Bill Text: VA SB77 | 2012 | Regular Session | Enrolled
Bill Title: Nutrient credit certification; regulations, Nutrient Trading Act is established, penalty.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Passed) 2012-04-18 - Governor: Acts of Assembly Chapter text (CHAP0808) [SB77 Detail]
Download: Virginia-2012-SB77-Enrolled.html
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Be it enacted by the General Assembly of Virginia: 1. That §§ 10.1-603.4:1, 10.1-603.8:1, 62.1-44.19:13, 62.1-44.19:15, and 62.1-44.19:18 of the Code of Virginia are amended and reenacted and that the Code of Virginia is amended by adding in Chapter 6 of Title 10.1 an article numbered 1.1:1, consisting of sections numbered 10.1-603.15:1 through 10.1-603.15:5, and by adding in Article 4.02 of Chapter 3.1 of Title 62.1 a section numbered 62.1-44.19:20 as follows: § 10.1-603.4:1. Virginia Stormwater Management Fund established. There is hereby created in the state treasury a special nonreverting fund to be known as the Virginia Stormwater Management Fund, hereafter referred to as "the Fund." The Fund shall be established on the books of the Comptroller. All moneys collected pursuant to § 10.1-603.4 and all civil penalties collected pursuant to § 10.1-603.15:4 shall be paid into the state treasury and credited to the Fund. Interest earned on moneys in the Fund shall remain in the Fund and be credited to it. Any moneys remaining in the Fund, including interest thereon, at the end of each fiscal year shall not revert to the general fund but shall remain in the Fund. Moneys in the Fund shall be used solely for the purposes of carrying out the Department's responsibilities under this article. Expenditures and disbursements from the Fund shall be made by the State Treasurer on warrants issued by the Comptroller upon written request signed by the Director. An accounting of moneys received by and distributed from the Fund shall be kept by the State Comptroller. § 10.1-603.8:1. Nutrient credit use and additional off-site options for construction activities. A. As used in this section:
"Nutrient credit" or "credit" means a nutrient credit certified pursuant to Article 1.1:1 (§ 10.1-603.15:1 et seq.).
"Tributary" has the same meaning as in § 62.1-44.19:13. For areas outside of the Chesapeake Bay Watershed, "tributary" includes the following watersheds: Albemarle Sound, Coastal; Atlantic Ocean, Coastal; Big Sandy; Chowan; Clinch-Powell; New Holston (Upper Tennessee); New River; Roanoke; and Yadkin. "Virginia Stormwater Management Program" or "VSMP" has the same meaning as in § 10.1-603.2 and includes, until July 1, 2014, any locality that has adopted a local stormwater management program. B. C. No D. A 1. Less than five acres of land will be disturbed; 2. The postconstruction phosphorous control requirement is less than 10 pounds per year; or 3. The state permit applicant demonstrates to
the satisfaction of the
E. Documentation of the F. G. For that portion of a site's compliance with stormwater
nonpoint nutrient runoff water quality criteria being obtained through H. No I. The J.
