Virginia Stormwater Management Progam: Frequently Asked Questions
Do I need VSMP/Construction General Permit coverage for my project?
In accordance with State Law, Loudoun County requires that VSMP/Construction General Permit (CGP) coverage be obtained for all land disturbing activities that disturb 1 acre or more, or for land disturbing activities within a Common Plan of Development or Sale regardless of disturbed area, if the Common Plan of Development disturbed more than 1 acre. However, note that certain activities such as agriculture or permitted mining are exempt from VSMP permitting requirements. A complete list of exempt activities can be found in Section 1096.01(d)(2)(B) of the Codified Ordinance, which can be found here.
What is the annual permit Maintenance Fee and why is it important?
Loudoun County must collect permit maintenance fees for each permit annually in accordance with Sections 9VAC25-870-750 and 9VAC25-870-830 of the Virginia Stormwater Management Regulations, in order for the permit to remain in good standing (“active”). The maintenance fee for a given project is based upon the permitted disturbed area, and is due by April 1 of each year. However, if the conditions for permit termination are satisfied by the April 1 due date, payment of the fee is not required. A 10% late fee is applied for payments that are 90 days past due.
Projects for which permit coverage is not maintained in active status shall not proceed with land disturbing activities. Moreover, if permit coverage is not continually maintained, projects that are subject to the Part IIC technical criteria because coverage was obtained prior to July 1, 2014, will become subject to the current Part IIB criteria, and shall be required to revise the associated stormwater management plan for compliance.
When do I need to obtain coverage from both the County and the State?
All VSMP permit applications for projects within Loudoun County must be submitted directly to the county. However, the application results in dual permit coverage from Loudoun County (“VSMP Permit”) and the VA Department of Environmental Quality (DEQ) (“Construction General Permit,” or CGP) as follows. Once the County reviews the permit documents and determines that the permit is approvable, and once all local VSMP fees have been paid, staff will transmit the permit information to DEQ electronically, at which point, the applicant will receive instructions regarding payment of the state fee. Following payment of the state fee, DEQ will issue coverage to the applicant. This process must be completed prior to issuance of the grading permit.
What is the construction activity operator?
Construction of a single-family detached residence that will disturb less than 5 acres (i.e., either a separately-built lot disturbing 1 to 5 acres, or a lot disturbing up to 5 acres within a Common Plan of Development) is a special case, in which coverage is tacitly granted by DEQ, without submittal of a Registration Statement or payment of a State fee, upon approval of the application by the county. In these cases, it is the responsibility of the applicant to print a copy of the "Single-Family Detached Residential Structure Coverage Letter" from DEQ's CGP webpage to signify that CGP coverage has been obtained.
In the context of stormwater associated with a large or small construction activity, “operator” means any person associated with a construction project that (i) has direct operational control over construction plans and specifications, including the ability to make modifications to those plans and specifications or (ii) has day-to-day operational control of those activities at a project that are necessary to ensure compliance with a stormwater pollution prevention plan for the site or other state permit or VSMP authority permit conditions (i.e., they are authorized to direct workers at a site to carry out activities required by the stormwater pollution prevention plan or comply with other permit conditions).
The entities that are considered operators will commonly consist of the owner or developer of a project or the general contractor.
Who can sign permit documents on behalf of the “operator?”
A properly authorized individual associated with the operator is responsible for certifying and signing permit documents, such as the Registration Statement and permit modification or transfer requests (Note: original ink-signature documents must be submitted). Authorized individuals are as follows:
- For a corporation: by a responsible corporate officer. For the purpose of this part, a responsible corporate officer means:
- A president, secretary, treasurer, or vice-president of the corporation in charge of a principal business function, or any other person who performs similar policy-making or decision-making functions for the corporation, or
- The manager of one or more manufacturing, production, or operating facilities, provided the manager is authorized to make management decisions that govern the operation of the regulated facility including having the explicit or implicit duty of making major capital investment recommendations, and initiating and directing other comprehensive measures to assure long-term compliance with environmental laws and regulations; the manager can ensure that the necessary systems are established or actions taken to gather complete and accurate information for permit application requirements; and where authority to sign documents has been assigned or delegated to the manager in accordance with corporate procedures.
