(a) Purpose and Findings:
(1) The purpose of this Chapter is to ensure the general health, safety, and welfare of the citizens of Loudoun County and protect the quality and quantity of state waters from the potential harm of soil erosion, sediment deposition, and unmanaged stormwater, including protection from a land-disturbing activity causing unreasonable degradation of properties, water quality, stream channels, and other natural resources, and to establish procedures whereby Erosion and Sediment Control and Stormwater Management requirements related to water quality and quantity shall be administered and enforced.
(2) Properly functioning stormwater management infrastructure provides benefit to all properties within the County by directly protecting properties through control of flooding and standing water, and by reducing the adverse impacts of stormwater runoff on the County's natural environment.
(b) Erosion and Stormwater Management Program Established. In accordance Phase II of the Federal Clean Water Act's National Pollutant Discharge Elimination System (NPDES) permit program for stormwater discharges, administered by DEQ through a General Virginia Pollutant Discharge Elimination System (VPDES) Permit Regulation for Discharges of Storm Water from Small Municipal Separate Storm Sewer Systems in the Commonwealth of Virginia (9VAC25-890-1 et seq.) and through 9VAC-875-10 et seq., and VESMA and VESMR, and for the purposes set forth under Section 1096.01(a), this Chapter hereby establishes a VESMP for land-disturbing activities in Loudoun County and regulates discharges to the County's Municipal Separate Storm Sewer System.
(c) Administration:
A. For the purposes of the administration of this Chapter, the Director of the Department of Building and Development, or their designee(s) and/or duly authorized agent(s), shall be considered to be the Administrator of Section 1096.01, any enforcement thereof or any hearings or appeals taken pursuant thereto as prescribed in Section 1096.04, 1096.05, 1096.06, and the VESMP authority for Loudoun County.
B. For the purposes of the administration of this Chapter, the Director of the Department of General Services, or their designee(s) and/or duly authorized agent(s), shall be considered to be the Administrator of Sections 1096.02, 1096.03, any enforcement thereof or any hearings or appeals taken pursuant thereto as prescribed in Section 1096.04, and 1096.06.
(2) Towns:
A. Any town lying within the County that operates a regulated MS4 shall choose one of the following options and notify DEQ of its choice:
1. Adopt and administer its own VESMP.
2. Enter into an agreement with the County to become subject to the County's VESMP.
3. Under either of the above options, the Town will be responsible for administering long-term maintenance of stormwater management facilities and discharges to the stormwater management system, and associated enforcement, within their jurisdiction.
B. Any town lying within the County that does not operate a regulated MS4 shall choose one of the following options and notify DEQ of its choice:
1. Adopt and administer its own VESMP.
2. Enter into an agreement with the County to become subject to the County's VESCP and have DEQ administer its VSMP.
3. Enter into an agreement with the County to become subject to the County's VESMP.
4. Under any of the above options, the Town will be responsible for administering long-term maintenance of stormwater management facilities and discharges to the stormwater management system, and associated enforcement, within their jurisdiction.
(3) Amendments. Any amendments to this chapter shall require the concurrence of both the Director of the Department of Building and Development and the Director of General Services, or their respective designees.
(d) Definitions. In addition to the definitions set forth in 9VAC25-875-20 of VESMR and § 62.1-44.15:24 of the VESMA, as amended, which are expressly adopted and incorporated herein by reference, the following words and terms used in this chapter have the following meanings unless otherwise specified herein.
(1) "Agreement in lieu of a Stormwater Management Plan" means a contract between the County and the owner or permittee that specifies methods that shall be implemented to comply with the requirements of stormwater management criteria for the construction of a single-family detached residential structure that will result in less than 5 acres of land disturbance; such contract may be executed by the County in lieu of a complete SWM Plan as set forth under Section 1096.01(e)(6)A.
(2) "Applicant" means any person submitting an Erosion and Sediment Control and/or Stormwater Management Plan to the County for approval in order to obtain authorization to commence a land-disturbing activity.
(3) "Application" means the standard form or forms, including any additions, revisions, or modifications to the forms, approved by the Administrator and DEQ for applying for a permit.
(4) "Best management practice" or "BMP" means schedules of activities, prohibitions of practices, maintenance procedures, and other management practices, including both structural and nonstructural practices, to prevent or reduce the pollution of surface waters and groundwater systems.
(5) "Board" means the State Water Control Board.
(6) "Chapter" means Chapter 1096 of the Codified Ordinances of Loudoun County, Virginia.
(7) "Clean Water Act" or "CWA" means the federal Clean Water Act (33 U.S.C. § 1251 et seq.), formerly referred to as the Federal Water Pollution Control Act or Federal Water Pollution Control Act Amendments of 1972, Public Law (P.L.) 92-500, as amended by P.L. 95-217, P.L. 95-576, P.L. 96-483, and P.L. 97-117, including any subsequent revisions thereto.
(8) "Clearing" means any activity which removes the vegetative ground cover, including root mat or topsoil removal.
(9) "Common plan of development or sale" means a contiguous area where separate and distinct construction activities may be taking place at different times on different schedules.
(10) "Construction activity" means any clearing, grading, excavating, transporting, or filling of land.
(11) "Control measure" means any BMP, stormwater facility, or other method used to minimize the discharge of pollutants to state waters.
(12) "County" means Loudoun County, Virginia.
(13) "CWA and regulations" means the Clean Water Act and applicable regulations published in the Code of Federal Regulations promulgated thereunder, and for the purposes of this Chapter includes State program requirements.
(14) "Dam" means a barrier to confine or raise water for storage or diversion, to create a hydraulic head, to prevent gully erosion, or to retain soil, rock, or other debris.
(15) "DEQ" means the Virginia Department of Environmental Quality.
(16) "Development" means land disturbance and the resulting landform associated with the construction of residential, commercial, industrial, institutional, recreation, transportation, or utility facilities or structures or the clearing of land for nonagricultural or nonsilvicultural purposes. The regulation of discharges from development, for purposes of stormwater management, does not include the exclusions found in 9VAC25-875-860.
(17) "Dike" means an earthen embankment constructed to confine or control water, especially one built along the banks of a river to prevent overflow of lowlands; levee.
(18) "Director" means the Director of DEQ or their designee.
(19) "Discharge" when used without qualification, means:
A. Any addition of any pollutant or combination of pollutants to state waters from any point source; or
B. 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.
(20) "Diversion" means a channel with a supporting ridge on the lower side constructed across or at the bottom of a slope for the purpose of intercepting surface runoff.
(21) "Drainage area" means a land area, water area, or both from which runoff flows to a common point.
