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.

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.

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.

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.

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.

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.

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.

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.

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.

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).

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"

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.

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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).

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:

Q_Developed* RV_Developed ≤ Q_{Pre-Developed} * RV_{Pre-Developed}, where

Q_Developed = The allowable peak flow rate of runoff from the developed site.

Q_{Pre-Developed} = The peak flow rate of runoff from the site in the predeveloped condition.

RV_{Pre-Developed} = The volume of runoff from the site in the predeveloped condition.

RV_Developed = 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 (Q_Developed) 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:

Q_Developed* RV_Developed ≤ Q_Forested * RV_Forested, where

Q_Developed = The allowable peak flow rate from the developed site.

Q_Forested = The peak flow rate from the site in a forested condition.

RV_Forested = The volume of runoff from the site in a forested condition.

RV_Developed = 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.

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.

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.

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.

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.

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, Q_n, 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.