) at the time of death. 2. 12VAC30-20-140 further 12VAC30-20-141 (Attachment 4.17-C) specifies the policy for estate recoveries.

12VAC30-20-140. Estate recoveries. (Repealed.)

A. General. Under the authority and consistent with the requirements of the Social Security Act § 1917, the Commonwealth recovers certain Medicaid benefits when they have been correctly paid on behalf of certain individuals. The Commonwealth seeks recovery for all services which have been paid for consistent with the coverage and reimbursement policies in the State Plan for Medical Assistance.

B. Identification of deceased recipients' estates. The Medical Assistance Title XIX agency shall take all reasonable measures to determine the existence of deceased eligible individuals with recoverable estates.

C. Initiation of claim and recovery.

1. The Medical Assistance Title XIX agency's estate recovery unit will review and initiate recovery activities for all deceased eligible individual's estates identified which meet agency minimum criteria defined in subsection B of this section. A review of all deceased eligible individuals' applicable medical assistance payments paid correctly must be performed to determine the amount of the Commonwealth's claim against the estate. A "Notice of Claim" shall be sent to the deceased eligible individual's estate administrator or executor upon determination that estate recovery meets the minimum criteria. The "Notice of Claim" shall include, at minimum, (i) the deceased eligible individual's identification information, (ii) the claim amount, (iii) the agency contact, and (iv) the attached summary of applicable medical claims paid. The "Notice of Claim" shall also contain, but not necessarily be limited to, information regarding the exclusions identified below, the applicant's right to appeal, and the hardship rule.

2. The Medical Assistance Title XIX agency will, at a minimum, initiate recovery when the following conditions are met:

a. Legal estate administrator or executor has been verified.

b. Dollar amount of applicable medical assistance payments (claim amount) and estate meets agency cost effective threshold. The Title XIX agency will determine a cost effective threshold based on the administrative costs to pursue recovery from an estate. The Title XIX agency will adjust the cost effective threshold as the agency's administrative costs change. Recovery shall not be initiated unless both the amount of the claim and the value of the estate at least exceed the administrative cost of recovery.

c. Deceased eligible was single or surviving spouse is deceased.

d. Deceased eligible has no surviving children under 21 or children who are blind or disabled.

e. Deceased eligible was 55 years of age or older when the individual received such medical assistance.

f. Deceased eligible had no surviving sibling who had an equity interest in the deceased's home and such sibling resided in the property for at least one year prior to the deceased's entering a nursing facility.

3. Appeals related to the recovery of funds will be administered by the Medical Assistance Title XIX agency.

4. The Medical Assistance Title XIX agency will pursue recovery only to the extent that payments for applicable medical claims have been correctly made under the State Plan for Medical Assistance.

D. Hardship clause. The Medical Assistance Title XIX agency shall waive its claim if it determines that enforcement of the claim would result in substantial hardship to the devisees, legatees, and heirs or dependents of the individual against whose estate the claim exists. Special consideration shall be given to cases in which the estate subject to recovery is (i) the sole income-producing asset of survivors (where such income is limited), such as a family farm or other business, or (ii) a homestead of modest value, or (iii) other compelling circumstances. In cases where recovery is not waived and beneficiaries of the estate from which recovery is sought wish to satisfy the Commonwealth's claim without selling a nonliquid asset which is subject to recovery, alternative methods of recovery may be considered.

E. If an individual covered under a long-term care partnership insurance policy received benefits for which assets or resources were disregarded as provided for in 12VAC30-40-290 G, the state does not seek adjustment or recovery from the individual's estate for the amount of assets or resources disregarded.

12VAC30-20-141. Estate recoveries.

A. Definitions. The following words and terms when used in this regulation shall have the following meanings unless the context clearly indicates otherwise:

"Act" means the Social Security Act (42 USC § 1396) as applicable.

"Applicable medical assistance payment" means the amount of any medical assistance payments made on behalf of an individual under Title XIX of the Social Security Act.

"Claim" means, for the purposes of this section, action taken by DMAS to recover from the estate of an individual, who was age 55 or older when that person received medical assistance, the total amount of assistance paid for services consistent with the coverage and reimbursement policies in the State Plan for Medical Assistance.

"Cost effective" means that both the dollar amount of the medical assistance payments (claim) and the value of the estate at least exceed the administrative costs of recovery.

"Dual eligibles" mean individuals who are entitled to Medicare hospital insurance under Part A or supplementary medical insurance under Part B, or both, and are eligible for some form of Medicaid benefit.

"Estate" means, with respect to a deceased individual, (i) all real and personal property and other assets held by the individual at the time of death and (ii) any other real and personal property and other assets in which the individual had any legal title or interest (to the extent of such interest) at the time of his death.

"Homestead of modest value" means a home that is worth 50% or less of the average [ or median ] price, as contained in the most recent U.S. Census data [ or any other such source of home value information as published in the agency's guidance documents ] , of homes in the county or city, as appropriate, where the homestead is located as of the date of the individual's death.

"Undue hardship" means that DMAS has determined that enforcement of a claim to recover Medicaid benefits would result in substantial hardship to the devisees, legatees, and heirs or dependents of the deceased individual against whose estate the Medicaid claim exists.

B. Under the authority and consistent with the requirements of the Social Security Act § 1917 (the Act), the Commonwealth shall recover applicable medical assistance payments when such payments have been correctly or incorrectly paid on behalf of certain individuals. The Department of Medical Assistance Services (DMAS) shall provide notice of the Commonwealth's Medicaid estate recovery program at the time of application for medical assistance.

C. Adjustment and recovery. Adjustment or recovery can only be made after the death of the individual's surviving spouse, if any, and only at a time when the individual has no surviving child under age 21, or a blind or disabled child as defined in § 1614 of the Act. The Commonwealth shall seek adjustment or recovery of all medical assistance payments correctly paid on behalf of an individual [ who is age 55 or older ] under the State Plan as follows:

1. The Commonwealth shall seek adjustment or recovery from the estate of an individual who was age 55 or older when that person received medical assistance. The Commonwealth shall recover amounts up to the total amount spent on the individual's behalf for medical assistance for all items or services provided for the individual under the State Plan.

2. The Commonwealth shall recover from the estates of the following dual eligibles who receive full Medicaid benefits in addition to Medicare: (i) qualified Medicare beneficiaries with full Medicaid benefits (QMB Plus), (ii) specified low-income Medicare beneficiaries with full Medicaid benefits (SLMB Plus), and (iii) Medicare beneficiaries eligible for a limited package of Medicaid benefits [ QMB non-QMB ] , SLMB, qualified individuals (QI) or qualified disabled and working individuals (QDWI)). The Commonwealth shall recover from the individual's estate for all medical assistance payments made on behalf of the individual. In addition, the Commonwealth shall include in the Commonwealth's claim against the estate, amounts expended for Medicare cost-sharing or Medicare premiums, or both.

3. The Commonwealth shall recover from individuals with long-term care insurance policies. [ The However, the ] Commonwealth shall not seek adjustment or recovery from the individual's estate for all Medicaid costs for nursing facility and other long-term care services if assets or resources are disregarded to the extent of payments made under a qualified long-term care partnership insurance policy.

