Webinar Recap - Stormwater, Erosion and Sediment Control at Construction Sites in Virginia

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During our webinar, we covered the federal history of stormwater, erosion, and sediment requirements dating back to the 1970s, while discussing Virginia-specific laws that followed in response. We went into detail on the Virginia Erosion and Sediment Control Law (VESCL) and the Virginia Stormwater Management Act, elaborating on typical violations and costs of noncompliance with both civil penalties and criminal enforcement.

How Did Stormwater, Erosion, and Sediment Requirements Come About?

In 1972, the U.S. developed the Federal Clean Water Act with a goal of creating fishable and swimmable quality waters across the country within five years. Tasks connected to this act included the addition of sewage treatment plants, end of pipe controls for industrial activities, and stormwater management.

The act was amended twice in 1977 and 1987 when waters were still not fishable and swimmable. In the 1987 amendment, a detailed mandate for stormwater gave the Environmental Protection Agency (EPA) the ability to enforce their own regulations.

The first phase of the EPA’s Stormwater Regulations was enacted in 1990, defining construction sites as industrial activity within a five-acre trigger. This made construction sites now subject to stormwater regulations. In 1999, the trigger dropped to one acre.

In response, Virginia enacted the Virginia Erosion and Sediment Control Law in 1973 and the Virginia Stormwater Management Act in 1989.

What is the Virginia Erosion and Sediment Control Law?

The goal of the Virginia Erosion and Sediment Control Law is to prevent sediment from migrating off construction sites into waterways. This combats sediment clouding water which prevents marine life from finding food, stops subaquatic vegetation from growing, and limits deepwater access.

In fact, the Virginia Erosion Sediment Control handbook states that a construction site erodes at a rate that is 200x greater than the erosion on cropland and 2000x greater than the erosion of woodland.

Parameters of the act vary based on whether a site is within the Chesapeake Bay Preservation area. If the site is outside Chesapeake Bay, the land disturbing activity must be greater than 10,000 square feet to comply with the act. Within the Chesapeake Bay, that trigger reduces to 2,500 square feet.

To receive a permit on a construction site, the Virginia Erosion Sediment Control Program (VESCP) authority grants approval. A plan must be submitted that includes control strategies to prevent erosion and sediment. Such strategies include vegetative cover, avoiding steep slopes, perimeter barriers, rock pads at vehicle ingress or egress, and inlet protection for storm drains.

Responsible parties must document and self-inspect sites biweekly and within 48 hours of any rain event. Virginia Beach city inspectors will also visit the site on a weekly basis.

Common Violations of the Virginia Erosion and Sediment Control Law

• Failure to install controls per the approved plan.
• Failure to install controls per the phasing or sequencing outlined in the approved plan.
• Failure to appropriately modify the approved plan when problems are encountered.
• Failure to get approval from the local VESCP authority when alternative ESC controls are used.
• Failure to update the SWPPP to document the change and failure to maintain ESC controls in accordance with the approved plan.

What is the Virginia Stormwater Management Act?

The Virginia Stormwater Management Act was enacted to reduce flooding and prevent toxic chemicals from migrating off construction sites into waterways. If not managed, these chemicals can enter the food chain through waterways.

Like the Virginia Erosion and Sediment Control Law, the triggers of the act vary by location. In the Chesapeake Bay Preservation Area, land-disturbing activity must be greater than 2,500 square feet. Everywhere else, land-disturbing activity must be greater than one acre.

There are two permits available to responsible parties: the Construction General Permit or an Individual Permit. To receive coverage, a Stormwater Pollution Prevention Plan must be developed. This plan should include an Erosion and Sediment Control Plan, Stormwater Management Plan, and Pollution Prevention Plan.

Common Violations of the Virginia Erosion and Sediment Control Law

• SWPPP not available onsite when there is activity onsite.
• Logs for grading activities and stabilization are not up to date.
• The site map fails to track the location of activities and BMPs.
• Failure to document all modifications and amendments to the SWPPP.
• Pollution prevention plans are not specific to the work onsite.

Civil Penalties

The Virginia Erosion and Sediment Control Law

• Localities encouraged to adopt “uniform schedule of civil penalties.”
  • Virginia Code §62.1-44.15:54(K).
  • NLT $100 or more than $1,000 per violation per day.
  • Max $10,000.
  • Precludes criminal prosecution.
• If sought by DEQ
  • Up to $2,000 per violation per day (Virginia Code §62.1-44.15:63(E)).
  • Unless locality adopted “uniform schedule of civil penalties.”
• Other civil remedies
  • Civil action for damages brought by locality or DEQ (Virginia Code §62.1-44.15:63(D)).
  • If other property being damaged – injunction (Virginia Code §62.1-44.15:63(C)).

The Virginia Stormwater Management Act

• Up to $32,500 per violation per day.
• Board to adopt “a schedule of civil penalties.”
• Virginia Code §62.1-44.15:48.

Criminal Enforcement

The Virginia Erosion and Sediment Control Law

• Class 1 misdemeanor
• 12 months of jail time
• $2,500 fine

The Virginia Stormwater Management Act

• Willful or negligent violation: Misdemeanor (12 months / $2,500 to $32,500).
• Knowing violation: Felony (1-3 yrs / $5,000 to $50,000).
• Knowing violation that places another person in imminent danger of death or serious bodily harm: Felony (2-15 yrs / up to $250,000).

New Developments

In 2016, the General Assembly adopted House Bill 1250 and Senate Bill 673 which will eventually combine the Virginia Erosion and Sediment Control Law and the Virginia Stormwater Management Act into a unified Virginia Erosion and Stormwater Management Act. The Department of Environmental Quality will issue draft regulations for public comment in late 2021 with a goal of the State Water Control Board adopting final regulations by 2022.

Stormwater Resources

• View slides from our webinar
• Stormwater Regulations At Virginia Construction Sites
• The Virginia Erosion and Sediment Control Handbook

To watch our full Stormwater webinar, click here. Be sure to sign up for our email newsletter for future webinar announcements.