Water Protection Ordinance Amendment, WPTA 2009-002



Public Hearing on an ordinance to amend County Code Chapter 17, Water Protection, to establish a  schedule for voiding inactive applications and plans, reduce maximum administration costs for bonds, and require the installation of permanent vegetation within a prescribed period.



Messrs. Tucker, Foley, Davis, Kamptner, Graham, Brooks





August 5, 2009


ACTION:     X          INFORMATION:   



  ACTION:              INFORMATION:   









At the May 6, 2009 work session on stormwater considerations (see May 6, 2009 executive summary, Attachment B), the Board directed staff to, among other things, bring forward for public hearing a Water Protection Ordinance amendment that would establish limits on the time that land may remain disturbed under the County’s erosion and sediment control regulations.  In preparing a draft ordinance as directed by the Board, staff has identified some other recommended amendments to the Water Protection Ordinance to facilitate its implementation and administration, and to keep it current with State law.



Goal 4:  Effectively Manage Growth and Development: The process changes proposed are to provide for a more efficient and predictable development review process for applicants, the public and staff.



The recommended ordinance amendment is provided as Attachment A.  The following is a brief summary of the proposed changes to the Water Protection Ordinance:

1.    Section 17-203:  This section would be amended to properly reference the Virginia Administrative Code.

2.    Section 17-204: The proposed amendments would provide that an application for an erosion and sediment control plan shall be deemed withdrawn if a revised plan addressing omitted modifications, terms or conditions is not submitted within 6 months, and would void an approved erosion and sediment control plan if a grading, building or other permit for land disturbing activities is not obtained within 1 year  While staff believes the Program Authority already has the authority to establish this by administrative policy, codifying this requirement improves the program.

3.    Section 17-207:  The changes in this section would establish a time limit for grading a site under a permit in response to the Board’s direction at the May 6th worksession, reduce the maximum bond charge for administrative costs and inflation from twenty-five percent to ten percent of the bond subtotal, and clarify that a bond shall be returned if the approved plan expires, which is currently done through an administrative policy.   Effective July 1, 2009, State law required localities to reduce the portion of a bond or other security allocated for administrative costs and inflation required for subdivision and site plan improvements from 25% to 10% of the construction costs.  Although not required by State law for instruments securing erosion and sediment and stormwater management improvements, staff recommends that a similar reduction be made for these bonds.  Provided that the administrative costs are separately identified, staff believes that 10% will be sufficient to cover any administrative costs in the event a bond is called and will provide consistency with those instruments securing improvements for subdivisions and site plans.     

4.    Section 17-304: This change would extend the time for an approval or disapproval of a stormwater management plan from forty-five days to sixty days, which is the maximum allowed under State law.   While staff’s target for turnaround is much shorter now, the extended time can be necessary during spikes in workload.

5.    Section 17-306: This change clarifies the language, reduces the maximum bond charge for administrative costs and inflation as explained under Section 17-207 above, and provides that a bond shall be returned when a plan expires before the permit is issued. 


Staff believes the only controversial change in the proposed ordinance is the nine month period allowed for grading activity.   There may be some concern with the proposed regulations that deem certain applications to be withdrawn and inactive approved plans to be void after prescribed periods, but staff believes those changes are fairly innocuous once it is understood this codifies administrative practice and there is no additional financial impact to the applicant.  As the County charges per review, a plan can be resubmitted as a new application and the review would be the same unless the relevant regulations change in the meantime.  An approved plan that does not receive a permit within one year can also be resubmitted at a later date under a new application, though it will be subject to any ordinance changes.    


With respect to the time limit for grading, staff notes this change is authorized under Virginia Code § 10.1-570.  That section authorizes a locality to adopt stricter minimum standards for an erosion and sediment control program.  By establishing a nine month deadline for installing permanent vegetation, the County is simply strengthening Minimum Standard 1 of the Virginia Erosion and Sediment Control Regulations, which says: 

  1. Permanent or temporary soil stabilization shall be applied to denuded areas within seven days after final grade is reached on any portion of the site. Temporary soil stabilization shall be applied within seven days to denuded areas that may not be at final grade but will remain dormant for longer than 30 days. Permanent stabilization shall be applied to areas that are to be left dormant for more than one year.


As noted in earlier discussions, under the current regulations a developer / contractor can avoid the expense of temporary stabilization and delay the expense of permanent stabilization by occasional grading activity within a 30 day period.  While this reduces the developer’s expense, there is an environmental cost.  Recognizing that typical sediment control measures are considered 60% effective at best, the water quality impacts from these delays can be significant.  To illustrate, consider two identical sites with the same proposed grading. The first site provides no sediment control during construction, but was stabilized within 9 months. The second site maintains in compliance with sediment control standards throughout construction, but the site is not stabilized for 23 months. Assuming 60% efficiency for the sediment control measures, the same amount of construction related sediment would be carried downstream from each site. A second example with these same two sites illustrates why efficiency alone may not be the answer.  In this scenario, the first site operates sediment control measures that satisfy the State minimum standards (60% efficiency) while the second site uses state-of-the-art sediment control (80% efficiency). If the first site is stabilized in 9 months and the second site is stabilized in 23 months, the second site results in approximately 28% more construction related sediment being carried downstream. Thus, minimizing the time of disturbance is one of the most effective ways of reducing sediment reaching streams and rivers or damaging downstream ponds, lakes, and reservoirs.


In considering how a time limit could be applied, the Board directed staff to consult with the authors of “Before the Storm: Reducing the Damage from Polluted Stormwater Runoff” following their August 2008 presentation. With this input, staff determined that an ordinance requirement that closely follows recently accepted proffers would best accomplish the goal.  Similar to those proffers, this ordinance amendment proposes a nine month time limit for installing permanent vegetation and provides a possible three month administrative waiver.  However, the ordinance provides relief not available in the recent proffers by allowing the Board to grant an additional time extension.  Staff believes this proposal would 1) provide for a significant improvement to water quality in the County; 2) provide a level playing field for all development in the future because some developers have already volunteered this standard in proffers; and 3) provide for extensions of the nine month period when additional relief may be appropriate.  In Attachment C, staff has summarized some of the questions and answers with respect to this ordinance provision.     


Finally, in adopting this ordinance amendment, staff proposes the effective date be at least 30 days after adoption to provide applicants an opportunity to plan for this change.  Additionally, staff proposes “grandfathering” existing permits until the date of their annual permit renewal and starting the nine month time requirement with permit renewal.  



Staff recognizes there would be reduced County revenue if the time limit for grading is adopted. Currently, the Water Protection Ordinance requires an annual permit renewal fee of $100 per acre.  This ordinance amendment would reduce the number of required permit renewals. Staff has evaluated the permits issued in 2006 and 2007 in an effort to quantify this anticipated budget impact.  By assuming 50 affected permits per year, an average size of disturbance at 10 acres, and 90 percent compliance with requirements, this equates to a County revenue reduction of approximately $45,000 per year.  No change in revenue is anticipated from the other provisions of this ordinance amendment.  



After conducting a public hearing, staff recommends that the Board adopt the attached ordinance (Attachment A), which includes a September 5, 2009 effective date and a provision grandfathering existing erosion and sediment control plans from the deadline for establishing permanent vegetation until those plans are renewed.



A – Water Protection Ordinance Amendment

B – May 6, 2009 Executive Summary

C – Questions and Answers on Installation of Permanent Vegetation

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