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GEORGE WASHINGTON REGIONAL COMMISSION STORMWATER TECHNICAL COMMITTEE PROJECT AUGUST 28, 2013

GEORGE WASHINGTON REGIONAL COMMISSION STORMWATER TECHNICAL COMMITTEE PROJECT AUGUST 28, 2013. Stormwater Ordinance Development Legal Issues CHRIS POMEROY MEMBER & PRESIDENT. Presentation Outline. Regulatory Overview Federal & State Laws & Regulations “Integration” & “Consolidation”

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GEORGE WASHINGTON REGIONAL COMMISSION STORMWATER TECHNICAL COMMITTEE PROJECT AUGUST 28, 2013

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  1. GEORGE WASHINGTON REGIONAL COMMISSIONSTORMWATER TECHNICAL COMMITTEE PROJECTAUGUST 28, 2013 Stormwater Ordinance Development Legal Issues CHRIS POMEROY MEMBER & PRESIDENT

  2. Presentation Outline • Regulatory Overview • Federal & State Laws & Regulations • “Integration” & “Consolidation” • Key Stormwater Legal References • VSMP Program Basics • DEQ Review of Local Ordinances • Timeline • Consistency Standard • Review Checklist

  3. Presentation Outline (cont.) • Select Legal Issues • Hearings, Appeals • Small Projects in Larger Common Plan of Development • Fee Flexibility & Adjustments • Grandfathering, Nutrient Offsets, Locality Compliance • Discussion • Questions • Follow-up Issues / Process • Resource List • Appendix A: More Stringent Ordinances Paper

  4. Regulatory Overview

  5. More Stringent Design Requirements for Development & Redevelopment • New Water Quality Criteria • More stringent standard (0.41 lbs Phosphorus/acre/yr) • Applied statewide for first time (previous only Tidewater) • New “Runoff Reduction Method” promotes more LID and infiltration practices • New Water Quantity Criteria • New “Energy Balance Method” • Protect stream channels, reduces sedimentation • New/Enhanced Local Program • More BMPs required locally • Greater long-term maintenance issues for locality

  6. VSMP Program Elements • Stormwater Management Ordinance • Funding and Staffing Plan • Application/Fee Collection • Review & Approval of E&S and SWM Plans • Inspection Program & Certified Inspectors • Compliance & Enforcement Process • Reporting & Recordkeeping Procedures • BMP Maintenance Requirements & Tracking • DEQ Oversight / Program Compliance Review

  7. Impact of “Integration” • Move Work of Regulation to Local Level • Shift from State Administration • To Local Administration • For Construction Site Permitting • Stated Benefits • More Efficient “One Stop Shopping” • Higher Compliance Rates • Better Water Quality

  8. Impact of “Consolidation” • Restores and Expands DEQ’s Pre-2004 Role • All water quality programs except Agriculture (part) at DEQ • Transition Issues During Critical Period • DEQ is a full-time regulatory agency, whereas was a new, part-time regulator • This should benefit localities in the long run

  9. Post-“Consolidation” StatutesEffective July 1, 2013 • Stormwater Management Act • Was §§ 10.1-603.2 et seq. • Now §§ 62.1-44.15:24 et seq. • Erosion and Sediment Control Law • Was §§ 10.1-560 et seq. • Now §§ 62.1-44.15:51 et seq. • Chesapeake Bay Preservation Act • Was §§ 10.1-2100 et seq. • Now §§ 62.1-44.15:67 et seq. • Section-by-section cross-walk of changes • http://www.deq.state.va.us/Programs/Water/StormwaterManagement.aspx

  10. Post-“Consolidation” RegulationsApproved Aug. 27, 2013 • Virginia Stormwater Management Prgm (VSMP) Regs • Now 9VAC25-870 (Formerly 4VAC50-60) • GP for Discharges of SW from Construction Activities • Now 9VAC25-880 (Formerly 4VAC50-60-1100) • GP for Discharges of Stormwater from Small MS4s • Now 9VAC25-890 (Formerly 4VAC50-60-1200) • Ches Bay Preservation Area Designation/Mgmt Regs • Now 9VAC25-830 (Formerly 4VAC50-90) • Erosion and Sediment Control Regulations • Now 9VAC25-840 (Formerly 4VAC50-30) • E&S Control and Stormwater Mgmt Certification Regs • Now 9VAC25-850 (Formerly 4VAC50-50)

  11. Challenges • —New Complex Technical Criteria and Program Start Up   • Heavy Degree of Overlap and Resulting Complexity • Ex: Cbay, MS4, E&S, Construction Permit, TMDLs • Lots of Inspections • Ex: E&S (2 wks), SWM (quarterly), TMDL Conditions (More Inspections) • Ex: Long Term Maintenance • Different Enforcement / Appeals / Penalties • State Program Reviews and Compliance Audits • Different Permitting Thresholds for Construction (next slide)