4. Estate recovery and managed care. When a Medicaid beneficiary is enrolled in a managed care organization and services are provided by the managed care organization that are included under the State Plan, the Commonwealth shall seek adjustment or recovery from the individual's estate for the [ premium capitation ] payments in the Commonwealth's claim against the estate. When the individual enrolls in the managed care organization, the Commonwealth shall provide a separate notice to the individual that explains that the [ premium capitation ] payments made to the managed care organization are included in whole in the claim against the estate. The Commonwealth shall recover from the individual's estate the total capitation rate for the period the individual was enrolled in the managed care organization.

5. The following American Indian/Alaska Native (AI/AN) income, resources, and property shall be exempt from Medicaid estate recovery pursuant to § 1917(b)(3) of the Act for hardship applicable to federally recognized tribes:

a. Certain AI/AN income and resources (such as interests in and income derived from tribal land and other resources currently held in trust status and judgment funds from the Indian Claims Commission and the U.S. Claims Court) that are exempt from Medicaid estate recovery by other laws and regulations;

b. Ownership interest in trust or nontrust property, including real property and improvements:

(1) Located on a reservation (any federally recognized Indian tribe's reservation or near a reservation) as designated and approved by the Bureau of Indian Affairs of the U.S. Department of the Interior; or

(2) For any federally recognized tribe not described in this subdivision, located within the most recent boundaries of a prior federal reservation.

(3) Protection of nontrust property described in this subdivision is limited to circumstances when it passes from an Indian (as defined in § 4 of the Indian Health Care Improvement Act, 25 USC §§ 1601-1683) to one or more relatives (by blood, adoption, or marriage), including Indians not enrolled as members of a tribe and non-Indians, such as spouses and step-children, that their culture would nevertheless protect as family members; to a tribe or tribal organization or to one or more Indians, or all of these;

c. Income left as a remainder in an estate derived from property protected in this subdivision, that was either collected by an Indian, or by a tribe or tribal organization and distributed to an Indian or Indians, as long as the individual can clearly trace such income as coming from the protected property.

d. Ownership interests left as a remainder in an estate in rents, leases, royalties, or usage rights related to natural resources (including, but not necessarily limited to, extraction of natural resources or harvesting of timber, other plants and plant products, animals, fish, and shellfish) resulting from the exercise of federally protected rights, and income either collected by an Indian, or by a tribe or tribal organization and distributed to an Indian or Indians derived from these sources as long as the individual can clearly trace the interest as coming from protected sources.

e. Ownership interests in or usage rights to items not covered by this subdivision that have unique religious, spiritual, traditional, or cultural significance or rights, or all of these, that support subsistence or a traditional lifestyle according to applicable tribal law or custom.

6. The Commonwealth shall recover the following income, resources and property from the estates of American Indians and Alaska Natives:

a. Ownership interests in assets and property, both real and personal, that are not described in this subdivision.

b. Any income and assets left as a remainder in an estate that do not derive from protected property or sources in this subdivision.

7. Reparation payments to individuals. Government reparation payments to special populations shall be exempt from Medicaid estate recovery.

8. Annuities. The Commonwealth considers annuities to be legal devices by which ownership of assets, such as estates, is defined and therefore may seek recovery from individuals' estates that may include such annuities. [ This provision is effective for deaths or estates that are opened 90 days after the Commonwealth meets applicable state and federal law for appropriate notice and due process. ]

D. Undue hardship. Whenever estate recovery would work an undue hardship on the deceased individual's heirs, the Commonwealth shall waive adjustment or recovery. Recovery from deceased individuals' estates shall be waived when the heirs are themselves Medicaid eligible. [ The Commonwealth shall determine whether individuals who will be affected by Medicaid estate recovery may have the right to apply for an undue hardship waiver Anyone who may be affected by Medicaid estate recovery may apply for an undue hardship waiver. DMAS shall determine the merit of such applications ].

1. Special consideration shall be shown in cases in which the estate subject to recovery is: (i) the sole income-producing asset of survivors (where such income is limited), such as a family farm or other family business; (ii) a homestead of modest value; or (iii) [ one in which ] other compelling circumstances [ exist ] as may be set out in agency guidance documents.

2. [ The Commonwealth may determine that an An ] undue hardship exists when [ the Commonwealth determines that ] it would not be cost effective to recover the assistance paid.

3. In cases where recovery is not waived and heirs of the estate from which recovery is sought wish to satisfy the Commonwealth's claim without selling a nonliquid asset that is subject to recovery, alternative methods of recovery may be considered. DMAS may also establish a reasonable payment schedule.

4. The Commonwealth may limit the hardship waiver to the time period during which the undue hardship circumstances existed or continue to exist.

5. An undue hardship shall not exist if the beneficiary created the hardship by resorting to estate planning methods under which the beneficiary divested assets in order to avoid estate recovery.

E. DMAS shall establish collection procedures to include identification of the estate administrator or executor, determination of the medical assistance claim amount, notification procedures, and such other procedures as are appropriate to pursue the recovery of medical assistance expenditures. Such procedures will be set out in an agency guidance document.

F. Recovery or adjustment not cost effective. [ DMAS shall establish a cost effectiveness threshold below which estate recovery will not be pursued. ]

1. The Commonwealth may waive adjustment or recovery in cases in which it is determined that it would not be cost effective for the Commonwealth to recover from a deceased individual's estate. The estate administrator, executor, survivor, or heir does not need to assert undue hardship in such situations.

2. In determining whether recovery would be cost effective, the department may consider, but is not limited to consideration of, the following costs: staff time, litigation costs, expert witness fees, deposition expenses, travel expenses, office supplies, postage, advertising, and publishing costs. DMAS shall adjust the cost effective threshold as the agency's administrative costs change.

G. Appeals. The DMAS Appeals Division will administer appeals related to the recovery of funds pursuant to 12VAC30-110.

VA.R. Doc. No. R07-750; Filed May 28, 2009, 2:43 p.m.
TITLE 12. HEALTH
DEPARTMENT OF MEDICAL ASSISTANCE SERVICES
Final Regulation

Titles of Regulations: 12VAC30-10. State Plan Under Title XIX of the Social Security Act Medical Assistance Program; General Provisions (amending 12VAC30-10-560).

12VAC30-20. Administration of Medical Assistance Services (adding 12VAC30-20-141; repealing 12VAC30-20-140).

Statutory Authority: §§ 32.1-324 and 32.1-325 of the Code of Virginia.

Effective Date: July 23, 2009.

Agency Contact: Kathy Colley, Fiscal Division, Department of Medical Assistance Services, 600 East Broad Street, Suite 1300, Richmond, VA 23219, telephone (804) 786-3839, FAX (804) 786-1680, or email kathy.colley@dmas.virginia.gov.

Summary:

The amendments update and clarify the current regulations regarding Medicaid estate recovery carried out by the Department of Medical Assistance Services. This regulatory action more closely reflects current agency practice based upon language provided by the federal Medicaid agency, the Centers for Medicare and Medicaid Services, in its guidance document publication titled "State Medicaid Manual." This change repeals 12VAC30-20-140 (Estate Recoveries) in order to repromulgate this section in a restructured and revised format as 12VAC30-20-141. This regulatory action adds new definitions for "cost effective" and "homestead of modest value." The definitions for "estate" and "applicable medical payments" are deleted from 12VAC30-10-560 and moved into new 12VAC30-20-141. This revision also includes the exemption from Medicaid estate recovery for American Indian/Alaska Native income, resources, and property as defined in the federal State Medicaid Manual. Consistent with the State Medicaid Manual, assets or resources that were disregarded due to an authorized state long-term medicaid insurance partnership policy are being exempted from estate recovery actions.

