Virginia's Erosion and Sediment Control Program

Erosion and Sediment Control on Construction Sites
Soil erosion is the process of detachment and transportation of soil materials by water, wind, ice and gravity. While "geologic" erosion naturally produces about 30 percent of the total sediment in the United States, "accelerated" soil erosion from man's use of land accounts for the remaining 70 percent. Surface mining, forestry, agriculture and construction are the major activities that cause accelerated erosion. Although construction by volume does not cause most sediment pollution, it is the most evident and damaging because of the rate at which it occurs. Erosion associated with construction activities can be 200 times greater than that from cropland and 2,000 times greater than that naturally occurring in woodlands.

When natural landscape is converted to accommodate houses, subdivisions, shopping centers, and roads in rural areas, or development and redevelopment within cities and towns, these land use conversions are collectively referred to as urbanization. Water-generated accelerated erosion is unquestionably the most severe erosion in areas undergoing urbanization.

Erosion problems associated with construction activities include water pollution, flooding, stream channel damage, decreased groundwater storage, slope failures, damage to adjacent and/or downstream properties, and the time and costs associated with addressing these issues. Successful minimization of these impacts can be achieved by implementing erosion and sediment control (ESC) measures on construction sites to prevent soil movement/loss in the first place, enhance project aesthetics, reduce complaints, and most importantly, eliminate appreciable damage to off-site receiving channels, property and natural resources.

Virginia was among the first states to specifically address ESC from construction sites by establishing Virginia's ESC Program nearly 30 years ago.

Program Overview
Erosion and Sediment Control Law and Regulations
DCR implements the state ESC Program according to the Virginia Erosion and Sediment Control Law, Regulations, and Certification Regulations (VESCL&R). The law is codified at Title 10.1, Chapter 5, Article 4 of the Code of Virginia, regulations are found at Section 4VAC30-50, and certification regulations are found at Section 4VAC50-50 of the Virginia Administrative Code. The ESC Program's goal is to control soil erosion, sedimentation, and nonagricultural runoff from regulated "land-disturbing activities" to prevent degradation of property and natural resources. The regulations specify "Minimum Standards," which include criteria, techniques and policies, that must be followed on all regulated activities. These statutes delineate the rights and responsibilities of governments that administer an ESC program and those of property owners who must comply.

Cooperative Implementation
A network of local government-operated ESC programs regulate most private projects involving a land-disturbing activity, while DCR's ESC Program staff oversees state and federal activities. The requirement for submission, review, approval, and proper execution of ESC "plans," or "agreements in lieu of plans," which identify all onsite ESC measures and policies, form the basis for program implementation. While property owners are ultimately responsible for ESC plan approval and implementation, responsibility for ensuring compliance extends to the developer, contractor, consultant and Virginia's citizenry at-large. The successful execution of ESC programs affects a variety of interests, from anyone who owns, rents or develops property to those who reside or recreate on lands or waters adjacent to or downstream from land-disturbing activities.

Protection for All Citizens
The state ESC Program aims to ensure fairness so less conscientious developers do not gain an economic advantage. It also advocates technically sound and economical control of nonpoint source pollution. The program emphasizes that proactive implementation of ESC not only conserves and protects resources but also is more practical and cost-effective in the long-term when compared to reactionary approaches that may lead to costly delays or expensive remediation of damages from inadequate ESC implementation. Simply put, the standards and policies promoted by the ESC Program include quality construction, engineering, and administrative practices that endeavor to provide equal protection for all properties and resources across the commonwealth.

Regulated Land-Disturbing Activities
The ESC Program regulates only construction activities that constitute land-disturbing activities under the VESCL&R. To that end, it is essential that regulators and the regulated community fully understand this definition.

A land-disturbing activity is "any land change on private or public land that may result in soil erosion from water or wind and the movement of sediments into state waters or onto lands in the commonwealth, including, but not limited to, clearing, grading, excavating, transporting, and filling of land." This definition includes land-disturbing activities equal to or exceeding 10,000 square feet in area; however, the following 13 activities are specifically exempt from the definition:

1. Disturbed land areas of less than 10,000 square feet in size; however, a local ESC program may reduce this exception to a smaller area of disturbed land or qualify the conditions under which this exception shall apply;
2. Minor land-disturbing activities and individual home landscaping, repairs and maintenance work;
3. Individual service connections;
4. Installation, maintenance or repair of underground public utility lines when such activity is confined to an existing hard surfaced road, street or sidewalk;
5. Septic tank lines or drainage fields unless included in an overall plan for land-disturbing activity relating to construction of the building to be served by the septic tank system;
6. Surface or deep mining;
7. Exploration or drilling for oil and gas including the well site, roads, feeder lines and off-site disposal areas;
8. Tilling, planting or harvesting of agricultural, horticultural or forest crops, or livestock feedlot operations; including a specific list of engineering operations;
9. Repair or rebuilding of the tracks, right-of-way, bridges, communication facilities and other related structures, and facilities of a railroad company;
10. Agricultural engineering operations including but not limited to the construction of terraces, terrace outlets, check dams, desilting basins, dikes, ponds not required to comply with the provisions of the Virginia Dam Safety Act, ditches, strip-cropping, lister furrowing, contour cultivating, contour furrowing, land drainage and land irrigation;
11. Installation of fence, sign, telephone, electric, or other kinds of posts or poles;
12. Shore erosion control projects on tidal waters when the projects are approved by local wetlands boards, the Marine Resources Commission or the U. S. Army Corps of Engineers; and
13. Emergency work to protect life, limb or property, and emergency repairs.

