Title of Regulation: 9VAC25-20. Fees for Permits and Certificates (amending 9VAC25-20-110, 9VAC25-20-120, 9VAC25-20-130, 9VAC25-20-142).

Statutory Authority: § 62.1-44.15:6 of the Code of Virginia.

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: September 30, 2020.

Effective Date: October 15, 2020.

Agency Contact: Melissa Porterfield, Department of Environmental Quality, 1111 East Main Street, Suite 1400, P.O. Box 1105, Richmond, VA 23218, telephone (803) 698-4238, or email melissa.porterfield@deq.virginia.gov.

Basis: Section 62.1-44.15:6 of the Code of Virginia directs the State Water Control Board to adopt regulations to assess fees to issue, reissue, amend, or modify any permit or certificate.

Purpose: A periodic review was recently conducted for this regulation, and the result of the review was to amend the regulation to remove fees that are no longer needed. This amendment removes fees for municipal separate storm sewer system (MS4) and construction activity permitting fees from this regulation. Permit fees for MS4 and construction activities are assessed under the Virginia Stormwater Management Program (VSMP) Regulation (9VAC25-870) and are no longer needed in 9VAC25-20. Removal of the MS4 and construction activity fees will minimize confusion concerning the applicable permit fees. The amendments protect public health, safety, or welfare by removing incorrect permit fee information for MS4 and construction activities.

Rationale for Using Fast-Track Rulemaking Process: A periodic review was recently conducted for this regulation and the result of the review was to amend the regulation to remove fees that are no longer needed. This amendment removes fees for MS4 and construction activity permitting from this regulation. Permit fees for MS4 and construction activities are assessed under the Virginia Stormwater Management Program (VSMP) Regulation (9VAC25-870) and are no longer needed in 9VAC25-20 and therefore the changes are noncontroversial.

Substance: This amendment removes fees for MS4 and construction activity permitting from this regulation.

Issues: Removing fees for MS4 and construction activity permitting from this regulation will benefit the public and the agency. Removing these fees will minimize confusion concerning the applicable permit fees. There are no disadvantages to the public or the Commonwealth.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The State Water Control Board (Board) proposes to repeal obsolete text.

Background. The Virginia storm water management program has been administered by both the Department of Environmental Quality (DEQ) and the Department of Conservation and Recreation (DCR). DEQ administered the program through 9VAC25-750 General Virginia Pollutant Discharge Elimination System (VPDES) Permit Regulation for Discharges of Storm Water from Small Municipal Separate Storm Sewer Systems until the 2004 General Assembly adopted legislation (Chapter 372)¹ that transferred the storm water permitting responsibility from DEQ to DCR. The fees for the program regulated through 9VAC25-750 are in 9VAC25-20 Fees for Permits and Certificates. After the General Assembly transferred the storm water permitting responsibility from DEQ to DCR, the Board repealed 9VAC25-750,² but did not remove fee listings for storm water permits from 9 VAC 25-20. The Board now proposes to amend certain sections of 9VAC 25-20 to remove the fees associated with storm water permits. Other fees will remain unchanged.

The 2013 Virginia Acts of Assembly (Chapters 756³ and 793⁴) then transferred certain water quality programs from DCR to DEQ, including storm water. Consequently, a new DEQ regulation was promulgated: 9 VAC 25-870 Virginia Stormwater Management Program.⁵ Storm water permit fees are included in 9 VAC 25-870.

Estimated Benefits and Costs. The fees concerning storm water permits listed in 9VAC25-20 are obsolete and have not been assessed since 2004. The proposed removal of these fees from the regulation would have no impact on fees charged or collected, but would be beneficial in that it would reduce the likelihood that readers of the regulation are misled.

Businesses and Other Entities Affected. The proposed repeal of text would affect readers of the regulation. No costs would be introduced.

Small Businesses⁶ Affected. The proposed repeal of text does not appear to substantively affect small businesses.

Localities⁷ Affected.⁸ The proposed repeal of text does not appear to substantively affect localities and does not introduce costs for local governments.

Projected Impact on Employment. The proposed repeal of text does not affect total employment.

Effects on the Use and Value of Private Property. The proposed repeal of text does not appear to substantively affect the use and value of private property or real estate development costs.