In response to public comment, changes reflected in the final regulation include (i) modifying the definition of "homestead of modest value" to incorporate the term "median" in addition to "average price"; (ii) clarifying new policies by adding references concerning their application to services received by recipients age 55 or older; (iii) clarifying new policies by using specific terms more consistently; and (iv) correcting regulatory text to show that anyone can apply for a hardship waiver, but DMAS will decide, pursuant to its regulations, if such an application has merit.

Summary of Public Comments and Agency's Response: No public comments were received by the promulgating agency.

12VAC30-10-560. Liens and recoveries.

Liens are not imposed against an individual's property.

A. Adjustments or recoveries for Medicaid claims correctly paid are as follows: See 12VAC30-20-140 12VAC30-20-141.

1. For permanently institutionalized individuals, adjustments or recoveries are made from the individual's estate.

2. For any individual who received medical assistance at age 55 or older, recovery of payments are made for nursing facility services, home- and community-based services, and related hospital and prescription drug services.

Payments are recovered for all services covered under the plan which are provided to individuals at age 55.

3. For any individual with long-term care insurance policies, if assets or resources are disregarded, recovery is made for all Medicaid costs for nursing facility and other long-term care services from the estate of persons who have such policies.

4. 3. If an individual covered under a qualified long-term care partnership insurance policy pursuant to § 32.1-325 of the Code of Virginia received benefits for which assets or resources were disregarded as provided for in 12VAC30-40-290 G, the state Commonwealth does not seek adjustment or recovery from the individual's estate for the amount of assets or resources disregarded.

B. No money payments under another program are reduced as a means of recovering Medicaid claims incorrectly paid.

C. Liens. See 12VAC30-20-130.

1. Specifies the process for determining that an institutionalized individual cannot reasonably be expected to be discharged from the medical institution and return home; the description of the process meets the requirements of 42 CFR 433.36(d).

The Commonwealth does not impose liens [ ; ] therefore [ , ] this subsection is not applicable.

2. Specifies the criteria by which a son or daughter can establish that he or she has been providing care under 42 CFR 433.36(f).

[ The Commonwealth does not impose liens; therefore, this subsection is not applicable. ]

3. Definitions: individual's home; equity interest in home; residing in home for at least 1 or 2 years, on a continuing basis; discharge from the medical institution and return home; and lawfully residing.

The Commonwealth does not impose liens [ ; ] therefore [ , ] this subsection is not applicable.

D. Estate recoveries. 1. Definitions.

"Applicable medical assistance payments" means the amount of any medical assistance payments made on behalf of an individual under Title XIX of the Social Security Act.

"Estate" means with respect to a deceased individual, (i) all real and personal property and other assets held by the individual at the time of death and (ii) any other real and personal property and other assets in which the individual had any legal title or interest (to the extent of such interest) at the time of death. 2. 12VAC30-20-140 further 12VAC30-20-141 (Attachment 4.17-C) specifies the policy for estate recoveries.

12VAC30-20-140. Estate recoveries. (Repealed.)

A. General. Under the authority and consistent with the requirements of the Social Security Act § 1917, the Commonwealth recovers certain Medicaid benefits when they have been correctly paid on behalf of certain individuals. The Commonwealth seeks recovery for all services which have been paid for consistent with the coverage and reimbursement policies in the State Plan for Medical Assistance.

B. Identification of deceased recipients' estates. The Medical Assistance Title XIX agency shall take all reasonable measures to determine the existence of deceased eligible individuals with recoverable estates.

C. Initiation of claim and recovery.

1. The Medical Assistance Title XIX agency's estate recovery unit will review and initiate recovery activities for all deceased eligible individual's estates identified which meet agency minimum criteria defined in subsection B of this section. A review of all deceased eligible individuals' applicable medical assistance payments paid correctly must be performed to determine the amount of the Commonwealth's claim against the estate. A "Notice of Claim" shall be sent to the deceased eligible individual's estate administrator or executor upon determination that estate recovery meets the minimum criteria. The "Notice of Claim" shall include, at minimum, (i) the deceased eligible individual's identification information, (ii) the claim amount, (iii) the agency contact, and (iv) the attached summary of applicable medical claims paid. The "Notice of Claim" shall also contain, but not necessarily be limited to, information regarding the exclusions identified below, the applicant's right to appeal, and the hardship rule.

2. The Medical Assistance Title XIX agency will, at a minimum, initiate recovery when the following conditions are met:

a. Legal estate administrator or executor has been verified.

b. Dollar amount of applicable medical assistance payments (claim amount) and estate meets agency cost effective threshold. The Title XIX agency will determine a cost effective threshold based on the administrative costs to pursue recovery from an estate. The Title XIX agency will adjust the cost effective threshold as the agency's administrative costs change. Recovery shall not be initiated unless both the amount of the claim and the value of the estate at least exceed the administrative cost of recovery.

c. Deceased eligible was single or surviving spouse is deceased.

d. Deceased eligible has no surviving children under 21 or children who are blind or disabled.

e. Deceased eligible was 55 years of age or older when the individual received such medical assistance.

f. Deceased eligible had no surviving sibling who had an equity interest in the deceased's home and such sibling resided in the property for at least one year prior to the deceased's entering a nursing facility.

3. Appeals related to the recovery of funds will be administered by the Medical Assistance Title XIX agency.

4. The Medical Assistance Title XIX agency will pursue recovery only to the extent that payments for applicable medical claims have been correctly made under the State Plan for Medical Assistance.

D. Hardship clause. The Medical Assistance Title XIX agency shall waive its claim if it determines that enforcement of the claim would result in substantial hardship to the devisees, legatees, and heirs or dependents of the individual against whose estate the claim exists. Special consideration shall be given to cases in which the estate subject to recovery is (i) the sole income-producing asset of survivors (where such income is limited), such as a family farm or other business, or (ii) a homestead of modest value, or (iii) other compelling circumstances. In cases where recovery is not waived and beneficiaries of the estate from which recovery is sought wish to satisfy the Commonwealth's claim without selling a nonliquid asset which is subject to recovery, alternative methods of recovery may be considered.

E. If an individual covered under a long-term care partnership insurance policy received benefits for which assets or resources were disregarded as provided for in 12VAC30-40-290 G, the state does not seek adjustment or recovery from the individual's estate for the amount of assets or resources disregarded.

12VAC30-20-141. Estate recoveries.

A. Definitions. The following words and terms when used in this regulation shall have the following meanings unless the context clearly indicates otherwise:

"Act" means the Social Security Act (42 USC § 1396) as applicable.

"Applicable medical assistance payment" means the amount of any medical assistance payments made on behalf of an individual under Title XIX of the Social Security Act.

"Claim" means, for the purposes of this section, action taken by DMAS to recover from the estate of an individual, who was age 55 or older when that person received medical assistance, the total amount of assistance paid for services consistent with the coverage and reimbursement policies in the State Plan for Medical Assistance.

"Cost effective" means that both the dollar amount of the medical assistance payments (claim) and the value of the estate at least exceed the administrative costs of recovery.

"Dual eligibles" mean individuals who are entitled to Medicare hospital insurance under Part A or supplementary medical insurance under Part B, or both, and are eligible for some form of Medicaid benefit.

"Estate" means, with respect to a deceased individual, (i) all real and personal property and other assets held by the individual at the time of death and (ii) any other real and personal property and other assets in which the individual had any legal title or interest (to the extent of such interest) at the time of his death.