N. In order to properly account for allowed nonpoint nutrient off-site reductions, an applicant shall report to the Department in accordance with Department procedures information regarding all off-site reductions that have been authorized to meet stormwater postdevelopment nonpoint nutrient runoff compliance requirements. O. An applicant or a permittee found to be in noncompliance with the requirements of this section shall be subject to the enforcement and penalty provisions of this article. § 10.1-603.15:1. Definitions. "Best management practice," "practice," or "BMP" means a structural practice, nonstructural practice, or other management practice used to prevent or reduce nutrient loads reaching surface waters or the adverse effects thereof. "Board" means the Virginia Soil and Water Conservation Board. "Department" means the Department of Conservation and Recreation. "MS4" means a municipal separate storm sewer system. "Nutrient credit" or "credit" means a nutrient reduction that is certified pursuant to this article and expressed in pounds of phosphorus or nitrogen either (i) delivered to tidal waters when the credit is generated within the Chesapeake Bay Watershed or (ii) as otherwise specified when generated in the Southern Rivers watersheds. § 10.1-603.15:2. Nutrient credit certification. A. The Board shall adopt regulations for the purpose of establishing statewide procedures for the certification by the Board of nutrient credits other than (i) point source nitrogen and point source phosphorus credits generated by point sources covered by the general permit issued pursuant to § 62.1-44.19:14 and (ii) nutrient credits certified by the State Water Control Board and the Department of Environmental Quality pursuant to § 62.1-44-19:20. During the promulgation of the regulations, the Board shall consult with the Department of Environmental Quality to avoid duplication and promote consistency where appropriate. The regulations shall be designed in a manner that promotes certainty for credit market participants to the extent possible. B. The regulations adopted pursuant to this section shall: 1. Establish procedures for the certification and registration of credits including: a. Certifying credits that may be generated from agricultural and urban stormwater best management practices, use or management of manures, managed turf, land use conversion, stream or wetlands projects, shellfish aquaculture, algal harvesting, and other established or innovative methods of nutrient control or removal, as appropriate; b. Establishing a process and standards for wetland or stream credits to be converted to nutrient credits. Such process and standards shall only apply to wetland or stream credits established after July 1, 2005, and have not been transferred or used. Under no circumstances shall such credits be used for both wetland or stream credit and nutrient credit purposes; c. Certifying credits from multiple practices that are bundled as a package by the applicant; d. Prohibiting the certification of credits generated from activities funded by federal or state water quality grant funds; however, baseline levels may be achieved through the use of such grants; e. Establishing a timely and efficient review certification process including application requirements, a reasonable application fee schedule not to exceed $10,000 per application, and review and approval procedures; and f. Requiring public notification of a proposed nutrient credit-generating facility; 2. Establish credit calculation procedures for all proposed credit-generating practices, including the determination of baselines in accordance with the following: a. Baselines established for agricultural practices shall be those actions necessary to achieve a level of reduction assigned in the Virginia Chesapeake Bay TMDL Watershed Implementation Plan or approved TMDLs as implemented on the tract, field, or other land area under consideration. b. Baselines for urban practices from new development and redevelopment shall be in compliance with postconstruction nutrient loading requirements of the Virginia Stormwater Management Program regulations. Baselines for all other existing development shall be at a level necessary to achieve the reductions assigned in the urban sector in the Virginia Chesapeake Bay TMDL Watershed Implementation Plan or approved TMDLs. c. Baselines for land use conversion shall be based on the pre-conversion land use and the level of reductions assigned in the Virginia Chesapeake Bay TMDL Watershed Implementation Plan or approved TMDLs applicable to that land use. d. Baselines for other credit-generating practices shall be based on the Virginia Chesapeake Bay TMDL Watershed Implementation Plan or approved TMDLs using the best available scientific and technical information. e. Unless otherwise established by the Board, for certification within the Chesapeake Bay Watershed a credit-generating practice that involves land use conversion shall represent controls beyond those in place as of July 1, 2005. For other waters for which a TMDL has been approved, the practice must represent controls beyond those in place at the time of TMDL approval. f. Credit quantities shall be established using the best available scientific and technical information at the time of certification. g. The Board shall establish baseline dates for all credit-generating practices based on the Virginia Chesapeake Bay TMDL Watershed Implementation Plan or approved TMDLs; 3. Provide certification of credits on an appropriate temporal basis, such as