Parties uncertain as to whether or not a specific activity is regulated should consult their local ESC program or the DCR ESC Program staff.

Minimum Standards
All regulated land-disturbing activities must comply with the 19 minimum standards (MS) specified in Section 4VAC50-30-40 of the regulations that are applicable to the specific project. All ESC programs are required to confirm project compliance with minimum standards by reviewing ESC plans and through onsite project inspection. However, an ESC program may waive or modify any of the minimum standards that are deemed inappropriate or too restrictive for site conditions by granting a written variance. The full text of the 19 minimum standards is included in the VESCL&R, and further discussion of their application is provided in the Virginia Erosion and Sediment Control Handbook.

ESC Program Authority
Across the state, localities and DCR implement the provisions of the ESC Program in accordance with the VESCL&R. Responsibility for program implementation by each regulatory authority is further described below.

Local ESC Program Role
Most land-disturbing activities on privately owned lands must be covered by an ESC plan approved by the locally operated ESC program in the jurisdiction in which the activity is to be undertaken. Municipal water and sewer construction projects on private lands are regulated at the local level; the DCR ESC Program regulates activities by electric, telephone, natural gas and railroad companies (see DCR ESC Program subsection below). There are now 166 local ESC programs in Virginia. They include every county, city and many incorporated towns (some towns are covered by a county program). Specific provisions within local ordinances account for program administration, plan review and approval, site inspection, complaint response and enforcement on locally regulated projects. Although administrative procedures vary by locality, the basic components are consistent statewide. Local authorities must approve a project's ESC plan, including the name of a Responsible Land Disturber, before land can be disturbed. Such approval may be part of a permit process and may require submission of an administrative fee and performance surety set by the locality. Additionally, the local government or its agent will periodically inspect approved projects.

Land-disturbing activities that cross local jurisdictions may be regulated at either the local or state level. The applicant has the option of submitting the ESC plan to each locality involved or to DCR. Inspection and enforcement of multi-jurisdictional projects is generally carried out at the local level.

Soil and Water Conservation Districts (SWCDs) often support local ESC programs. SWCDs may assist with ESC plan review, handle inspection responsibilities, assist with public education efforts and provide technical assistance. Further information, including a directory of current SWCD contacts and maps, is available from the SWCD page on DCR's website.

Contact information and specific local program requirements may be available from the given locality's website. The Commonwealth of Virginia website, http://www.state.va.us, provides links to such websites.

State ESC Program Role
DCR's ESC Program regulates land-disturbing activities on state and federal lands, as well as on a specific group of activities undertaken by utility, interstate and intrastate pipeline and railroad companies. The state program is carried out through nine regional Watershed Offices.

All land-disturbing activities on state agency land must be covered by an ESC plan or annual ESC "specifications," including a identification of a Responsible Land Disturber, approved by the DCR ESC Program. However, plans must be consistent with local requirements that may be more stringent than the VESCL&R. State program staff is responsible for plan review and approval, site inspection, complaint response and enforcement on these projects. Additionally, to assist local ESC programs,

DCR establishes statewide standards and guidance, periodically reviews local programs, and provides training and educational opportunities. The DCR ESC Program also regulates a specific list of land-disturbing activities (outlined at Section 10.1-563D of the law) undertaken by utility, interstate and intrastate pipeline, and railroad companies. These companies are required to prepare project-specific plans and annually submit general ESC specifications to DCR for review and approval. State staff conducts inspection and enforcement on these projects.

Activities on federal land must comply with the law and applicable federal nonpoint source pollution programs on all regulated land disturbing activities in the state. The law gives the Virginia Soil and Conservation Board and local ESC programs authority to cooperate and enter into agreements with federal agencies to facilitate ESC compliance. The federal agency is responsible for achieving compliance through separate agreements/contracts with onsite developers, regular field inspection, prompt enforcement action against non-compliant projects and/or other mechanisms consistent with agency policy.

Virginia Soil and Water Conservation Board
The Virginia Soil and Water Conservation Board has authority to provide oversight and enforcement for the Virginia ESC Program. This board meets periodically to address issues related to the Training and Certification Program, results of local ESC Program reviews, Alternate Inspection Programs and complaint resolution.

Training and Certification
The DCR ESC Program offers various training and certification opportunities. Further details are available at the training and certification page.

Erosion and Sediment Control Handbook
In 1992, DCR published the Virginia Erosion and Sediment Control Handbook as the primary guidance document for all ESC programs. The handbook covers basic ESC concepts, ESC measure design, installation and maintenance, plan review procedures and administrative guidelines to support compliance with the VESCL&R.