"Homestead of modest value" means a home that is worth 50% or less of the average [ or median ] price, as contained in the most recent U.S. Census data [ or any other such source of home value information as published in the agency's guidance documents ] , of homes in the county or city, as appropriate, where the homestead is located as of the date of the individual's death.

"Undue hardship" means that DMAS has determined that enforcement of a claim to recover Medicaid benefits would result in substantial hardship to the devisees, legatees, and heirs or dependents of the deceased individual against whose estate the Medicaid claim exists.

B. Under the authority and consistent with the requirements of the Social Security Act § 1917 (the Act), the Commonwealth shall recover applicable medical assistance payments when such payments have been correctly or incorrectly paid on behalf of certain individuals. The Department of Medical Assistance Services (DMAS) shall provide notice of the Commonwealth's Medicaid estate recovery program at the time of application for medical assistance.

C. Adjustment and recovery. Adjustment or recovery can only be made after the death of the individual's surviving spouse, if any, and only at a time when the individual has no surviving child under age 21, or a blind or disabled child as defined in § 1614 of the Act. The Commonwealth shall seek adjustment or recovery of all medical assistance payments correctly paid on behalf of an individual [ who is age 55 or older ] under the State Plan as follows:

1. The Commonwealth shall seek adjustment or recovery from the estate of an individual who was age 55 or older when that person received medical assistance. The Commonwealth shall recover amounts up to the total amount spent on the individual's behalf for medical assistance for all items or services provided for the individual under the State Plan.

2. The Commonwealth shall recover from the estates of the following dual eligibles who receive full Medicaid benefits in addition to Medicare: (i) qualified Medicare beneficiaries with full Medicaid benefits (QMB Plus), (ii) specified low-income Medicare beneficiaries with full Medicaid benefits (SLMB Plus), and (iii) Medicare beneficiaries eligible for a limited package of Medicaid benefits [ QMB non-QMB ] , SLMB, qualified individuals (QI) or qualified disabled and working individuals (QDWI)). The Commonwealth shall recover from the individual's estate for all medical assistance payments made on behalf of the individual. In addition, the Commonwealth shall include in the Commonwealth's claim against the estate, amounts expended for Medicare cost-sharing or Medicare premiums, or both.

3. The Commonwealth shall recover from individuals with long-term care insurance policies. [ The However, the ] Commonwealth shall not seek adjustment or recovery from the individual's estate for all Medicaid costs for nursing facility and other long-term care services if assets or resources are disregarded to the extent of payments made under a qualified long-term care partnership insurance policy.

4. Estate recovery and managed care. When a Medicaid beneficiary is enrolled in a managed care organization and services are provided by the managed care organization that are included under the State Plan, the Commonwealth shall seek adjustment or recovery from the individual's estate for the [ premium capitation ] payments in the Commonwealth's claim against the estate. When the individual enrolls in the managed care organization, the Commonwealth shall provide a separate notice to the individual that explains that the [ premium capitation ] payments made to the managed care organization are included in whole in the claim against the estate. The Commonwealth shall recover from the individual's estate the total capitation rate for the period the individual was enrolled in the managed care organization.

5. The following American Indian/Alaska Native (AI/AN) income, resources, and property shall be exempt from Medicaid estate recovery pursuant to § 1917(b)(3) of the Act for hardship applicable to federally recognized tribes:

a. Certain AI/AN income and resources (such as interests in and income derived from tribal land and other resources currently held in trust status and judgment funds from the Indian Claims Commission and the U.S. Claims Court) that are exempt from Medicaid estate recovery by other laws and regulations;

b. Ownership interest in trust or nontrust property, including real property and improvements:

(1) Located on a reservation (any federally recognized Indian tribe's reservation or near a reservation) as designated and approved by the Bureau of Indian Affairs of the U.S. Department of the Interior; or

(2) For any federally recognized tribe not described in this subdivision, located within the most recent boundaries of a prior federal reservation.

(3) Protection of nontrust property described in this subdivision is limited to circumstances when it passes from an Indian (as defined in § 4 of the Indian Health Care Improvement Act, 25 USC §§ 1601-1683) to one or more relatives (by blood, adoption, or marriage), including Indians not enrolled as members of a tribe and non-Indians, such as spouses and step-children, that their culture would nevertheless protect as family members; to a tribe or tribal organization or to one or more Indians, or all of these;

c. Income left as a remainder in an estate derived from property protected in this subdivision, that was either collected by an Indian, or by a tribe or tribal organization and distributed to an Indian or Indians, as long as the individual can clearly trace such income as coming from the protected property.

d. Ownership interests left as a remainder in an estate in rents, leases, royalties, or usage rights related to natural resources (including, but not necessarily limited to, extraction of natural resources or harvesting of timber, other plants and plant products, animals, fish, and shellfish) resulting from the exercise of federally protected rights, and income either collected by an Indian, or by a tribe or tribal organization and distributed to an Indian or Indians derived from these sources as long as the individual can clearly trace the interest as coming from protected sources.

e. Ownership interests in or usage rights to items not covered by this subdivision that have unique religious, spiritual, traditional, or cultural significance or rights, or all of these, that support subsistence or a traditional lifestyle according to applicable tribal law or custom.

6. The Commonwealth shall recover the following income, resources and property from the estates of American Indians and Alaska Natives:

a. Ownership interests in assets and property, both real and personal, that are not described in this subdivision.

b. Any income and assets left as a remainder in an estate that do not derive from protected property or sources in this subdivision.

7. Reparation payments to individuals. Government reparation payments to special populations shall be exempt from Medicaid estate recovery.

8. Annuities. The Commonwealth considers annuities to be legal devices by which ownership of assets, such as estates, is defined and therefore may seek recovery from individuals' estates that may include such annuities. [ This provision is effective for deaths or estates that are opened 90 days after the Commonwealth meets applicable state and federal law for appropriate notice and due process. ]

D. Undue hardship. Whenever estate recovery would work an undue hardship on the deceased individual's heirs, the Commonwealth shall waive adjustment or recovery. Recovery from deceased individuals' estates shall be waived when the heirs are themselves Medicaid eligible. [ The Commonwealth shall determine whether individuals who will be affected by Medicaid estate recovery may have the right to apply for an undue hardship waiver Anyone who may be affected by Medicaid estate recovery may apply for an undue hardship waiver. DMAS shall determine the merit of such applications ].

1. Special consideration shall be shown in cases in which the estate subject to recovery is: (i) the sole income-producing asset of survivors (where such income is limited), such as a family farm or other family business; (ii) a homestead of modest value; or (iii) [ one in which ] other compelling circumstances [ exist ] as may be set out in agency guidance documents.

2. [ The Commonwealth may determine that an An ] undue hardship exists when [ the Commonwealth determines that ] it would not be cost effective to recover the assistance paid.

3. In cases where recovery is not waived and heirs of the estate from which recovery is sought wish to satisfy the Commonwealth's claim without selling a nonliquid asset that is subject to recovery, alternative methods of recovery may be considered. DMAS may also establish a reasonable payment schedule.

4. The Commonwealth may limit the hardship waiver to the time period during which the undue hardship circumstances existed or continue to exist.

5. An undue hardship shall not exist if the beneficiary created the hardship by resorting to estate planning methods under which the beneficiary divested assets in order to avoid estate recovery.