- For a partnership or sole proprietorship: by a general partner or the proprietor, respectively.
- For a municipality, state, federal, or other public agency: by either a principal executive officer or ranking elected official. For purposes of this part, a principal executive officer of a public agency includes:
- The chief executive officer of the agency, or
- A senior executive officer having responsibility for the overall operations of a principal geographic unit of the agency.
How do I know if my project will be subject to the current or the “old” regulations?
Determination of which criteria apply to a given project is principally dependent upon the date a land development plan is approved and the date that the related VSMP Permit is obtained, as described in the following table. In addition, as per guidance issued by DEQ, a project that drains to an existing stormwater management facility that was designed and implemented in accordance with the Part IIC technical criteria for the subject project remain subject to the Part IIC technical criteria for two (2) additional general permit cycles.
If my property drains to an existing SWM facility, is SWM addressed for my project?
Prior to July 1, 2014, County development standards considered projects that discharged to an existing SWM facility (or that were included in an approved overall SWM plan) to be grandfathered for SWM purposes, as long as the SWM design included a water quality component, and the project design was consistent with the assumed SWM design parameters.
However, under the current VA SWM Regulations, all regulated land disturbing activities must be conducted in compliance with the water quality and quantity technical criteria in either Part IIB or Part IIC, determined as noted above. (Note: While there are some differences, Part IIC is generally consistent with the 1999 VA SWM Handbook, which was adopted by Loudoun County in November 2002). As a result, a project cannot utilize an existing SWM facility to satisfy its stormwater requirements without verification that it complies with the applicable criteria for the project. Importantly, the County cannot issue a land disturbance permit without this verification, even if there is an approved site plan for the project, meaning that a plan revision may be necessary to bring the SWM plan into compliance.
In the case of older facilities that were designed using other technical criteria, it may be possible to demonstrate compliance by performing a comparative analysis of the approved design to the Part IIC (or IIB) technical criteria (e.g., design volumes, features, calculations, etc.). If such an analysis is unsuccessful, the project must be designed to comply with Part IIB, either by providing SWM measures onsite, or by retrofitting the existing facility.
What is a Common Plan of Development or Sale, and how does it affect me?
A Common Plan of Development or Sale (CPoD) is defined as “a contiguous area where separate and distinct construction activities may be taking place at different times on different schedules.” These would most typically include residential, commercial or industrial subdivisions, or similar projects, with shared infrastructure. In most cases, a single stormwater management plan is implemented on a project-wide basis. (Note: the term Common Plan of Development did not appear in the VPDES Construction General Permit (CGP) regulations until the 2004 permit cycle, so projects in which the lots were recorded prior to July 1, 2004 are not considered part of a Common Plan of Development for the purposes of the SWM Regulations.)
Determining whether a project is located within a Common Plan of Development or Sale is important for two reasons. First, as noted above, projects located within a Common Plan of Development that disturbed a total of 1 acre or more are subject to VSMP permitting requirements regardless of disturbed area. Second, if the operator of the overall project is a different entity from the operator of a project within the common plan, permitting occurs in two layers: the operator of the overall project must obtain primary coverage for the overall site (e.g., for construction of site-wide infrastructure), while secondary coverage must be obtained by the operator of an individual site within the Common Plan. This two-tiered approach provides for separation of legal liability among operators within the Common Plan of Development.
When do I need to update my Stormwater Pollution Prevention Plan (SWPPP)?
The Construction General Permit requires the operator to update the site-specific SWPPP whenever there is a change in the design, construction, operation, or maintenance that has a significant effect on the discharge of pollutants to surface waters. Changes to the approved Stormwater Management (SWM) or Erosion and Sediment Control (E&S) plan must typically be addressed through review and approval of a revised land development application. However, minor changes to the temporary E&S controls can in some cases be addressed via “redlined” adjustments at the discretion of the Loudoun County Field Manager.
Changes to the SWPPP also require a Registration Statement Modification if they affect the information reported on the Registration Statement (with the exception of the estimated project start and completion dates). For the purposes of the CGP, modifications most commonly include increases to the permitted disturbed area. Please see the Permit Modifications, Transfers and Terminations page for additional information.