Part III. Virginia Erosion and Sediment Control Program
Article 5
VSMP Operated by the Department
9VAC25-875-210. Definitions.
For the purposes of this part only, the following words and terms have the following meanings unless the context clearly indicates otherwise:
"Act" means the Erosion and Sediment Control Law for Localities Not Administering a Virginia Erosion and Stormwater Management Program (ESCL), Article 2.4 (§ 62.1-44.15:51 et seq.) of Chapter 3.1 of Title 62.1 of the Code of Virginia.
"Agreement in lieu of a plan" means a contract between the VESCP authority and the owner that specifies conservation measures that must be implemented in the construction of a (i) single-family detached residential structure or (ii) farm building or structure on a parcel of land with a total impervious cover percentage, including the impervious cover from the farm building or structure to be constructed, of less than 5.0%; this contract may be executed by the VESCP authority in lieu of a formal site plan.
"Applicant" means any person submitting an erosion and sediment control plan for approval in order to obtain authorization for land-disturbing activities to commence.
"Development" means a tract or parcel of land developed or to be developed as a single unit under single ownership or unified control that is to be used for any business or industrial purpose or is to contain three or more residential dwelling units.
"Land disturbance" or "land-disturbing activity" means any manmade change to the land surface that may result in soil erosion or has the potential to change its runoff characteristics, including the clearing, grading, excavating, transporting, and filling of land.
"Owner" means the same as provided in § 62.1-44.3 of the Code of Virginia. For a land-disturbing activity that is regulated under the ESCL, "owner" also includes the owner of the freehold of the premises or lesser estate therein, mortgagee or vendee in possession, assignee of rents, receiver, executor, trustee, lessee, or other person, firm, or corporation in control of a property.
Statutory Authority
§ 62.1-44.15:28 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.
9VAC25-875-220. Purpose.
The purpose of this part is to provide the framework for the administration, implementation, and enforcement of the Virginia Erosion and Sediment Control Law for Localities Not Administering a Virginia Erosion and Stormwater Management Program (ESCL). This part delineates the roles associated with a VESCP. This part also establishes the department's procedures for approving the administration of a VESCP authority and includes the department's oversight authority over a VESCP.
Statutory Authority
§ 62.1-44.15:28 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.
9VAC25-875-230. Applicability.
This part is applicable to:
1. Any local government that administers a VESCP;
2. The department that administers a VESCP; and
3. The department in its administrative oversight of VESCPs.
Statutory Authority
§ 62.1-44.15:28 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.
9VAC25-875-240. Criteria for determining status of land-disturbing activity.
A. The program administrator shall determine the validity of a claim of exempt status by a property owner who disturbs 10,000 square feet or more or 2,500 square feet or more in all areas of jurisdictions designated as subject to the Chesapeake Bay Preservation Area Designation and Management Regulations (9VAC25-830). As soon as a nonexempt status is determined, the requirements of the ESCL shall be immediately enforced.
B. Should a land-disturbing activity not begin during the 180-day period following approval of the erosion and sediment control plan or cease for more than 180 days, the VESCP authority may evaluate the existing approved erosion and sediment control plan to determine whether the plan still satisfies local and state erosion and sediment control criteria and to verify that all design factors are still valid. If the VESCP authority finds the previously filed plan to be inadequate, a modified plan shall be submitted and approved prior to the resumption of land-disturbing activity.
C. Shoreline erosion control projects are not subject to Part V (9VAC25-875-470 et seq.) of this chapter. However, land-disturbing activity immediately outside the limits of the shoreline erosion project is subject to the ESCL and Part V of this chapter.
D. Whenever land-disturbing activity involves activity at a separate location, including borrow and disposal areas, the VESCP authority may either:
1. Consider the offsite activity as being part of the proposed land-disturbing activity; or
2. If the offsite activity is already covered by an approved erosion and sediment control plan, the VESCP authority may require the applicant to provide proof of the approval and to certify that the plan will be implemented in accordance with the ESCL and Part V of this chapter.