(22) "EPA" means the United States Environmental Protection Agency.
(23) "Erosion" as applied to soil, means the disintegration, detachment, carrying away or wearing away of the land surface by running water, wind and/or other natural agents.
(24) "Erosion and Sediment Control Plan" or "ESC Plan" means a document that meets the requirements of Section 1096.01(e)(5)A and Chapter 5 of the FSM.
(25) "Erosion impact area" means an area of land that is not associated with a current land-disturbing activity but is subject to persistent soil erosion resulting in the delivery of sediment onto neighboring properties or into State waters. This definition shall not apply to any lot or parcel of land of 10,000 square feet or less used for residential purposes or any shoreline where the erosion results from wave action or other coastal processes.
(26) "Excavating" means any digging, scooping or other method of removing earth materials or a substantial amount of such earth materials.
(27) "Farm building or structure" means the same as that term is defined in § 36-97 of the Code of Virginia and also includes any building or structure used for agritourism activity, as defined in § 3.2-6400 of the Code of Virginia, and any related impervious surfaces including roads, driveways, and parking areas.
(28) "Facilities Standards Manual" or "FSM" means the Loudoun County Facilities Standards Manual, as amended.
(29) "Filling" means any depositing or stockpiling of soil or earth materials.
(30) "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.
(31) "Floodplain" means the area adjacent to a channel, river, stream, or other water body that is susceptible to being inundated by water normally associated with the 100-year flood or storm event. This includes the floodplain designated by the Federal Emergency Management Agency.
(32) "Flood-prone area" means the component of a natural or restored stormwater conveyance system that is outside the main channel. Flood-prone areas may include the floodplain, the floodway, the flood fringe, wetlands, riparian buffers, or other areas adjacent to the main channel.
(33) "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 100-year flood or storm event without cumulatively increasing the water surface elevation more than one foot. This includes the floodway designated by the Federal Emergency Management Agency.
(34) "General Permit" means a permit authorizing a category of discharges under the CWA and regulations and VESMA and VESMR, or previous State law, within a geographical area.
(35) "Grading" means any excavating or filling of earth material or any combination thereof, including the land in its excavated or filled conditions.
(36) "Impervious cover" means a surface composed of material that significantly impedes or prevents natural infiltration of water into soil.
(37) "Inspection" means an on-site review of the project's compliance with any applicable design criteria, or an on-site review to obtain information or conduct surveys or investigations necessary in the implementation or enforcement of VESMA, VESMR, and other applicable regulations.
(38) "Karst area" means any land area predominantly underlain at the surface or shallow subsurface by limestone, dolomite, or other soluble bedrock regardless of any obvious surface karst features.
(39) "Karst features" means sinkholes, sinking and losing streams, caves, large flow springs, and other such landscape features found in karst areas.
(40) "Land disturbance" or "land-disturbing activity" means a man-made change to the land surface that may result in soil erosion or has the potential to change its runoff characteristics, including construction activity such as the clearing, grading, excavating, transporting, or filling of land.
(41) "Land-disturbance approval" means an approval allowing a land-disturbing activity to commence issued by (i) a VESMP authority or VSMP authority after the requirements of § 62.1-44.15:34 of the Code of Virginia have been met or (ii) a VESCP authority after the requirements of § 62.1-44.15:55 of the Code of Virginia have been met.
(42) "Land Disturbance/Grading Permit" means a permit issued by the Loudoun County Department of Building and Development pursuant to Section 1096.01(e)(4) and Chapter 5 of the FSM.
(43) "Localized flooding" means smaller scale flooding that may occur outside of a stormwater conveyance system. This may include high water, ponding, or standing water from stormwater runoff, which is likely to cause property damage or unsafe conditions.
(44) "Main channel" means the portion of the stormwater conveyance system that contains the base flow and small frequent storm events.
(45) "Minimize" means to reduce or eliminate to the extent achievable using methods that are technologically available and economically practicable.
(46) "Municipal separate storm sewer system" or "MS4" means the same as that term is defined in § 62.1-44.3 of the Code of Virginia.
(47) "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 bankfull bench and its floodplain.
(48) "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; however, channels designed utilizing natural channel design concepts may be considered natural streams.
(49) "Nonpoint source pollution" means pollution such as sediment, nitrogen, phosphorus, hydrocarbons, heavy metals, and toxics whose sources cannot be pinpointed but rather are washed from the land surface in a diffuse manner by stormwater.
(50) "Operator" means the owner or operator of any facility or activity subject to regulation under this Chapter and includes 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 or VESMP Permit conditions (i.e., the person is authorized to direct workers at a site to carry out activities required by the Stormwater Pollution Prevention Plan or comply with other permit conditions).
(51) "Owner" means the same as that term is defined in § 62.1-44.3 of the Code of Virginia. For a regulated land-disturbing activity that does not require a permit, "owner" also means the owner or owners of the freehold of the premises or lesser estate therein, mortgagee or vendee in possession, assignee of rents, receiver, executor, trustee, lessee, or other person, firm, or corporation in control of a property.
(52) "Peak flow rate" means the maximum instantaneous flow from a prescribed design storm at a particular location.
(53) "Permittee" means the person to whom a permit is issued.
(54) "Person" means any individual, partnership, firm, association, joint venture, public or private corporation, trust, estate, commission, board, public or private institution, utility, cooperative, county, city, town, or other political subdivision of the State, governmental body, including a federal or state entity as applicable, any interstate body, or any other legal entity.
(55) "Point of discharge" means a location at which concentrated stormwater runoff is released.
(56) "Point source" means any discernible, confined, and discrete conveyance including 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.
(57) "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.
(58) "Pollution Prevention Plan" means a document that meets the requirements of Section 1096.01(e)(7).
(59) "Post-development" means 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.
(60) "Predevelopment" means the conditions that exist at the time that plans for the land- disturbing activity are submitted to the VESMP authority. Where phased development or plan approval occurs (e.g., preliminary grading, demolition of existing structures, or roads and utilities), the existing conditions at the time prior to the commencement of land-disturbing activity shall establish predevelopment conditions.
(61) "Preliminary zoning clearance" means written certification from the Loudoun County Department of Planning and Zoning, or a town government, where appropriate, that the property which is the subject of the certification has been reviewed for compliance with the appropriate zoning ordinance and been given preliminary approval.
(62) "Responsible land disturber" or "RLD" means an individual who is responsible for carrying out the land-disturbing activity in accordance with the approved ESC Plan. The RLD may be the owner, applicant, permittee, designer, superintendent, project manager, contractor, or any other project or development team member. The RLD shall be designated on the ESC Plan or Land Disturbance/Grading Permit as a prerequisite for engaging in land disturbance. The RLD shall hold a certificate issued by DEQ pursuant to § 62.1-44.15:30 of the Code of Virginia, or be a professional registered in the State pursuant to § 54.1-400 et seq. of the Code of Virginia or a professional soil scientist as defined in § 54.1-2200 et seq. of the Code of Virginia.
