Pg3 lists land disturbing categories which require SWM plan approvals from DEQ prior to land disturbance. However, it does not include Chesapeake Bay Preservation Act land disturbing activities greater than 2,500sq.ft. but less than 1 acre. Although these do not require coverage under the construction general permit, they still require SWM plan approval. Can these plans be submitted for streamlined review when DEQ is the VSMP authority? Nothing in the criteria on Pg4 appear to exclude this category of plans.

January 18, 2023

From:  AES Clean Energy

To:       Virginia Department of Environmental Quality

RE:     AES Clean Energy Response to Guidance Memo No. 22-2011

AES Clean Energy (AES CE) appreciates the Virginia Department of Environmental Quality’s (DEQ) recognition of the current delays in the review process for stormwater management (SWM) and erosion and sediment control (ESC) plans where DEQ is the Virginia Stormwater Management Program (VSMP) authority, and we applaud the agency’s initiative to create a more streamlined process. AES CE is overall supportive of the proposal, however requests clarification on the below items and makes the applicable recommendations:

1. “If DEQ elects to audit the SWM and/or ESC Plan during the 60-day period and observes deficiencies, then those deficiencies must be addressed by the Applicant.” “For plans that are deficient, the law allows the agency 45 days to act on any resubmitted plans.”

AES CE reiterates our recommendation that an applicant be provided with a consolidated list of requests, and once those deficiencies are addressed by the applicant, the application be deemed approved. If DEQ elects to audit an application and deficiencies are observed within the 60-day period, then the applicant should be notified by email no later than five working days after the 60-day period. DEQ should consider building a website where an applicant can view the status of their application to facilitate review transparency and timely communication.

2. “DEQ retains its authority to further review any SWM and ESC Plan submitted under this streamlined SWM and ESC plan review process, and under its discretion require modification or re-submittal under the general plan review process. For purposes of this guidance the 60-day period will be considered to be the “Audit Period.” During the Audit Period, DEQ may review plans and will provide any and all comments to the applicant for resubmission and further review. Plans for audit review will be selected by DEQ on the basis of workload and project risk level (by looking at project disturbance area, percentage of disturbed land with higher risks for erosion,⁶ and the percentage of impervious cover⁷).”

“₇ For purposes of this guidance, as a rule of thumb, if greater than 25% of the Limits of Disturbance (LOD) is Impervious (including unconnected impervious area), then DEQ will consider the site to be High Risk, if 10-25% of the site is Impervious then DEQ will consider the site to be Medium Risk, and if less than 10% of the site is Impervious, then DEQ will consider the site to be low risk.” 

This language, in conjunction with the March 29, 2022 and April 14, 2022 DEQ memorandums characterizing solar panels as impervious surfaces, negatively targets the solar industry in this audit process and is effectively stating that all solar projects will need to go through the general plan review process. AES CE reiterates our recommendation to remove this language and in it’s stead, conduct random sampling from the pool of projects for audit.  

3. “If DEQ observes a trend of deficient SWM and/or ESC plans that were reviewed by the same Dual Combined Administrator for ESC and SWM, DEQ reserves the authority to suspend, revoke or refuse to grant or review the certification pursuant to the process provided in 9VAC25- 850-90 and no longer accept that Dual Combined Administrator for ESC and SWM’s Certification for the streamlined review unless that person retakes all six (6) required classes and passes the related tests to receive a new certification number. For professional engineers, DEQ will notify the Virginia Department of Professional and Occupational Regulation (DPOR) for their review. For purposes of this guidance DEQ defines a trend of deficiency as: a) Five or more incomplete Plan Submission Checklists, and/or; b) Three plan reviews which generate comments that are deemed significant enough to require resubmission in lieu of plan approval. Qualifying for the streamlined SWM and ESC plan review process does not alleviate the permittee/owner from the obligation to comply with any statute, regulation, permit condition, DEQ Guidance, memo or letter to Industry from DEQ, Technical Bulletin, other order, certificate, certification, DEQ Manual, standard, or other applicable requirement.”

AES CE reiterates our recommendation for DEQ to re-evaluate the penalty for Dual Combined Administrators. The potential for the two identified trends of deficiency are common for large scale, complex project and the penalties associated include significant time and fees for the individual. This comment also ties with our comment under part I of this letter, stating that consolidated comments from the DEQ will aid in minimizing multiple plan review comment iterations. AES CE also recommends that penalties for DEQ representatives be clearly identified in this section for instances including (1) they do not meet outlined timelines and (2) approved plans are followed but become enforcement issues. If DEQ elects to retain this penalty for Dual Combined Administrators, will this information be available to future applicants to inform them of which Dual Combined Administrators are not meeting these standards?

4.  Plan Submission Checklist, Section G, #41 “Geotechnical investigation/report”

AES CE recommends revising this requirement for inclusion of the geotechnical investigation report within the plan submission to instead require only a reference note to the report rather than providing a separate standalone document. Pertinent information provided in the geotechnical report will be depicted in the plan submission and providing a standalone document is redundant.

5. Certification section under checklist:

1. • “I hereby certify that all wetlands permits required by law will be obtained, if required, prior to commencing land disturbing activities.”

AES CE recommends revising this certification statement to specify that wetland permits required by law will be obtained prior to commencing land disturbing activities in proposed wetland impact areas.

2. • “I hereby certify that permission to construct any offsite improvements, if proposed, will be obtained prior to commencing land disturbing activities.”

AES CE recommends revising this certification statement to specify that permission to construct any offsite improvements will be obtained prior to commencing land disturbing activities in proposed offsite areas.

3. • “I hereby certify that all offsite nonpoint source nutrient credits will be obtained, if proposed, prior to commencing land disturbing activities”

AES CE recommends revising this certification statement to specify that all offsite nonpoint source nutrient credits will be obtained prior to commencing land disturbing activities in associated impact areas.