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DEQ urges clearer 'common plan' determinations for Orange County; will send implementation letter
Summary
DEQ officials told the Orange County Board that state rules tie separate construction phases together when they form a contiguous 'common plan of development or sale,' and said a corrective-action agreement prompted current implementation efforts; DEQ will send a guidance letter to local staff and said the policy is not being applied retroactively.
The Virginia Department of Environmental Quality told the Orange County Board of Supervisors on Aug. 12 that its implementation of the Virginia Erosion and Stormwater Management Act hinges on the definition of a "common plan of development or sale," and that determining whether separate projects count as one cumulative disturbance will be evaluated case by case.
"My name is Chance Ballard," said Chance Ballard, DEQ plan review manager, who along with April Rhodes, stormwater program manager, described the state and federal definitions and how they apply. DEQ emphasized that a common plan can be triggered by documentation or physical demarcation — including signs, permit applications or drawings — and that contiguous construction activities performed at different times can be treated as a single land-disturbing activity for stormwater purposes.
DEQ said Orange County handles erosion and sediment control at smaller thresholds while DEQ implements the stormwater program for projects that cumulatively disturb one acre or more. "Construction general permit coverage is required where 1 acre or greater of land will be disturbed," Ballard said, adding that individual lots developed under a larger plan are not considered separate where the common plan definition applies.
When asked whether the county would be held to a retroactive standard dating to the early 2000s, DEQ officials responded that implementation is not based on a calendar date. "DEQ does not determine it by the date," April Rhodes said. Instead, the department said its recent corrective-action agreement and a local program review (which noted inconsistent implementation) prompted renewed clarity and outreach. DEQ told supervisors the corrective-action agreement and associated Notice of Violation were the proximate triggers for the current emphasis on consistent application of the rule.
DEQ offered guidance on the "agreement in lieu" option for single-family homes: rather than submitting a full engineered stormwater plan, a homeowner may enter an agreement in lieu with a VSMP authority (DEQ acting as the authority for some single-family sites) that lists required measures. "Failure to follow the agreement may result in the owner having to prepare a site specific stormwater management plan," Ballard said.
DEQ committed to sending Orange County's community development team a follow-up letter that will include interim steps and a timeframe linked to the corrective-action agreement. DEQ said it will publish corrective-action documents and guidance on its website as it completes a site update, and that members of the public may also pursue records through FOIA.
Board members and local stakeholders pressed DEQ on how driveways, private roads and cumulative disturbance are counted; DEQ responded that determinations are fact-specific and that some projects may be treated as separate if prior phases are stabilized and permit activity has terminated. The department stressed it is not seeking to force remediation of long-completed projects where infrastructure already exists and is stable.
The board did not take any formal action on DEQ's recommendations during the meeting; DEQ's letter and the county's response were left as the next procedural steps.