(63) "Runoff" or "stormwater runoff" means that portion of precipitation that is discharged across the land surface or through conveyances to one or more waterways.
(64) "Runoff characteristics" includes maximum velocity, peak flow rate, volume, and flow duration.
(65) "Sediment" means solid material, both mineral and organic, that is in suspension, is being transported or has been moved from its site of origin by air, water, gravity or ice and has come to rest on the earth's surface either above or below sea level.
(66) "Sediment basin" means a temporary impoundment built to retain sediment and debris with a controlled stormwater release structure.
(67) "Sediment trap" means a temporary impoundment built to retain sediment and debris which is formed by constructing an earthen embankment with a stone outlet.
(68) "Single-family residence or Single-family detached residential structure" means the same as the term "Dwelling, Single-Family Detached" is defined in the Loudoun County Zoning Ordinance.
(69) "Site" means the land or water area where any facility or land-disturbing activity is physically located or conducted, including adjacent land used or preserved in connection with the facility or land-disturbing activity.
(70) "Soil erosion" means the movement of soil by wind or water into state waters or onto lands in the State.
(71) "Stabilized" means land that has been treated to withstand normal exposure to natural forces without incurring erosion damage.
(72) "State" means the Commonwealth of Virginia.
(73) "Stockpile" means the acceptance, collection, accumulation or aggregation of soil or dirt from on-site as well as off-site sources. Stockpiles shall not be located in environmentally sensitive areas such as steep slopes or floodplains.
(74) "State Water Control Law" means Chapter 3.1 (§ 62.1-44.2 et seq.) of Title 62.1 of the Code of Virginia.
(75) "State waters" means all surface water and water under the ground, wholly or partially within or bordering the Commonwealth or within its jurisdiction, including wetlands.
(76) "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.
(77) "Stormwater conveyance system" means a combination of drainage components that are used to convey stormwater discharge, either within or downstream of the land-disturbing activity. This includes:
A. "Manmade stormwater conveyance system" means a pipe, ditch, vegetated swale, or other stormwater conveyance system constructed by humans except for restored stormwater conveyance systems;
B. "Natural stormwater conveyance system" means the main channel of a natural stream and the flood-prone area adjacent to the main channel; or
C. "Restored stormwater conveyance system" means a stormwater conveyance system that has been designed and constructed using natural channel design concepts. Restored stormwater conveyance systems include the main channel and the flood-prone area adjacent to the main channel.
(78) "Stormwater hotspot" or "hotspot" means an area where the land use or activities (e.g., gas station, chemical storage facility, industrial facility, etc.) are considered to generate runoff with concentrations of pollutants in excess of those typically found in normal stormwater or have a higher risk of spills, leaks, or illicit discharges. Specific stormwater hotspots, and their associated treatment options, are provided in Chapter 5 of the FSM.
(79) "Stormwater management facility" means a control measure that controls stormwater runoff and changes the characteristics of that runoff including the quantity and quality, the period of release, or the velocity of flow.
(80) "Stormwater Management Plan" or "SWM Plan" means a document containing material describing methods for complying with the requirements of Section 1096.01(e)(6)A and Chapter 5 of the FSM.
(81) "Stormwater management system" means manmade stormwater conveyance systems, restored stormwater conveyance systems, and stormwater management facilities. The stormwater management system includes, but is not limited to, the following infrastructure; storm drains, storm sewers, catch-basins, drop inlets, pipes, open channels and ditches, above ground dry detention facilities, above ground wet detention facilities, and bioretention facilities.
(82) "Stormwater Pollution Prevention Plan" or "SWPPP" means documents that meet the requirements of Section 1096.01(3)A.2.b. A SWPPP shall identify and require the implementation of control measures and shall include or incorporate by reference an approved Erosion and Sediment Control Plan, an approved Stormwater Management Plan, and a Pollution Prevention Plan.
(83) "Subdivision" means the same as that term is defined under § 1241.05 of the Loudoun County Land Subdivision and Development Ordinance.
(84) "Surface waters" means:
A. 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;
B. All interstate waters, including interstate wetlands;
C. 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:
1. That are or could be used by interstate or foreign travelers for recreational or other purposes;
2. From which fish or shellfish are or could be taken and sold in interstate or foreign commerce; or
3. That are used or could be used for industrial purposes by industries in interstate commerce;
D. All impoundments of waters otherwise defined as surface waters under this definition;
E. Tributaries of waters identified in subsections A through D of this definition;
F. The territorial sea; and
G. Wetlands adjacent to waters (other than waters that are themselves wetlands) identified in subsections A through F of this definition.
H. "Surface waters" does not include waste treatment systems, including treatment ponds or lagoons designed to meet the requirements of the CWA and the law or prior converted cropland as determined by the EPA.
(85) "SWM" means stormwater management.
(86) "Technical Criteria" means the minimum design criteria for erosion and sediment control, water quality measures to control nonpoint source pollution, and water quantity measures to control localized flooding and stream channel erosion for land-disturbing activities regulated by this Chapter as set forth under Section 1096.01(e)(8).
(87) "Total maximum daily load" or "TMDL" means the sum of the individual wasteload allocations for point sources, load allocations for nonpoint source pollution, 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 pollution trade-offs.
(88) "Town" means the Town of Leesburg, Purcellville, Middleburg, Lovettsville, Round Hill, Hamilton, Hillsboro, or Herndon.
(89) "Transporting" means any moving of earth materials from one place to another place other than such movement incidental to grading, when such movement results in destroying the vegetative ground cover either by tracking or the buildup of earth materials to the extent that erosion and sedimentation will result from the soil or earth materials over which such transporting occurs.
(90) "Virginia Erosion and Sediment Control Handbook" means the most recent edition of the Virginia Erosion and Sediment Control Handbook published by DEQ, as amended or replaced.
(91) "Virginia Erosion and Sediment Control Program" or "VESCP" means Loudoun County's administration of erosion and sediment control requirements under § 62.1-44.15:24 et seq. of the Code of Virginia.
(92) "Virginia Erosion and Stormwater Management Act" or "VESMA" means § 62.1-44.15:24 et seq. of the Code of Virginia, as amended.
(93) "Virginia Erosion and Stormwater Management Regulation" or "VESMR" means 9VAC25-875 et seq., as amended.
