10.1-603.8:1 - Stormwater nonpoint nutrient offsets
§ 10.1-603.8:1. Stormwater nonpoint nutrient offsets.
A. As used in this section:
"Nonpoint nutrient offset" means nutrient reductions certified as nonpointnutrient offsets under the Chesapeake Bay Watershed Nutrient Exchange Program(§ 62.1-44.19:12 et seq.).
"Permit issuing authority" has the same meaning as in § 10.1-603.2 andincludes any locality that has adopted a local stormwater management program.
"Tributary" has the same meaning as in § 62.1-44.19:13.
B. A permit issuing authority may allow compliance with stormwater nonpointnutrient runoff water quality criteria established pursuant to § 10.1-603.4,in whole or in part, through the use of the permittee's acquisition ofnonpoint nutrient offsets in the same tributary.
C. No permit issuing authority shall allow the use of nonpoint nutrientoffsets to address water quantity control requirements. No permit issuingauthority shall allow the use of nonpoint nutrient offsets in contraventionof local water quality-based limitations: (i) consistent with determinationsmade pursuant to subsection B of § 62.1-44.19:7, (ii) contained in amunicipal separate storm sewer system (MS4) program plan approved by theDepartment, or (iii) as otherwise may be established or approved by the Board.
D. A permit issuing authority may only allow the use of nonpoint nutrientoffsets when the permit applicant demonstrates to the satisfaction of thepermit issuing authority that (i) alternative site designs have beenconsidered that may accommodate on-site best management practices, (ii)on-site best management practices have been considered in alternative sitedesigns to the maximum extent practicable, (iii) appropriate on-site bestmanagement practices will be implemented, and (iv) full compliance withpostdevelopment nonpoint nutrient runoff compliance requirements cannotpracticably be met on site.
E. Documentation of the permittee's acquisition of nonpoint nutrient offsetsshall be provided to the permit issuing authority in a certification from anoffset broker documenting the number of phosphorus nonpoint nutrient offsetsacquired and the associated ratio of nitrogen nonpoint nutrient offsets atthe offset generating facility. The offset broker shall pay the permitissuing authority a water quality enhancement fee equal to six percent of theamount paid by the permittee for the nonpoint nutrient offsets. If a localityis not the permit issuing authority, such fee shall be deposited into theVirginia Stormwater Management Fund established by § 10.1-603.4:1. If thepermit issuing authority is a locality, such fees shall be used solely in thelocality where the associated stormwater permit applies for inspection andmaintenance of stormwater best management practices, stormwater educationalprograms, or programs designed to protect or improve local water quality.
F. Nonpoint nutrient offsets used pursuant to subsection B shall be generatedin the same or adjacent eight digit hydrologic unit code as defined by theUnited States Geological Survey as the permitted site. Nonpoint nutrientoffsets outside the same or adjacent eight digit hydrologic unit code mayonly be used if it is determined by the permit issuing authority that nononpoint nutrient offsets are available within the same or adjacent eightdigit hydrologic unit code when the permit issuing authority accepts thefinal site design. In such cases, and subject to other limitations imposed inthis section, nonpoint nutrient offsets generated within the same tributarymay be used. In no case shall nonpoint nutrient offsets from anothertributary be used.
G. For that portion of a site's compliance with stormwater nonpoint nutrientrunoff water quality criteria being obtained through nonpoint nutrientoffsets, a permit issuing authority shall (i) use a 1:1 ratio of the nonpointnutrient offsets to the site's remaining postdevelopment nonpoint nutrientrunoff compliance requirement and (ii) assure that the nonpoint nutrientoffsets are secured in perpetuity.
H. No permit issuing authority may grant an exception to, or waiver of,postdevelopment nonpoint nutrient runoff compliance requirements unlessoff-site options have been considered and found not available.
I. In considering off-site options, the permit issuing authority shall givepriority to the use of nonpoint nutrient offsets unless a localfee-in-lieu-of, pro-rata share, or similar program has been approved by theBoard as being substantially equivalent in nutrient reduction benefits.However, prior to approval by the Board, there shall be a rebuttablepresumption that any local government fee-in-lieu-of, pro-rata share, orsimilar program is substantially equivalent in nutrient reduction benefits.The Board shall establish criteria for determining whether any such localprogram is substantially equivalent, which shall be used during the localstormwater management program approval process in § 10.1-603.3.
J. The Board may establish by regulation a stormwater nutrient program forportions of the Commonwealth that do not drain into the Chesapeake Bay.
K. Nutrient reductions obtained through nonpoint nutrient offsets shall becredited toward compliance with any nutrient allocation assigned to amunicipal separate storm sewer system in a Virginia Stormwater ManagementProgram Permit or Total Maximum Daily Load applicable to the location wherethe activity for which the nonpoint nutrient offsets are used takes place. Ifthe activity for which the nonpoint nutrient offsets are used does notdischarge to a municipal separate storm sewer system, the nutrient reductionsshall be credited toward compliance with the applicable nutrient allocation.
(2009, c. 364; 2010, c. 686.)