annual, term of years, or perpetual, depending on the nature of the credit-generating practice. A credit shall be certified for a term of at least 12 months; 4. Establish requirements to reasonably assure the generation of the credit depending on the nature of the credit-generating activity and use, such as legal instruments for perpetual credits, operation and maintenance requirements, and associated financial assurance requirements. Financial assurance requirements may include but not be limited to letters of credit, escrows, surety bonds, insurance, and, where the credits are used or generated by a locality, authority, utility, sanitation district, or permittee operating an MS4 or a point source permitted under Article 4.02 (§ 62.1-44.19:12 et seq.) of Chapter 3.1 of Title 62.1, its existing tax or rate authority; 5. Establish appropriate reporting requirements; 6. Provide for the ability of the Department to inspect or audit for compliance with the requirements of such regulations; 7. Provide that the option to acquire nutrient credits for compliance purposes shall not eliminate any requirement to comply with local water quality requirements; 8. Establish a credit retirement requirement whereby five percent of credits in the Chesapeake Bay Watershed are permanently retired at the time of certification pursuant to this section for the purposes of offsetting growth in unregulated nutrient loads; and 9. Establish such other requirements as the Board deems necessary and appropriate. C. The Department shall establish and maintain an online Virginia Nutrient Credit Registry of credits as follows: 1. The registry shall include all credits certified pursuant to this article and may include point source nitrogen and point source phosphorus credits generated from point sources covered by the general permit issued pursuant to § 62.1-44.19:14 or nutrient credits certified by the State Water Control Board and the Department of Environmental Quality pursuant to § 62.1-44.19:20 at the option of the owner. No other credits shall be valid for compliance purposes. 2. Registration of credits on the registry shall not preclude or restrict the right of the owner of such credits from transferring the credits on such commercial terms as may be established by and between the owner and the regulated or unregulated party acquiring the credits. 3. The Department shall establish procedures for the listing and tracking of credits on the registry, including but not limited to (i) notification of the availability of new nutrient credits to the locality where the credit-generating practice is implemented at least five business days prior to listing on the registry to provide the locality an opportunity to acquire such credits at fair market value for compliance purposes and (ii) notification that the listing of credits on the registry does not constitute a representation by the Board or the owner that the credits will satisfy the specific regulatory requirements applicable to the prospective user's intended use and that the prospective user is encouraged to contact the Board for technical assistance to identify limitations, if any, applicable to the intended use. 4. The registry shall be publicly accessible without charge. D. The owner or operator of a credit-generating facility that fails to comply with the provisions of this section shall be subject to the enforcement and penalty provisions of § 10.1-603.15:4. E. Nutrient credits from stormwater nonpoint nutrient credit-generating facilities in receipt of a Nonpoint Nutrient Offset Authorization for Transfer letter from the Department of Environmental Quality prior to July 1, 2012, shall be considered certified nutrient credits and shall not be subject to further certification requirements or to the credit retirement requirement under subdivision B 8. However, such facilities shall be subject to the other provisions of this article, including registration, inspection, reporting, and enforcement. § 10.1-603.15:3. Nutrient credit use by regulated entities. A. An MS4 permittee may acquire, use, and transfer nutrient credits for purposes of compliance with any waste load allocations established as effluent limitations in an MS4 permit issued pursuant to § 10.1-603.2:1. Such method of compliance may be approved by the Department following review of a compliance plan submitted by the permittee that includes the use of nutrient credits. The permittee may use such credits for compliance purposes only if (i) the credits, whether annual, term, or perpetual, are generated and applied for purposes of compliance for the same calendar year; (ii) the credits are acquired no later than a date following the calendar year in which the credits are applied as specified by the Department consistent with the permittee's Virginia Stormwater Management Program (VSMP) permit annual report deadline under such permit; (iii) the credits are generated in the same locality or tributary, except that permittees in the Eastern Coastal Basin may also acquire credits from the Potomac and Rappahannock tributaries; and (iv) the credits either are point source nitrogen or point source phosphorus credits generated by point sources covered by the general permit issued pursuant to § 62.1-44.19:14, or are certified pursuant to § 10.1-603.15:1 or 62.1-44.19:20. An MS4 permittee may enter into an agreement with one or more other MS4 permittees within the same locality or within the same or adjacent eight-digit hydrologic unit code to collectively meet the sum of any waste load allocations in their permits. Such