                                 CODE OF VIRGINIA

AUTHORIZATION FOR MORE STRINGENT ORDINANCES (§ 62.1-44.15:33)

A. Localities that are serving as VESMP authorities are authorized to adopt more
stringent soil erosion control or stormwater management ordinances than those
necessary to ensure compliance with the Board&#8217;s minimum regulations,
provided that the more stringent ordinances are based upon factual findings of
local or regional comprehensive watershed management studies or findings
developed through the implementation of an MS4 permit or a locally adopted
watershed management study and are determined by the locality to be necessary to
prevent any further degradation to water resources, to address total maximum
daily load requirements, to protect exceptional state waters, or to address
specific existing water pollution including nutrient and sediment loadings,
stream channel erosion, depleted groundwater resources, or excessive localized
flooding within the watershed and that prior to adopting more stringent
ordinances a public hearing is held. Notice of such hearing shall be given by
publication twice in a newspaper of general circulation in the locality seeking
to adopt the ordinance, with the first publication appearing no more than 28
days before and the second publication appearing no less than seven days before
the hearing. This process shall not be required when a VESMP authority chooses
to reduce the threshold for regulating land-disturbing activities to a smaller
area of disturbed land pursuant to &#xA7; 62.1-44.15:34. However, this section
shall not be construed to authorize a VESMP authority to impose a more stringent
timeframe for land-disturbance review and approval than those provided in this
article.

B. Localities that are serving as VESMP authorities shall submit a letter report
to the Department when more stringent stormwater management ordinances or more
stringent requirements authorized by such stormwater management ordinances, such
as may be set forth in design manuals, policies, or guidance documents developed
by the localities, are determined to be necessary pursuant to this section
within 30 days after adoption thereof. Any such letter report shall include a
summary explanation as to why the more stringent ordinance or requirement has
been determined to be necessary pursuant to this section. Upon the request of an
affected landowner or his agent submitted to the Department with a copy to be
sent to the locality, within 90 days after adoption of any such ordinance or
derivative requirement, localities shall submit the ordinance or requirement and
all other supporting materials to the Department for a determination of whether
the requirements of this section have been met and whether any determination
made by the locality pursuant to this section is supported by the evidence. The
Department shall issue a written determination setting forth its rationale
within 90 days of submission. Such a determination, or a failure by the
Department to make such a determination within the 90-day period, may be
appealed to the Board.

C. Localities shall not prohibit or otherwise limit the use of any best
management practice (BMP) approved for use by the Director or the Board except
as follows:

   1. When the Director or the Board approves the use of any BMP in accordance
   with its stated conditions, the locality serving as a VESMP authority shall
   have authority to preclude the onsite use of the approved BMP, or to require
   more stringent conditions upon its use, for a specific land-disturbing project
   based on a review of the stormwater management plan and project site
   conditions. Such limitations shall be based on site-specific concerns. Any
   project or site-specific determination purportedly authorized pursuant to this
   subsection may be appealed to the Department and the Department shall issue a
   written determination regarding compliance with this section to the requesting
   party within 90 days of submission. Any such determination, or a failure by
   the Department to make any such determination within the 90-day period, may be
   appealed to the Board.

   2. When a locality is seeking to uniformly preclude jurisdiction-wide or
   otherwise limit geographically the use of a BMP approved by the Director or
   Board, or to apply more stringent conditions to the use of a BMP approved by
   the Director or Board, upon the request of an affected landowner or his agent
   submitted to the Department, with a copy submitted to the locality, within 90
   days after adoption, such authorizing ordinances, design manuals, policies, or
   guidance documents developed by the locality that set forth the BMP use policy
   shall be provided to the Department in such manner as may be prescribed by the
   Department that includes a written justification and explanation as to why
   such more stringent limitation or conditions are determined to be necessary.
   The Department shall review all supporting materials provided by the locality
   to determine whether the requirements of this section have been met and that
   any determination made by the locality pursuant to this section is reasonable
   under the circumstances. The Department shall issue its determination to the
   locality in writing within 90 days of submission. Such a determination, or a
   failure by the Department to make such a determination within the 90-day
   period, may be appealed to the Board.

D. Based on a determination made in accordance with subsection B or C, any
ordinance or other requirement enacted or established by a locality that is
found to not comply with this section shall be null and void, replaced with
state minimum standards, and remanded to the locality for revision to ensure
compliance with this section. Any such ordinance or other requirement that has
been proposed but neither enacted nor established shall be remanded to the
locality for revision to ensure compliance with this section.

E. Any provisions of a local erosion and sediment control or stormwater
management program in existence before January 1, 2016, that contains more
stringent provisions than this article shall be exempt from the requirements of
this section if the locality chooses to retain such provisions when it becomes a
VESMP authority. However, such provisions shall be reported to the Board at the
time of submission of the locality&#8217;s VESMP approval package.

HISTORY: 1989, cc. 467, 499, § 10.1-603.7; 1991, c. 84; 2004, c. 372; 2011, cc.
341, 353; 2012, cc. 785, 819; 2013, cc. 591, 756, 793; 2014, cc. 303, 598; 2016,
cc. 68, 758; 2023, cc. 506, 507; 2024, cc. 225, 242.