Statutory Authority
§ 62.1-44.15:28 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.
9VAC25-875-250. Regulated land-disturbing activities.
A. Land-disturbing activities that meet one of the criteria in this subsection are regulated as follows:
1. Land-disturbing activity that disturbs 10,000 square feet or more, although the locality may reduce this regulatory threshold to a smaller area of disturbed land, is less than one acre, not in an area of a locality designated as a Chesapeake Bay Preservation Area is subject to criteria defined in Article 2 (9VAC25-875-540 et seq.) of Part V (9VAC25-875-470 et seq.) of this chapter.
2. Land-disturbing activity that disturbs 2,500 square feet or more, although the locality may reduce this regulatory threshold to a smaller area of disturbed land, is less than one acre, and in an area of a locality designated as a Chesapeake Bay Preservation Area is subject to criteria defined in Article 2 of Part V of this chapter.
B. A locality may, by local ordinance adopted pursuant to § 62.1-44.15:65 of the Code of Virginia, adopt more stringent local requirements.
Statutory Authority
§ 62.1-44.15:28 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.
9VAC25-875-260. Land-disturbing activities in Chesapeake Bay Preservation Areas.
A. Localities subject to the Chesapeake Bay Preservation Act shall regulate runoff associated with land-disturbing activities in a Chesapeake Bay Preservation Area equal to or greater than 2,500 square feet but less than one acre in accordance with the following:
1. The technical criteria and program and administrative requirements set out in 9VAC25-875-740;
2. A local land disturbance approval, as applicable, shall be provided for the land-disturbing activity;
3. The locality shall regulate such land-disturbing activities in compliance with the:
a. Program requirements in 9VAC25-875-100;
b. Plan review requirements in 9VAC25-875-110 with the exception of subsection D of 9VAC25-875-110 or as allowed in subsection A of 9VAC25-875-750;
c. Long-term stormwater management facility requirements of 9VAC25-875-130;
d. Inspection requirements of 9VAC25-875-140 with the exception of subdivisions A 3 and A 4 of 9VAC25-875-140;
e. Enforcement components of 9VAC25-875-150;
f. Hearing procedures in effect in the locality;
g. Exception conditions of 9VAC25-875-170, excluding subsection A of 9VAC25-875-170, which is not applicable; and
h. Reporting and recordkeeping requirements of 9VAC25-875-180 with the exception of subdivision B 3 of 9VAC25-875-180.
B. A locality subject to the Chesapeake Bay Preservation Act shall adopt an ordinance that incorporates the components of this section.
C. As authorized by § 62.1-44.15:28 of the Code of Virginia, a locality may collect a fee as specified in 9VAC25-875-1400.
Statutory Authority
§ 62.1-44.15:28 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.
9VAC25-875-270. State agency land-disturbing activities.
A. All state agency land-disturbing activities that are not exempt and that have commenced without an approved erosion and sediment control plan shall immediately cease until the state agency has either (i) submitted standards and specifications for its conduct of land-disturbing activities that has been reviewed and approved by the department as being consistent with the ESCL and attendant regulations, or (ii) an erosion and sediment control plan has been submitted to and approved by the department. A formal "Notice of Plan Requirement" will be sent to the state agency under whose purview the project lies since that agency is responsible for compliance with the ESCL and this chapter.
B. Where inspections by department personnel reveal deficiencies in carrying out an approved plan, the person responsible for carrying out the plan, as well as the state agency responsible, will be issued a notice to comply with specific actions and the deadlines that shall be met. Failure to meet the prescribed deadlines can result in the issuance of a stop work order for all land-disturbing activities on the project at the discretion of the department. The stop work order will be lifted once the required erosion and sediment control measures are in place and inspected by department staff.