permittees shall submit to the Department for approval a compliance plan to achieve their aggregate permit waste load allocations. B. Those applicants required to comply with water quality requirements for land-disturbing activities operating under a General VSMP Permit for Discharges of Stormwater from Construction Activities or a Construction Individual Permit may acquire and use perpetual nutrient credits certified and registered on the Virginia Nutrient Credit Registry in accordance with § 10.1-603.8:1. C. Confined animal feeding operations issued permits pursuant to the State Water Control Law (§ 62.1-44.2 et seq.) may acquire, use and transfer credits for compliance with any waste load allocations contained in the provisions of a Virginia Pollutant Discharge Elimination System (VPDES) permit. Such method of compliance may be approved by the State Water Control Board following review of a compliance plan submitted by the permittee that includes the use of nutrient credits. D. Facilities registered under the Industrial Stormwater General Permit issued pursuant to the State Water Control Law (§ 62.1-44.2 et seq.) may acquire, use, and transfer credits for compliance with any waste load allocations established as effluent limitations in a VPDES permit. Such method of compliance may be approved by the State Water Control Board following review of a compliance plan submitted by the permittee that includes the use of nutrient credits. E. Public notice of each compliance plan submitted for approval pursuant to this section shall be given by the Department or by the State Water Control Board, as applicable. F. This section shall not be construed to limit or otherwise affect the authority of the Soil and Water Conservation Board or the State Water Control Board, as applicable, to establish and enforce more stringent water quality-based effluent limitations for total nitrogen or total phosphorus in permits where those limitations are necessary to protect local water quality. The exchange or acquisition of credits pursuant to this article shall not affect any requirement to comply with such local water quality-based limitations. § 10.1-603.15:4. Enforcement and penalties. A. Transfer of nutrient credits by an operator of a nutrient credit-generating facility may be suspended by the Department until such time as the operator comes into compliance with this article and attendant regulations. B. Any operator of a nutrient credit-generating facility who violates any provision of this article, or of any regulations adopted hereunder, shall be subject to a civil penalty not to exceed $10,000 within the discretion of the court. The Department may issue a summons for collection of the civil penalty and the action may be prosecuted in the appropriate circuit court. When the penalties are assessed by the court as a result of a summons issued by the Department, the court shall direct the penalty to be paid into the state treasury and deposited by the State Treasurer into the Virginia Stormwater Management Fund established pursuant to § 10.1-603.4:1. § 10.1-603.15:5. Appeals. Any person applying to establish a nutrient credit-generating facility or an operator of a nutrient credit-generating facility aggrieved by any action of the Department taken in accordance with this section, or by inaction of the Department, shall have the right to review in accordance with the provisions of the Administrative Process Act (§ 2.2-4000 et seq.). § 62.1-44.19:13. Definitions. As used in this article, unless the context requires a different meaning: "Annual mass load of total nitrogen" (expressed in pounds per year) means the daily total nitrogen concentration (expressed as mg/L to the nearest 0.01 mg/L) multiplied by the flow volume of effluent discharged during the 24-hour period (expressed as MGD to the nearest 0.01 MGD), multiplied by 8.34 and rounded to the nearest whole number to convert to pounds per day (lbs/day) units, then totaled for the calendar month to convert to pounds per month (lbs/mo) units, and then totaled for the calendar year to convert to pounds per year (lbs/yr) units. "Annual mass load of total phosphorus" (expressed in pounds per year) means the daily total phosphorus concentration (expressed as mg/L to the nearest 0.01mg/L) multiplied by the flow volume of effluent discharged during the 24-hour period (expressed as MGD to the nearest 0.01 MGD) multiplied by 8.34 and rounded to the nearest whole number to convert to pounds per day (lbs/day) units, then totaled for the calendar month to convert to pounds per month (lbs/mo) units, and then totaled for the calendar year to convert to pounds per year (lbs/yr) units. "Association" means the Virginia Nutrient Credit Exchange Association authorized by this article. "Attenuation" means the rate at which nutrients are reduced through natural processes during transport in water. "Biological nutrient removal technology" means (i) technology that will achieve an annual average total nitrogen effluent concentration of eight milligrams per liter and an annual average total phosphorus effluent concentration of one milligram per liter, or (ii) equivalent reductions in loads of total nitrogen and total phosphorus through the recycle or reuse of wastewater as determined by the Department. "Delivered total nitrogen load" means the discharged mass load of total nitrogen from a point source that is adjusted by the delivery factor for that point source. "Delivered total phosphorus load" means the discharged mass load of total phosphorus from a point source that