GEORGE WASHINGTON REGIONAL COMMISSION STORMWATER TECHNICAL COMMITTEE MAY 9, 2013

1. GEORGE WASHINGTON REGIONAL COMMISSIONSTORMWATER TECHNICAL COMMITTEE MAY 9, 2013 HB 2190 (2013) More Stringent Ordinances CHRIS POMEROY MEMBER & PRESIDENT

2. Overview • HB 2190 Background • Origins and stated rationale • Review of HB 2190 • Scope and specific requirements • HB 2190 Implications • Practical tips for implementing HB 2190 • Other Authority • Under Va. Code Titles 10.1 and 15.2

3. Local VSMP Authority Generally:§10.1-603.3 (Unchanged) • E. Each locality…shall, by ordinance, establish a VSMP that shall be administered in conjunction with a local MS4 program and a local erosion and sediment control program where applicable, and which shall include, but is not limited to, the following: • 1. Consistency with regulations adopted in accordance with provisions of this article; • 2. Provisions for long-term responsibility for and maintenance of stormwater mgmt control devices…; and • 3. Provisions for the integration of the VSMP with local erosion and sediment control, flood insurance, flood plain management, and other programs …

4. More Stringent Ordinances:§10.1-603.7 A (Unchanged) Statute • Localities are authorized to adopt more stringent stormwater management ordinances than those necessary to ensure compliance with the Board's minimum regulations, provided… Key Issue: Are you exercising this authority? • On what authority is my provision based? • §10.1-603.7 or other statute? (See list below) • If other, this statute not applicable

5. §10.1-603.7 A (cont.) Statute • Localities are authorized to adopt more stringent stormwater management ordinances than those necessary to ensure compliance with the Board's minimum regulations, provided… Key Issue: Is my provision “more stringent”? • Technical design standards (Ex: P ≤0.41 lbs/ac/yr) – YES • Other substantive provisions? (“Including but not ltd too”) • Procedural requirements? – NO

6. §10.1-603.7 A (cont.) Statute • provided that the more stringent ordinances are based upon • factual findings of local or regional comprehensive watershed management studies or • findings developed through the implementation of a MS4 permit or • a locally adopted watershed management studyand Key Issues: Scope & Opportunity • This shows that §10.1-603.7 concerns tech issues • Puts the locality in driver’s seat on finding of need

7. §10.1-603.7 A (cont.) Statute • and are determined by the locality to be necessary • to prevent any further degradation to water resources, • to address TMDL requirements, • to protect exceptional state waters, or • to address • existing water pollution incl nutrient & sediment loadings, • stream channel erosion, • depleted groundwater resources, or • excessive localized flooding within the watershed [and hold public hearing prior] Broad Scope of Authority for Stormwater Mgmt • Degradation generally, pollutants, erosion, GW, and flooding

8. DCR Review of Ordinances: New §10.1-603.7 B Statute • Localities shall submit a letter report to the Department when more stringent stormwater management ordinances or more stringent requirements authorized by such ordinances, such as may be set forth in design manuals, policies, or guidance documents developed by the localities, are determined to be necessary pursuant to this section within 30 days after adoptionthereof.Any such letter report shall include a summary explanation as to why the more stringent ordinance or requirement has been determined to be necessary pursuant to this section. Key Issues: Documentation & Disclosure • For requirements adopted under subsection A, locality already has documentation

9. New §10.1-603.7 B (cont.) Statute • Upon the request of an affected landowner or his agent submitted to the Department with a copy to the sent to the locality, within 90 days after adoption of any such ordinance or derivative requirement, localities shall submit the ordinance or requirement and all other supporting materials to the Department for a determination of whether the requirements of this section have been met [SECTION A]and whether any determination made by the locality pursuant to this section is supported by the evidence. Key Issue: Review Is Limited • 90 day deadline avoids open-ended exposure • Standard of State review intended to be easy to meet (“supported by evidence”, not State’s preference)

10. New §10.1-603.7 B (cont.) Statute • The Dept. shall issue a written determination setting forth its rationale within 90 days of submission. Such a determination, or a failure by the Department to make such a determination within the 90-day period, may be appealed to the Board. Key Issues for Administrative Appeal: • Administrative appeal to State Water Control, where there is a long history of SWCB deferring to locality decisions, rather than attempting to second guess them • These multiple layers of review must be tedious for a permit applicant (developer) to undertake, so that should discourage frivolous reviews and challenges

11. BMP Provisions:New §10.1-603.7 C Statute • Localities shall not prohibit or otherwise limit the use of any best management practice (BMP) approved for use by the Director or the Board except as follows: • [Site-Specific Provision] • [Jurisdiction-Wide or Geographical Limits]

12. New §10.1-603.7 C (cont.) Site-Specific Provision • When the Director or the Board approves the use of any BMP in accordance with its stated conditions, the locality serving as a VSMP authority shall have authority to preclude the onsite use of the approved BMP, or to require more stringent conditions upon its use, for a specific land-disturbing project based on a review of the stormwater management plan and project site conditions. Such limitations shall be based on site-specific concerns. Key Issue: High Locality Discretion at Site Level • Broad locality authority for site-specific decisions