C. Whenever the Commonwealth or any of its agencies fails to comply within the time provided in an appropriate final order, the director of the department may petition for compliance as follows: For violations in the Natural and Historic Resources Secretariat, to the Secretary of Natural and Historic Resources; for violations in other secretariats, to the appropriate secretary; for violations in other state agencies, to the head of such agency. Where the petition does not achieve timely compliance, the director shall bring the matter to the Governor for resolution. The department may also pursue enforcement as provided by § 62.1-44.15:63 of the Code of Virginia.
D. Where compliance will require the appropriation of funds, the director shall cooperate with the appropriate agency head in seeking such an appropriation; where the director determines that an emergency exists, the director shall petition the Governor for funds from the Civil Contingency Fund or other appropriate source.
Statutory Authority
§ 62.1-44.15:28 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.
9VAC25-875-280. Activities not required to comply with the ESCL.
Notwithstanding any other provisions of the Erosion and Sediment Control Law for Localities Not Administering a Virginia Erosion and Stormwater Management Program (ESCL), the following activities are not required to comply with the ESCL unless otherwise required by federal law:
1. Disturbance of a land area of less than 10,000 square feet in size or less than 2,500 square feet in an area designated as a Chesapeake Bay Preservation Area pursuant to the Chesapeake Bay Preservation Act (§ 62.1-44.15:67 et seq. of the Code of Virginia). However, the governing body of the program authority may reduce this exception to a smaller area of disturbed land or qualify the conditions under which this exception shall apply;
2. Minor land-disturbing activities such as home gardens and individual home landscaping, repairs, and maintenance work;
3. Installation, maintenance, or repair of any individual service connection;
4. Installation, maintenance, or repair of any underground utility line when such activity occurs on an existing hard surfaced road, street, or sidewalk, provided the land-disturbing activity is confined to the area of the road, street, or sidewalk that is hard surfaced;
5. Installation, maintenance, or repair of any septic tank line or drainage field unless included in an overall plan for land-disturbing activity relating to construction of the building to be served by the septic tank system;
6. Permitted surface or deep mining operations and projects or oil and gas operations and projects conducted pursuant to Title 45.2 of the Code of Virginia;
7. Clearing of lands specifically for bona fide agricultural purposes; the management, tilling, planting, or harvesting of agricultural, horticultural, or forest crops; livestock feedlot operations; agricultural engineering operations, including construction of terraces, terrace outlets, check dams, desilting basins, dikes, ponds, ditches, strip cropping, lister furrowing, contour cultivating, contour furrowing, land drainage, and land irrigation; or as additionally set forth by the board in regulations. However, this exception shall not apply to harvesting of forest crops unless the area on which harvesting occurs is reforested artificially or naturally in accordance with the provisions of Chapter 11 (§ 10.1-1100 et seq.) of Title 10.1 of the Code of Virginia or is converted to bona fide agricultural or improved pasture use as described in subsection B of § 10.1-1163 of the Code of Virginia;
8. Installation of fence and sign posts or telephone and electric poles and other kinds of posts or poles;
9. Shoreline erosion control projects on tidal waters when all of the land-disturbing activities are within the regulatory authority of and approved by local wetlands boards, the Virginia Marine Resources Commission, or the U.S. Army Corps of Engineers; however, any associated land that is disturbed outside of this exempted area shall remain subject to the ESCL and the regulations adopted pursuant thereto;
10. Land-disturbing activities in response to a public emergency where the related work requires immediate authorization to avoid imminent endangerment to human health or the environment. In such situations, the VESCP authority shall be advised of the disturbance within seven days of commencing the land-disturbing activity, and compliance with the administrative requirements of Article 2 (9VAC25-875-540 et seq.) of Part V (9VAC25-875-470 et seq.) of this chapter is required within 30 days of commencing the land-disturbing activity;
11. Discharges to a sanitary sewer or a combined sewer system that are not from a land-disturbing activity; and
12. Repair or rebuilding of the tracks, rights-of-way, bridges, communication facilities, and other related structures and facilities of a railroad company.
