                                 CODE OF VIRGINIA

NUTRIENT CREDIT USE AND ADDITIONAL OFFSITE OPTIONS FOR CONSTRUCTION ACTIVITIES
(§ 62.1-44.15:35)

A. As used in this section:
			&#8220;Nutrient credit&#8221; or &#8220;credit&#8221; means a type of offsite
option that is a nutrient credit certified pursuant to Article 4.02 (&#xA7;
62.1-44.19:12 et seq.).
			&#8220;Offsite option&#8221; means an alternative available, away from the
real property where land disturbance is occurring, to address water quality or
water quantity technical criteria established pursuant to &#xA7; 62.1-44.15:28.
			&#8220;Tributary,&#8221; within the Chesapeake Bay watershed, has the same
meaning as in &#xA7; 62.1-44.19:13. For areas outside of the Chesapeake Bay
watershed, &#8220;tributary&#8221; includes the following watersheds: Albemarle
Sound, Coastal; Atlantic Ocean, Coastal; Big Sandy; Chowan; Clinch-Powell; New
Holston (Upper Tennessee); New River; Roanoke; and Yadkin.

B. No offsite option shall be used in contravention of local water quality-based
limitations (i) determined pursuant to subsection B of &#xA7; 62.1-44.19:14,
(ii) adopted pursuant to &#xA7; 62.1-44.15:33 or other applicable authority,
(iii) deemed necessary to protect public water supplies from demonstrated
adverse nutrient impacts, or (iv) as otherwise may be established or approved by
the Board. Where such a limitation exists, offsite options may be used provided
that such options do not preclude or impair compliance with the local
limitation.

C. Unless prohibited by subsection B, a VESMP authority or a VSMP authority:

   1. May allow the use of offsite options for compliance with water quality and
   water quantity technical criteria established pursuant to &#xA7;
   62.1-44.15:28, in whole or in part; and

   2. Shall allow the use of nutrient credits for compliance with the water
   quality technical criteria when:
   				a. Less than five acres of land will be disturbed;
   				b. The phosphorous water quality reduction requirement is less than 10
   pounds per year; or
   				c. It is demonstrated to the satisfaction of the VESMP or VSMP authority
   that (i) alternative site designs have been considered that may accommodate
   onsite best management practices, (ii) onsite best management practices have
   been considered in alternative site designs to the maximum extent practicable,
   (iii) appropriate onsite best management practices will be implemented, and
   (iv) compliance with water quality technical criteria cannot practicably be
   met onsite. The requirements of clauses (i) through (iv) shall be deemed to
   have been met if it is demonstrated that onsite control of at least 75 percent
   of the required phosphorous water quality reduction will be achieved.

D. No VSMP or VESMP authority may grant an exception to, or waiver of,
post-development nonpoint nutrient runoff compliance requirements unless offsite
options have been considered and found not available.

E. The VSMP or VESMP authority shall require that offsite options approved by
the Department or applicable state board achieve the necessary phosphorous water
quality reductions prior to the commencement of the land-disturbing activity. A
pollutant loading pro rata share program established by a locality pursuant to
&#xA7; 15.2-2243 and approved by the Department or applicable state board prior
to January 1, 2011, including those that may achieve nutrient reductions after
the commencement of the land-disturbing activity, may continue to operate in the
approved manner for a transition period ending July 1, 2014. In the case of a
phased project, the land disturber may acquire or achieve the offsite nutrient
reductions prior to the commencement of each phase of the land-disturbing
activity in an amount sufficient for each such phase. The land disturber shall
have the right to select between the use of nutrient credits or other offsite
options, except during the transition period in those localities to which the
transition period applies.

F. With the consent of the land disturber, in resolving enforcement actions, the
VESMP authority or the Board may include the use of offsite options to
compensate for (i) nutrient control deficiencies occurring during the period of
noncompliance and (ii) permanent nutrient control deficiencies.

G. This section shall not be construed as limiting the authority established
under &#xA7; 15.2-2243; however, under any pollutant loading pro rata share
program established thereunder, the subdivider or developer shall be given
appropriate credit for nutrient reductions achieved through offsite options. The
locality may use funds collected for nutrient reductions pursuant to a locality
pollutant loading pro rata share program for nutrient reductions in the same
tributary within the same locality as the land-disturbing activity, or for the
acquisition of nutrient credits.

H. Nutrient credits shall not be used to address water quantity technical
criteria. Nutrient credits shall be generated in the same or adjacent fourth
order subbasin, as defined by the hydrologic unit boundaries of the National
Watershed Boundary Dataset, as the land-disturbing activity. If no credits are
available within these subbasins when the VESMP or VSMP authority accepts the
final site design, credits available within the same tributary may be used. The
following requirements apply to the use of nutrient credits:

   1. Documentation of the acquisition of nutrient credits shall be provided to
   the VESMP authority and the Department or the VSMP authority in a
   certification from the credit provider documenting the number of phosphorus
   nutrient credits acquired and the associated ratio of nitrogen nutrient
   credits at the credit-generating entity.

   2. Until the effective date of regulations establishing application fees in
   accordance with &#xA7; 62.1-44.19:20, the credit provider shall pay the
   Department a water quality enhancement fee equal to six percent of the amount
   paid for the credits. Such fee shall be deposited into the Virginia Stormwater
   Management Fund established by &#xA7; 62.1-44.15:29.

