LOCAL STORMWATER PROGRAMS – WHAT THE STATE IS EXPECTING: LOCAL STORMWATER MANAGEMENT ORDINANCES VACO FALL Conference M. Ann Neil Cosby Sands Anderson PC Hot Springs, Virginia 1111 E. Main Street Richmond, VA 23219 November 2012 (804) 783-7225 ancosby@sandsanderson.com
STATE LAW REQUIREMENT • Each locality that administers an approved Virginia Stormwater Management Program ( VSMP )must adopt a Stormwater Management Ordinance to do so. • VSMP intended to be administered in conjunction with a local erosion and sediment control program and MS4 program where applicable • Va. Code § 10.1-603.3.E (Stormwater Management Act) • Stormwater Management Ordinance must be submitted to and approved by the Virginia Soil & Water Conservation Board ( SWCB ), prior to July 1, 2014.
STATE LAW REQUIREMENT • Stormwater Management Ordinance must, at minimum: • Be consistent with Virginia Stormwater Regulations • Address responsibility for and maintenance of stormwater BMPs • Integrate the VSMP with the following: • Erosion and sediment control • Flood insurance criteria • Flood plain management • Other programs requiring compliance prior to authorizing construction • Va. Code § 10.1-603.3.E.
TIMELINE • Timeline for submittal of proposed VSMP (including required Ordinance) • State law requires that local VSMP be approved by SWCB by June 13, 2013. • DCR suggests submitting a preliminary packet to Regional DCR Office by April 1, 2013 with a request for a 1 year extension [to June 2014]. • Must show “substantial progress” in developing VSMP to obtain extension • “Substantial progress” means: • Identification of the authority to accept complete registration statements • Preliminary draft of the Stormwater Management Ordinance • Draft staffing and funding plan
MODEL ORDINANCE • DCR is currently working on a Model Ordinance • Localities should determine how ordinance provisions may be integrated into existing programs • May not be appropriate to adopt in full • May need to amend other existing ordinances to ensure consistency
VSMP IN A NUTSHELL • VSMP established to administer and enforce VSMP General Permit for Discharges from Construction Activities. • DCR still approves Construction General Permit • But local administration allows “one stop shop” for developers • Locality will grant VSMP Authority Permit, if General Permit requirements are met. • General Permit requirements include: • Registration statement (submitted to DCR) • Submission of required plans • Payment of fees • Posting of Bond • Evidence of any off-site mitigation
ORDINANCE REQUIREMENTS • Stormwater Management Ordinance must include the following minimum criteria: • Identification of the authority accepting complete registrations and of the authorities completing plan review, plan approval, inspections and enforcement • Submission and approval of an E&S Plan and Stormwater Management Plan (SMP) • Provisions to ensure all necessary plans meet necessary state requirements • Requirements for inspections and monitoring by the Operator • Requirements for long-term inspections and maintenance of stormwater management facilities • Enforcement procedures and civil penalties • Virginia Administrative Code, 4 VAC 50-60-148
ORDINANCE REQUIREMENTS • Stormwater Management Ordinance should also address: • Hearings • Appeals • Policies and procedures to obtain and release bonds
CONTENT OF ORDINANCE • Purpose and Intent • Definitions • Establishment of Program; Applicability • Prohibitions; Permit requirement • Plan Requirements • Review criteria (Grandfathering) • Long-term Maintenance Requirements • Monitoring and Inspections • Hearings, Enforcement, and Penalties • Fees and Bonds
ESTABLISHING PROGRAM; APPLICABILITY • Prohibitions and Applicability • Prohibits land disturbing without a local VSMP permit, except … • No permit is required for: • Permitted mining or oil and gas operations • Clearing conducted for agricultural purposes • Single family residences disturbing less than one acre and not part of a larger plan of development • Land disturbing activities that disturb less than one acre of land and are not part of a larger plan of development [note: locality can decrease this minimum threshold] • Discharges to sanitary sewer or combined sewer system • Activities under a state for federal reclamation program to return abandoned property to any agricultural or open use • Routine maintenance • Land disturbing conducted in response to a public emergency