Statutory Authority
§ 62.1-44.15:28 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.
9VAC25-875-290. Criteria for programs operated by a VESCP authority.
A. At a minimum, a VESCP shall provide that (i) an erosion and sediment control plan shall be reviewed and approved by a certified plan reviewer; (ii) inspections of land-disturbing activities shall be conducted by a certified inspector; and (iii) a VESCP shall contain a certified program administrator, a certified plan reviewer, and a certified project inspector, who may be the same person pursuant to § 62.1-44.15:53 of the Code of Virginia. The requirements for each position identified in this subsection are specified in Part IV (9VAC25-875-380 et seq.) of this chapter.
B. A VESCP authority may enter into agreements or contracts with soil and water conservation districts, adjacent localities, or other public or private entities to assist with carrying out the provisions of this chapter, including the review and determination of adequacy of erosion and sediment control plans submitted for land-disturbing activities on units of land as well as for monitoring, reports, inspections, and enforcement of such land-disturbing activities.
C. The VESCP operated by a county, city, or town shall include provisions for the coordination of the VESCP with flood insurance, flood plain management, and other programs requiring compliance prior to authorizing a land-disturbing activity in order to make the submission and approval of plans, payment of fees, and coordination of inspection and enforcement activities more convenient and efficient both for the local governments and those responsible for compliance with the programs pursuant to § 62-1.44-15:54 of the Code of Virginia.
D. A VESCP authority may enter into an agreement with an adjacent VESCP or VESMP authority regarding the administration of multijurisdictional projects specifying who shall be responsible for all or part of the administrative procedures. Should adjacent authorities fail to come to such an agreement, each shall be responsible for administering the area of the multijurisdictional project that lies within its jurisdiction.
E. Where the land-disturbing activity results from the construction of a (i) single-family detached residential structure or (ii) a farm building or structure on a parcel of land with a total impervious cover percentage, including the impervious cover from the farm building or structure to be constructed, of less than 5.0%, an agreement in lieu of a plan may be substituted for an erosion and sediment control plan if executed by the VESCP authority pursuant to § 62-1.44-15:55 A of the Code of Virginia. For a single-family detached residential structure with less than one acre of land disturbance, an agreement in lieu of a plan may be used when either (a) it is located within a common plan of development or sale with an approved stormwater pollution prevention plan consistent with 9VAC25-875-500 and a permit, if required; or (b) the single-family detached residential is located outside of a common plan of development or sale.
F. A VESCP authority may adopt more stringent soil erosion and sediment control ordinances pursuant to § 62.1-44.15:65 of the Code of Virginia.
G. Any VESCP authority that administers a VESCP may charge applicants a reasonable fee to defray the costs of program administration. A VESCP authority shall hold a public hearing prior to establishing a schedule of fees. The fee shall not exceed an amount commensurate with the services rendered, taking into consideration the time, skill, and the VESCP authority's expense involved.
Statutory Authority
§ 62.1-44.15:28 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.
9VAC25-875-300. Plan review requirements.
A. The VESCP authority shall review erosion and sediment control plans that detail the criteria, techniques, and methods as defined in 9VAC25-875-550 for land-disturbing activities described in 9VAC25-875-560. Activities not required to comply with VESCL are defined in 9VAC25-875-280.
B. When the VESCP authority determines that the plan meets the minimum criteria, techniques, and methods as defined in 9VAC25-875-550, the VESCP authority shall review erosion and sediment control plans submitted and grant written approval within 60 days of the receipt of the plan.
C. When the VESCP authority determines a plan is inadequate, written notice stating the specific reasons for disapproval shall be communicated to the applicant within 45 days. The notice shall specify the modifications, terms, and conditions that are necessary for approval of the plan. If no action is taken by the VESCP authority within 45 days, the plan shall be deemed approved and the proposed activity authorized. The VESCP authority shall act on any erosion and sediment control plan that has been previously deemed inadequate within 45 days after receipt of a revised plan if deemed adequate.
