Current through Register Vol. 41, No. 3, September 23, 2024
A. No
offsite option shall be used in contravention of local water quality-based
limitations (i) determined pursuant to subsection B of §
62.1-44.19:14 of the Code of
Virginia, (ii) adopted pursuant to §
62.1-44.15:33 of the Code of
Virginia or other applicable authority, (iii) deemed necessary to protect
public water supplies from demonstrated adverse nutrient impacts, or (iv) as
otherwise may be established or approved by the department. Where such a
limitation exists, offsite options may be used provided that such options do
not preclude or impair compliance with the local limitation.
B. Unless prohibited by subsection A of this
section, a VESMP authority or the department as the VSMP authority:
1. May allow the use of offsite options for
compliance with water quality and water quantity technical criteria established
pursuant to §
62.1-44.15:28 of the Code of
Virginia, in whole or in part; and
2. Shall allow the use of nutrient credits
for compliance with the water quality technical criteria when:
a. Less than five acres of land will be
disturbed;
b. The phosphorous water
quality reduction requirement is less than 10 pounds per year; or
c. It is demonstrated to the satisfaction of
the VESMP authority or department as the VSMP authority that (i) alternative
site designs have been considered that may accommodate onsite best management
practices, (ii) onsite best management practices have been considered in
alternative site designs to the maximum extent practicable, (iii) appropriate
onsite best management practices will be implemented, and (iv) compliance with
quality technical criteria cannot practicably be met onsite. The requirements
of clauses (i) through (iv) of this subdivision shall be deemed to have been
met if it is demonstrated that onsite control of at least 75% of the required
phosphorous water quality reduction will be achieved.
C. The VESMP authority or
department as the VSMP authority shall require that offsite options approved by
the department or applicable state board achieve the necessary phosphorous
water quality reductions prior to the commencement of the land-disturbing
activity. In the case of a phased project, the land disturber may acquire or
achieve the offsite nutrient reductions prior to the commencement of each phase
of the land-disturbing activity in an amount sufficient for each such
phase.
D. Nutrient credits shall
not be used to address water quantity technical criteria.
E. Nutrient credits shall be generated in the
same or adjacent fourth order subbasin, as defined by the hydrologic unit
boundaries of the National Watershed Boundary Dataset, as the land-disturbing
activity. If no credits are available within these subbasins when the VESMP or
department as the VSMP authority accepts the final site design, credits
available within the same tributary may be used. The following requirements
apply to the use of nutrient credits:
1.
Documentation of the acquisition of nutrient credits shall be provided to the
VESMP authority and the department or the department as the VSMP authority in a
certification from the credit provider documenting the number of phosphorus
nutrient credits acquired and the associated ratio of nitrogen nutrient credits
at the credit-generating entity.
2.
Application fees are provided in Certification of Nonpoint Source Nutrient
Credits (9VAC25-900). Fees shall be deposited into the Virginia Stormwater
Management Fund established by §
62.1-44.15:29 of the Code of
Virginia.
3. For that portion of a
site's compliance with water quality technical criteria being obtained through
nutrient credits, the land disturber shall (i) comply with a one-to-one ratio
of the nutrient credits to the site's remaining post-development nonpoint
nutrient runoff compliance requirement being met by credit use and (ii) use
credits certified as perpetual credits pursuant to Article 4.02 (§
62.1-44.19:12 et seq.) of
Chapter 3.1 of Title 62.1 of the Code of Virginia.
4. A VESMP or the department as the VSMP
authority shall allow the full or partial substitution of perpetual nutrient
credits for existing onsite nutrient controls when (i) the nutrient credits
will compensate for 10 or fewer pounds of the annual phosphorous requirement
associated with the original land-disturbing activity or (ii) existing onsite
controls are not functioning as anticipated after reasonable attempts to comply
with applicable maintenance agreements or requirements and the use of nutrient
credits will account for the deficiency. Upon determination by the VESMP or
department that the conditions established by clause (i) or (ii) of this
subdivision have been met, the party responsible for maintenance shall be
released from maintenance obligations related to the onsite phosphorous
controls for which the nutrient credits are substituted.
F. Exchange of a credit released by the
department is subject to the provisions of §
62.1-44.15:35,
62.1-44.19:15, or
62.1-44.19:21 of the Code of
Virginia. Where necessary to ensure compliance with local water quality
requirements, the exchange of a credit released by the department is
conditioned by
9VAC25-900-91 B and C.
Statutory Authority: §
62.1-44.15:28 of the Code of
Virginia; Chapters 68 and 758 of the 2016 Acts of
Assembly.