(94) "Virginia Erosion and Stormwater Management Program Permit" or "VESMP Permit" means a Virginia Pollutant Discharge Elimination System (VPDES) permit issued by the Board pursuant to § 62.1-44.15 of the Code of Virginia for stormwater discharges from a land-disturbing activity or MS4.
(95) "Virginia Erosion and Stormwater Management Program (VESMP) Permit application" means an application for a VESMP Permit that includes a registration statement in accordance with 9VAC25-875-530.
(96) "Virginia Erosion and Stormwater Management Program" or "VESMP" means the Loudoun County program established pursuant to VESMA and VESMR.
(97) "Virginia Pollutant Discharge Elimination System Permit" or "VPDES Permit" means a document issued by DEQ pursuant to State Water Control Law authorizing, under prescribed conditions, the potential or actual discharge of pollutants from a point source to surface waters.
(98) "Virginia Stormwater BMP Clearinghouse" means the most recent version of the website administered by DEQ that contains detailed design standards and specifications for control measures that may be used in the State to comply with the requirements of VESMA, VESMR, and other associated regulations.
(99) "Virginia Stormwater Management Handbook" means the most recent edition of the Virginia Stormwater Management Handbook published by DEQ, as amended or replaced.
(100) "Virginia Stormwater Management Program" or "VSMP" means a program established and administered by DEQ pursuant to § 62.1-44.15:27.1 of the Code of Virginia on behalf of a locality on or after July 1, 2014.
(101) "Virginia Stormwater Management Program authority" or "VSMP authority" means DEQ.
(102) "Wasteload allocation" 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. Wasteload allocations are a type of water quality-based effluent limitation.
(103) "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 water drains may be considered the single outlet for the watershed.
(104) "Wetlands" means those areas that are inundated or saturated by surface water 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.
(e) Virginia Erosion and Stormwater Management Program Established.
(1) Pursuant to Section 62.1-44.15:27 et seq. of the Code of Virginia, Loudoun County hereby establishes a VESMP for land-disturbing activities and adopts the applicable standards and specifications under VESMR for VESMPs as set forth hereunder.
(2) Virginia Erosion and Stormwater Management Program Regulated Land-Disturbing Activity; Exemptions.
A. Land-disturbing activity shall not be commenced unless and until the following have been met:
1. Land-disturbing activity that disturbs 5,000 square feet or more but less than one acre and is not part of a common plan of development or sale shall require that the following approvals have been obtained and are maintained in good standing:
b. Approval of an ESC Plan in accordance with Section 1096.01(e)(5);
2. Land-disturbing activity that disturbs one acre or more of land, or disturbs less than one acre of land and is part of a larger common plan of development or sale that results in one acre or more of land disturbance, shall require the following:
e. All such approvals shall be maintained in good standing.
3. Erosion impact areas identified by the Administrator may require the following:
b. Approval of an SWM Plan in accordance with Section 1096.01(e)(6).
c. All such approvals shall be maintained in good standing.
4. All land-disturbing activity shall require evidence that any and all associated permits required by Federal, State, and other local laws and regulations have been obtained to be submitted to the Administrator. The approval of a land-disturbing activity by the Administrator shall not relieve the owner or applicant of any applicable local, State or Federal permit requirements.
5. All land-disturbing activity shall be carried out by the RLD.
1. Minor land-disturbing activities, including home gardens and individual home landscaping, repairs, and maintenance work;
2. Installation, maintenance, or repair of any individual service connection;
3. Installation, maintenance, or repair of any underground utility line when such activity occurs on an existing hard surfaced road, street, or sidewalk, provided the land-disturbing activity is confined to the area of the road, street, or sidewalk that is hard surfaced;
4. Installation, maintenance, or repair of any septic tank line or drainage field unless included in an overall plan for land-disturbing activity relating to construction of the building to be served by the septic tank system;
5. Permitted surface or deep mining operations and projects, or oil and gas operations and projects conducted under Title 45.2 of the Code of Virginia;
6. Clearing of lands specifically for bona fide agricultural purposes; the management, tilling, planting, or harvesting of agricultural, horticultural, or forest crops; livestock feedlot operations; agricultural engineering operations, including construction of terraces, terrace outlets, check dams, desilting basins, dikes, ponds, ditches, strip cropping, lister furrowing, contour cultivating, contour furrowing, land drainage, and land irrigation; or as additionally set forth by the State Water Control Board's regulations. However, this exception shall not apply to harvesting of forest crops unless the area on which harvesting occurs is reforested artificially or naturally in accordance with § 10.1-1100 et seq. of the Code of Virginia or is converted to bona fide agricultural or improved pasture use as described in § 10.1-1163.B of the Code of Virginia; or to filling operations with earthen materials imported from off-site.
7. Installation of fence and sign posts or telephone and electric poles and other kinds of posts or poles;
8. Shoreline erosion control projects on tidal waters when all of the land-disturbing activities are within the regulatory authority of and approved by local wetlands boards, the Marine Resources Commission, or the United States Army Corps of Engineers; however, this exemption shall not apply to any associated land that is disturbed outside of the exempted area;
9. Repair or rebuilding of the tracks, rights-of-way, bridges, communication facilities, and other related structures and facilities of a railroad company;
10. Land-disturbing activities in response to a public emergency where the related work requires immediate authorization to avoid imminent endangerment to human health or the environment. In such situations, the Administrator shall be advised of the land disturbance within seven days of commencing the land-disturbing activity, and compliance with the requirements of subsection A is required within 30 days of commencing the land-disturbing activity; and
11. Discharges to a sanitary sewer or a combined sewer system that are not from a land-disturbing activity.
C. Notwithstanding any other provision of this Chapter, the following land-disturbing activities are required to comply with erosion and sediment control technical criteria but are not required to comply with the stormwater management technical criteria under Section 1096.01(e)(8) unless otherwise required by federal law:
1. Activities under a state or federal reclamation program to return an abandoned property to an agricultural or open land use;
2. Routine maintenance that is performed to maintain the original line and grade, hydraulic capacity, or original construction of a previously approved project. The paving of an existing road with a compacted or impervious surface and reestablishment of existing associated ditches and shoulders shall be deemed routine maintenance if performed in accordance with this subsection; and
3. Discharges from a land-disturbing activity to a sanitary sewer or a combined sewer system.
D. Monitoring and inspections during construction:
1. The Administrator shall inspect the land-disturbing activity during construction for:
a. Compliance with the approved ESC Plan and SWM Plan, this Chapter, VESMA, and VESMR;
b. Development, updating, and implementation of a Pollution Prevention Plan; and
c. Development and implementation of any additional control measures necessary to address a TMDL.
