Vol. 26 Iss. 12 - February 15, 2010

Chapter 60
Notice of Suspension of Effective Date and Extension of Public Comment Period

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 4VAC50-60-45, 4VAC50-60-48, 4VAC50-60-53, 4VAC50-60-56, 4VAC50-60-63, 4VAC50-60-65, 4VAC50-60-66, 4VAC50-60-69, 4VAC50-60-72, 4VAC50-60-74, 4VAC50-60-76, 4VAC50-60-85, 4VAC50-60-92, 4VAC50-60-93, 4VAC50-60-94, 4VAC50-60-95, 4VAC50-60-96, 4VAC50-60-97, 4VAC50-60-98, 4VAC50-60-99, 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 Comment Deadline: 5 p.m. on March 17, 2010.

Notice is hereby given that on December 9, 2009, the Virginia Soil and Water Conservation Board adopted revisions to the Virginia Stormwater Management Program (VSMP) Permit Regulations Parts I, II, and III (4VAC50-60), and that on January 14, 2010, the board, in response to 25 petitions received during the final adoption period, suspended the effective date of this regulatory action in accordance with § 2.2-4007.06 of the Virginia Administrative Process Act to allow time for a 30-day public review and comment period on changes made since the original proposed regulations were approved on September 24, 2008. The board is receiving comment only on the changes that were made between the proposed regulations and the final regulations adopted by the Board on December 9, 2009 (published on January 4, 2010, in Volume 26, Issue 9 of the Virginia Register).

Summary of Regulations:

This final regulatory action amends 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.

The proposed version of the regulations established consistent statewide water quality requirements that included a 0.28 lbs/acre/year phosphorus standard for new development and a requirement that total phosphorus loads be reduced to an amount at least 20% below the pre-development phosphorus load on prior developed lands. Concerning water quantity, the proposed version specified that stormwater discharged from a site to an unstable channel must be released at or below a "forested" peak flow rate condition. No exceptions to the standard were provided. As described below, the final regulations change these technical standards and provide additional flexibility that was not present in the proposed regulations.

In the final action, with regard to technical criteria applicable to stormwater discharges from construction activities, revised water quality and water quantity requirements are included in Part II A of the regulations (existing technical criteria will now be maintained in a new Part II B that applies to grandfathered projects). These revised technical requirements in Part II A include:

-- a 0.45 lbs/acre/year phosphorus standard for new development activities statewide;

-- a requirement that total phosphorus loads be reduced to an amount at least 20% below the pre-development phosphorus load on prior developed lands for land disturbing activities greater than or equal to an acre and 10% for redevelopment sites disturbing less than 1 acre;

-- a requirement that control measures be installed on a site to meet any applicable wasteload allocation; and

-- water quantity requirements that include both channel protection and flood protection criteria. In the final version, stormwater that is discharged from a site to an unstable channel must be released at or below a "good pasture" peak flow rate condition unless the pre-developed condition for the site is forest, in which case, the runoff shall be held to the forested condition. Exceptions to the "good pasture" standard are provided to a land disturbing activity that is less than 5 acres on prior developed lands; or less than 1 acre for new development. Under the exceptions, the sites are expected to improve upon the pre-developed runoff condition.

The final regulations also provide five offsite options organized in a new section that may be utilized as specified in the regulation for a developer to achieve the required onsite water quality and where allowed water quantity requirements (the proposed regulations only contained three options). One of the new provisions includes a state buy-down option that would be available in the future should a standard more stringent than 0.45 lbs/acre/year phosphorus be established for projects occurring within the Chesapeake Bay Watershed.

The proposed regulations did not contain grandfathering provisions. The final regulations contain a new section on grandfathering that specifies that if the operator of a project has met the three listed local vesting criteria related to significant affirmative governmental acts and has received general permit coverage by July 1, 2010, then the project is grandfathered under today's water quality and quantity technical standards (Part II B) until June 30, 2014. If permit coverage is maintained by the operator, then the project will remain grandfathered until June 30, 2019. It also notes that past June 30, 2019, or if a project's general permit coverage is not maintained, portions of the project not yet completed shall become subject to the new technical criteria set out in Part II A. The grandfathering provisions also contain criteria for the grandfathering of state agency projects for which state or federal funding has been approved as of July 1, 2010, and finally, criteria for grandfathering projects for which governmental bonding or public debt financing has been issued prior to July 1, 2010.

This final 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 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. 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.

Changes to Part III between the proposed and final regulations include the addition of language that specifies that stormwater management facilities designed to treat stormwater runoff primarily from an individual residential lot, at the qualifying program's discretion, are not subject to the locality inspection requirements (once every five years), homeowner inspection requirements, maintenance agreement requirements, or construction record drawing requirements. Instead, a qualifying local program is authorized to develop a strategy for addressing maintenance of stormwater management facilities located on and primarily designed to treat stormwater runoff from an individual residential lot. Such a strategy may include periodic inspections, public outreach and education, or other method targeted at promoting the long-term maintenance of such facilities.

Finally, this action would make changes to definitions in Part I, which is applicable to the full body of the VSMP regulations. Unnecessary definitions are deleted, needed definitions are added, and many existing definitions are updated. In the final action, several additional definitions were added and other minor refinements were made to address comments received.

Public Participation and Contact Information:

In addition to comments on changes made since the original proposed regulations were approved on September 24, 2008, the board is seeking comments on the costs and benefits of the changes made to the proposed regulations at the time of final adoption.

Anyone wishing to submit written comments pertaining to these final regulations may do so by mail, facsimile, or email. Comments pertaining to the final regulations may be mailed to the Regulatory Coordinator at: Virginia Department of Conservation and Recreation, 203 Governor Street, Suite 302, Richmond, Virginia 23219. Comments may also be faxed to the Regulatory Coordinator at: (804) 786-6141 or emailed to the coordinator at Written comments (including email) must include the name and address of the commenter. In order to be considered, comments must be received between February 15, 2010, and March 17, 2010. Public comment will be accepted until 5 p.m. on March 17, 2010.

Copies of the final regulations and the Town Hall final regulation discussion forms may be obtained on the Virginia Regulatory Town Hall webpage: or from the regulatory coordinator at:; (804) 786-2291.

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

VA.R. Doc. No. R08-587; Filed January 26, 2010, 12:59 p.m.