E. DMAS shall establish collection procedures to include identification of the estate administrator or executor, determination of the medical assistance claim amount, notification procedures, and such other procedures as are appropriate to pursue the recovery of medical assistance expenditures. Such procedures will be set out in an agency guidance document.

F. Recovery or adjustment not cost effective. [ DMAS shall establish a cost effectiveness threshold below which estate recovery will not be pursued. ]

1. The Commonwealth may waive adjustment or recovery in cases in which it is determined that it would not be cost effective for the Commonwealth to recover from a deceased individual's estate. The estate administrator, executor, survivor, or heir does not need to assert undue hardship in such situations.

2. In determining whether recovery would be cost effective, the department may consider, but is not limited to consideration of, the following costs: staff time, litigation costs, expert witness fees, deposition expenses, travel expenses, office supplies, postage, advertising, and publishing costs. DMAS shall adjust the cost effective threshold as the agency's administrative costs change.

G. Appeals. The DMAS Appeals Division will administer appeals related to the recovery of funds pursuant to 12VAC30-110.

VA.R. Doc. No. R07-750; Filed May 28, 2009, 2:43 p.m.
TITLE 12. HEALTH
DEPARTMENT OF MEDICAL ASSISTANCE SERVICES
Final Regulation

Titles of Regulations: 12VAC30-30. Groups Covered and Agencies Responsible for Eligibility Determination (amending 12VAC30-30-20).

12VAC30-40. Eligibility Conditions and Requirements (amending 12VAC30-40-280, 12VAC30-40-290; adding 12VAC30-40-105).

12VAC30-60. Standards Established and Methods Used to Assure High Quality Care (adding 12VAC30-60-200).

12VAC30-80. Methods and Standards for Establishing Payment Rates; Other Types of Care (amending 12VAC30-80-30).

12VAC30-110. Eligibility and Appeals (adding 12VAC30-110-1500).

Statutory Authority: §§ 32.1-324 and 32.1-325 of the Code of Virginia.

Effective Date: July 23, 2009.

Agency Contact: Jack Quigley, Policy & Research, Department of Medical Assistance Services, 600 East Broad Street, Richmond, VA 23219, telephone (804) 786-1300, FAX (804) 786-1680, or email jack.quigley@dmas.virginia.gov.

Summary:

This regulatory action implements a mandated Medicaid Buy-In program as required by Item 302 X of Chapter 3 of the 2006 Acts of Assembly. This new program, called Medicaid Works, requires the amendment of several subsections of the DMAS regulations in the areas of Medicaid eligibility, new alternative benefit services, and provider reimbursement. The Medicaid Works Buy-In program creates an incentive for disabled Medicaid enrollees who desire to be employed to have added income that will not count against their eligibility income limits. Presently, Medicaid enrollees who have disabilities, but who still have the capacity to be gainfully employed, could lose their Medicaid eligibility due to excess income if they are employed. This change reduces the financial restrictions to which such enrollees may be subject.

Summary of Public Comments and Agency's Response: No public comments were received by the promulgating agency.

12VAC30-30-20. Optional groups other than the medically needy.

The Title IV A agency determines eligibility for Title XIX services.

1. Caretakers and pregnant women who meet the income and resource requirements of AFDC but who do not receive cash assistance.

2. Individuals who would be eligible for AFDC, SSI or an optional state supplement as specified in 42 CFR 435.230, if they were not in a medical institution.

3. A group or groups of individuals who would be eligible for Medicaid under the plan if they were in a NF or an ICF/MR, who but for the provision of home and community-based services under a waiver granted under 42 CFR Part 441, Subpart G would require institutionalization, and who will receive home and community-based services under the waiver. The group or groups covered are listed in the waiver request. This option is effective on the effective date of the state's § 1915(c) waiver under which this group(s) is covered. In the event an existing § 1915(c) waiver is amended to cover this group(s), this option is effective on the effective date of the amendment.

4. Individuals who would be eligible for Medicaid under the plan if they were in a medical institution, who are terminally ill, and who receive hospice care in accordance with a voluntary election described in § 1905(o) of the Act.

5. The state does not cover all individuals who are not described in § 1902(a)(10)(A)(i) of the Act, who meet the income and resource requirements of the AFDC state plan and who are under the age of 21. The state does cover reasonable classifications of these individuals as follows:

a. Individuals for whom public agencies are assuming full or partial financial responsibility and who are:

(1) In foster homes (and are under the age of 21).

(2) In private institutions (and are under the age of 21).

(3) In addition to the group under subdivisions 5 a (1) and (2) of this section, individuals placed in foster homes or private institutions by private nonprofit agencies (and are under the age of 21).

b. Individuals in adoptions subsidized in full or part by a public agency (who are under the age of 21).

c. Individuals in NFs (who are under the age of 21). NF services are provided under this plan.

d. In addition to the group under subdivision 5 c of this section, individuals in ICFs/MR (who are under the age of 21).

6. A child for whom there is in effect a state adoption assistance agreement (other than under Title IV-E of the Act), who, as determined by the state adoption agency, cannot be placed for adoption without medical assistance because the child has special care needs for medical or rehabilitative care, and who before execution of the agreement:

a. Was eligible for Medicaid under the state's approved Medicaid plan; or

b. Would have been eligible for Medicaid if the standards and methodologies of the Title IV-E foster care program were applied rather than the AFDC standards and methodologies.

The state covers individuals under the age of 21.

7. Section 1902(f) states and SSI criteria states without agreements under §§ 1616 and 1634 of the Act.

The following groups of individuals who receive a state supplementary payment under an approved optional state supplementary payment program that meets the following conditions. The supplement is:

a. Based on need and paid in cash on a regular basis.

b. Equal to the difference between the individual's countable income and the income standard used to determine eligibility for the supplement.

c. Available to all individuals in each classification and available on a statewide basis.

d. Paid to one or more of the following classifications of individuals:

(1) Aged individuals in domiciliary facilities or other group living arrangements as defined under SSI.

(2) Blind individuals in domiciliary facilities or other group living arrangements as defined under SSI.

(3) Disabled individuals in domiciliary facilities or other group living arrangements as defined under SSI.

(4) Individuals receiving a state administered optional state supplement that meets the conditions specified in 42 CFR 435.230.

The supplement varies in income standard by political subdivisions according to cost-of-living differences.

The standards for optional state supplementary payments are listed in 12VAC30-40-250.

8. Individuals who are in institutions for at least 30 consecutive days and who are eligible under a special income level. Eligibility begins on the first day of the 30-day period. These individuals meet the income standards specified in 12VAC30-40-220.

The state covers all individuals as described above.

9. Individuals who are 65 years of age or older or who are disabled as determined under § 1614(a)(3) of the Act, whose income does not exceed the income level specified in 12VAC30-40-220 for a family of the same size, and whose resources do not exceed the maximum amount allowed under SSI.

10. Individuals required to enroll in cost-effective employer-based group health plans remain eligible for a minimum enrollment period of one month.

11. Women who have been screened for breast or cervical cancer under the Centers for Disease Control and Prevention Breast and Cervical Cancer Early Detection Program established under Title XV of the Public Health Service Act in accordance with § 1504 of the Act and need treatment for breast or cervical cancer, including a pre-cancerous condition of the breast or cervix. These women are not otherwise covered under creditable coverage, as defined in § 2701(c) of the Public Health Services Act, are not eligible for Medicaid under any mandatory categorically needy eligibility group, and have not attained age 65.

