Virginia’s Ongoing Construction Stormwater Program Guidance Evolution: Part III - A Recap and a Look Ahead

Virginia’s construction stormwater discharge permit program continues to evolve on various fronts, including program implementation guidance. Indeed, stormwater regulatory stakeholders have much to digest from recent activity and to anticipate in the near term.

Part I of our stormwater article series last summer (found here), addressed DEQ’s proposed new Guidance Memo No. 22-2011, designed to establish important new procedural guidance and streamlining for DEQ’s review of erosion and sediment control plans (ESC Plans) and construction stormwater management plans (SWM Plans). Part II of that series last summer (found here), addressed DEQ’s proposed Guidance Memo 22-2012, “Stormwater Management and Erosion & Sediment Control Design Guide,” focusing on more technical aspects of SWM Plan and ESC Plan review and approval. Last winter, following multiple public comment periods, the Virginia Department of Environmental Quality (VDEQ) completed a lengthy process of finalizing these guidance documents. This article serves as Part III of this series on stormwater program developments reviewing the final versions of these guidance documents, as well as discussing separate pending efforts by VDEQ to create a new master stormwater program handbook.

Final Construction Stormwater Implementation Procedural and Technical Guidance Memoranda.

       1. Guidance Memo No. 22-2011 – Streamlined Plan Review for Construction Stormwater Plans and Erosion and Sediment Control Plans submitted by a Licensed Design Professional and reviewed by a Dual Combined Administrator for Erosion and Sediment Control and Stormwater Management (2022 Procedural Guidance Memo).

As discussed in Part I of the stormwater article series, the intent of the 2022 Procedural Guidance Memo is to facilitate quicker reviews and approvals of SWM Plans and ESC Plans (either, a Plan) by creating a framework for development and submission of such Plans by certain qualified professionals meeting minimum standards set forth in Virginia Stormwater Management Program (VSMP) regulations at 9VAC25-870 and Virginia Erosion and Sediment Control Program (VESCP) regulations at 9VAC25-840, as well as the companion Guidance Memo 22-2012 (“2022 Technical Guidance Memo”). In this respect, the final 2022 Procedural Guidance Memo retains the proposed version’s five key requirements for allowing expedited review and approval of a Plan:

• DEQ must be the administrator of VESCP or VSMP in the locality where the construction activity is taking place;
• A Virginia-licensed professional engineer must have prepared, signed and placed his or her seal on the Plan;
• The Plan is prepared in accordance with DEQ’s proposed Guidance Memo, 22-2012, Stormwater Management and Erosion & Sediment Control Design Guide;
• A complete and accurate Plan Submission Checklist is submitted with the Plan package; and
• A person certified as a Dual Combined Administrator for erosion and sediment control and stormwater management must pre-review, sign, date, and include his or her certificate number on, the Plan Submission Checklist.

In most respects related to DEQ review and approval processes and timetables for presumptive approval based in DEQ inaction, the final version was unchanged from the proposed version issued for public comment on August 1, 2022. The final version of the 2022 Procedural Guidance Memo, dated November 30, 2022, became effective as of January 19, 2023.

       2.  Guidance Memo No. 22-2012 - Stormwater Management and Erosion & Sediment Control Design Guide (2022 Stormwater Technical Guidance Memo).

As described in Part II of our stormwater article series, the intent of the 2022 Technical Guidance Memo was to centralize in one program implementation guidance cross-references to and summaries of various design standards and practices for ESC Plan and SWM Plan preparation. The final 2022 Technical Guidance Memo, dated November 30, 2022, and effective as of February 18, 2023, carried forward in material respects the proposed version’s approach to implementation of these criteria and standards at construction sites and for post-development stormwater management. DEQ expects it to serve as a quick and primary reference resource for DEQ staff as they review of Plans for technical sufficiency, though it also provides guidance for Plan preparers to ensure that the Plans will pass muster during DEQ review and be eligible for the expedited Plan review and approval set forth in the 2022 Procedural Guidance Memo. The key elements of the final 2022 Technical Guidance Memo include the following, largely surviving from the proposed version (as discussed in our Part II stormwater series article):

• A consolidation of then-current technical guidance and technical standard references, particularly as to assessing erosion and sediment control and stormwater management needs and controls;
•  Aggregation of key factors to be considered for determining water quantity and water quality impacts associated with regulated construction projects subject to ESC Plan and SWM Plan obligations and appropriate use of control measures, with cross-references to specific design standards;
• Clarification of certain aspects of DEQ’s technical review process for submitted Plans;
• Revision of and, in some respects, increased stringency of certain existing technical methods and practices used to demonstrate compliance with or otherwise meet applicable water quantity and water quality criteria, such as the following: applicable run-off coefficients and assumed groundcover conditions, analyses of channel protection and receiving stream adequacy, post-construction confirmation of soil composition use for run-off curve values, and greater accounting for flood-prone areas; and
• Further iteration and clarification of DEQ’s solar energy project stormwater policy set forth in its controversial March 29, and April 14, 2022, solar project guidance memoranda, though with lingering concerns about whether or to what degree solar panels should be considered impervious surface area for purposes of stormwater runoff calculations (as described in our Part II article).

