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(A) The Administrator shall review stormwater management plans and shall approve or disapprove a stormwater management plan according to the following.
(1) The Administrator shall determine the completeness of a plan in accordance with § 153.06, and shall notify the applicant, in writing, of such determination, within 15 calendar days of receipt. If the plan is deemed to be incomplete, the above written notification shall contain the reasons the plan is deemed incomplete.
(2) The Administrator shall have an additional 60 calendar days from the date of the communication of completeness to review the plan, except that if a determination of completeness is not
made within the time prescribed in division (A)(1) above, then plan shall be deemed complete and the Administrator shall have 60 calendar days from the date of submission to review the plan.
(3) The Administrator shall review any plan that has been previously disapproved, within
45 calendar days of the date of resubmission.
(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 or her 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.
(5) If a plan meeting all requirements of this chapter is submitted and no action is taken within the time provided above in divisions (A)(2) above, the plan shall be deemed approved.
(B) Approved stormwater plans may be modified as follows.
(1) Modifications to an approved stormwater management plan shall be allowed only after review and written approval by the Administrator. The Administrator shall have 60 calendar days to respond in writing either approving or disapproving such request.
(2) The Administrator may require that an approved stormwater management plan be amended, within a time prescribed by the Administrator, to address any deficiencies noted during inspection.
(C) The Administrator shall require the submission of a construction record drawing for permanent stormwater management facilities. The Administrator may elect not to require construction record drawings for stormwater management facilities for which recorded maintenance agreements are not required pursuant to § 153.10(B).
(1998 Code, § 18-58) Penalty, see § 153.99
(A) To protect the quality and quantity of state water from the potential harm of unmanaged stormwater runoff resulting from land disturbing activities, the town hereby adopts the technical criteria for regulated land disturbing activities set forth in Part II B of the regulations, as amended, expressly to include: 9 VAC § 25-870-62 (applicability); 9 VAC § 25-870-63 (water quality design criteria requirements); 9 VAC § 25-870-65 (water quality compliance); 9 VAC § 25-870-66 (water quantity); 9 VAC § 25-870-69 (off-site compliance options); 4 VAC§ 50-60-72 (design storms and hydrologic methods); 9 VAC § 25-870-74 (stormwater harvesting); 9 VAC § 25-870-76 (linear development project); 9 VAC § 25-870-85 (stormwater management impoundment structures or facilities); and 9 VAC § 25-870-92 (comprehensive stormwater management plans), which shall apply to all land disturbing activities regulated pursuant to this chapter, except as expressly set forth in division (B) below.
(B) Any land disturbing activity shall be considered grandfathered and shall be subject to the Part II C technical criteria of the VSMP regulation provided:
(1) A proffered or conditional zoning plan, zoning with a plan of development, preliminary or final subdivision plat, preliminary or final site plan, or any document determined by the locality to be equivalent thereto: was approved by the locality prior to July 1, 2012; provided a layout as defined in 9 VAC § 25-870-10; will comply with the Part II C technical criteria of the VSMP regulation, expressly to include 9 VAC § 25-870-93 (definitions); 9 VAC § 25-870-94 (applicability); 9 VAC § 25-870-95 (general); 9 VAC § 25-870-96 (water quality); 9 VAC § 25-870-97 (stream channel erosion); 9 VAC § 25-870-98 (stream channel erosion); 9 VAC § 25-870-99 (regional (watershed-wide) stormwater management plans); and 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;
(2) A state permit has not been issued prior to July 1, 2014; and
(3) Land disturbance did not commence prior to July 1, 2014.
(C) Local, state, and federal projects shall be considered grandfathered by the VSMP authority and shall be subject to the Part II C technical criteria of the VSMP regulation provided:
(1) There has been an obligation of local, state, or federal funding, in whole or in part, prior to July 1, 2012, or the department has approved a stormwater management plan prior to July 1, 2012;
(2) A state permit has not been issued prior to July 1, 2014; and
(3) Land disturbance did not commence prior to July 1, 2014.
(D) Land disturbing activities grandfathered under divisions (A) and (B) above shall remain subject to the Part II C technical criteria of the VSMP regulation for one additional state permit cycle. After such time, portions of the project not under construction shall become subject to any new technical criteria adopted by the State Board.
(E) In cases where governmental bonding or public debt financing has been issued for a project prior to July 1, 2012, such project shall be subject to the technical criteria of Part II C.
(F) The Administrator may grant exceptions to the technical requirements of Part II B or Part II C of the regulations, provided that: the exception is the minimum necessary to afford relief; reasonable and appropriate conditions are imposed so that the intent of the act, the regulations, and this chapter are preserved; granting the exception will not confer any special privileges that are denied in other similar circumstances; and 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 from the requirements of this chapter.
(1) Exceptions to the requirement that the land disturbing activity obtain required VSMP authority permit shall not be given by the Administrator, nor shall the Administrator approve the use of a BMP not found on the State Stormwater BMP Clearinghouse Website, or any other control measure duly approved by the Director.