12. Individuals who may qualify for the Medicaid Buy-In program under § 1902(a)(10)(A)(ii)(XV) of the Social Security Act (Ticket to Work Act) [ , ] if they meet the requirements for the 80% eligibility group described in 12VAC30-40-220, as well as the requirements described in 12VAC30-40-105 and 12VAC30-110-1500.

12VAC30-40-105 [ . ] Financial eligibility.

Working Individuals with Disabilities; Basic Coverage Group (Ticket to Work and Work Incentive Improvement Act (TWWIIA)).

The following standards and methods shall be applied in determining financial eligibility:

1. The agency applies the following income and resource standards to applicants of this program:

a. The individual's total countable income shall not exceed 80% of the current federal poverty income guidelines; [ and ]

b. The individual's total countable assets shall not exceed $2,000.

2. Income methodologies. In determining whether an individual meets the income standard described in subdivision 1 of this section, the agency uses more liberal income methodologies than the SSI program as further described in 12VAC30-40-280.

3. Resource methodologies. The agency uses resource methodologies in addition to any indicated in subdivisions 1 and 2 of this section that are more liberal than those used by the SSI program as described in 12VAC30-40-290.

12VAC30-40-280. More liberal income disregards.

A. For children covered under §§ 1902(a)(10)(A)(i)(III) and 1905(n) of the Social Security Act, the Commonwealth of Virginia will disregard one dollar plus an amount equal to the difference between 100% of the AFDC payment standard for the same family size and 100% of the federal poverty level for the same family size as updated annually in the Federal Register.

B. For ADC-related cases, both categorically and medically needy, any individual or family applying for or receiving assistance shall be granted an income exemption consistent with the Act (§§ 1902(a)(10)(A)(i)(III), (IV), (VI), (VII); §§ 1902(a)(10)(A)(ii)(VIII), (IX); § 1902(a)(10)(C)(i)(III)). Any interest earned on one interest-bearing savings or investment account per assistance unit not to exceed $5,000, if the applicant, applicants, recipient or recipients designate that the account is reserved for purposes related to self-sufficiency, shall be exempt when determining eligibility for medical assistance for so long as the funds and interest remain on deposit in the account. For purposes of this section, "purposes related to self-sufficiency" shall include, but are not limited to, (i) paying for tuition, books, and incidental expenses at any elementary, secondary, or vocational school, or any college or university; (ii) for making down payment on a primary residence; or (iii) for establishment of a commercial operation that is owned by a member of the Medicaid assistance unit.

C. For the group described in §§ 1902(a)(10)(A)(i)(VII) and 1902(l)(1)(D), income in the amount of the difference between 100% and 133% of the federal poverty level (as revised annually in the Federal Register) is disregarded.

D. For aged, blind, and disabled individuals, both categorically and medically needy, with the exception of the special income level group of institutionalized individuals, the Commonwealth of Virginia shall disregard the value of in-kind support and maintenance when determining eligibility. In-kind support and maintenance means food, clothing, or shelter or any combination of these provided to an individual.

E. For all categorically needy and medically needy children covered under the family and children covered groups, (§§ 1902(a)(10)(A)(i)(I), 1902(a)(10)(A)(i)(III), 1902(a)(10)(A)(i)(VI), 1902(a)(10)(A)(i)(VII), 1902(a)(10)(A)(ii)(VIII), 1902(a)(10)(C)(ii)(I) and 1905(n) of the Act), the Commonwealth will disregard all earned income of a child under the age of 19 who is a student.

F. For all categorically needy and medically needy individuals covered under the family and children covered groups (§§ 1902(a)(10)(A)(i)(I), 1902(a)(10)(A)(i)(III), 1902(a)(10)(A)(i)(IV), 1902(a)(10)(A)(i)(V), 1902(a)(10)(A)(i)(VI), 1902(a)(10)(A)(i)(VII), 1902(a)(10)(A)(ii)(VIII), 1902(a)(10)(C)(ii)(I) and 1905(n) of the Act), the Commonwealth will disregard the fair market value of all in-kind support and maintenance as income in determining financial eligibility. In-kind support and maintenance means food, clothing or shelter or any combination of these provided to an individual.

G. Working individuals with disabilities eligible for assistance under § 1902(a)(10)(A)(ii)(XV) of the Act who wish to increase their earnings while maintaining eligibility for Medicaid must establish Work Incentive (WIN) accounts (see 12VAC30-40-290). The Commonwealth shall disregard earned income up to 200% of the federal poverty level for workers with disabilities eligible for assistance under § 1902(a)(10)(A)(ii)(XV) of the Act. To be eligible for this earned income disregard, the income is subject to the following provisions:

1. Only earnings that are deposited into a Work Incentive (WIN) account can be disregarded for eligibility purposes.

2. All funds deposited and their source will be identified and registered with the department, for which prior approval has been obtained from the department, and for which the owner authorizes regular monitoring and/or reporting of these earnings and other information deemed necessary by the department for the proper administration of this provision.

3. A spouse's income will not be deemed to the applicant when determining whether or not the individual meets the financial eligibility requirements for eligibility under this section.

[ G. H. ] For aged, blind and disabled individuals, both categorically and medically needy, with the exception of the special income level group of institutionalized individuals, the Commonwealth of Virginia shall disregard the value of income derived from temporary employment with the United States Census Bureau for a decennial census.

[ H. I. ] For all categorically needy and medically needy individuals covered under the family and children covered groups (§§ 1902(a)(10)(A)(i)(I), 1902(a)(10)(A)(i)(III), 1902(a)(10)(A)(i)(IV), 1902(a)(10)(A)(i)(V), 1902(a)(10)(A)(i)(VI), 1902(a)(10)(A)(i)(VII), 1902(a)(10)(A)(ii)(VIII), 1902(a)(10)(C)(ii)(I) and 1905(n) of the Act), the Commonwealth will disregard income derived from the temporary employment with the United States Census Bureau for a decennial census.

12VAC30-40-290. More liberal methods of treating resources under § 1902(r)(2) of the Act: § 1902(f) states.

A. Resources to meet burial expenses. Resources set aside to meet the burial expenses of an applicant/recipient or that individual's spouse are excluded from countable assets. In determining eligibility for benefits for individuals, disregarded from countable resources is an amount not in excess of $3,500 for the individual and an amount not in excess of $3,500 for his spouse when such resources have been set aside to meet the burial expenses of the individual or his spouse. The amount disregarded shall be reduced by:

1. The face value of life insurance on the life of an individual owned by the individual or his spouse if the cash surrender value of such policies has been excluded from countable resources; and

2. The amount of any other revocable or irrevocable trust, contract, or other arrangement specifically designated for the purpose of meeting the individual's or his spouse's burial expenses.

B. Cemetery plots. Cemetery plots are not counted as resources regardless of the number owned.

C. Life rights. Life rights to real property are not counted as a resource. The purchase of a life right in another individual's home is subject to transfer of asset rules. See 12VAC30-40-300.

D. Reasonable effort to sell.

1. For purposes of this section, "current market value" is defined as the current tax assessed value. If the property is listed by a realtor, then the realtor may list it at an amount higher than the tax assessed value. In no event, however, shall the realtor's list price exceed 150% of the assessed value.