is adjusted by the delivery factor for that point source. "Delivery factor" means an estimate of the number of pounds of total nitrogen or total phosphorus delivered to tidal waters for every pound discharged from a permitted facility, as determined by the specific geographic location of the permitted facility, to account for attenuation that occurs during riverine transport between the permitted facility and tidal waters. Delivery factors shall be calculated using the Chesapeake Bay Program watershed model. "Department" means the Department of Environmental Quality. "Equivalent load" means 2,300 pounds per year of total nitrogen and 300 pounds per year of total phosphorus at a flow volume of 40,000 gallons per day; 5,700 pounds per year of total nitrogen and 760 pounds per year of total phosphorus at a flow volume of 100,000 gallons per day; and 28,500 pounds per year of total nitrogen and 3,800 pounds per year of total phosphorus at a flow volume of 500,000 gallons per day. "Facility" means a point source discharging or proposing to discharge total nitrogen or total phosphorus to the Chesapeake Bay or its tributaries. This term does not include confined animal feeding operations, discharges of stormwater, return flows from irrigated agriculture, or vessels. "General permit" means the general permit authorized by this article. "Permitted facility" means a facility authorized by the general permit to discharge total nitrogen or total phosphorus. For the sole purpose of generating point source nitrogen credits or point source phosphorus credits, "permitted facility" shall also mean the Blue Plains wastewater treatment facility operated by the District of Columbia Water and Sewer Authority. "Permittee" means a person authorized by the general permit to discharge total nitrogen or total phosphorus. "Point source nitrogen credit" means the difference between (i) the waste load allocation for a permitted facility specified as an annual mass load of total nitrogen, and (ii) the monitored annual mass load of total nitrogen discharged by that facility, where clause (ii) is less than clause (i), and where the difference is adjusted by the applicable delivery factor and expressed as pounds per year of delivered total nitrogen load. "Point source phosphorus credit" means the difference between (i) the waste load allocation for a permitted facility specified as an annual mass load of total phosphorus, and (ii) the monitored annual mass load of total phosphorus discharged by that facility, where clause (ii) is less than clause (i), and where the difference is adjusted by the applicable delivery factor and expressed as pounds per year of delivered total phosphorus load. "State-of-the-art nutrient removal technology" means (i) technology that will achieve an annual average total nitrogen effluent concentration of three milligrams per liter and an annual average total phosphorus effluent concentration of 0.3 milligrams per liter, or (ii) equivalent load reductions in total nitrogen and total phosphorus through recycle or reuse of wastewater as determined by the Department. "Tributaries" means those river basins for which separate tributary strategies were prepared pursuant to § 2.2-218 and includes the Potomac, Rappahannock, York, and James River Basins, and the Eastern Coastal Basin, which encompasses the creeks and rivers of the Eastern Shore of Virginia that are west of Route 13 and drain into the Chesapeake Bay. "Waste load allocation" means (i) the water
quality-based annual mass load of total nitrogen or annual mass load of total
phosphorus allocated to individual facilities pursuant to the Water Quality
Management Planning Regulation (9 VAC 25-720) or its successor, or permitted
capacity in the case of nonsignificant dischargers; (ii) the water
quality-based annual mass load of total nitrogen or annual mass load of total
phosphorus acquired pursuant to § 62.1-44.19:15 for new or expanded
facilities § 62.1-44.19:15. New or expanded facilities. A. An owner or operator of a new or expanded facility shall comply with the applicable requirements of this section as a condition of the facility's coverage under the general permit. 1. An owner or operator of a facility authorized by a Virginia Pollutant Discharge Elimination System permit first issued before July 1, 2005, that expands his facility to discharge 100,000 gallons or more per day, or an equivalent load directly into tidal waters, or 500,000 gallons or more per day, or an equivalent load, directly into nontidal waters shall demonstrate to the Department that he has acquired waste load allocations sufficient to offset any increase in his delivered total nitrogen and delivered total phosphorus loads resulting from any expansion beyond his waste load allocations or permitted design capacity as of July 1, 2005, and will install state-of-the-art nutrient removal technology at the time of the expansion. 2. An owner or operator of a facility authorized by a Virginia Pollutant Discharge Elimination System permit first issued before July 1, 2005, that expands his facility to discharge 100,000 gallons or more per day up to and including 499,999 gallons per day, or an equivalent load, directly into nontidal waters, shall demonstrate to the Department that he has acquired waste load allocations sufficient to offset any increase in his delivered total nitrogen and delivered total phosphorus loads resulting from any expansion beyond his permitted capacity as of July 1, 2005, and will install, at a minimum, biological nutrient removal technology at the time of the expansion. 