The existing VPDES General Permit for Stormwater Discharges from Construction Activities, also known as the Construction General Permit (CGP), is set to expire on June 30th, 2019. Operators with active permit coverages that will continue land-disturbance after June 30, 2019 must reapply for permit coverage by submitting a new, 2019 registration statement to the appropriate VSMP authority no later than May 1, 2019. To determine your VSMP Authority by local government jurisdiction, please refer to the list of VSMP Authorities. There is no new issuance permit fee for reissuing permit coverage, however, DEQ will not reissue permit coverage until all incurred Annual Permit Maintenance Fees are paid in full.
Over the course of 2018, HBAV and several other public and private-sector stakeholders were selected to serve on the Department of Environmental Quality’s Technical Advisory Committee (TAC) to assist the Department in the development of the new Construction General Permit (CGP). The proposed changes were published for public comment and on April 15th, 2019, the State Water Control Board formally adopted the 2019 Construction General Permit.
Part II C (Time limits on Applicability) Construction Activities:
The first category of land disturbing activities authorized to proceed with development under the Part IIC criteria is addressed in Section 47 of the VSMP regulation (9VAC25-870-47). This section of the regulation authorizes land disturbing activities that obtain an initial general permit or commence land disturbance prior to July 1, 2014 to use the Part II C criteria until June 30, 2024. Those portions of the project not under construction as of July 1, 2024 must conform to the post-development technical criteria effective July 1, 2014.
Prior to the expiration of the 2009 permit and the effective date of the new Part II B criteria, the Department received several thousand applications for general permit coverage from operators preserving a project’s eligibility to proceed with development in accordance with the Part II C criteria until July 1, 2024. Individual and multi-phase (e.g., large-scale residential, commercial, and industrial developments where development occurs within distinct sections of a larger project at separate times) projects that obtained coverage under the 2009 general permit remain subject to the Part II C criteria until July 1, 2024 provided that the SWPPP for the development included a description of, and necessary calculations supporting, development-wide post-construction stormwater management measures to be installed prior to the completion of construction to ensure compliance with the Part II C technical criteria. Those portions (i.e. separate and distinct sections of the total development project) that are not under construction as of July 1, 2024 must comply with the Part II B criteria. Additionally, in the case of multi-phase projects where the stormwater management plan did not include post-development stormwater management measures for subsequent phases yet to be built, then post-development stormwater management for those sections are to be designed and constructed in accordance with the Part II B criteria.
For those projects subject to the Part II C criteria where (1) land disturbance for other portions of the project has been completed and (2) additional portions remain to be developed but are not actively under construction, permit coverage is not necessary is not necessary until such time that the operator intends to proceed with land disturbing activities for these remaining portions of the project. The department will continue to honor the Part II C criteria for those portions of projects until June 30, 2024 without a requirement to maintain continuous permit coverage. The department interprets the language in 9VAC25-870-47 to mean that if the project in part or in whole had permit coverage prior to July 1, 2014, then the entire project remains subject to the Part II C criteria until July 1, 2024 provided that the portions were included with the description of the development-wide post-construction stormwater management measures and the necessary calculations to demonstrate compliance with the Part II C technical criteria. Prior to commencement of land disturbing activities on these remaining portions, the operator must prepare a SWPPP in accordance with the requirements of the 2019 general permit, including obtaining approval of an erosion and sediment control plan from the Virginia Erosion and Sediment Control Program Authority, and obtain coverage under the 2019 general permit. The Part II C criteria remain effective for these portions until June 30, 2024 at which time, the Part II B criteria becomes applicable to those portions of the project not under construction. See example in appendix A.
Additionally, as clarified in Guidance Memo 14-2014 issued by the Department on August 25, 2014, any land-disturbing activities served by an existing on-site or off-site stormwater management facility, including a regional (watershed-wide) stormwater management facility, designed and implemented in accordance with the old Part II C criteria remain subject to the Part II C criteria until July 1, 2024 as long as the land-use assumptions upon which the stormwater management facility was designed and implemented have not changed (e.g., an unanticipated increase in impervious cover). Permit coverage is not necessary for these projects until such time that the operator is ready to commence land disturbing activities. As described above, the operator is required to obtain erosion and sediment control plan approval and 2019 general permit coverage prior to initiating land disturbance on these parcels.
Part II C (Grandfathered) Construction Activities:
The second category of land disturbing activities authorized to proceed development under the Part II C criteria is addressed in Section 48 of the VSMP regulation (9VAC25-870-48). This section of the regulation authorizes land disturbing activities to be considered “grandfathered” and use the Part II C criteria in effect criteria under the following condition:
Private construction activities:
- 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. The Department may require confirmation from the plan-approving locality to satisfy this regulatory requirement;
- The aforementioned plan, plat, or equivalent document provided a “layout” as defined in the VSMP Regulation (i.e., a conceptual drawing sufficient to provide for the specified stormwater management facilities required at the time of approval) including basic pre- and post-construction water quality and water quantity calculations. The Department may require confirmation from the plan-approving locality to satisfy this regulatory requirement;
- The aforementioned plan, plat, or equivalent document has not been subsequently modified or amended in a manner resulting in an increase in the amount of phosphorus leaving each point of discharge, or an increase in the volume or rate of runoff. The Department may require confirmation from the plan-approving locality to satisfy this regulatory requirement;
- The construction activity will comply with the old Part II C technical criteria at the time of final design;
- 2009 general permit coverage was not issued for the construction activity; and
- Land disturbance did not commence prior to July 1, 2014.
Locality, state, and federal construction activities:
- There has been an obligation of locality, 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;
- 2009 general permit coverage was not issued for the construction activity; and
- Land disturbance did not commence prior to July 1, 2014.
Grandfathered land-disturbing activities as described Sections 48 A or B remain subject to the Part II C criteria until June 30, 2019. Those portions of any grandfathered project not under construction on or after July 1, 2019 become subject to the Part II B criteria that became effective on July 1, 2014. The department interprets portions to mean separate and distinct sections of the total development project. See example in appendix A.
Additionally, in accordance with Section 48 D in cases where governmental bonding or public debt financing was issued for a project prior to July 1, 2012 the project is to be considered “grandfathered” indefinitely.
As stated above, the Part II C criteria apply until June 30, 2019 for eligible projects in accordance with Section 48 of the VSMP regulation and June 30, 2024 for eligible projects in accordance with Section 47. At those times, the portions of the project not under construction must comply with the requirements of the Part II B criteria. The department considers projects to be under construction if construction activities have commenced. Section 10 of the VSMP regulation (9VAC25-870-10) defines construction activity as “any clearing, grading, or excavation associated with large construction activity or associated with small construction activity.”
If you have any questions, please do not hesitate to contact Andrew Clark at AClark@HBAV.com.
