VACo opposes recent DEQ draft stormwater legislation

December 18, 2015

VACo has expressed opposition to draft legislation recently released by the Department of Environmental Quality (DEQ) that comprehensively consolidates the four chief statutes that serve as the foundation for Virginia’s stormwater program. Those four statutes are Virginia’s State Water Control Law, the Stormwater Management Act, the Erosion and Sediment Control Law and the Chesapeake Bay Preservation Act.

DEQ’s draft bill resulted from deliberations by a 22-member Stakeholder Advisory Group (SAG) that worked over the past nine months. SAG held its final meeting on November 19.

One key provision of the bill is that it continues to allow the 54 localities that “opted out” of the Virginia Stormwater Management Program (VSMP) under legislation passed by the General Assembly (HB1173, Hodges/SB 423, Hanger) in 2014 to continue that status.

Localities that (based on the 2014 legislation) decided to fully “opt in” and manage their VSMP will be able to apply to DEQ for what has become known as “opt-in lite” status.

Under “opt-in lite” a non-MS4 locality shares responsibility of managing a consolidated stormwater program with DEQ, which 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 be made by the locality. “Opt-in lite” localities would retain control over site plan approvals and the entire development process. One important difference between “opt out” under current law and “opt-in lite” is that under the latter localities would be responsible for enforcing long-term maintenance requirements associated with permanent stormwater facilities. Under “opt-in lite” localities, not DEQ, would also be designated as the permitting authority.  Under current law, DEQ serves as the permitting authority for “opt out” counties.

After reviewing DEQ’s draft bill, a chief concern raised by VACo and other local government representatives pertained to failure of the draft bill to fix the so-called “donut hole” problem. An unintended consequence of the 2014 legislation that resulted in the continuation of a mandate for localities subject to the Chesapeake Bay Preservation Act (CBPA) to administer and enforce stormwater related requirements for land disturbing projects between 2,500 square feet and one acre. Because of its entanglements with Virginia’s Erosion and Sediment Control Law and regulations that affect land disturbing activities that are at least 10,000 square feet, concerns have been expressed that the actual wording of the draft bill spreads the “donut hole” problem to non-CBPA localities.

It is unclear whether DEQ will move forward with comprehensive stormwater legislation in 2016. Questions about this issue or for a copy of DEQ’s draft stormwater bill, contact Larry Land, VACo staff.

VACo Contact: Larry Land, CAE

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