3. An owner or operator of a facility authorized by a Virginia Pollutant Discharge Elimination System permit first issued before July 1, 2005, that expands his facility to discharge 40,000 gallons or more per day up to and including 99,999 gallons per day, or an equivalent load, directly into tidal or nontidal waters, shall demonstrate to the Department that he has acquired waste load allocations sufficient to offset any increase in his delivered total nitrogen and delivered total phosphorus loads resulting from any expansion beyond his permitted capacity as of July 1, 2005. 4. An owner or operator of a facility authorized by a Virginia Pollutant Discharge Elimination System permit first issued on or after July 1, 2005, to discharge 40,000 gallons or more per day, or an equivalent load, shall demonstrate to the Department that he has acquired waste load allocations sufficient to offset his delivered total nitrogen and delivered total phosphorus loads, and will install (i) at a minimum, biological nutrient removal technology at any facility authorized to discharge up to and including 99,999 gallons per day, or an equivalent load, directly into tidal and nontidal waters, or up to and including 499,999 gallons per day, or an equivalent load, to nontidal waters; and (ii) state-of-the-art nutrient removal technology at any facility authorized to discharge 100,000 gallons or more per day, or an equivalent load, directly into tidal waters, or 500,000 gallons or more per day, or an equivalent load, directly into nontidal waters. 5. An owner or operator of a facility treating domestic sewage authorized by a Virginia Pollutant Discharge Elimination System permit with a discharge greater than 1,000 gallons per day up to and including 39,999 gallons per day that has not commenced the discharge of pollutants prior to January 1, 2011, shall demonstrate to the Department that he has acquired waste load allocations sufficient to offset his delivered total nitrogen and delivered total phosphorus loads prior to commencing the discharge, except when the facility is for short-term temporary use only or when treatment of domestic sewage is not the primary purpose of the facility. B. Waste load allocations required by this section to offset new or increased delivered total nitrogen and delivered total phosphorus loads shall be acquired in accordance with this subsection. 1. Such allocations may be acquired from one or a combination of the following: a. Acquisition of all or a portion of the waste load allocations or point source nitrogen or point source phosphorus credits from one or more permitted facilities in the same tributary; b. Acquisition of c. Acquisition of allocations purchased through the Nutrient Offset Fund established pursuant to § 10.1-2128.2; or d. Acquisition of allocations through such other means as may be approved by the Department on a case-by-case basis. 2. Such allocations or credits shall be provided for a minimum period of five years with each registration under the general permit. This subdivision shall not preclude the Board from adopting longer-term or permanent allocation requirements by regulation. 3. The Board shall give priority to allocations or credits acquired in accordance with subdivisions 1 a, 1 b, and 1 d. The Board shall approve allocations acquired in accordance with subdivision 1 d only after the owner or operator has demonstrated that he has made a good faith effort to acquire sufficient allocations in accordance with subdivisions 1 a, 1 b, and 1 d and that such allocations are not reasonably available taking into account timing, cost, and other relevant factors.
C. Until such time as the Director finds that no allocations
are reasonably available in an individual tributary, the general permit shall
provide for the acquisition of allocations through payments into the Nutrient
Offset Fund established in § 10.1-2128.2. Such payments shall be promptly
applied by the Department to achieve equivalent point or nonpoint source
reductions in the same tributary beyond those reductions already required by or
funded under federal or state law or the Virginia D. The acquisition of nutrient allocations § 62.1-44.19:18. Nutrient allocation compliance and reporting. A. Each permitted facility shall be in compliance with its
individual waste load allocations if: (i) its annual mass load is less than the
applicable waste load allocation assigned to the facility in the general
permit; (ii) the permitted facility acquires sufficient point source nitrogen
or phosphorus credits in accordance with subdivision 1. A permittee may acquire point source nitrogen or phosphorus
credits from one or more permitted facilities only if (i) the credits are
generated and applied to a compliance obligation in the same calendar year,
(ii) the credits are generated by one or more permitted facilities in the same
tributary, except that permitted facilities in the Eastern 2. A permittee may acquire nitrogen or phosphorus credits through payments made into the Nutrient Offset Fund established in § 10.1-2128.2 only if, no later than June 1 immediately following the calendar year in which the credits are applied, the permittee certifies on a form supplied by the Department that he has diligently sought, but has been unable to acquire, sufficient credits to satisfy his compliance obligations through the acquisition of point source nitrogen or phosphorus credits with other permitted facilities in the same tributary, and that he has acquired sufficient credits to satisfy his compliance obligations through one or more payments made in accordance with the terms of the general permit. B. Until such time as the Director finds that no credits are