2. The Administrator shall have the authority, at reasonable times and under reasonable circumstances, to enter any establishment or upon any property, public or private, for the purpose of obtaining information or conducting surveys or investigations necessary in the enforcement of this Chapter.
3. In accordance with the performance agreements and bonds and financial guarantees associated with Land Disturbance/Grading Permits, the Administrator shall have the authority to enter any establishment or upon any property, public or private, for the purpose of initiating or maintaining appropriate actions which are required by the Land Disturbance/Grading Permit conditions associated with a land-disturbing activity when a permittee, after proper notice, has failed to take acceptable action within the time specified.
4. The Administrator may require every VESMP Permit applicant or permittee, or any such person subject to VESMP Permit requirements under this Chapter, to furnish when requested such application materials, plans, specifications, and other pertinent information as may be necessary to determine the effect of his discharge on the quality of state waters, or such other information as may be necessary to accomplish the purposes of this Chapter.
(3) VESMP Permit Application:
A. Requirements:
1. A VESMP Permit application shall be submitted to and approved by the Administrator.
2. Approval of the VESMP Permit application shall be preceded by the following actions:
a. A VESMP Permit registration statement submitted to and accepted by the Administrator. A VESMP Permit registration statement shall not be required for construction activity involving a single-family detached residential structure, within or outside a common plan of development or sale, unless:
i. The disturbed area associated with construction activity involving such single-family detached residential structure outside of a common plan of development or sale is 5 acres or greater; or,
ii. The total disturbed area of the common plan of development or sale where such single-family detached residential structure is located is 5 acres or greater.
b. A SWPPP that complies with the requirements and general information set forth in 9VAC25-875-500 and 9VAC25-875-520 submitted to and accepted by the Administrator.
i. The SWPPP shall include the following:
1) An ESC Plan prepared in accordance with Section 1096.01(e)(5) submitted to and approved by the Administrator;
3) A Pollution Prevention Plan that meets the requirements of Section 1096.01(e)(7) submitted to the Administrator; and
4) Identification of all "hotspot" uses and the BMPs and strategies used to mitigate hotspot pollutants in accordance with the FSM.
ii. The SWPPP shall be amended by the operator whenever there is a change in design, construction, operation, or maintenance that has a significant effect on the discharge of pollutants to state waters which is not addressed by the existing SWPPP.
iii. The SWPPP must be maintained by the operator at a central location onsite. If an onsite location is unavailable, notice of the SWPPPs location must be posted near the main entrance to the construction site. Operators shall make the SWPPP available for public review in accordance with the VESMP Permit, either electronically or in hard copy.
e. Execution and filing of any associated performance bond required pursuant to Chapter 8 of the FSM.
3. The VESMP Permit application, along with attendant materials and supporting documentation required by the actions above, shall demonstrate that all land clearing, construction, disturbance, land development and drainage will be conducted in accordance with this Chapter.
B. Review:
1. The Administrator shall determine the completeness of a VESMP Permit application within 15 days after receipt and shall act on an application within 60 days after it has been determined to be complete.
2. The Administrator shall determine the completeness of a previously disapproved VESMP application that is resubmitted to the County within 15 days after receipt and shall act on a resubmitted application within 45 days after it has been determined to be complete.
3. The Administrator's action on a VESMP Permit application shall be to either approve the application and issue the VESMP Permit, or deny the application and provide written rationale for such denial.
(4) Land Disturbance/Grading Permit:
A. Approval of the Land Disturbance/Grading Permit application shall be preceded by the following actions:
1. A Land Disturbance/Grading Permit application shall be submitted to and approved by the Administrator.
a. The Administrator shall furnish the forms for such application.
i. Right to monitor activities. The application shall include a provision that provides permission for the Administrator, at reasonable times, to go upon the property subject to the Land Disturbance/Grading Permit and monitor the land-disturbing activities.
ii. The Administrator may require, as a condition of approval of an application for, or as an amendment to, a Land Disturbance/Grading Permit, that the RLD provide monitoring and reporting to the Administrator to ensure compliance with the approved ESC Plan and to determine whether the measures required in the ESC Plan are effective in controlling erosion and sediment.
b. Such application shall be made by, or on behalf of, the owner of the property upon which the proposed land-disturbing activity is located. Such owner shall be deemed responsible for carrying out the land-disturbing activity in a manner consistent with the Land Disturbance/Grading Permit and for the acts of any other person engaging in any part of such land-disturbing activity. Such responsibility shall be in addition to the responsibility which this Chapter attaches to any applicant or person other than such owner.
c. Interjurisdictional Projects. Any land-disturbing activity involving land under the jurisdiction of more than one VESMP may submit written verification that a permit from the State Water Control Board has been issued including any condition(s) applying thereto in lieu of submitting a Land Disturbance/Grading Permit application to the Administrator.
d. Electric, natural gas and telephone utility companies, interstate and intrastate natural gas pipeline companies and railroad companies. Such entities shall file general erosion and sediment control specifications annually with the DEQ in lieu of submitting a Land Disturbance/Grading Permit application to the Administrator.
2. An ESC Plan prepared in accordance with Section 1096.01(e)(5) submitted to and approved by the Administrator. Once an ESC Plan has been approved in writing by the County, the applicant shall have a period of six months (180 days) from the date of approval to submit and receive County approval of the financial guarantee required under Section 1096.01(e)(4)A.4 for the project or the ESC Plan shall be considered expired. A new permit application and fees must be paid upon such expiration of an ESC Plan.
3. Payment of all fees required pursuant to Section 1096.05(b).
4. A financial guarantee that the land-disturbing activity will be carried out in a manner consistent with the Land Disturbance/Grading Permit, including any amendments submitted to and approved by the Administrator.
a. The financial guarantee shall take the form of a reasonable performance and maintenance bond, cash escrow, letter of credit, or any combination of the same, or any other legal arrangement acceptable to the Administrator.
b. Right of entry. The financial guarantee shall incorporate a right for the Administrator, or their designee, to enter upon the property subject to the Land Disturbance/Grading Permit for the purpose of utilizing such financial guarantee to implement the associated ESC Plan or to take whatever other measures are necessary to achieve the goals of the associated ESC Plan that are or will not be performed, in substantial compliance with the terms of such ESC Plan. The County may collect from the permittee the difference between the amount of the financial guarantee should the amount of the County's reasonable cost to implement the associated ESC Plan and/or take such other measures exceed the amount of the financial guarantee.
c. Waiver of financial guarantee. The Administrator may waive the financial guarantee for areas of land disturbance of less than 10,000 square feet where the land-disturbing activity is for a single-family detached residential structure and/or associated accessory structures and uses, or for any farm building or structure, except where such land-disturbing activity is proposed within Mountainside Overlay District, Limestone Overlay District, River and Stream Corridor Resources, or Steep Slopes areas, under the Loudoun County Zoning Ordinance.
d. Release or Reduction of financial guarantee. All requests for release or reduction of the financial guarantee shall be in writing and submitted to the Administrator, and include all applicable fees under Section 1096.05(b). Upon receipt of such request the Administrator shall inspect the property subject to the Land Disturbance/Grading Permit to determine the percentage of adequate stabilization accomplished in accordance with the ESC Plan for the associated land-disturbing activity. Within sixty days of a determination that adequate stabilization has been accomplished or receipt of the request for release or reduction, whichever is later, an amount of the financial guarantee, or the unexpended or unobligated portion thereof, based upon the percentage of adequate stabilization accomplished shall be released.