______________________________

¹See http://leg1.state.va.us/cgi-bin/legp504.exe?041+ful+CHAP0372

²See https://townhall.virginia.gov/L/ViewAction.cfm?actionid=1872

³See http://leg1.state.va.us/cgi-bin/legp504.exe?131+ful+CHAP0756

⁴See http://leg1.state.va.us/cgi-bin/legp504.exe?131+ful+CHAP0793

⁵See https://townhall.virginia.gov/L/ViewAction.cfm?actionid=4069

⁶Pursuant to § 2.2-4007.04 of the Code of Virginia, small business is defined as "a business entity, including its affiliates, that (i) is independently owned and operated and (ii) employs fewer than 500 full-time employees or has gross annual sales of less than $6 million."

⁷"Locality" can refer to either local governments or the locations in the Commonwealth where the activities relevant to the regulatory change are most likely to occur.

⁸§ 2.2-4007.04 defines “particularly affected" as bearing disproportionate material impact.

Agency's Response to Economic Impact Analysis: The department has reviewed the economic impact analysis prepared by the Department of Planning and Budget and has no comment.

Summary:

As a result of a periodic review of 9VAC25-20, the amendments remove permitting fees for municipal separate storm sewer systems and construction activity, which are no longer administered under this chapter.

9VAC25-20-110. Fee schedules for individual VPDES and VPA new permit issuance, and individual VWP, SWW, and GWW new permit issuance and existing permit reissuance.

A. Virginia Pollutant Discharge Elimination System (VPDES) permits. The following fee schedules apply to applications for issuance of a new individual VPDES permit or certificate. (Note: All flows listed in the table below are facility "design" flows.)

B. Virginia Pollution Abatement (VPA) permits. The following fee schedules apply to applications for issuance of a new individual VPA permit or certificate.

C. Virginia Water Protection (VWP) permits. The following fee schedules apply to applications for issuance of a new individual and reissuance of an existing individual VWP permit or certificate. Only one permit application fee shall be assessed per application; for a permit application involving more than one of the operations described below, the governing fee shall be based upon the primary purpose of the proposed activity. (Note: Withdrawal amounts shown in the table below are maximum daily withdrawals.)

D. Surface Water Withdrawal (SWW) permits or certificates issued in response to Chapter 24 (§ 62.1-242 et seq.) of Title 62.1 of the Code of Virginia. The following fee schedules apply to applications for issuance of a new individual, and reissuance of an existing individual SWW permit or certificate.

E. Groundwater Withdrawal (GWW) permits issued in response to Chapter 25 (§ 62.1-254 et seq.) of Title 62.1 of the Code of Virginia. The following fee schedules apply to applications for issuance of a new individual, and reissuance of an existing individual GWW permit or certificate.

9VAC25-20-120. Fee schedules for major modification of individual permits or certificates requested by the permit or certificate holder.

The following fee schedules apply to applications for major modification of an individual permit or certificate requested by the permit or certificate holder:

1. Virginia Pollutant Discharge Elimination System (VPDES) permits. The application fees listed in the table below apply to a major modification that occurs (and becomes effective) before the stated permit expiration date. (Note: All flows listed in the table below are facility "design" flows.)

2. Virginia Pollution Abatement (VPA) permits. The application fees listed in the table below apply to a major modification that occurs (and becomes effective) before the stated permit expiration date.

3. Virginia Water Protection (VWP) permits. (Note: Only one permit application fee shall be assessed per application; for a permit application involving more than one of the operations described below, the governing fee shall be based upon the primary purpose of the proposed activity.)

4. Surface Water Withdrawal (SWW) permits or certificates issued in response to Chapter 24 (§ 62.1-242 et seq.) of Title 62.1 of the Code of Virginia.

5. Groundwater Withdrawal (GWW) permits issued in response to Chapter 25 (§ 62.1-254 et seq.) of Title 62.1 of the Code of Virginia.

9VAC25-20-130. Fees for filing registration statements or applications for general permits issued by the board.

The following fees apply to filing of applications or registration statements for all general permits issued by the board, except:

1. The fee for filing a registration statement for coverage under 9VAC25-110 (General VPDES Permit for Domestic Sewage Discharges of Less Than or Equal to 1,000 GPD) is $0.