   3. For that portion of a site&#8217;s compliance with water quality technical
   criteria being obtained through nutrient credits, the land disturber shall (i)
   comply with a 1:1 ratio of the nutrient credits to the site&#8217;s remaining
   post-development nonpoint nutrient runoff compliance requirement being met by
   credit use and (ii) use credits certified as perpetual credits pursuant to
   Article 4.02 (&#xA7; 62.1-44.19:12 et seq.).

   4. A VESMP or VSMP authority shall allow the full or partial substitution of
   perpetual nutrient credits for existing onsite nutrient controls when (i) the
   nutrient credits will compensate for 10 or fewer pounds of the annual
   phosphorous requirement associated with the original land-disturbing activity
   or (ii) existing onsite controls are not functioning as anticipated after
   reasonable attempts to comply with applicable maintenance agreements or
   requirements and the use of nutrient credits will account for the deficiency.
   Upon determination by the VESMP or VSMP authority that the conditions
   established by clause (i) or (ii) have been met, the party responsible for
   maintenance shall be released from maintenance obligations related to the
   onsite phosphorous controls for which the nutrient credits are substituted.

I. The use of nutrient credits to meet post-construction nutrient control
requirements shall be accounted for in the implementation of total maximum daily
loads and MS4 permits as specified in subdivisions 1, 2, and 3. In order to
ensure that the nutrient reduction benefits of nutrient credits used to meet
post-construction nutrient control requirements are attributed to the location
of the land-disturbing activity where the credit is used, the following account
method shall be used:

   1. Chesapeake Bay TMDL.
   				a. Where nutrient credits are used to meet nutrient reduction requirements
   applicable to redevelopment projects, a 1:1 credit shall be applied toward MS4
   compliance with the Chesapeake Bay TMDL waste load allocation or related MS4
   permit requirement applicable to the MS4 service area, including the site of
   the land-disturbing activity, such that the nutrient reductions of
   redevelopment projects are counted as part of the MS4 nutrient reductions to
   the same extent as when land-disturbing activities use onsite measures to
   comply.
   				b. Where nutrient credits are used to meet post-construction requirements
   applicable to new development projects, the nutrient reduction benefits
   represented by such credits shall be attributed to the location of the
   land-disturbing activity where the credit is used to the same extent as when
   land-disturbing activities use onsite measures to comply.
   				c. A 1:1 credit shall be applied toward compliance by a locality that
   operates a regulated MS4 with its Chesapeake Bay TMDL waste load allocation or
   related MS4 permit requirement to the extent that nutrient credits are
   obtained by the MS4 jurisdiction from a nutrient credit-generating entity as
   defined in &#xA7; 62.1-44.19:13 independent of or in excess of those required
   to meet the post-construction requirements.

   2. Local nutrient-related TMDLs adopted prior to the land-disturbing activity.
   				a. Where nutrient credits are used to meet nutrient reduction requirements
   applicable to redevelopment projects, a 1:1 credit shall be applied toward MS4
   compliance with any local TMDL waste load allocation or related MS4 permit
   requirement applicable to the MS4 service area, including the site of the
   land-disturbing activity, such that the nutrient reductions of redevelopment
   projects are counted as part of the MS4 nutrient reductions to the same extent
   as when land-disturbing activities use onsite measures to comply, provided the
   nutrient credits are generated upstream of where the land-disturbing activity
   discharges to the water body segment that is subject to the TMDL.
   				b. Where nutrient credits are used to meet post-construction requirements
   applicable to new development projects, the nutrient reduction benefits
   represented by such credits shall be attributed to the location of the
   land-disturbing activity where the credit is used to the same extent as when
   land-disturbing activities use onsite measures to comply, provided the
   nutrient credits are generated upstream of where the land-disturbing activity
   discharges to the water body segment that is subject to the TMDL.
   				c. A 1:1 credit shall be applied toward MS4 compliance with any local TMDL
   waste load allocation or related MS4 permit requirement to the extent that
   nutrient credits are obtained by the MS4 jurisdiction from a nutrient
   credit-generating entity as defined in &#xA7; 62.1-44.19:13 independent of or
   in excess of those required to meet the post-construction requirements.
   However, such credits shall be generated upstream of where the land-disturbing
   activity discharges to the water body segment that is subject to the TMDL.

   3. Future local nutrient-related TMDLs.
   				This subdivision applies only to areas where there has been a documented
   prior use of nutrient credits to meet nutrient control requirements in an MS4
   service area that flows to or is upstream of a water body segment for which a
   nutrient-related TMDL is being developed. For a TMDL waste load allocation
   applicable to the MS4, the Board shall develop the TMDL waste load allocation
   with the nutrient reduction benefits represented by the nutrient credit use
   being attributed to the MS4, except when the Board determines during the TMDL
   development process that reasonable assurance of implementation cannot be
   provided for nonpoint source load allocations due to the nutrient reduction
   benefits being attributed in this manner. The Board shall have no obligation
   to account for nutrient reduction benefits in this manner if the MS4 does not
   provide the Board with adequate documentation of (i) the location of the
   land-disturbing activities, (ii) the number of nutrient credits, and (iii) the
   generation of the nutrient credits upstream of the site at which the
   land-disturbing activity discharges to the water body segment addressed by the
   TMDL. Such attribution shall not be interpreted as amending the requirement
   that the TMDL be established at a level necessary to meet the applicable water
   quality standard.

HISTORY: 2009, c. 364, § 10.1-603.8:1; 2010, c. 686; 2011, c. 523; 2012, cc.
748, 785, 808, 819; 2013, cc. 756, 793; 2015, c. 164; 2016, cc. 68, 758.