§ 37.1-37.3. Stormwater nonpoint nutrient offsets.  


Latest version.
  • (a)

    As used in this section:

    Nonpoint nutrient offset means nutrient reductions certified as nonpoint nutrient offsets under the Chesapeake Bay Watershed Nutrient Exchange Program (§ 62.1-44.19:12 et seq. [of the Code of Virginia]).

    Tributary has the same meaning as in Virginia Code § 62.1-44.19:13.

    (b)

    The City of Newport News, through its approval of the stormwater management plan, may allow compliance with stormwater nonpoint nutrient runoff water quality criteria established pursuant to Virginia Code § 62.1-44.15:28, in whole or in part, through the use of acquisition of nonpoint nutrient offsets in the same tributary.

    (c)

    Nonpoint nutrient offsets will not be allowed to address water quantity control requirements. Nonpoint nutrient offsets or other off-site options shall not be used in contravention of local water quality-based limitations: (i) consistent with determinations made pursuant to subsection B of Virginia Code § 62.1-44.19:14, (ii) adopted pursuant to Virginia Code § 62.1-44.15:33 or other applicable authority,, (iii) deemed necessary to protect public water supplies from adverse nutrient impacts, or (iv) as otherwise may be established or approved by the State Water Control Board. Where such a limitation exists, other off-site options may be used provided that such options do not preclude or impair compliance with the local limitation.

    (d)

    Nonpoint nutrient offsets off-site options may only be used in the stormwater management plan when the:

    (1)

    The applicant demonstrates to the satisfaction of the city manager, or designee, that (i) alternative site designs have been considered that may accommodate on-site best management practices, (ii) on-site best management practices have been considered in alternative site designs to the maximum extent practicable, (iii) appropriate on-site best management practices will be implemented, and (iv) full compliance with post-development nonpoint nutrient runoff compliance requirements cannot practicably be met on site. For purposes of this subdivision, if an applicant demonstrates on-site control of at least seventy-five (75) percent of the required phosphorous nutrient reductions, the applicant shall be deemed to have met the requirements of clauses (i) through (iv);

    (2)

    Less than five (5) acres of land will be disturbed; or

    (3)

    The post-construction phosphorous control requirement is less than 10 (ten) pounds per year.

    (e)

    Documentation of the acquisition of nonpoint nutrient offsets by the person proposing the stormwater management plan shall be provided to the permit issuing authority in a certification from an offset broker documenting the number of phosphorus nonpoint nutrient offsets acquired and the associated ratio of nitrogen nonpoint nutrient offsets at the offset generating facility.

    (f)

    Nonpoint nutrient offsets used pursuant to subsection (b) shall be generated in the same or adjacent eight-digit hydrologic unit code as defined by the United States Geological Survey as the permitted site. Nonpoint nutrient offsets outside the same or adjacent eight-digit hydrologic unit code may only be used if it is determined by the city manager, or designee, that no nonpoint nutrient offsets are available within the same or adjacent eight-digit hydrologic unit code when the permit issuing authority accepts the final site design. In such cases, and subject to other limitations imposed in this section, nonpoint nutrient offsets generated within the same tributary may be used. In no case shall nonpoint nutrient offsets from another tributary be used.

    (g)

    For that portion of a site's compliance with stormwater nonpoint nutrient runoff water quality criteria being obtained through nonpoint nutrient offsets, the city manager, or designee, shall (i) use a one-one-one (1:1) ratio of the nonpoint nutrient offsets to the site's remaining post-development nonpoint nutrient runoff compliance requirement and (ii) assure that the nonpoint nutrient offsets are secured in perpetuity.

    (h)

    The city may not grant an exception to, or waiver of, post-development nonpoint nutrient runoff compliance requirements unless off-site options have been considered and found not available.

    (i)

    Until July 1, 2014, priority was to be given to the use of nonpoint nutrient offsets unless the city manager, or designee, requires a pro-rata share payment plan pursuant to the Code of the City of Newport News, Appendix B—Subdivision Regulations, Section 4.01.7 or to the Regional BMP Water Quality Banking Program Policy, as revised, adopted by Resolution No. 9418-99 adopted by the city council. In the case of a phased project, the permittee may acquire or achieve the off-site nutrient reductions prior to the commencement of each phase of the land-disturbing activity in an amount sufficient for each such phase.

    (j)

    The city manager, or designee, will allow incorporation into or amendment to the stormwater management plan to reflect full or partial substitution of nonpoint nutrient offsets for existing on-site nutrient controls when (i) the nonpoint nutrient offsets will compensate for ten (10) or fewer pounds of the annual phosphorous requirement associated with the original land-disturbing activity or (ii) existing on-site controls are not functioning as anticipated after reasonable attempts to comply with applicable maintenance agreements or requirements and the use of nonpoint nutrient offsets will account for the deficiency. The party responsible for maintenance shall be released from maintenance obligations related to the on-site phosphorous controls for which the nonpoint nutrient offsets are substituted.

    (k)

    To the extent available, with the consent of the proposer of the stormwater management plan, the city manager, or designee, may include the use of nonpoint nutrient offsets or other off-site measures in resolving enforcement actions to compensate for (i) nutrient control deficiencies occurring during the period of noncompliance and (ii) permanent nutrient control deficiencies.

    (l)

    This section shall not be construed as limiting the authority established under Virginia Code § 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 nonpoint nutrient offsets or other off-site options.