ESTABLISHING PROGRAM; APPLICABILITY • Establishing Program • Identify who will be accepting applications, reviewing and approving plans, and conducting inspections and enforcement • Localities are expressly authorized "enter into agreements or contracts with soil and water conservation districts, adjacent localities, or other public or private entities to carry out or assist with the responsibilities of [the Stormwater Act ]“ • Va. Code §10.1-603.3 A and H. • Only applies to plan review and inspections • Determining whether to conduct plan review and/or inspections in-house may be based on cost to locality
STATEWIDE FEE SCHEDULE Disturbed Area Fee < 1 acre $290 ≥ 1 acre & < 5 acres $2,700 ≥ 5 acres & < 10 acres $3,400 ≥ 10 acres & < 50 acres $4,500 ≥ 50 acres &< 100 acres $6,100 ≥ 100 acres $9,600
CALCULATION EXAMPLE No. Type Unit Fee Total Fee DCR Locality Portion Portion (28%) 6 ≥ 1 acre & < 5 acres $2,700 $16,200 $4,536 $11,664 2 ≥ 5 acres & < 10 acres $3,400 $6,800 $1,904 $4,896 ≥ 10 acres & < 50 acres $4,500 $4,500 $1,260 $3,240 1 LOCALITY ANNUAL TOTAL $19,800 Will This Cover Program Costs? Is Your Current Staff Sufficient? Additional Fees? Cooperative Effort? Contract Portions of Program?
LOCAL VSMP PERMIT REQUIREMENTS • Operator must submit the following to the locality to obtain local VSMP permit: • General Permit registration statement • Necessary Plans • Other control measures • Fees • Proof of off-site mitigation measures • Bond
NECESSARY PLANS Stormwater Pollution Prevention Plan (“ SWiPPP ”) E&S Plan Stormwater Management Plan S Plan (“SWMP”) Pollution Prevention Plan (“P3") Other statutory criteria
PLANS APPROVED BY THE LOCALITY • Erosion & Sediment Control Plan • Approved by the Locality in accordance with existing E&S ordinance • Stormwater Management Plan • Approved by the locality in accordance with Technical Criteria set forth in Regulations. • Local staff will need to be certified to conduct Plan Review and Inspections. • Training will not be offered by DCR free of charge
PLANS REQUIRED BUT NOT APPROVED BY THE LOCALITY • Pollution Prevention Plan • Required to address any hazardous pollutants • Other statutory SWPPP requirements • These plans are not “approved” by the Locality • Must be maintained on site; available on the internet
GRANDFATHERED PROJECTS • Any land-disturbing activity proposed to occur pursuant to • i) a currently valid proffered or conditional zoning plan or • ii) a preliminary or final subdivision plat or • iii)a preliminary or final site plan or • iv) a zoning with a plan of development or • v) any other plan of development or site plan approved by the Locality and determined to be equivalent thereto • And where…
GRANDFATHERED PROJECTS • The plan/plat was approved prior to July 1, 2012 • and provided a layout identifying the specified stormwater management facilities is shown on the plan/plat • and VSMP permit coverage has not been granted prior to July 1, 2014 • Grandfathered until June 30, 2019 • Appears inconsistent with Virginia’s Vested Rights Statute (Va. Code §15.2-2307) • Statute provides for the vesting of preliminary plats and plans only if "the applicant diligently pursues approval of the final plat or plan within a reasonable period of time under the circumstances."
INSPECTION REQUIREMENTS • Post-construction inspections of stormwater maintenance facilities must be conducted pursuant to the Locality's adopted inspection program, and shall occur, at minimum, at least once every five (5) years. • Ordinance may reference Inspection Policies and Procedures, but these must be included in Program Application. • State fee schedule does not include $$ for long- term inspections
HEARINGS • Stormwater Management Act requires that: • A party aggrieved by any action of the VSMP authority taken without a formal hearing may demand in writing a formal hearing • Petition must be filed within 30 days after notice of such action. • Section 10.1-603.12:6 of the Code of Virginia • As local VSMP's will be administered at the staff level, most, if not all, decisions will be taken without a formal hearing. • This means that a formal hearing must be held any time an operator or another person claims to be "aggrieved" by a decision of the VSMP program administrator.
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