2. A reasonable effort to sell is considered to have been made:

a. As of the date the property becomes subject to a realtor's listing agreement if:

(1) It is listed at a price at current market value; and

(2) The listing realtor verifies that it is unlikely to sell within 90 days of listing given the particular circumstances involved (e.g., owner's fractional interest; zoning restrictions; poor topography; absence of road frontage or access; absence of improvements; clouds on title, right of way or easement; local market conditions); or

b. When at least two realtors refuse to list the property. The reason for refusal must be that the property is unsaleable at current market value. Other reasons for refusal are not sufficient; or

c. When the applicant has personally advertised his property at or below current market value for 90 days by use of a "Sale By Owner" sign located on the property and by other reasonable efforts, such as newspaper advertisements, or reasonable inquiries with all adjoining landowners or other potential interested purchasers.

3. Notwithstanding the fact that the recipient made a reasonable effort to sell the property and failed to sell it, and although the recipient has become eligible, the recipient must make a continuing reasonable effort to sell by:

a. Repeatedly renewing any initial listing agreement until the property is sold. If the list price was initially higher than the tax-assessed value, the listed sales price must be reduced after 12 months to no more than 100% of the tax-assessed value.

b. In the case where at least two realtors have refused to list the property, the recipient must personally try to sell the property by efforts described in subdivision 2 c of this subsection for 12 months.

c. In the case of a recipient who has personally advertised his property for a year without success (the newspaper advertisements and "for sale" sign do not have to be continuous; these efforts must be done for at least 90 days within a 12-month period), the recipient must then:

(1) Subject his property to a realtor's listing agreement at price or below current market value; or

(2) Meet the requirements of subdivision 2 b of this subsection which are that the recipient must try to list the property and at least two realtors refuse to list it because it is unsaleable at current market value; other reasons for refusal to list are not sufficient.

4. If the recipient has made a continuing effort to sell the property for 12 months, then the recipient may sell the property between 75% and 100% of its tax assessed value and such sale shall not result in disqualification under the transfer of property rules. If the recipient requests to sell his property at less than 75% of assessed value, he must submit documentation from the listing realtor, or knowledgeable source if the property is not listed with a realtor, that the requested sale price is the best price the recipient can expect to receive for the property at this time. Sale at such a documented price shall not result in disqualification under the transfer of property rules. The proceeds of the sale will be counted as a resource in determining continuing eligibility.

5. Once the applicant has demonstrated that his property is unsaleable by following the procedures in subdivision 2 of this subsection, the property is disregarded in determining eligibility starting the first day of the month in which the most recent application was filed, or up to three months prior to this month of application if retroactive coverage is requested and the applicant met all other eligibility requirements in the period. A recipient must continue his reasonable efforts to sell the property as required in subdivision 3 of this subsection.

E. Automobiles. Ownership of one motor vehicle does not affect eligibility. If more than one vehicle is owned, the individual's equity in the least valuable vehicle or vehicles must be counted. The value of the vehicles is the wholesale value listed in the National Automobile Dealers Official Used Car Guide (NADA) Book, Eastern Edition (update monthly). In the event the vehicle is not listed, the value assessed by the locality for tax purposes may be used. The value of the additional motor vehicles is to be counted in relation to the amount of assets that could be liquidated that may be retained.

F. Life, retirement, and other related types of insurance policies. Life, retirement, and other related types of insurance policies with face values totaling $1,500 or less on any one person 21 years old and over are not considered resources. When the face values of such policies of any one person exceeds $1,500, the cash surrender value of the policies is counted as a resource.

G. Long-term care partnership insurance policy (partnership policy). Resources equal to the amount of benefits paid on the insured's behalf by the long-term care insurer through a Virginia issued long-term care partnership insurance policy shall be disregarded. A long-term care partnership insurance policy shall meet the following requirements:

1. The policy is a qualified long-term care partnership insurance policy as defined in § 7702B(b) of the Internal Revenue Code of 1986.

2. The policy meets the requirements of the National Association of Insurance Commissioners (NAIC) Long-Term Care Insurance Model Regulation and Long-Term Care Insurance Model Act as those requirements are set forth in § 1917(b)(5)(A) of the Social Security Act (42 USC § 1396p).

3. The policy was issued no earlier than May 1, 2007.

4. The insured individual was a resident of a partnership state when coverage first became effective under the policy. If the policy is later exchanged for a different long-term care policy, the individual was a resident of a partnership state when coverage under the earliest policy became effective.

5. The policy meets the inflation protection requirements set forth in § 1917(b)(1)(C)(iii)(IV) of the Social Security Act.

6. The Insurance Commissioner requires the issuer of the partnership policy to make regular reports to the federal Secretary of Health and Human Services that include notification of the date benefits provided under the policy were paid and the amount paid, the date the policy terminates, and such other information as the secretary determines may be appropriate to the administration of such partnerships. Such information shall also be made available to the Department of Medical Assistance Services upon request.

7. The state does not impose any requirement affecting the terms or benefits of a partnership policy that the state does not also impose on nonpartnership policies.

8. The policy meets all the requirements of the Bureau of Insurance of the State Corporation Commission described in 14VAC5-200.

H. Reserved.

I. Resource exemption for Aid to Dependent Children categorically and medically needy (the Act §§ 1902(a)(10)(A)(i)(III), (IV), (VI), (VII); §§ 1902(a)(10)(A)(ii)(VIII), (IX); § 1902(a)(10)(C)(i)(III)). For ADC-related cases, both categorically and medically needy, any individual or family applying for or receiving assistance may have or establish one interest-bearing savings or investment account per assistance unit not to exceed $5,000 if the applicant, applicants, recipient or recipients designate that the account is reserved for purposes related to self-sufficiency. Any funds deposited in the account shall be exempt when determining eligibility for medical assistance for so long as the funds and interest remain on deposit in the account. Any amounts withdrawn and used for purposes related to self-sufficiency shall be exempt. For purposes of this section, purposes related to self-sufficiency shall include, but are not limited to, (i) paying for tuition, books, and incidental expenses at any elementary, secondary, or vocational school, or any college or university; (ii) for making down payment on a primary residence; or (iii) for establishment of a commercial operation that is owned by a member of the medical assistance unit.

J. Disregard of resources. The Commonwealth of Virginia will disregard all resources for qualified children covered under §§ 1902(a)(10)(A)(i)(I), 1902(a)(10)(A)(i)(III), 1902(a)(10)(A)(ii)(VIII), and 1905(n) of the Social Security Act.

K. Household goods and personal effects. The Commonwealth of Virginia will disregard the value of household goods and personal effects. Household goods are items of personal property customarily found in the home and used in connection with the maintenance, use and occupancy of the premises as a home. Examples of household goods are furniture, appliances, televisions, carpets, cooking and eating utensils and dishes. Personal effects are items of personal property that are worn or carried by an individual or that have an intimate relation to the individual. Examples of personal property include clothing, jewelry, personal care items, prosthetic devices and educational or recreational items such as books, musical instruments, or hobby materials.

L. Determining eligibility based on resources. When determining Medicaid eligibility, an individual shall be eligible in a month if his countable resources were at or below the resource standard on any day of such month.

M. Working individuals with disabilities eligible for assistance under § 1902(a)(10)(A)(ii)(XV) of the Act who wish to increase their personal resources while maintaining eligibility for Medicaid shall establish Work Incentive (WIN) accounts. The Commonwealth will disregard up to the current annual SSI (Social Security Act, § 1619(b)) threshold amount (as established for Virginia by the Social Security Administration) held in WIN accounts for workers with disabilities eligible for assistance under § 1902(a)(10)(A)(ii)(XV) of the Act. To be eligible for this resource disregard, WIN accounts are subject to the following provisions:

1. Deposits to this account shall derive solely from the individual's income earned after electing to enroll in the Medicaid Buy-In (MBI) program.