  12. Potential Solutions • ——Co-Regulator Relationship • Build a Strong “Co-Regulator” Relationship (DEQ-Locality) • Collaborative environment for building programs • Supportive State reviews / audits • Practical, efficient, consistent answers / solutions • —Program Phasing / Evolution Over Time • Big picture first / risk-based approach • Focus on basic elements • Ex: Administration, Ordinances, Plan Reviews, Inspections • Clean, straightforward DEQ compliance audits • Based on reasonable expectations for stage of implementation

  13. DEQ Review Process for Local Ordinances

  14. Timeline • December 15, 2013 • Draft ordinance due to DEQ for review • Early 2014 • DEQ comment on draft ordinance • This is fast planned turnaround by DEQ (feasible?) • April 1, 2014 • Final ordinance due to DEQ for approval • Short turnaround expected of localities (feasible?) • July 1, 2014 • Deadline for start-up of local program (feasible?) TIGHT TURNAROUND TIMES

  15. Model Ordinance • Housekeeping: Code References Are Outdated • For both statute (Title 62.1) and regulations (9 VAC) • Drafting Issue: Who’s Regulating Whom? • Model is drafted from the perspective of state agency regulating a locality • Ordinance should directly state how the locality will regulate operators • Ordinance should authorize locality’s actions but not regulate the locality itself • Ex: “The Administrator shall require…” versus “the applicant shall provide…”

  16. Model Ordinance • Model Ordinance is “Guidance” (Not Rule) • “This document is provided as guidance … does not carry the force of law … provide[s] guidance to localities on the elements of a ‘consistent’ local ordinance.” • Statutory Standard: “Consistency” • “Each locality…shall, by ordinance, establish a VSMP … which shall include, but is not limited to, the following: 1. Consistency with regulations adopted ….” • Va. Code § 62.1-44.15:27 • No Written Guidance on “Consistency” • But see Model Ordinance Review Checklist for insight

  17. DEQ’s Ordinance Review Checklist • Latest Draft Checklist • August 12, 2013 Draft • Available from GWRC • Still Outdated • Statutory citations have been updated (Title 62.1) • But regulatory citations are outdated (4VAC vs. 9VAC) • But Useful for Learning DEQ’s Expectations • Consistency Review

  18. Tips for Locality’s Submittal to DEQ • Help your client by helping DEQ reach the right answer • See “Review Strategy” to determine how much flexibility exists • Provide your local ordinance citation to ease DEQ review • Use “Comments” box where helpful to head off DEQ concern

  19. DEQ Ordinance Review Checklist & Nature of “Consistency” Determination • Typical Review: “Existence” of Provision • Ex: “Verify requirement exists in the local ordinance” • Minimum Content Example: Definitions • “The reviewer should ensure that these 33 definitions are included in the local ordinance. Additional definitions may be included but should be reviewed against the Regs. All definitions should be consistent with the Regs.” • “Exact Match” Example: Exemptions • “Must be phrased exactly like the Code to ensure proper interpretation. Determine if all 8 [exempt] activities are specified in the local ordinance….”

  20. Select Legal Issues

  21. Formal Trial-Like Hearings • Statute • Right to APA-style “formal” hearing (:44, :45) • Must be consistent with .26 • Verbatim record; depositions; subpoenas of persons & documents • Witness fees and mileage expenses • Regulations • Brief recitation of statutory references • Model Ordinance • Largely restates the statute • Checklist • Detailed • Requires verification the right to formal hearing exists • Requires conformance to .26 (depositions, subpoenas, etc)

  22. Hearings (cont.) • Observations • Overkill for a local land development decisions • “Non-Integration” with E&S • More on E&S Statute… • No requirements for formal hearings • “Final decisions” simply subject to review in circuit court • May have administrative appeals prior to “final decision” appealable in court

  23. Hearings (cont.) • Legislation Needed • Discussed in DEQ’s Checklist Development Committee • DEQ staff and others seemed receptive to conforming VSMP to E&S approach • Timing Issues • Dec. 2013 draft ordinance / April 2014 final ordinance • Jan. 2014 Session / standard July 1 effective date • Conclusion: Need emergency bill • Recommendations • Keep draft ordinances simple • Get issue on locality’s legislative agenda

  24. Appeals • Statute (:46) • Any permittee or party aggrieved (Article III standing) has right of judicial review of State’s permitting & enforcement • “The provisions of the APA shall not apply to decisions rendered by localities but appeals shall be conducted in accordance with local appeal procedures” • No statement of right to judicial review of local decision • Regulation • One sentence repeating the “local appeal procedure” bit • Model Ordinance • No meaningful guidance • Checklist • No meaningful guidance