reasonably available in an individual tributary, the general permit shall
provide for the acquisition of nitrogen and phosphorus credits through payments
into the Nutrient Offset Fund in accordance with subdivision A 2. Such payments
shall be promptly applied to achieve equivalent point or nonpoint source
reductions in the same tributary beyond those reductions already required by or
funded under federal or state law, or the Virginia C. On or before February 1, annually, each permittee shall D. On or before April 1, annually, the Department shall
prepare a report containing the annual mass load of total nitrogen and annual
mass load of total phosphorus discharged by each permitted facility, the number
of point source nitrogen and phosphorus credits for the previous calendar year E. On or before July 1, annually, the Department shall publish notice of all nitrogen and phosphorus credit exchanges and purchases for the previous calendar year and make all documents relating to the exchanges and purchases available to any person requesting them. § 62.1-44.19:20. Nutrient credit certification. A. The Board may adopt regulations for the purpose of establishing procedures for the certification of nutrient credits other than (i) point source nitrogen or point source phosphorus credits generated by point sources covered by the general permit issued pursuant to § 62.1-44.19:14 and (ii) nutrient credits certified by the Soil and Water Conservation Board and the Department of Conservation and Recreation pursuant to Article 1.1:1 (§ 10.1-603.15:1 et seq.) of Chapter 6 of Title 10.1. During the promulgation of the regulations, the Board shall consult with the Department of Conservation and Recreation to avoid duplication and to promote consistency where appropriate. B. Regulations adopted pursuant to this section shall: 1. Establish procedures for the certification and registration of credits, including: a. Certifying credits that may be generated from effective nutrient controls or removal practices, including activities associated with the types of facilities or practices historically regulated by the Board, such as water withdrawal and treatment and wastewater collection, treatment, and beneficial reuse; and b. Establishing a timely and efficient certification process including application requirements, a reasonable application fee schedule not to exceed $10,000 per application, and review and approval procedures; 2. Establish credit calculation procedures for proposed credit-generating practices, including the determination of: a. Baselines in accordance with any applicable provisions of the Virginia Chesapeake Bay TMDL Watershed Implementation Plan or approved TMDLs; and b. Credit quantities using the best available scientific and technical information; 3. Provide certification of credits on an appropriate temporal basis, such as annual, term of years, or perpetual, depending on the nature of the credit-generating practice. A credit shall be certified for a term of no less than 12 months; 4. Establish operation and maintenance requirements and associated financial assurance requirements to include alternatives such as letters of credit, escrows, surety bonds, insurance, and where the credits are used or generated by a locality, authority, utility, sanitation district, or permittee operating an MS4 or a point source permitted under this article, its existing tax or rate authority; 5. Establish appropriate reporting requirements; 6. Provide for the ability of the Department to inspect or audit for compliance with the requirements of such regulations; 7. Provide that the option to acquire nutrient credits for compliance purposes shall not eliminate any requirement to comply with local water quality requirements; and 8. Establish such other requirements as the Board deems necessary and appropriate. C. Prior to the adoption of such regulations, the Board shall certify credits that may be generated from effective nutrient controls or removal practices, including activities associated with the types of facilities or practices historically regulated by the Board, such as water withdrawal and treatment and wastewater collection, treatment, and beneficial reuse, on a case-by-case basis using the best available scientific and technical information. 2. That by July 1, 2013, the State Water Control Board shall reevaluate its trading ratio for nutrient allocation acquisition pursuant to subdivision B 1 b of § 62.1-44.19:15 of the Code of Virginia, giving full consideration to similar trading ratios established by § 10.1-603.8:1 of the Code of Virginia, § 10.1-603.15:2 as added by this act, and trading programs in other Chesapeake Bay watershed states. The Board shall establish an advisory group of interested stakeholders for the purpose of receiving recommendations during the reevaluation regarding an appropriate ratio. If warranted based on the outcome of the reevaluation, the Board shall adopt a revised trading ratio for purposes of subdivision B 1 b of § 62.1-44.19:15 as soon as practicable following the completion of the reevaluation. 3. That until the effective date of the regulations to be adopted pursuant to § 10.1-603.15:2 as added by this act, the State Water Control Board shall continue to certify nutrient credits from the use of nonpoint source best management practices pursuant to subdivision B 1 b of § 62.1-44.19:15 of the Code of Virginia. |
