Advisory Group continues study of stormwater program

September 2, 2015

On August 24 a Stakeholder Advisory Group (SAG) convened by DEQ held its seventh meeting of the year to consider comprehensive changes to provisions in the Code of Virginia relating to stormwater management. Principally, the three statutes being reviewed for revision and possible consolidation are Virginia’s Stormwater Management Act, Virginia’s Erosion and Sediment Control Law and the Chesapeake Bay Preservation Act.

Other objectives of the SAG are to recommend actions that will improve DEQ’s ability to manage local stormwater programs on behalf of approximately 55 local governments in Virginia that have decided to “opt-out” of managing their own programs. In 2014 the General Assembly passed legislation (HB 1173, Hodges/SB 423 Hanger) allowing local governments not designated as “MS4” to decide whether to (by “opting in”) manage their own stormwater programs or “opt out,” by allowing DEQ to manage local stormwater programs. “Opt out” localities are still required to manage local Erosion and Sediment Control programs.

As part of their efforts to consolidate the statutes named above, the SAG has been considering three revised alternatives for non MS4 local governments to choose in the management of stormwater management programs. These are summarized below:

Opt-out: A non-MS4 locality may opt out of implementing a stormwater program, in which case DEQ administers the program.  Since Virginia’s Erosion an Sediment Control Law would be incorporated within the newly amended Stormwater Management Law, DEQ would assume full responsibility for managing stormwater, erosion and sediment control and (for the affected localities general east of I-95) stormwater related components associated with the Chesapeake Bay Preservation Act.

Opt-in: A non-MS4 locality would fully administer all components of a newly consolidated stormwater management program. Like today, such localities may seek assistance in plan review and program administration form planning districts or soil and water conservation districts.

Opt-in lite: A non-MS4 locality shares responsibility of managing a consolidated stormwater program with DEQ.  DEQ would conduct water quality and quantity stormwater plan review for stormwater and requirements currently associated with the erosion and sediment control law. Site plan approval or disapproval decisions would still be made by the locality, just as they are today. However, localities in this category will have the additional benefit of retaining control over site plan approvals and the entire development process without the need to add staff responsible for conducting water quality and quantity calculations. Such technical calculations would be performed by DEQ staff, thus saving high professional engineering service costs. Like today, such localities may seek assistance in plan review and program administration form planning districts or soil and water conservation districts.

During the August 24 meeting, a large part of SAG discussions centered on the so-called “opt-in lite” alternative. Under “opt-in lite,” non-MS4 localities would still be responsible for managing local erosion and sediment control programs, as they had been since 1972.  DEQ would undertake most functions associated with  stormwater management, including issuance the general permit for construction activities and enforcement.)

A major concern associated with the “opt-in lite” approach is that localities would be responsible in the “post construction” phase for long-term enforcement and inspection of stormwater BMPs. This requirement would impose additional costs on localities. Among local government representatives of the SAG, many questions arose about liability associated with failing stormwater BMPs when the owner of them (for example, a developer) may have either abandoned them, gone out of business, or transferred liability to (for another example) a homeowner association. There were also questions raised about additional staff current “opt-out” localities may need to hire to conduct inspections and other enforcement activities.

Another concern associated with the “opt-in lite” approach is that the locality, not DEQ, would return to the status of being the “VSMP” authority.  Under current law, DEQ serves as the “VSMP” authority on behalf of the 55 local governments that chose to “opt out” of the program.

The proposal for complete “opt out” from both Stormwater and Erosion and Sediment Control is still on the table. However, any proposal allowing localities to opt-out of managing erosion and sediment control programs is vehemently opposed by stakeholders representing developers.

To address local government concerns, DEQ staff may present revised proposals to the SAG during the next scheduled SAG meeting on September 11 at DEQ’s Piedmont Regional Office in the West End of Richmond. That meeting is scheduled for 10 a.m.

Another very important issue being considered by SAG is the stormwater program fee structure. There are major disagreements among SAG members relating to this issue. The general position of local government representatives is to allow local governments maximum flexibility in developing permit fee schedules (similar to current provisions in Virginia’s Erosion and Sediment Control Law). Stakeholders representing developers support a fee structure that (similar to the Stormwater Management Act) is based upon state regulations uniformly applied throughout the state. Under the Stormwater Management Act, local deviations from the state’s fee structure are subject to approval by the State Water Control Board.

Another “fee” related issue is the distribution of stormwater program fee revenues between DEQ and so-called “opt in” localities. Currently 28 percent of the fee revenues are allocated to DEQ, with the remainder allocated to the localities. VACo has a position in its legislative program supporting a split of 90 percent localities and 10 percent state.

Because of the current impasse, DEQ proposed that the issue of “fees” be studied (through the formation of another Stakeholder Group), with recommendations to be considered by the 2017 General Assembly.

Many other issues were discussed. And because of all the complexities associated with them, DEQ has moved the deadline for completing the SAG’s work back from mid-September to mid-October.

VACo Contact: Larry Land, CAE

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