D. For sites requiring coverage under the General VPDES Permit for Discharges of Stormwater from Construction Activities, the VESCP authority shall obtain evidence of such permit coverage from the department's online reporting system prior to issuing a land-disturbance approval.
E. The person responsible for carrying out the plan shall provide to the VESCP authority the name of an individual holding a certificate who will be in charge of and responsible for carrying out the land-disturbing activity. However, the VESCP authority may waive the Responsible Land Disturber Certificate requirement for an agreement in lieu of a plan in accordance with § 62.1-44.15.55 of the Code of Virginia.
F. The VESCP authority may require approval of an erosion and sediment control plan for any land identified as an erosion impact area in accordance with § 62.1-44.15.55 of the Code of Virginia.
G. All erosion and sediment control structures and systems shall be maintained, inspected, and repaired as needed to ensure continued performance of intended function. A statement describing the maintenance responsibilities of the individual responsible for carrying out the land-disturbing activity shall be included in the approved erosion and sediment control plan.
Statutory Authority
§§ 62.1-44.15:28 and 62.1-44.15:55 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024; amended, Virginia Register Volume 41, Issue 1, eff. September 25, 2024.
9VAC25-875-310. Plan review coordination with the department for solar projects.
A. Any VESCP authority that does not operate a regulated municipal separate storm sewer system and for which the department did not administer a Virginia Stormwater Management Program as of July 1, 2020, shall notify the department if it decides to have the department provide the VESCP authority with (i) review of the erosion and sediment control plan required by § 62.1-44.15:55 A of the Code of Virginia and (ii) a recommendation on the plan's compliance with the requirements of Part V (9VAC25-875-470 et seq.) of this chapter for any solar project and its associated infrastructure with a rated electrical generation capacity exceeding five megawatts.
B. Any VESCP authority that notifies the department pursuant to this section shall within five days of receiving the erosion and sediment control plan forward the plan to the department for review. If the plan forwarded to the department is incomplete, the department shall return the plan to the VESCP authority immediately, and the application process shall start over. If the plan forwarded to the department is complete, the department shall review the plan for compliance with the requirements of Part V of this chapter and provide a recommendation to the VESCP authority. The VESCP authority shall then (i) grant written approval of the plan or (ii) provide written notice of disapproval of the plan in accordance with § 62.1-44.15:55 B of the Code of Virginia.
C. Any VESCP authority that notifies the department pursuant to this section shall within five days of receiving the resubmittal of a previously disapproved erosion and sediment control plan forward the resubmitted plan to the department for review. The department shall review the resubmitted plan for compliance with the requirements of Part V of this chapter and provide a recommendation to the VESCP authority. The VESCP authority shall then (i) grant written approval of the plan or (ii) provide written notice of disapproval of the plan in accordance with § 62.1-44.15:55 B of the Code of Virginia.
Statutory Authority
§ 62.1-44.15:28 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.
9VAC25-875-320. Long-term maintenance of stormwater management facilities.
A. A recorded instrument shall be submitted to the VESCP authority in accordance with 9VAC25-875-535.
B. The department shall enforce permits and require compliance with its applicable regulations, including when serving as a VSMP authority in a locality that chose not to adopt a VESMP in accordance with § 62.1-44.15:27 of the Code of Virginia.
Statutory Authority
§ 62.1-44.15:28 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.
9VAC25-875-330. Inspections.
A. The VESCP authority (i) shall provide for periodic inspections of the land-disturbing activity and require that an individual holding a certificate, as provided by § 62.1-44.15:52 of the Code of Virginia, will be in charge of and responsible for carrying out the land-disturbing activity and (ii) may require monitoring and reporting from the person responsible for carrying out the erosion and sediment control plan, to ensure compliance with the approved plan and to determine whether the measures required in the plan are effective in controlling erosion and sediment. However, any VESCP authority may waive the certificate requirement for an agreement in lieu of a plan.
