Virginia ESC - Stormwater Management

Virginia Erosion and Sediment Control Merges with Stormwater Management Program

*Please read with care because there are acronyms in this article that can be difficult to distinguish from others.  This unfortunate circumstance comes with the territory when dealing with this area of the law.  Sorry! 

I previously wrote in this blog about Virginia’s forthcoming merger of the erosion and sediment control (“ESC”) rules with the stormwater regulations, as affects environmental compliance obligations at construction sites.  The law requiring this consolidation, the Virginia Erosion and Stormwater Management Act (“VESMA”) was enacted in 2016, but the effective date of that law was delayed until the State Water Control Board (SWCB) adopted regulations implementing the consolidation.  The SWCB adopted the implementing regulations on June 22, 2023.  They take effect on July 1, 2024.  You can access the new regulations HERE (they will be codified at 9 VAC 25-875-10 to 1420).  

VPDES Construction General Permit

Virginia DEQ choreographed the timing for its consolidation of stormwater and ESC, with the reissuance of the VPDES Construction General Permit (“CGP”), such that all take effect on July 1, 2024. 

The current VPDES Construction General Permit adopted in 2019, expires on June 30, 2024, at the end of its 5-year shelf life.  Construction contractors with a project covered by the current VPDES Construction General Permit should be aware that permit coverage is lost after June 30, 2024.  The SWCB approved the new VPDES Construction General Permit at its February 23, 2024 meeting, to take effect on July 1, 2024.  You can access the new CGP HERE (it will be codified at 9 VAC 25-880-1 to 70). 

How These Changes Affect Construction Contractors

Even though Virginia DEQ stated that the merger of the Virginia ESC and stormwater programs is being done with no substantive changes to existing erosion and sediment control minimum standards, and no changes to the post-construction stormwater management technical criteria, construction contractors will experience a learning curve as they adjust to the new way of doing business brought about by the consolidation of the Virginia ESC and stormwater programs. 

Estimating Impact for Construction Contractors

One way to estimate the extent of adjustment is to compare the recently promulgated Virginia Stormwater Management Handbook, with the two handbooks it replaces (the 1992 DEQ Erosion & Sediment Control Handbook and the 1999 DEG Stormwater Management Handbook, both available here).  Another way to assess is to compare the newly adopted set of regulations (available HERE) with the regulations it repealed and replaced, i.e., 9 VAC 25-840-10 to 100 (ESC Regulations), 9 VAC 25-850-10 to 90 (ESC and Stormwater Management Certification Regulations) and 9 VAC 25-870-10 to 100 (Virginia Stormwater Management Program Regulation or “VSMP”). 

VPDES CGP Coverage Beyond June 30, 2024

A second, very important, requirement facing those construction contractors who need VPDES Construction General Permit coverage beyond June 30, 2024 is the need to evaluate and adjust to the changes between the old and the new versions of the CGP, and then prepare and submit registration statements for coverage under the new CGP, which takes effect on July 1, 2024.  You can access the new CGP HERE (it will be codified at 9 VAC 25-880-1 to 70).

How These Changes Affect Local Governments

Under the pre-July 1, 2024 statutes and regulations, all local governments in Virginia were required to administer the Virginia ESC Program.  But, under the pre-July 1, 2024 statutes and regulations, only some local governments were required to administer the VSMP, i.e. only those localities subject to the Municipal Separate Storm Sewer System (“MS4”) permit requirements were required to administer the VSMP.  The local governments not subject to MS4, namely those with populations less than 50,000 people, could administer the VSMP authority if they wished or, if they preferred, they could opt out, thereby leaving the VSMP program authority to the DEQ.  The VESMA preserves this flexible arrangement for Virginia’s smaller localities. 

Virginia Localities Ordinance Adoption

The VESMA requires all Virginia localities to adopt an ordinance not later than July 1, 2024 to implement the requirements of the Act.  In December 2023, the DEQ promulgated two versions of the model ordinance.  One version is meant for those localities that will exercise the authority available to them to administer both the ESC program and the VSMP.  Such localities are administering the Virginia Erosion and Stormwater Management Program (“VESMP”) authority provided to them by the VESMA.  The second version of the model ordinance is for those smaller localities that opt not to exercise their authority to run the VESMP.  Both versions of the model ordinance are available HERE.

Conclusion

The attorneys on our Waterfront Property Law Team have strong connections, significant legal experience and go the extra mile for our clients to get the job done. A few examples include successfully defending an important wetlands permit in federal court in Norfolk.  A few years ago one of our attorneys kicked off his shoes and got in the water to fend off a criminal enforcement action.  The attorney got soaked in the process, but he protected our client from facing criminal charges.  Contact us to get the help you need.