5. A valid preliminary zoning clearance specific to the property on which the land-disturbing activity is proposed submitted to the Administrator.
6. Certification that the associated ESC Plan shall be carried out by a designated RLD shall be submitted to the Administrator. Such certification shall include the name of the RLD.
B. Review:
1. The Administrator shall act on a Land Disturbance/Grading Permit application within 60 days of receipt by either approving the application and issuing the Land Disturbance/Grading Permit or denying the application. The date of receipt starts once the application is complete and all applicable fees under Section 1096.05(b) have been paid.
2. If the Administrator denies the Land Disturbance/Grading Permit application, a written decision shall be provided that states the specific reasons for such denial and specifies the modifications, terms and conditions that would permit approval of the application.
3. If no decision is rendered by the Administrator on a Land Disturbance/Grading Permit application within such sixty-day period, the application shall be deemed approved and the applicant shall be authorized to proceed with the proposed land-disturbing activity, provided that all applicable fees under Section 1096.05(b) have been paid.
4. Re-application. Any application that has been denied by the Administrator may be resubmitted at any time. Such re-application shall follow the same procedures and meet the same requirements as are otherwise set forth in this Chapter for an initial application, and there shall be no additional fee requirement for such re-application.
C. Duration of Permit. A Land Disturbance/Grading Permit shall expire automatically three years after the date of issuance or as of the date of expiration or termination of the associated financial guarantee, whichever is sooner.
D. Renewal of Permit. A Land Disturbance/Grading Permit for a project that will not be completed within the three-year timeframe or any approved one-year extension thereof shall be renewed prior to such permit's expiration. Land-disturbing activity that is the subject of an expired Land Disturbance/Grading Permit shall not be continued until such permit has been renewed or a new Land Disturbance/Grading Permit has been approved and issued.
1. A renewed Land Disturbance/Grading Permit shall expire automatically one year after the date of its issuance unless renewed in accordance with this Section.
2. A renewal application shall follow the same procedures and meet the same requirements as the initial Land Disturbance/Grading Permit application. Fees for a renewal application shall be as provided in Section 1096.05(b).
E. Revocation. If a Land Disturbance/Grading Permit is a prerequisite to any approval by any department or agency of the County or any Town for any proposed development, and if upon final review by any such department or agency or Town, such proposed development is disapproved, such Land Disturbance/Grading Permit shall thereafter be subject to revocation by the Administrator.
(5) ESC Plan:
A. Requirements. The ESC Plan shall:
1. Meet the criteria, techniques, and methods of 9VAC25-875-540 et seq. as set forth below and in Chapter 5 of the FSM to the entire land-disturbing activity.
2. Minimize land-disturbing activity in any floodplain, and design any land-disturbing activity that is required to be conducted in a floodplain so as not to interfere with or otherwise change, other than temporarily, the normal flood flow on the land affected by such land-disturbing activity.
3. Have any elements that include activities regulated under Chapter 4 (§ 54.1-400 et seq.) of Title 54.1 of the Code of Virginia appropriately sealed and signed by a professional registered in the Commonwealth of Virginia pursuant to Article I (§ 54.1-400 et seq.) of Chapter 4 of Title 54.1 of the Code of Virginia.
4. Be prepared consistent with the Virginia Erosion and Sediment Control Handbook.
5. Include appropriate maps.
6. Depict areas to be preserved such as tree preservation areas, historic and archaeological resources, and cemeteries, where such areas are governed by proffers or State or Federal regulations or voluntarily determined for preservation.
a. Such areas to be preserved shall be depicted as being demarcated with Super Silt Fence or other approved commercially reasonable measures as described in the Virginia Erosion and Sediment Control Handbook to ensure that these resources shall not be impacted during development.
7. Delineate environmentally sensitive areas such as wetlands, floodplains, and Mountainside Overlay District, Limestone Overlay District, River and Stream Corridor Resources, or Steep Slopes areas under the Loudoun County Zoning Ordinance and depict appropriate erosion control measures to protect such areas during development.
8. Provide a two-phase soil erosion control measure design that specifically addresses the stages of construction activity as follows:
a. The first phase shall describe the conservation measures required during the initial land clearing and rough grading.
b. The second phase shall describe the conservation measures required once the stormwater conveyance system has been installed and is functional and the roads are in a stabilized condition.
c. Each phase shall depict the limits of clearing and grading, and the proposed drainage patterns on the site.
9. Include a detailed narrative that addresses the following features of the area of land-disturbing activity:
a. Topographical and site drainage features;
b. The stage of construction activity at which the transition is made from the first phase to the second phase of the land-disturbing activity;
c. The location and design information regarding any temporary or permanent stormwater management measures constructed in order to address 9VAC-25-8975-560.19;
d. The specific timing for the installation of permanent stormwater management facilities; and
e. Detailed information on any depicted areas to be preserved.
B. Review:
1. The Administrator shall determine the completeness of an ESC Plan within 15 days after receipt, and shall act on an ESC Plan within 60 days after it has been determined to be complete.
2. The Administrator shall determine the completeness of a previously disapproved ESC Plan that is resubmitted to the County within 15 days after receipt, and shall act on a resubmitted ESC Plan within 45 days after it has been determined to be complete.
3. The Administrator's action on an ESC Plan shall be to either approve the ESC Plan, or deny the ESC Plan and provide written rationale for such denial.
4. Prior to issuing a land-disturbance approval, the County shall be required to obtain evidence of VESMP Permit coverage when such coverage is required.
C. Modifications to Approved ESC Plan. Modifications to an approved ESC Plan shall be allowed only after review and written approval by the Administrator in the following cases:
1. Where inspection has revealed that the ESC Plan is inadequate to satisfy applicable regulations or ordinances; or
2. Where the owner finds that because of changed circumstances or for other reasons the ESC Plan cannot be effectively carried out and proposed amendments to the plan, consistent with the requirements of this Chapter are agreed to by the Administrator and the owner.
