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10.29.2019 Legal News

Don’t Get Lost in the Storm: A Recap of Virginia’s Renewed, Greatly Amended and Now Effective Construction Stormwater Discharge General Permit

This summer brought typical thunderstorms, but it also brought a shower of new and changed requirements for construction activities as part of the recently renewed regulation for the General VPDES Permit for Discharges of Stormwater from Construction Activities (“Construction General Permit”).  Functioning as a permit-by-rule, renewed every five years, and serving as Virginia’s default stormwater discharge permit for regulated construction activities, the Construction General Permit contains standardized requirements to protect water quality from pollutants expected in such discharges.  However, the renewed Construction General Permit includes many significant amendments warranting close attention, including changes in stormwater management practices, recordkeeping, reporting, and compliance assurance.  Is your site ready? 

The following is a summary of the most important of these recent changes:

1. Registration statement.  The registration statement serves as the request for confirmation of Construction General Permit coverage or renewal thereof.  These latest amendments advance the deadline by which a registration statement must be filed for renewal of coverage, from the date of coverage expiration on June 30 to at least 60 days prior to such date.  Also included are several new and revised requirements for the registration statement, such as:

  • A site map of ongoing or proposed land disturbance areas to be covered;
  • The name and address of locations used for off-site support activities;
  • For activity covered under the 2014 Construction General Permit,
    • the date of approval of the project’s erosion and sediment control (“E&SC”) Plan; and
    • confirmation if land-disturbance activities have commenced; and
  • A letter from a nutrient credit bank confirming availability of nutrient credits to offset permanent increases in nutrient (nitrogen and phosphorous) loads in the stormwater discharged.

2. Late registration statements to renew coverage for projects.  This change clarifies that a coverage renewal registration statement filed after the end of the permit term on June 30 will not cause renewed permit coverage to apply retroactively to that expiration date.  New text notes that any unauthorized discharges during that gap period are subject to enforcement actions.

3. Stormwater Pollution Prevention Plan (“SWPPP”) requirements.  Changes made to SWPPP standards and obligations include:

  • For permittees electing to perform SWPPP site inspections on a ten business-day cycle, a reduction in the time allowed to complete a SWPPP inspection after a measurable storm event, from 48 hours to 24 hours;
  • Clarified, additional, and more stringent SWPPP elements, practices and self-inspection timelines for discharges to:
    • Waters listed as impaired for the presence of polychlorinated biphenyls (“PCBs”), or for which a PCB-based total maximum daily load (“TMDL”) has been issued, where the permitted project includes demolition of a structure that was built or renovated prior to 1980 and has floor space greater than 10,000 square feet; or
    • Waters listed as impaired for nutrients or sediments, or for which a nutrient or sediment-based TMDL has been issued; and
    • “Exceptional waters,” as defined in Virginia Water Quality Standards regulations;
  • A new allowance for delaying self-inspections due to safety considerations arising from adverse weather, and related recordkeeping duties;
  • A new deadline for logging site inspections in the SWPPP, now four business days after the inspection is completed;
  • Revisions related to changes in site conditions, site stabilization work and effectiveness, and evidence of discharges prior to inspections; and
  • A new duty to cover or close waste containers during wet weather and daily at close of business, or to take “similarly effective” measures, unless no discharge of pollutants will result from the exposure of the waste.

4. Homebuilder written notification to homebuyers of importance of final site stabilization measures and related recordkeeping.  The definition of “final stabilization” has included for individual residential home lots an option to complete only temporary soil stabilization so long as notice is made to the homeowner of the importance of reaching final soil stabilization.  The amendments clarify that such notice must be in writing and that the SWPPP must include a record of such notice and a certification that the notice was delivered to the homeowner.  Copies of the notification and certification must be kept for at least three years following the expiration or sooner termination of the Construction General Permit for the project.

5. Termination of the Construction General Permit Coverage.  The amendments clarify requirements as to eligibility for and agency approval of termination of coverage:

  • A notice of termination by the permittee to DEQ or the locality is not required where a registration statement was not required pursuant to exemptions for construction of single-family detached structures;
  • For individual lots subject to residential construction activities only, completion of “final stabilization” as newly defined (and discussed above) triggers the duty to file a notice of termination for such lots; and
  • The notification of termination must now include:
    • A construction record drawing for permanent stormwater management facilities that is prepared, sealed and signed by a professional engineer registered in the Commonwealth of Virginia;
    • Certification by such professional engineer that any permanent stormwater management facilities have been constructed in accordance with the approved plans for such facilities;
    • Evidence of recordation in the local land records of any required Stormwater Management Maintenance Agreement; and
    • For individual lots subject to residential construction activities only, and per the new definition of “final stabilization,” where temporary soil stabilization is established, a copy of the certification of notice to the homebuyer of the need for final soil stabilization.

Note that several of the new or revised registration, recordkeeping, notice and reporting requirements could create admissions of unpermitted regulated land-disturbing activities or indicate violations of specific provisions of the Construction General Permit or the VSMP regulations.  In addition, agency delay or denial of confirmation of Construction General Permit coverage (or termination of coverage) is likely until a complete registration statement (or notice of termination) including these newly required items is provided.  This potential dilemma may be significant, especially for projects with land disturbance already underway, but failure to obtain coverage (or have it timely terminated) only increases the risk of regulatory liability.       

Agency inspections are like wet weather – more a matter of when than if – so the next storm may bring more than rain to your site.  Given the many new or more stringent requirements in the renewed Construction General Permit, parties engaged in or planning to start regulated construction activities should ensure they have accounted for these changes and make any needed adjustments quickly.

General VPDES Permit for Discharges of Stormwater from Construction Activities, 35 Va. Reg. Regs. 2260 (May 13, 2019), codified at 9 VAC 25-880.