2. The balance of this account shall not exceed the current annual SSI (Social Security Act § 1619(b)) threshold amount (as established for Virginia by the Social Security Administration).

3. This account will be held separate from nonexempt resources in accounts for which prior approval has been obtained from the department, and for which the owner authorizes regular monitoring and reporting including deposits, withdrawals, and other information deemed necessary by the department for the proper administration of this provision.

4. A spouse's resources will not be deemed to the applicant when determining whether or not the individual meets the financial eligibility requirements for eligibility under this section.

5. Resources accumulated in the Work Incentive account shall be disregarded in determining eligibility for aged, blind [ , ] and disabled Medicaid-covered groups for one year after the individual leaves the Medicaid Buy-In program.

6. In addition, excluded from the resource and asset limit include amounts deposited in the following types of IRS-approved accounts established as WIN accounts: retirement accounts, medical savings accounts, medical reimbursement accounts, education accounts and independence accounts. Assets retained in these WIN accounts shall be disregarded for all future Medicaid eligibility determinations for aged, blind, or disabled Medicaid-covered groups.

12VAC30-60-200. Ticket to Work and Work Incentives Improvement Act (TWWIIA) basic coverage group: alternative benefits for Medicaid Buy-In program.

A. The state elects to provide alternative benefits under § 1937 of the Social Security Act. The alternative benefit package will be available statewide.

B. The population who will be offered opt-in alternative coverage and who will be informed of the available benefit options prior to having the option to voluntarily enroll in an alternative benefit package consists of working individuals with disabilities enrolled pursuant to the Social Security Act, § 1902(a)(10)(A)(ii)(XV) (Ticket to Work and Work Incentives Improvement Act) covered group or who meet the income, resource and eligibility requirements for the § 1902(a)(10)(A)(ii)(XV) covered group.

C. Medicaid Buy-In: program outreach.

1. Future Medicaid Works solicitations will be geared towards individuals who are currently covered in the SSI and blind and disabled 80% federal poverty level groups; the letter will be an invitation to consider going to work, or to increase how much they work, and inform them that they will still be able to keep their Medicaid health care coverage.

2. They will be advised that this is voluntary and will enable them to earn higher income and retain more assets from their earnings. It will also explain that this option includes an alternative benefits package comprised of their regular Medicaid benefits plus personal assistance services for those who need personal assistance and related services in order to live and work in the community. It will be clearly stated that this program is optional. Their local eligibility worker will be able to review the advantages and disadvantages of this option in order to assist individuals in making an informed choice.

3. Current Medicaid Works enrollees will each receive personal communication by mail advising them of the new alternative benefits package and the steps needed in order to access personal assistance services. Should an enrolled individual be dissatisfied with this option or be unable to continue to be employed, their eligibility worker will reevaluate eligibility for other covered groups pursuant to changing the individual back to regular Medicaid coverage and, if necessary, to accessing personal assistance and related services through the existing home- and community-based services waivers.

4. Brochures describing this work incentive opportunity and alternative benefits option shall be prominently displayed and readily available at local departments of social services.

D. Description of Medicaid Buy-In alternative benefit package.

1. The state will offer an alternative benefit package that the secretary determines provides appropriate coverage for the population served.

2. This alternative benefits package includes all federally mandated and optional Medicaid State Plan services, as described and limited in 12VAC30-50, plus personal assistance services (PAS) for enrollees who otherwise meet the standards to receive PAS, defined as follows:

a. "Personal assistance services" or "PAS" means support services provided in home and community settings necessary to maintain or improve an individual's current health status. Personal care services are defined as help with activities of daily living, monitoring of self-administered medications, and the monitoring of health status and physical condition.

b. These services may be provided in home and community settings to enable an individual to maintain the health status and functional skills necessary to live in the community or participate in community activities. An additional component of PAS is work-related and postsecondary education personal services. This service will extend the ability of the personal assistance attendant to provide assistance in the workplace.

c. These services include filing, retrieving work materials that are out of reach; providing travel assistance for an individual with a mobility impairment; helping an individual with organizational skills; reading handwritten mail to an individual with a visual impairment; or ensuring that a sign language interpreter is present during staff meetings to accommodate an employee with a hearing impairment.

d. This service is only available to individuals who also require personal assistance services to meet their ADLs. Workplace or school supports are not provided if they are services provided by the Department of Rehabilitative Services, under IDEA, or if they are an employer's responsibility under the Americans with Disabilities Act or § 504 of the Rehabilitation Act.

e. Following an individual's assessment of the need for PAS and development of a plan of care, the individual will decide whether to have PAS through a personal care agency or whether to self direct his care. For individuals who choose consumer-directed care, DMAS will provide for the services of a fiscal agent to perform certain tasks as an agent for the recipient/employer who is receiving consumer-directed services. The fiscal agent will handle certain responsibilities for the individual, including but not limited to, employment taxes.

f. All governmental and private PAS providers are reimbursed according to the same published fee schedule, located on the agency's website at the following address: http://www.dmas.virginia.gov/pr-fee_files.htm. The agency's rates, based upon one-hour increments, were set as of July 1, 2006, and are effective for services on or after said dates. The agency's rates are updated periodically.

E. Wrap-around/additional services.

1. The state assures that wrap-around or additional benefits will be provided for individuals under 21 who are covered under the state plan pursuant to § 1902(a)(10)(A) of the Social Security Act to ensure early and periodic screening, diagnostic and treatment (EPSDT) services are provided when medically necessary.

2. Wraparound benefits must be sufficient so that, in combination with the Medicaid Buy-In package, these individuals receive the full EPSDT benefit, as medically necessary. The wraparound services provided are described in 12VAC30-50-130.

F. Delivery system.

1. The alternative benefit package will be furnished through a combination of the following methods:

a. On a fee-for-service basis consistent with the requirements of § 1902(a) and implementing regulations relating to payment and beneficiary free choice of provider;

b. On a fee-for-service basis consistent with the requirements cited in subdivision 1 a of this subsection, except that it will be operated with a primary care case management system consistent with § 1915(b)(1);

c. Through a managed care entity consistent with applicable managed care requirements; [ or ]

d. Through premium assistance for benchmark-equivalent in employer-sponsored coverage.

2. Personal assistance services will always be fee-for-service, whereas all other Medicaid-covered services shall be through one of three models: fee-for-service, primary care case management or through managed care organizations.

G. Additional assurances.

1. The state assures that individuals will have access, through the Medicaid Buy-In alternative benefit package, to rural health clinic (RHC) services and federally qualified health center (FQHC) services as defined in subparagraphs (B) and (C) of § 1905(a)(2).

2. The state assures that payment for RHC and FQHC services is made in accordance with the requirements of § 1902(bb) of the Social Security Act.

H. Cost effectiveness of plans: the Medicaid Buy-In alternative benefit package and any additional benefits must be provided in accordance with economy and efficiency principles.

I. Compliance with the law: The state will continue to comply with all other provisions of the Social Security Act in the administration of the state plan under this title.

12VAC30-80-30. Fee-for-service providers.

A. Payment for the following services, except for physician services, shall be the lower of the state agency fee schedule (12VAC30-80-190 has information about the state