B. Periodic inspections by the VESCP authority are required on all projects. The VESCP authority shall either:
1. Provide for an inspection during or immediately following initial installation of erosion and sediment controls, at least once in every two-week period, within 48 hours following any runoff producing storm event, and at the completion of the project prior to the release of any performance bonds; or
2. Establish an alternative inspection program that ensures compliance with the approved erosion and sediment control plan. Any alternative inspection program shall be:
a. Approved by the department prior to implementation;
b. Established in writing;
c. Based on a system of priorities that, at a minimum, address the amount of disturbed project area, site conditions, and stage of construction; and
d. Documented by inspection records.
Statutory Authority
§ 62.1-44.15:28 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.
9VAC25-875-340. Enforcement.
A. Each VESCP authority shall incorporate components from subdivisions 1 and 2 of this subsection.
1. Informal and formal administrative enforcement procedures may include:
a. Right of entry in accordance § 62.1-44.15:60 of the Code of Virginia.
b. Verbal warnings and inspection reports;
c. Notices of corrective action;
d. Notices to comply in accordance with § 62.1-44.15:58 of the Code of Virginia;
e. Consent special orders and civil charges in accordance § 62.1-44.15:63 of the Code of Virginia;
f. Stop work orders in accordance with of § 62.1-44.15:58 of the Code of Virginia; and
g. Public notice and comment periods for proposed settlements and consent special orders.
2. Civil and judicial enforcement procedures may include:
a. Schedule of civil penalties in accordance with §§ 62.1-44.15:54 and 62.1-44.15:63 of the Code of Virginia; and
b. Injunctions in accordance §§ 62.1-44.15:58 and 62.1-44.15:63 of the Code of Virginia.
B. Each VESCP authority shall develop policies and procedures that outline the steps to be taken regarding enforcement actions under the ESCL and attendant regulations and local ordinances.
C. Penalties imposed in accordance with §§ 62.1-44.15:54 and 62.1-44.15:63 of the Code of Virginia may reflect the degree of harm caused by the violation and take into account the economic benefit to the violator from noncompliance.
D. Pursuant to § 62.1-44.15:25 of the Code of Virginia, authorization to administer a VESCP program shall not remove from the department the authority to enforce the provisions of the ESCL and attendant regulations.
E. The department may terminate permit coverage during the permit's term and require application for an individual permit or deny a permit renewal application for failure to comply with permit conditions or on the department's own initiative in accordance with the ESCL and this chapter.
F. Pursuant to § 62.1-44.15:63 A of the Code of Virginia, civil penalties recovered by a VESCP authority shall be paid into the treasury of the locality in which the violation occurred and are to be used solely for stormwater management capital projects.
Statutory Authority
§ 62.1-44.15:28 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.
9VAC25-875-350. Variances.
A variance to waive or modify any of the erosion and sediment control requirements of Article 2 (9VAC25-874-540 et seq.) of Part V (9VAC25-875-470 et seq.) of this chapter that are deemed inappropriate or too restrictive for site conditions may be requested from the VESCP authority under these conditions:
1. At the time of plan submission, an applicant may request a variance to become part of the approved erosion and sediment control plan. The applicant shall explain the reasons for requesting variances in writing. Specific variances which are allowed by the authority shall be documented in the plan; or
2. During construction, the person responsible for implementing the approved plan may request a variance in writing from the authority. The authority shall respond in writing either approving or disapproving such a request. If the authority does not approve a variance within 10 days of receipt of the request, the request shall be considered to be disapproved. Following disapproval, the applicant may resubmit a variance request with additional documentation.
Statutory Authority
§ 62.1-44.15:28 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.
9VAC25-875-360. VESCP reporting and record keeping requirements.