  25. Appeals:Administrative Appeals • Whether to Have an Administrative Appeal • Or have appeal proceed to circuit court • Potential Benefits • Resolve disputes prior to circuit court appeal (if any) • Build more comprehensive administrative record prior to circuit court appeal (if any) • Options for Who Hears Administrative Appeals • Council or Board of Supervisors • Manager or County Administrator • Department Director (other than VSMP Administrator)

  26. Appeals:Other Local Procedures • Define Standing to Appeal (:46) • Not necessarily as broad as Article III standing • Availability of Judicial Review Unstated (:46) • Local Procedures Related to Judicial Review • Ex: Require exhaustion of administrative remedies (administrative appeal) • Ex: Provide for preparation and submittal of the administrative record to circuit court • Ex: State APA-like deferential std of review in ordinance

  27. Common Plan of Development Issue • Permitting Small Building Lots in Subdivisions • Sites <1 acre part of larger common plan of development • By federal regulation, these sites typically require permit • Problem • Big paperwork burden for many small, simple projects • Potential Solution • Arkansas / Louisiana State Construction General Permit • Ex: Developer maintains permit for entire subdivision • Ex: Automatic coverage for small sites / std conditions • Status • DEQ considering administrative solution in pending CGP

  28. Fees: Flexibility & Adjustments • VSMP Statute (:28 A 5) • Statewide permit fee schedule • Local authority to reduce or increase fee amounts • Local authority to “consolidate such [VSMP] fees with other program-related charges” • E&S Statute (:54 J) • E&S fees are “in addition to any fee charged for administration of a VSMP” • Locality may consolidate E&S and VSMP fees

  29. Fees (cont.) • VSMP Regulation • Fee Decreases: Requires demonstration to DEQ of locality’s ability to fully and successfully implement VSMP without a full implementation of state fee schedule • Fee Increases: Requires demonstration to DEQ that greater fees are necessary to properly administer the VSMP • Other Fees: “Nothing in this part shall prohibit a locality from establishing other local fees authorized by the Code of Virginia related to stormwater management within their jurisdictions. • Ex: E&S fees • Ex: Stormwater Utility or Service District fees

  30. Fees (cont.) • Model Ordinance • Sets out statewide fee schedule • But notes that inclusion in ordinance is optional • Checklist • Again notes that inclusion in ordinance is optional • Requests submittal of fee provisions to DEQ even if not set forth in ordinance

  31. Grandfathering • Use current stormwater technical criteria • Plans approved before July 2012, and • Obtaining a VSMP permit before July 1, 2014 • Includes • –Proffered or conditional zoning plans • –Preliminary or final subdivision plats • –Preliminary or final site plans • –Zonings with a plan of development • Expiration • Grandfathering ends June 30, 2019, or • Termination of permit • Guidance • On DEQ Stormwater Guidance webpage (see References)

  32. Nutrient Offsets (Offsite Trading) • Old Rules • Localities were authorized to allow nutrient offsets under certain circumstances • New Rules • Developers have right to use offsets under certain conditions • Under five acres disturbed, or • Less than 10 lbs reduction required, or • Onsite control of at least 75% of the required nutrient reductions • Water Quality (Nutrient) Concept Only • Offsets are not allowed for water quantity • Guidance • On DEQ Stormwater Guidance webpage (see References)

  33. Locality Compliance • Potential Enforcers • State (DEQ) • For all Federal and State law requirements • EPA & Citizens • For MS4 Permit Requirements • Not “State-only” requirements • Issue • Risks associated with administration of VSMP, E&S, and Bay Act programs? (blue-green boxes on next slides)

  34. Locality Compliance • Risk of Expanding EPA & Citizen Enforcement • To the extent that State-only requirements are rolled up into MS4 permits • Practice Tip • Draft and managed your VSMP, E&S, and Bay Act programs to give you flexibility / discretion from CWA perspective

  35. Resources • More Stringent Local Ordinances (HB 2190 – 2012) • 5/9/13 C. Pomeroy presentation (Appendix A hereto) • Statutory Crosswalk (Title 10.1 to Title 62.1) • http://www.deq.state.va.us/Programs/Water/StormwaterManagement.aspx • New DEQ Regulations (Code Sections Changes to 9VAC) • 8/27/13 State Water Control Board package copy available from GWRC • DEQ / DCR Stormwater Guidance Page • Various guidance including DCR Model Ordinance • http://www.deq.state.va.us/Programs/Water/LawsRegulationsGuidance/Guidance/StormwaterManagementGuidance.aspx • DEQ Local Ordinance Review Checklist • 8/12/13 Draft available from GWRC • Virginia Municipal Stormwater Association • www.VAMSA.org

  36. DISCUSSIONQuestions / Issues Action Items Stormwater Ordinance Development CHRIS POMEROY MEMBER & PRESIDENT (804) 716-9021 X202 CHRIS@AQUALAW.COM

  37. APPENDIX A HB 2190 (2013) More Stringent Ordinances

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

  39. 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

  40. 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 …

  41. 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

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