(2) Exceptions to requirements for phosphorus reductions shall not be allowed unless off-site options otherwise permitted pursuant to 9 VAC § 25-870-69 have been considered and found not available.
(G) Nothing in this section shall preclude an operator from constructing to a more stringent standard at his or her discretion.
(1998 Code, § 18-59) Penalty, see § 153.99
(A) The Administrator shall require the provision of long-term responsibility for and maintenance of stormwater management facilities and other techniques specified to manage the quality and quantity of runoff. Such requirements shall be set forth in an instrument recorded in the local land records prior to general permit termination or earlier as required by the Administrator and shall at a minimum:
(1) Be submitted to the Administrator for review and approval prior to the approval of the stormwater management plan;
(2) Be stated to run with the land;
(3) Provide for all necessary access to the property for purposes of maintenance and regulatory inspections;
(4) Provide for inspections and maintenance and the submission of inspection and maintenance reports to the Administrator; and
(5) Be enforceable by all appropriate governmental parties.
(B) At the discretion of the Administrator, such recorded instruments need not be required for stormwater management facilities designed to treat stormwater runoff primarily from an individual residential lot on which they are located, provided it is demonstrated to the satisfaction of the Administrator that future maintenance of such facilities will be addressed through an enforceable mechanism at the discretion of the Administrator. If the Administrator exercises the discretion granted by this division (B), he or she will document that decision and the nature of the enforceable mechanism in the applicable record, which will thereafter be retained for as long as the enforceable mechanism remains in effect, and for one year thereafter.
(C) If a recorded instrument is not required pursuant to division (B) above, the Administrator shall develop a strategy for addressing maintenance of stormwater management facilities designed to treat
stormwater runoff primarily from an individual residential lot. Such a strategy may include periodic inspections, homeowner outreach and education, or other method targeted at promoting the long-term maintenance of such facilities. Such facilities may not be subject to the requirement for an inspection to be conducted by the Administrator.
(1998 Code, § 18-60) Penalty, see § 153.99
(A) The Administrator shall inspect the land disturbing activity during construction for:
(1) Compliance with the approved erosion and sediment control plan;
(2) Compliance with the approved stormwater management plan;
(3) Development, updating, and implementation of a pollution prevention plan; and
(4) Development and implementation of any additional control measures necessary to address a TMDL.
(B) The Administrator may, at reasonable times and under reasonable circumstances, 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 the provisions of this chapter.
(C) In accordance with a performance bond with surety, cash escrow, letter of credit, any combination thereof, or such other legal arrangement or instrument, the Administrator may also enter any establishment or upon any property, public or private, for the purpose of initiating or maintaining appropriate actions which are required by the permit conditions associated with a land disturbing activity when a permittee, after proper notice, has failed to take acceptable action within the time specified.
(D) Pursuant to VA Code § 62.1-44.15:40, the Administrator may require every VSMP authority permit applicant or permittee, or any such person subject to VSMP authority 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 or her discharge on the quality of state waters, or such other information as may be necessary to accomplish the purposes of this chapter.
(E) Post-construction inspections of stormwater management facilities required by the provisions of this chapter shall be conducted by the Administrator pursuant to the locality’s adopted and State Board approved inspection program, and shall occur, at minimum, at least once every five years except as may otherwise be provided for in § 153.10.
(F) The Administrator shall keep records in accordance with the following.
(1) Project records, including approved stormwater management plans, shall be kept for three years after state permit termination or project completion.
(2) Stormwater management facility inspection records shall be documented and retained for at least five years from the date of inspection.
(3) Construction record drawings shall be maintained in perpetuity or until a stormwater management facility is removed.
(4) All registration statements submitted in accordance with 9 VAC § 25-870-59 shall be documented and retained for at least three years from the date of project completion or state permit termination.
(1998 Code, § 18-61) Penalty, see § 153.99
(A) Any permit applicant or permittee, or person subject to this chapter’s requirements, aggrieved by any action of the town taken without a formal hearing, or by inaction of the town, may demand in writing a formal hearing by the Town Council. A petition requesting a hearing based on town action must be filed with the Administrator within 30 days after notice of such action is given by the Administrator. A petition based on town inaction must be filed within 30 days after the town’s deadline for action, if there is one, or if there is no deadline then within 30 days of the date the petitioner had actual or constructive notice that the town should have acted.
(B) The hearings held under this section shall be conducted by the Town Council at a regular or special meeting of the Town Council, or by at least one member of the Town Council designated by the Town Council to conduct such hearings on behalf of the Town Council at any other time and place authorized by the Town Council. The town shall give at least 15 days’ notice of the date, time, and location of the hearing to the party filing the appeal and to the property owner or record. In reviewing the Administrator’s actions, the Town Council or its designee(s) shall consider evidence and opinions presented by the aggrieved applicant and the Administrator. After considering the evidence and opinions, the Town Council or its designee(s) may affirm, reverse, or modify the action. Such decision shall be final, subject only to appeal under § 153.13.
(C) A verbatim record of the proceedings of such hearings shall be taken and filed with the Town Council. Depositions may be taken and read as in actions at law.