Each VESCP authority shall report to the department, at least monthly, in a method such as an online reporting system and on a time schedule established by the department, a listing of each land-disturbing activity for which a plan has been approved by the VESCP authority under the ESCL and this part.
Statutory Authority
§ 62.1-44.15:28 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.
9VAC25-875-370. Review and evaluation of VESCPs.
A. This section sets forth the criteria that will be used by the department to determine whether a locality operating a VESCP under authority of the ESCL, a "VESCP authority," satisfies minimum standards of effectiveness, as follows.
Each VESCP must contain an ordinance or other appropriate document adopted by the VESCP authority. Such document must be consistent with the ESCL and Part III (9VAC25-875-210 et seq.) of this chapter, including the following criteria:
1. The document shall include or reference the definition of land-disturbing activity, including exemptions as well as any other significant terms, as necessary to produce an effective VESCP;
2. The document shall identify the VESCP authority and any soil and water conservation district, adjacent locality, or other public or private entities that the VESCP authority entered into agreements or contracts with to assist with carrying out the provisions of the ESCL and Part III of this chapter and must include the requirements and design standards to be used in the program;
3. The document shall include procedures for submission and approval of plans, issuance of permits, monitoring and inspections of land-disturbing activities. The position, agency, department, or other party responsible for conducting inspections shall be identified. The VESCP authority shall maintain, either onsite or in VESCP files, a copy of the approved plan and a record of inspections for each active land-disturbing activity;
4. Each VESCP operated by a county, city, or town shall include provisions for the integration of the VESCP with flood insurance, flood plain management, and other programs requiring compliance prior to authorizing a land-disturbing activity in order to make the submission and approval of plans, payment of fees, and coordination of inspection and enforcement activities more convenient and efficient both for the local governments and those responsible for compliance with the programs; and
5. The VESCP authority must take appropriate enforcement actions, where authorized to do so, to achieve compliance with the program and maintain a record of enforcement actions for all active land-disturbing activities.
B. The department shall periodically conduct a comprehensive review and evaluation of each VESCP authority pursuant to subdivision (19) of § 62.1-44.15 of the Code of Virginia. The department will coordinate the review with its other program reviews for the same entity to avoid redundancy. The review and evaluation of a VESCP authority shall consist of the following: (i) consultation with the local program administrator or designee; (ii) review of the local ordinance and other applicable documents; (iii) review of plans approved by the VESCP authority; (iv) inspection of regulated activities; and (v) review of enforcement actions where authorized to do so. The department is also authorized to conduct a partial VESCP compliance review.
C. Each VESCP authority shall be reviewed and evaluated by the department for effectiveness in carrying out the ESCL and Part III of this chapter using the criteria in this section.
D. If deficiencies noted in the review will cause the VESCP to be inconsistent with the ESCL or this chapter, the department shall provide the VESCP authority with a copy of the department's decision that specifies the deficiencies, action needed to be taken, and an approved corrective action plan and schedule required to attain the minimum standard of effectiveness. If the VESCP authority has not implemented the necessary compliance actions identified by the department within the corrective action schedule, or such additional period as is granted to complete the implementation of the corrective action, then the department shall have the authority to (i) issue a special order to any VESCP authority imposing a civil penalty set out in § 62.1-44.15 of the Code of Virginia or (ii) revoke its approval of the VESCP. The Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia) and Article 5 (§ 62.1-44.20 et seq.) of Chapter 3.1 of Title 62.1 if the Code of Virginia shall govern the review activities and proceedings of the department and the judicial review thereof. In lieu of issuing a special order or revoking the program, the department is authorized to take legal action against a VESCP authority to ensure compliance.
E. Review and evaluation of VESCPs shall be conducted according to a schedule adopted by the department in accordance with subdivision (19) of § 62.1-44.15 of the Code of Virginia.
Statutory Authority
§ 62.1-44.15:28 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.