13. New §10.1-603.7 C (cont.) Site-Specific Provision (cont.) • Any project or site-specific determination purportedly authorized pursuant to this subsection may be appealed to the Department and the Department shall issue a written determination regarding compliance with this section to the requesting party within 90 days of submission. Any such determination, or a failure by the Department to make any such determination within the 90-day period, may be appealed to the Board. Key Issues: Review Process • Locality’s “compliance” requirements (see previous slide) appear to be low / easily satisfied • Again, review process would be tedious for permit applicant, so that should discourage frivolous challenges

14. New §10.1-603.7 C (cont.) Jurisdiction-Wide/Geographical Limits • When a locality is seeking to uniformly preclude jurisdiction-wide or otherwise limit geographically the use of a BMP approved by the Director or Board, or to apply more stringent conditions to the use of a BMP approved by the Director or Board, upon the request of an affected landowner or his agent submitted to the Dept., with a copy submitted to the locality, within 90 days after adoption, such authorizing ordinances, design manuals, policies, or guidance documents developed by the locality that set forth the BMP use policy shall be provided to the Dept. in such manner as may be prescribed by the Dept. that includes a written justification and explanation as to why such more stringent limitation or conditions are determined to be necessary. Similar to Subsection B review (discussed above)

15. New §10.1-603.7 C (cont.) Jurisdiction-Wide/Geographical Limits (cont.) • The Dept. shall review all supporting materials provided by the locality to determine whether the requirements of this section have been metand that any determination made by the locality pursuant to this section is reasonable under the circumstances. The Dept. shall issue its determination to the locality in writing within 90 days of submission. Such a determination, or a failure by the Dept. to make such a determination within the 90-day period, may be appealed to the Board. Key Issue: Review Standard Defers to Locality • Under reasonableness standard, State must defer to a locality decision unless it is unreasonable (even if State agency would have made a different choice)

16. GrandfatheringAmended §10.1-603.7 E Statute • Any provisions of a local stormwater management program in existence before January 1, 2013, that contains more stringent provisions than this article shall be exempt from the requirements of this section. However, such provisions shall be reported to the Board at the time of the locality's VSMP approval package. Key Issue: Claiming This Exemption Effectively • Claim exemption specifically for key provisions • Claim it generally too (“all other more stringent provisions in effect prior to Jan. 1, 2013”)

17. Appendix of Additional Sources of Local Authority • Standards for Use and Services of Sewers • Va. Code § 15.2-2122 • Land Subdivision & Development • Va. Code § 15.2-2241 • Erosion & Sediment Control Law • Va. Code § 10.1-570

18. Standards for Use and Services of Sewers(Va. Code § 15.2-2122) Statute • For the purpose of providing relief from pollution, and for the improvement of conditions affecting the public health, and in addition to other powers conferred by law, any locality shall have the power and authority to: … • 10. Establish standards for the use and services of sanitary, combined and stormwater sewer systems …. Such standards may be implemented by ordinances…. Comments • Broad authority governing storm sewer use • This section goes on to provide powerful, detailed enforcement procedures

19. Land Subdivision & Development(Va. Code § 15.2-2241 A) • A subdivision ordinance shall include reasonable regulations and provisions that apply to or provide: … • 3. For adequate provisions for drainage and flood control, for adequate provisions related to the failure of impounding structures and impacts within dam break inundation zones, and other public purposes, and for light and air, and for identifying soil characteristics; • 4. For the extent to which and the manner in which streets shall be graded, graveled or otherwise improved and water and storm and sanitary sewer and other public utilities or other community facilities are to be installed;

20. Erosion & Sediment Control Law(Va. Code § 10.1-570) • Authorizes more stringent regulations as part of a VESCP (provided there is similar technical basis as for stormwater requirements under §10-603.7) • “However, this section shall not be construed to authorize any district or locality to impose any more stringent regulations for plan approval or permit issuance than those specified in §§ 10.1-563 and 10.1-565.” • Grandfathers provisions existing before July 1, 2012

21. Erosion & Sediment Control Law(Va. Code § 10.1-570) • “Authorization for more stringent regulations.” • “As part of a VESCP” • “more stringent soil erosion and sediment control regulations or ordinances than those necessary to ensure compliance with the Board's regulations” • “provided that [they] are based upon factual findings”… AND • “are determined by … locality to be necessary to [address water quality, groundwater, erosion, flooding, etc.] “However, this section shall not be construed to authorize any district or locality to impose any more stringent regulations for plan approval or permit issuance than those specified in §§ 10.1-563 and 10.1-565.” • Grandfathers provisions existing before July 1, 2012

22. QUESTIONS? Chris Pomeroy (804) 716-9021 x202 chris@AquaLaw.com