2. The fee for filing a registration statement for coverage under 9VAC25-120 (General VPDES Permit Regulation for Discharges From from Petroleum Contaminated Sites) is $0.

3. The fee for filing an application or registration statement for coverage under a VWP General Permit issued by the board shall be:

4. VPDES Storm Water General Permits.a. Except as specified in subdivision 4 b of this section, the The fee for filing a registration statement for coverage under a VPDES storm water general general/industrial stormwater permit issued by the board shall be: $500.

b. Owners of facilities that are covered under the Industrial Activity (VAR5) and Construction Site (VAR10) storm water general permits that expire on June 30, 2004, and who are reapplying for coverage under the new general permits that are effective on July 1, 2004, must submit an application fee of $600 to reapply.

5. Except as specified in subdivisions 1, 2, 3 and 4 of this section, the fee for filing an application or registration statement for coverage under any general permit issued by the board shall be $600.

9VAC25-20-142. Permit maintenance fees.

A. The following annual permit maintenance fees apply to each individual VPDES and VPA permit, including expired permits that have been administratively continued, except those exempted by 9VAC25-20-50 B or 9VAC25-20-60 A 4:

1. Base fee rate for Virginia Pollutant Discharge Elimination System (VPDES) permitted facilities. (Note: All flows listed in the table below are facility "design" flows.)

2. Base fee rate for Virginia Pollution Abatement (VPA) permits.

3. The amount of the annual permit maintenance fee due from the owner for VPDES and VPA permits for a specified year as required by 9VAC25-20-40 C shall be calculated according to the following formulae:

Where:

F = the permit maintenance fee amount due for the specified calendar year, expressed in dollars.

B = the base fee rate for the type of VPDES or VPA permit from subdivision 1 or 2 of this subsection, expressed in dollars.

C = the Consumer Price Index adjustment factor.

∆CPI = the difference between CPI and 215.15 (the average of the Consumer Price Index values for all-urban consumers for the 12-month period ending on April 30, 2009), expressed as a proportion of 215.15.

CPI = the average of the Consumer Price Index values for all-urban consumers for the 12-month period ending on April 30 of the calendar year before the specified year for which the permit maintenance fee is due. (The Consumer Price Index for all-urban consumers is published by the U.S. Department of Labor, Bureau of Labor Statistics, U.S. All items, CUUR0000SA0).

For example, if calculating the 2010 permit maintenance fee (F) for a VPDES Industrial Major source:

CPI = 215.15 (the average of CPI values from May 1, 2008, to April 30, 2009, inclusive would be used for the 2010 permit maintenance fee calculation).

∆CPI = zero for the 2010 permit maintenance fee calculation (i.e., (CPI - 215.15)/215.15 = (215.15 - 215.15)/215.15 = 0). (Note: ∆CPI for other years would not be zero.)

C = 1.0 for the 2010 permit maintenance fee calculation (i.e., 1 + ∆CPI = 1 + 0 = 1.0).

B = $7,876 (i.e. the value for a VPDES Industrial Major source, taken from subdivision 1 of this subsection).

F = $7,876 for the 2010 permit maintenance fee calculation for this VPDES Industrial Major source (i.e., $7,876 x 1.0 = $7,876).

4. Permit maintenance fees (F) calculated for each facility shall be rounded to the nearest dollar.

5. The total amount of permit fees collected by the board (permit maintenance fees plus permit application fees) shall not exceed 50% of direct costs for administration, compliance, and enforcement of VPDES and VPA permits. The director shall take whatever action is necessary to ensure that this limit is not exceeded.

B. Additional permit maintenance fees.

1. 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.

2. An additional permit maintenance fee of $1,000 shall be paid annually by permittees that have more than five process wastewater discharge outfalls at a single facility (not including "internal" outfalls).

3. For a local government or public service authority with permits for multiple facilities in a single jurisdiction, the total permit maintenance fees for all permits held as of April 1, 2004, shall not exceed $32,818 per year.

C. If the category of a facility (as described in subdivision A 1 or A 2 of this section) changes as the result of a permit modification, the permit maintenance fee based upon the permit category as of April 1 shall be submitted by October 1.

D. Annual permit maintenance fees may be discounted for participants in the Environmental Excellence Program as described in 9VAC25-20-145.