As with the proposed version of the 2022 Technical Guidance Memo, some of the changes in the final version seem to reflect increasing urgency to ensure Virginia’s compliance with the 2025 deadline of the EPA Chesapeake Bay Total Maximum Daily Load Rule (Bay TMDL Rule) addressing control of nutrients (nitrogen and phosphorous) and sedimentation loads in runoff and discharges into the Chesapeake Bay watershed.

      3. Remaining Uncertainty Tied to New Guidance Memos.

DEQ’s final versions of their 2022 Procedural Guidance Memo and 2022 Technical Guidance Memo offer helpful guidance to all stakeholders and provide a clearer roadmap for DEQ staff for review and approval of ESC Plans and SWM Plans while allowing for more expedited approvals along the way. However, there are still significant concerns among regulated community stakeholders, in particular, that the 2022 Technical Guidance Memo raised the bar or changed acceptable control measures in important respects for certain erosion and sediment control and stormwater management standards. How VDEQ will navigate these concerns as these guidance memos are being implemented remains unclear.

In addition, as discussed above, most localities in Virginia run their own VESCP, and most urban and suburban localities administer their own VSMP (all subject to DEQ program oversight). Therefore, ESC Plan and SWM Plan submissions to a locality serving as the VESCP Authority or VSMP Authority, respectively, are not subject to either the 2022 Procedural Guidance Memo or the 2022 Technical Guidance Memo. That said, such a locality, depending on its VESCP or VSMP status, could choose to follow either or both of these DEQ guidance documents, so long as their own programs remain at least as stringent as the program requirements set by state VESCP and VSMP regulations. Therefore, the degree to which many construction projects will actually fall under either of these new guidance documents is unclear and may remain so until localities that administer their own VESCP and/or VSMP determine whether and to what degree they will follow these guidance documents.

New DEQ Construction Stormwater Program Handbook.

DEQ has embarked on a mission to consolidate and update the very outdated construction stormwater management program and erosion and sediment control handbooks which currently consist of three separate documents with dates ranging from 1992 through 2013. Using a large and varied stakeholder group to provide input, DEQ hopes to create a master stormwater program guidance handbook that would reflect the current state of related law, regulation, and guidance, though not to create new standards. Underway since last year, this effort is painstaking given the breadth of the issues, the degree of technical and engineering information necessary to be brought current, and the integration of erosion and sediment control and stormwater management practices and current statutory and regulatory cross-references. Essentially, the new handbook will aggregate all applicable legal/regulatory and technical criteria, or at least include links or cross-references to them, for erosion and sediment control and post-development stormwater management. The hope is that this will allow DEQ staff, local VESCP and VSMP authorities, and regulated parties to have a central repository for finding and using applicable standards and practices and related program guidance. Another goal is to ensure that the new handbook can be promptly and reliably updated as a living document to reflect changes in law and regulations, updates in best practices, and evolving engineering standards. To this end, it also seems likely that the new handbook would incorporate the substance of the recently issued 2022 Procedural Guidance Memo and 2022 Technical Guidance Memo.

Such a resource could certainly make life easier for all involved in erosion and sediment control and stormwater management planning and program administration. The process still has quite a way to go, though to date much progress has already been made.

Virginia Department of Environmental Quality, Guidance Memo No. 22-2011, “Streamlined Plan Review for Construction Stormwater Plans and Erosion and Sediment Control Plans submitted by a Professional Engineer and reviewed by a Dual Combined Administrator for Erosion and Sediment Control and Stormwater Management,” 39:9 VA.R. 1285 (December 19, 2022). See also Virginia Regulatory Town Hall and DEQ Stormwater Guidance Webpage.

Virginia Department of Environmental Quality, Guidance Memo No. 22-2012, “Stormwater Management and Erosion and Sediment Control Guide,” 39:9 VA.R. 1285 (December 19, 2022). See also Virginia Regulatory Town Hall and DEQ Stormwater Guidance Webpage.

General Notice - Notice of Intent to Establish a Stakeholder Advisory Group to Assist with Development of the 2023 Virginia Stormwater Handbook. See also Meeting Details.