(6) SWM Plan:
A. Requirements. The SWM Plan shall:
1. Meet the criteria, techniques, and methods of 9VAC25-875-570 et seq. as set forth below and in Chapter 5 of the FSM to the entire land-disturbing activity. Individual lots in new residential, commercial, or industrial developments, including those developed under subsequent owners, must not be considered separate land-disturbing activities. The stormwater management design for a residential, commercial, or industrial subdivision must govern the development of the individual parcels, including those parcels developed under subsequent owners.
2. Have any elements that include activities regulated under Chapter 4 (§ 54.1-400 et seq.) of Title 54.1 of the Code of Virginia appropriately sealed and signed by a professional registered in the Commonwealth of Virginia pursuant to Article I (§ 54.1-400 et seq.) of Chapter 4 of Title 54.1 of the Code of Virginia.
3. Include information on the type and location of stormwater discharges, assuming all sources of surface runoff and all sources of subsurface and groundwater flows are converted to surface runoff.
4. Include information on the features to which stormwater is being discharged including surface waters or karst features, if present, and the predevelopment and post-development drainage areas.
5. Include contact information including the name, address, and telephone number of the owner and the tax map number and parcel identification number of the property or properties affected.
6. Include a narrative that includes a description of current site conditions and final site conditions.
7. Include a general description of the proposed stormwater management facilities and the mechanism through which the facilities will be operated and maintained after construction is complete.
8. Include the following information on the proposed stormwater management facilities:
a. The type of facilities;
b. Location, including geographic coordinates;
c. Impervious and total acres treated; and
d. A description of the discharge point, including any surface waters or karst features, if present.
9. Include documentation and calculations verifying compliance with the technical criteria in Section 1096.01(e)(8) and Chapter 5 of the FSM.
10. Include a map or maps of the site that depicts the following:
a. Topography of the site;
b. Delineation of all contributing drainage areas with drainage divides and a label denoting the surface area;
c. Existing streams, ponds, culverts, ditches, wetlands, other water bodies, and floodplains;
d. Soil types, geologic formations if karst features are present in the area, forest cover, and other vegetative areas;
e. Current land use including existing structures, roads, and locations of known utilities and easements;
f. Sufficient information on adjoining parcels to assess the impacts of stormwater from the site on these parcels;
g. The limits of clearing and grading, and the proposed drainage patterns on the site;
h. Proposed buildings, roads, parking areas, utilities, and stormwater management facilities;
i. Drainage area delineation for each stormwater management facility;
j. 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, forest and open space, and easements;
k. Percentage of site pervious and impervious area; and
l. Total disturbed acreage for the site.
B. Review:
1. The Administrator shall determine the completeness of an SWM Plan within 15 days after receipt, and shall act on an SWM Plan within 60 days after it has been determined to be complete.
2. The Administrator shall determine the completeness of a previously disapproved SWM Plan that is resubmitted to the County within 15 days after receipt, and shall act on a resubmitted SWM Plan within 45 days after it has been determined to be complete.
3. The Administrator's action on an SWM Plan shall be to either approve the SWM Plan, or deny the SWM Plan and provide written rationale for such denial.
C. Modifications to Approved SWM Plans. Modifications to an approved SWM Plan shall be allowed only after review and written approval by the Administrator in the following cases:
1. Where inspection has revealed that the SWM Plan is inadequate to satisfy applicable regulations or ordinances; or
2. Where the owner finds that because of changed circumstances or for other reasons the SWM Plan cannot be effectively carried out and proposed amendments to the plan consistent with the requirements of this Chapter are agreed to by the Administrator and the owner.
D. Construction Record Drawings. A construction record drawing or "as-built" for permanent stormwater management facilities shall be submitted to the Administrator. The construction record drawing shall be appropriately sealed and signed by a professional registered in the Commonwealth of Virginia, certifying that the stormwater management facilities have been constructed in accordance with the approved SWM Plan.
(7) Pollution Prevention Plan:
A. A Pollution Prevention Plan, required by 9VAC25-875-520, shall be developed, implemented, and updated as necessary and must detail the design, installation, implementation, and maintenance of effective control measures as specified in 40 CFR 450.21(d) to minimize the discharge of pollutants. At a minimum, such control measures must be designed, installed, implemented, and maintained to:
1. Minimize the discharge of pollutants from equipment and vehicle washing, wheel wash water, and other wash waters. Wash waters must be treated in a sediment basin or alternative control measure that provides equivalent or better treatment prior to discharge;
2. Minimize the exposure of building materials, building products, construction wastes, trash, landscape materials, fertilizers, pesticides, herbicides, detergents, sanitary waste, and other materials present on the site to precipitation and to stormwater; and
3. Minimize the discharge of pollutants from spills and leaks and implement chemical spill and leak prevention and response procedures.
B. The Pollution Prevention Plan shall include effective best management practices to prohibit the following discharges in accordance with 40 CFR 450.21(e):
1. Wastewater from washout of concrete, unless managed by an appropriate control measure;
2. Wastewater from washout and cleanout of stucco, paint, form release oils, curing compounds, and other construction materials;
3. Fuels, oils, or other pollutants used in vehicle and equipment operation and maintenance;
4. Soaps or solvents used in vehicle and equipment washing; and
5. Discharges from dewatering activities, including discharges from dewatering of trenches and excavations, are prohibited unless managed by appropriate controls in accordance with 40 CFR 450.21(c).
(8) Technical criteria; offsite options; grandfathering; variations.
A. To protect the quality and quantity of state water from the potential harm of unmanaged stormwater runoff resulting from land-disturbing activities, pursuant to the VESMA and VESMR, Loudoun County adopts minimum technical criteria as set forth below:
1. The 19 Minimum Standards found in Section 9VAC25-875-560 of VESMR.
2. The minimum standards and specifications for erosion control practices in the Virginia Erosion and Sediment Control Handbook, subject to the modifications set forth below:
a. Straw Bale Barrier and Brush Barrier. These control measures shall not be used without specific authorization from the Administrator, except as interim control measures during the first phase of perimeter erosion and sediment control measures.
b. Level Spreader. This control measure shall not be used without specific authorization from the Administrator.
c. Temporary Right-of-Way Diversion. The use of diversion berms to break up drainage divides to support the use of sediment traps as opposed to sediment basins shall not be allowed if such diversion berms inhibit the constructability of the site.
d. Temporary Sediment Trap. A pipe outlet sediment trap shall be required for drainage areas of one to three acres. Storage volume calculations shall be based on 134 cubic yards per acre.
