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1999 SESSION
994395376Be it enacted by the General Assembly of Virginia:
1. That §§ 10.1-2128 through 10.1-2132 of the Code of Virginia are amended and reenacted as follows:
A. There is hereby established in the state treasury a special permanent,
nonreverting fund, to be known as the "Virginia Water Quality Improvement
Fund." The Fund shall be established on the books of the Comptroller. The Fund
shall consist of sums appropriated to it by the General Assembly which shall
include, unless otherwise provided in the general appropriation act, ten
percent of the annual general fund revenue collections that are in excess of
the official estimates in the general appropriation act and ten percent of any
unreserved general fund balance, other than appropriated payments to the
Revenue Stabilization Fund (§ 2.1-191.1 et seq.) and mandatory reappropriations
required in the general appropriation act, at the close of each fiscal year
whose reappropriation is not required in the general appropriation act. The
Fund shall also consist of such other sums as may be made available to it from any
other source, public or private, and shall include any penalties or damages collected
under this article, federal grants solicited and received for the specific
purposes of the Fund, and all interest and income from investment of the Fund.
Any sums 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.
All moneys designated for the Fund shall be paid into the state treasury and
credited to the Fund. Moneys in the Fund shall be used solely for Water Quality
Improvement Grants. Expenditures and disbursements from the Fund shall be made
by the State Treasurer on warrants issued by the Comptroller upon the written
request of the Director of the Department of Environmental Quality or the
Director of the Department of Conservation and Recreation as provided in this
chapter.
B. The purpose of the Fund is to provide Water Quality Improvement Grants to local governments, soil and water conservation districts and individuals for point and nonpoint source pollution prevention, reduction and control programs and efforts undertaken in accordance with the provisions of this chapter. The Fund shall not be used for agency operating expenses or for purposes of replacing or otherwise reducing any general, nongeneral, or special funds allocated or appropriated to any state agency. The Fund shall not be used to make grants to enable the grant recipient to achieve or comply with any requirements or conditions of a Virginia Pollutant Discharge Elimination System (VPDES) permit or a compliance or enforcement action related thereto; however, a grant recipient who has executed a grant agreement pursuant to § 10.1-2130 shall be entitled to receive moneys from the Fund in accordance with the terms of the grant agreement, regardless of any subsequent changes in the requirements or conditions of a VPDES permit or subsequent enforcement or compliance action related thereto. Nothing contained in this subsection shall preclude the making of grants to an individual required to obtain a permit under § 62.1-44.17:1 or § 62.1-44.17:1.1 in the event that changes in the requirements or conditions governing VPDES permits require that such an individual obtain a VPDES permit for the activity governed by § 62.1-44.17:1 or § 62.1-44.17:1.1.
§ 10.1-2129. Agency coordination; conditions of grants.
A. Except as may otherwise be specified in the general appropriation act, the
Secretary of Natural Resources, in consultation with the State Forester and the
Directors of the Departments of Environmental Quality and Conservation and
Recreation and of the Chesapeake Bay Local Assistance Department, and with the
advice and guidance of the Board of Conservation and Recreation, the Virginia
Soil and Water Conservation Board, the State Water Control Board, and the
Chesapeake Bay Local Assistance Board, shall (i) annually, following a public
comment period of at least thirty days’ duration and a public hearing, allocate
moneys in the Fund between point and nonpoint source pollution, and (ii)
develop written guidelines for both of which shall receive allocations each
year.
B. Except as may otherwise be specified in the general appropriation act, the
Secretary of Natural Resources, in consultation with the State Forester and the
Directors of the Departments of Environmental Quality and Conservation and
Recreation and of the Chesapeake Bay Local Assistance Department, and with the
advice and guidance of the Board of Conservation and Recreation, the Virginia
Soil and Water Conservation Board, the State Water Control Board, and the
Chesapeake Bay Local Assistance Board, shall develop written guidelines that
(i) specify eligibility requirements; (ii) govern the application for and the
distribution and conditions of Water Quality Improvement Grants; and (iii) list
criteria for prioritizing funding requests. In developing the guidelines the
Secretary shall evaluate and consider, in addition to such other factors as may be
appropriate to most effectively restore, protect and improve the quality of
state waters: (i) specific practices and programs proposed in any tributary
plan required by Article 2 (§ 2.1-51.12:1 et seq.) of Chapter 5.1 of Title 2.1,
and the associated effectiveness and cost per pound of nutrients removed; (ii)
water quality impairment or degradation caused by different types of nutrients
released in different locations from different sources; and (iii) environmental
benchmarks and indicators for achieving improved water quality. The guidelines
shall include procedures for soliciting applications for funding and shall ensure
that both point and nonpoint source pollution are equitably addressed and funded in
each year. The process for development of guidelines pursuant to this
subsection shall, at a minimum, include (i) use of an advisory committee
composed of interested parties; (ii) a sixty-day public comment period on draft
guidelines; (iii) written responses to all comments received; and (iv) notice
of the availability of draft guidelines and final guidelines to all who request
such notice.
B. In addition to those the Secretary deems advisable to most effectively
restore, protect and improve the quality of state waters, the criteria for
prioritizing funding requests shall include: (i) whether the location of the
water quality restoration, protection or improvement project or program is
within a watershed or subwatershed with documented water nutrient loading
problems or adopted nutrient reduction goals; (ii) documented water quality
impairment; (iii) the achievement of greater water quality improvements than
that required by state or federal law; and (iv) the availability of other
funding mechanisms. In the event of a local government grant application
request for greater than fifty percent funding for any single project, the
Directors and the Secretary shall consider the comparative revenue capacity, revenue
efforts and fiscal stress as reported by the Commission on Local Government. The
development or implementation of cooperative programs developed pursuant to
subsection B of § 10.1-2127 shall be given a high priority in the distribution
of Virginia Water Quality Improvement Grants from the moneys allocated to nonpoint
source pollution.