(D) The Town Council or its designated member(s), as the case may be, shall have power to issue subpoenas and subpoenas duces tecum, and at the request of any party shall issue such subpoenas. The failure of a witness without legal excuse to appear or to testify or to produce documents shall be acted upon by the Town Council, or its designated member(s), whose action may include the procurement of an order of enforcement from the Circuit Court. Witnesses who are subpoenaed shall receive the same fees and reimbursement for mileage as in civil actions.
(1998 Code, § 18-62)
(A) Final decisions of the town under this chapter shall be subject to appeal to the County Circuit Court, provided that an appeal is filed within 30 days from the date of any written decision adversely affecting the rights, duties, or privileges of the person engaging in or proposing to engage in land disturbing activities.
(B) The burden shall be upon the party complaining of town action to designate and demonstrate an error subject to review by the court. Allegations of error may be based upon: accordance with constitutional right, power, privilege, or immunity; compliance with statutory authority, jurisdiction limitations, or right as provided in the Act, the stated objectives for which regulations may be made, and the factual showing respecting violations or entitlement in connection with case decisions; observance of required procedure where any failure therein is not mere harmless error; and the substantiality of the evidentiary support for findings of fact. The determination of the substantiality of the evidence shall be made upon the whole evidentiary record provided by the town and the court shall determine whether there was substantial evidence in the town’s record to support its decision.
(C) The court shall take due account of the presumption of official regularity, the experience and specialized competence of the town, and the purposes of the Act.
(D) The court may dismiss the appeal, order the town to take any nondiscretionary action that the town has withheld, or remand the matter to the town for further proceedings as the court may permit or direct in accordance with law. The court shall not itself undertake to supply town action committed by the Act to the town.
(1998 Code, § 18-63)
(A) If the Administrator determines that there is a failure to comply with the VSMP authority permit conditions or an agreement in lieu of a stormwater management plan or determines there is an unauthorized discharge, notice shall be served upon the permittee or person responsible for carrying out the permit conditions by any of the following: verbal warnings and inspection reports; notices of corrective action; consent special orders; and notices to comply. Written notices shall be served by registered or certified mail to the address specified in the permit application or by delivery at the site of the development activities to the agent or employee supervising such activities.
(1) The notice shall specify the measures needed to comply with the permit conditions and shall specify the time within which such measures shall be completed. Upon failure to comply within the time specified, a stop work order may be issued in accordance with division (B) below or the permit may be revoked by the Administrator.
(2) If a permittee fails to comply with a notice issued in accordance with this section within the time specified, the Administrator may issue an order requiring the owner, permittee, person responsible for carrying out an approved plan, or the person conducting the land disturbing activities without an
approved plan or required permit to cease all land disturbing activities until the violation of the permit has ceased, or an approved plan and required permits are obtained, and specified corrective measures have been completed.
(3) Such orders shall be issued in accordance with local procedures, if adopted. In the absence of local procedures, such orders shall provide sufficient information for the recipient(s) to understand and comply with the order. Such orders shall become effective upon service on the person by certified mail, return receipt requested, sent to his or her address specified in the land records of the locality, or by personal delivery by an agent of the Administrator. However, if the Administrator finds that any such violation is grossly affecting or presents an imminent and substantial danger of causing harmful erosion of lands or sediment deposition in waters within the watersheds of the state or otherwise substantially impacting water quality, it may issue, without advance notice or hearing, an emergency order directing such person to cease immediately all land disturbing activities on the site and shall provide an opportunity for a hearing, after reasonable notice as to the time and place thereof, to such person, to affirm, modify, amend, or cancel such emergency order. If a person who has been issued an order is not complying with the terms thereof, the Administrator may institute a proceeding for an injunction, mandamus, or other appropriate remedy in accordance with division (C) below.
(B) In addition to any other remedy provided by this chapter, if the Administrator or his or her designee determines that there is a failure to comply with the provisions of this chapter, he or she may initiate such informal and/or formal administrative enforcement procedures in a manner that is consistent with the public interest.
(C) Any person violating or failing, neglecting, or refusing to obey any rule, regulation, ordinance, order, approved standard or specification, or any permit condition issued by the Administrator may be compelled in a proceeding instituted in County Circuit Court by the locality to obey same and to comply therewith by injunction, mandamus, or other appropriate remedy.
(1998 Code, § 18-64) Penalty, see § 153.99
Prior to issuance of any permit, the Administrator may require a reasonable performance bond with surety, cash escrow, letter of credit, any combination thereof, or such other legal arrangement acceptable to the local government attorney, to ensure that measures could be taken by the town at the applicant’s expense should he or she fail, after proper notice, within the time specified to initiate or maintain appropriate actions which may be required of him or her by the permit conditions as a result of his or her land disturbing activity. If the town takes such action upon such failure by the applicant, the locality may collect from the applicant for the difference should the amount of the reasonable cost of such action exceed the amount of the security held, if any. Within 60 days of the completion of the requirements of the permit conditions, such bond, cash escrow, letter of credit, or other legal arrangement, or the unexpended or unobligated portion thereof, shall be refunded to the applicant or terminated.
(1998 Code, § 18-65)
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