3. The Virginia Stormwater BMP Clearinghouse.
4. The requirements of the FSM, which include without limitation, the minimum technical criteria for regulated land-disturbing activities in Part 5, Article 3 (9VAC-25-875-570, et seq.), new development and redevelopment, and stormwater infrastructure, requirements for additional supporting information and design methodologies, and guidance related to such technical criteria and more stringent technical criteria as authorized by the VESMA and VESMR.
B. Offsite options for stormwater management:
1. The Administrator may allow the use of offsite options to meet phosphorus nutrient reductions required by the technical criteria in accordance with 9VAC25-875-610.B.1.
2. Notwithstanding Subsection 1., the use of offsite options to meet phosphorus nutrient reductions required by the technical criteria shall be allowed in in accordance with 9VAC25-875-610.B.2.
3. Where the first assessed watercourse downstream of a development is characterized as impaired and there is no approved local TMDL, the use of offsite options to meet nutrient reductions shall be limited in accordance with 9VAC25-900-91.B.
C. Grandfathering to Part V Article 4 technical criteria:
1. Certain land-disturbing activity shall be considered grandfathered by the Administrator and subject to the Part V Article 4 (9VAC25-875-670 et seq.) as follows:
a. Land-disturbing activities pursuant to a proffered plan of development, Special Exception, preliminary plat of subdivision, record plat, construction plans and profiles, site plan, or any document determined by the locality to be the equivalent thereto, shall remain subject to the Part V Article 4 technical criteria for one additional VESMP Permit cycle, after which any portions of the project not under construction shall become subject to the technical criteria, provided the following are met:
i. Was approved prior to July 1, 2012;
ii. Provided a layout as defined in 9VAC25-875-670;
iii. Will comply with the Part V Article 4 technical criteria;
iv. Has not been subsequently modified or amended in a manner resulting in an increase in the amount of phosphorus leaving each point of discharge, and such that there is no increase in the volume or rate of runoff;
v. A General Permit was not issued prior to July 1, 2014; and
vi. Land disturbance did not commence prior to July 1, 2014.
b. Local, state, and federal projects shall remain subject to Part V Article 4 technical criteria for one additional state permit cycle, after which any portions of the project not under construction shall become subject to the Technical Criteria, provided the following are met:
i. There was an obligation of local, state, or federal funding, in whole or in part, or DEQ approved a SWM Plan, prior to July 1, 2012; or
ii. A General Permit was not issued prior to July 1, 2014; and
iii. Land disturbance did not commence prior to July 1, 2014.
c. Projects for which governmental bonding or public debt financing was issued prior to July 1, 2012.
d. Land-disturbing activities that obtained a General Permit or commenced land disturbance prior to July 1, 2014, shall remain subject to the Part V Article 4 technical criteria for two additional State permit cycles, after which any portions of the project not under construction shall become subject to the Technical Criteria.
e. Land-disturbing activities that obtained a General Permit or commenced land disturbance prior to July 1, 2014, and are treated by an existing BMP that fully meets the Part II C technical criteria or that are part of a comprehensive stormwater management design that fully meets the Part V Article 4 technical criteria, shall remain subject to the Part V Article 4 technical criteria for two additional State permit cycles, after which any portions of the project not under construction shall become subject to the technical criteria.
2. Nothing in this section shall preclude an operator from constructing to a more stringent standard at their discretion.
3. The Administrator has sole discretion to determine what portions of a project are "not under construction".
D. Technical Criteria - Variations:
1. ESC design and site implementation. The Administrator may grant variations to the technical requirements of Sections 1096.01(e)(8)A.1 and 2 that are deemed too restrictive for site conditions as follows:
a. At the time of plan submission, an applicant may request a variation to become part of the approved ESC Plan. The applicant shall explain the reasons for requesting the variation in writing. Specific variations that are granted by the Administrator shall be documented in the ESC Plan.
b. During construction, the person responsible for implementing the approved ESC Plan may request a variation in writing from the Administrator. The Administrator shall respond in writing either approving or disapproving such a request. If the Administrator does not approve a variation within 10 days of receipt of the request, the request shall be considered to be disapproved. Following disapproval, the applicant may resubmit a variation request with additional documentation.
2. Stormwater Management design and site implementation. The Administrator may grant variations to the technical requirements of Section 1096.01(e)(8)A.4 under these conditions:
a. The variation is the minimum necessary to afford relief;
b. Written justification is provided by the Operator;
c. Reasonable and appropriate conditions are imposed so that the intent of the VESMA, VESMR, and this Chapter are preserved;
d. If practicable, mitigation measures shall be required in order to address the impacts of diverging from the technical criteria;
e. Granting the variation will not confer any special privileges that are denied in other similar circumstances;
f. The variation request is not based upon conditions or circumstances that are self-imposed or self-created. Economic hardship alone shall not be a sufficient reason to grant a variation from the requirements of this Chapter; and,
g. The variation is in keeping with established engineering practices and procedures.
h. Variations to the requirement that the land-disturbing activity obtain all required permits or that approve the use of a BMP not listed under the Virginia Stormwater BMP Clearinghouse shall not be granted by the Administrator except when allowed under Part V Article 4 (9VAC25-875-670 et seq.).
i. Variations to requirements for phosphorus reductions shall not be allowed unless offsite options otherwise permitted pursuant to 9VAC25-875-610 and Section 1096.01(e)(8)B have been considered and found to be not available.
E. BMPs:
1. The Administrator shall not approve the use of a BMP that is not listed on the Virginia Stormwater BMP Clearinghouse.
2. The Administrator may preclude the onsite use of a BMP listed on the Virginia Stormwater BMP Clearinghouse, or require more stringent conditions upon such BMP's use, for a specific land-disturbing project based on a review of the SWM Plan and project site conditions. Such preclusion and/or conditions shall be based on site-specific concerns.
a. Any project or site-specific determination purportedly authorized pursuant to this subsection may be appealed to DEQ and DEQ shall issue a written determination regarding compliance with this subsection to the requesting party within 90 days of submission. Any such determination, or a failure by DEQ to make any such determination within the 90-day period, may be appealed to the State Water Control Board.
3. The Administrator may uniformly preclude jurisdiction-wide, or otherwise limit geographically, the use of a BMP listed on the Virginia Stormwater BMP Clearinghouse or apply more stringent conditions to the use of such BMP in accordance with § 62.1-44.15:33 of the Code of Virginia.
F. Nothing in this section shall preclude an operator from constructing to a more stringent standard at their discretion.
(Ord. 24-06. Passed 5-15-24.)