§ 10.1-2130. General provisions related to grants from the Fund.
All Water Quality Improvement Grants shall be governed by a legally binding and enforceable grant agreement between the recipient and the granting agency. In addition to provisions providing for payment of the total amount of the grant, the agreement shall, at a minimum, also contain provisions that govern design and installation and require proper long-term operation, monitoring and maintenance of funded projects, including design and performance criteria, as well as contractual or stipulated penalties in an amount sufficient to ensure compliance with the agreement, which may include repayment with interest, for any breach of the agreement, including failure to properly operate, monitor or maintain. Grant agreements shall be made available for public review and comment for a period of no less than thirty days but no more than sixty days prior to execution. The granting agency shall cause notice of a proposed grant agreement to be given to all applicants for Water Quality Improvement Grants whose applications are then pending and to any person requesting such notice.
§ 10.1-2131. Point source pollution funding; conditions for approval.
A. The Department of Environmental Quality shall be the lead state agency for determining the appropriateness of any grant related to point source pollution to be made from the Fund to restore, protect or improve state water quality.
B. The Director of the Department of Environmental Quality shall, subject to available funds and in coordination with the Director of the Department of Conservation and Recreation, direct the State Treasurer to make Water Quality Improvement Grants in accordance with the guidelines established pursuant to § 10.1-2129. The Director shall manage the allocation of grants from the Fund to ensure the full funding of executed grant agreements.
C. Notwithstanding the priority provisions of § 10.1-2129, in no event shall
the Director of the Department of Environmental Quality shall not
authorize the distribution of grants from the Fund for purposes other than
financing at least fifty percent of the cost of design and installation of
biological nutrient removal facilities or other nutrient removal technology at
publicly owned treatment works until such time as all tributary plans required
by Article 2 (§ 2.1-51.12:1 et seq.) of Chapter 5.1 of Title 2.1 are developed
and implemented unless he finds that there exists in the Fund sufficient funds
for substantial and continuing progress in implementation of the tributary
plans. The Director shall manage the allocation of grants from the Fund
to ensure the full funding of executed grant agreements. In addition to the
provisions of § 10.1-2130, all grant agreements related to nutrients shall
include: (i) numerical concentrations on nutrient discharges to state waters designed to
achieve the nutrient reduction goals of the applicable tributary plan; (ii) enforceable
provisions related to the maintenance of the numerical concentrations that will
allow for exceedences of no more than ten percent and for exceedences caused by
extraordinary conditions; and (iii) recognition of the authority of the
Commonwealth to make the Virginia Water Facilities Revolving Fund (§ 62.1-224
et seq.) available to local governments to fund their share of the cost of designing
and installing biological nutrient removal facilities or other nutrient removal
technology based on financial need and subject to availability of revolving
loan funds, priority ranking and revolving loan distribution criteria. At least
fifty percent of the cost of the design and installation of biological nutrient
removal facilities or other nutrient removal technology at publicly owned
treatment works meeting the nutrient reduction goal in an applicable tributary
plan and incurred prior to the execution of a grant agreement is eligible for
reimbursement from the Fund provided the grant is made pursuant to an executed
agreement consistent with the provisions of this chapter.
Subsequent to the implementation of the tributary plans, the Director may authorize disbursements from the Fund for any water quality restoration, protection and improvements related to point source pollution that are clearly demonstrated as likely to achieve measurable and specific water quality improvements, including, but not limited to, cost effective technologies to reduce nutrient loads. Notwithstanding the previous provisions of this subsection, the Director may, at any time, authorize grants for technical assistance related to nutrient reduction.
§ 10.1-2132. Nonpoint source pollution funding; conditions for approval.
A. The Department of Conservation and Recreation shall be the lead state agency for determining the appropriateness of any grant related to nonpoint source pollution to be made from the Fund to restore, protect and improve the quality of state waters.
B. The Director of the Department of Conservation and Recreation shall, subject to available funds and in coordination with the Director of the Department of Environmental Quality, direct the State Treasurer to make Water Quality Improvement Grants in accordance with the guidelines established pursuant to § 10.1-2129. The Director shall manage the allocation of grants from the Fund to ensure the full funding of executed grant agreements.
C. Grant funding may be made available to local governments, soil and water conservation districts and individuals who propose specific initiatives that are clearly demonstrated as likely to achieve reductions in nonpoint source pollution, including excess nutrients, to improve the quality of state waters. Such projects may include, but are in no way limited to, the acquisition of conservation easements related to the protection of water quality and stream buffers; conservation planning and design assistance to develop nutrient management plans for agricultural operations; instructional education directly associated with the implementation or maintenance of a specific nonpoint source pollution reduction initiative; implementation of cost-effective nutrient reduction practices; and reimbursement to local governments for tax credits and other kinds of authorized local tax relief that provides incentives for water quality improvement. The Director shall give initial priority consideration to the distribution of grants from the Fund for the purposes of implementing the tributary plans required by Article 2 (§ 2.1-51.12:1 et seq.) of Chapter 5.1 of Title 2.1. Until such time as the tributary plans are developed and implemented, the Director shall distribute fifty percent of the nonpoint grant funding to their implementation and fifty percent to areas of the Commonwealth not to be covered by the tributary plans, unless otherwise provided in the general appropriation act.