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Developers: Learn Why Getting a Stormwater Permit Now is a Good Idea

By Chris Workman, PE, Director of Environmental Services, Koontz-Bryant, P.C.

Many Virginia developers are at a decision point when it comes to stormwater permitting of their prospective subdivision projects: With a set of approved drawings in hand, do they go ahead and get a Virginia Stormwater Management Program (VSMP) Stormwater Permit now, knowing that they will have to renew it in the next several months, or do they wait until after the June 30, 2014 deadline to pursue stormwater permitting?

Let’s set the stage. You have an approved set of construction drawings for a subdivision or some other development project that you expect will take at least five to ten years to construct. Short-term projects are not affected. In addition, you may not go to construction for several years. So an issue arises: Will your project’s stormwater design meet the criteria of the new Virginia Stormwater Management Program Regulation when you go to apply for a VSMP Permit? The current regulation (9VAC25-870-47) states:

  • B. Beginning with the General Permit for Discharges of Stormwater from Construction Activities issued July 1, 2009, all land-disturbing activities that receive general permit coverage shall be conducted in accordance with the Part II B or Part II C technical criteria in place at the time of initial state permit coverage and shall remain subject to those criteria for an additional two permit cycles, except as provided for in subsection D of 9VAC25-870-48 (i.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.). After the two additional state permit cycles have passed, or should state permit coverage not be maintained, portions of the project not under construction shall become subject to any new technical criteria adopted since original state permit coverage was issued. For land-disturbing projects issued coverage under the July 1, 2009 state permit and for which coverage was maintained, such projects shall remain subject to the technical criteria of Part II C for an additional two state permits.

By obtaining a VSMP GCP before the June 30, 2014 deadline, your project will maintain coverage under its original design criteria for two additional permit cycles, which are five years each, effectively extending coverage until 2024 (i.e., 2009 + 5 +5 = 2019; the 2019 permit cycle will end in 2024). The permit will need to be renewed for both cycles (2014 and 2019), which will most likely involve submitting an updated Registration Statement, Permit Fee Form, and Fee. The particulars of permit renewal have not been made public yet.

We are currently in the July 1, 2009 state permit cycle. A new cycle will start on July 1, 2014. Permits for plans issued after July 1, 2014 will be subject to the newest design criteria, namely Part II B. So, previously-approved plans may have to be re-submitted for review against the design criteria of Part II B, even though the plans were originally submitted and approved under Part II C. A review of the regulation tends to indicate that Part II B is more restrictive than Part II C. The more restrictive aspects of Part II B may translate into fewer lots to build on, because of additional stormwater management issues, potentially reducing the profitability of the project.

Another issue to consider is related to the economic “downturn”. Many developers have postponed construction on their project(s), even though they have approved plans in hand. The State Water Control Board has set a cut-off date of July 1, 2012 to “grandfather” certain projects. According to 9VAC25-870-48, projects approved prior to that date are eligible to obtain a VSMP stormwater permit using the design criteria of Part II C of the 2009 Virginia Stormwater Management Program Regulation. However, after June 30, 2019, portions of the project not under construction shall become subject to the technical criteria of Part II B.

So, what category does your project fall into? If you have approved drawings in hand and construction on your project will most likely occur over five to ten years, you have some decisions to make. Obtaining a VSMP Permit before June 30, 2014 will carry your project through 2024 without subsequently having the plans subject to any newly-adopted design criteria. But you will have to renew your permit a couple of times during the lifespan of the project.

Conversely, if you wait until after June 30, 2014 to apply for your VSMP Permit, your plans will be subject to the technical criteria of the newly-adopted regulation, which currently incorporates Part II B. As before, your permit can be renewed for two additional cycles, but it will be subject to the technical criteria in place at the time of submittal.

Finally, if you have plans in hand that were approved prior to July 1, 2012, your plans can be grandfathered at any time up until June 30, 2019. After that time, any portions of the project not under construction shall be subject to the technical criteria of Part II B. Again, obtaining a VSMP Permit before June 30, 2014 will carry your project through 2024 without subsequently having the plans subject to any newly-adopted design criteria.

The issues associated with stormwater permitting of construction sites can be confusing at times and contradictive at others. Our engineers continue to follow the Stormwater Regulations as they go from the draft stage, to the comment stage, and finally to the adoption stage. We communicate with key personnel within the Department of Environmental Quality (DEQ) and attend seminars as they make them available. And, we work closely with developers to supply them with plans and information they can use to make their projects successful, and work with them to obtain the permits necessary to satisfy the applicable agencies.

If you need assistance with any of these issues Chris Workman will be happy to help you navigate through the regulations. He can conduct the necessary engineering required by the regulations to bring you into compliance. Chris can be reached at 804-200-1920 or via email.