8 General Notices/Errata

GENERAL NOTICES/ERRATA

Vol. 26 Iss. 6 - November 23, 2009

GENERAL NOTICES/ERRATA

DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES

Notice of Public Hearing on Beach Vitex Temporary Quarantine

Pursuant to § 3.2-703 of the Code of Virginia, the Commissioner of Agriculture and Consumer Services has issued a temporary (90-day) quarantine relating to Beach Vitex (Vitex rotundifolia). A copy of the temporary quarantine is printed below. If it appears that a quarantine for more than 90 days will be necessary. Section 3.2-703 provides that the Board of Agriculture and Consumer Services shall hold a public hearing on extending the commissioner's temporary quarantine. The Board of Agriculture and Consumer Services will hold such a public hearing at 10 a.m., December 3, 2009, at the Oliver Hill Building, 102 Governor Street, Room 220, Richmond, Virginia 23219.

For further information, please contact Larry Nichols, Program Manager, Office of Plant and Pest Services, Department of Agriculture and Consumer Services, 102 Governor Street, Room LL55, Richmond, Virginia 23219; [phone]; hearing impaired [phone]; FAX [phone]; or [e-mail].

Beach Vitex Temporary Quarantine for Enforcement of the Virginia Pest Law

Statutory authority: § 3.2-703 of the Code of Virginia.

§ 10. Declaration of quarantine

A quarantine is hereby established to restrict the movement of the invasive plant Beach Vitex and articles capable of transporting life stages of Beach Vitex unless such articles comply with the conditions specified herein. 

§ 20. Purpose of quarantine

Beach Vitex, a deciduous, woody vine native to the Pacific Rim, grows rapidly along dunes and shorelines causing damage to these areas by crowding out native plants and threatening the habitats of various animals, including the endangered loggerhead sea turtle. Although Beach Vitex has been planted in efforts to stabilize dunes, it is less effective than native grasses in controlling dune erosion. Beach Vitex has been detected in several coastal sites in the Commonwealth and it has the potential to spread to other areas through the artificial movement of Beach Vitex by individuals, or through the natural movement of Beach Vitex parts such as seeds and stems that could be carried by water currents to uninfested coastal areas. The purpose of this quarantine is to help prevent the spread of Beach Vitex by prohibiting its artificial movement and the movement of those articles that are capable of transporting it.

§ 30. Definitions

The following words and terms shall have the following meaning unless the context clearly indicates otherwise:

"Board" means the Virginia Board of Agriculture and Consumer Services.

"Certificate" means a document issued by an inspector or person operating in accordance with a compliance agreement to allow the movement of regulated articles to any destination.

"Commissioner" means the Commissioner of the Virginia Department of Agriculture and Consumer Services.

"Compliance agreement" means a written agreement between a person engaged in handling, receiving or moving regulated articles and the Virginia Department of Agriculture and Consumer Services, or the United States Department of Agriculture, or both, wherein the former agrees to fulfill the requirements of the compliance agreement and comply with the provisions of this regulation.

"Beach Vitex" means the live plant, in any life stage, known as Beach Vitex, Vitex rotundifolia.

"Department" means the Virginia Department of Agriculture and Consumer Services.

"Infested (infestation)" means the presence of the Beach Vitex or the existence of circumstances that make it reasonable to believe that life stages of the Beach Vitex are present.

"Inspector" means an employee of the Virginia Department of Agriculture and Consumer Services or other person authorized by the Commissioner of the Virginia Department of Agriculture and Consumer Services to enforce the provisions of this quarantine or regulation.

"Limited permit" means a document issued by an inspector to allow the movement of regulated articles to a specific destination.

"Moved (move, movement)" means shipped, offered for shipment, received for transportation, transported, carried, or allowed to be moved, shipped, transported, or carried.

"Person" means the term as defined in § 1-230 of the Code of Virginia.

"Regulated area" means the locality or area listed in Section 50 of this quarantine.

"Virginia Pest Law" means the statute set forth in § 3.2-700 et seq. of the Code of Virginia.

§ 40. Regulated articles

The following articles are regulated under the provisions of this quarantine and shall not be moved into, within, or out of any regulated area in Virginia, except in compliance with the conditions prescribed in this quarantine:

1. Beach Vitex, in any life stage, including roots, stems and seeds.

2. Any article known to be infested with Beach Vitex, such as sand, soil or mulch containing Beach Vitex in any life stage.

3. Any other article or means of conveyance when it is determined by an inspector that it presents a risk of spread of Beach Vitex.

§ 50. Regulated areas

The following areas in Virginia are quarantined for Beach Vitex:

1. The entire counties of:

Accomack

Northampton

2. The entire cities of:

Norfolk

Virginia Beach

§ 60. Conditions governing the intrastate movement of regulated articles

A. Movement Within Regulated Area – Movement of a regulated article solely within the quarantined area is prohibited unless accompanied by a valid certificate or limited permit.

B. Movement From Regulated Area Into Non-Regulated Area – Movement of a regulated article that originates inside of the quarantined area to an area outside of the quarantined area is prohibited unless accompanied by a valid certificate or limited permit.

C. Movement From Non-Regulated Area Into Regulated Area – Movement of a regulated article that originates outside of the quarantined area to an area inside of the quarantined area is prohibited.

D. Movement Outside of the Regulated Area – Movement of a regulated article solely outside of the quarantined area is not restricted.

§ 70. Issuance and cancellation of certificates and limited permits

A. Certificates and limited permits may be issued by an inspector for the movement of regulated articles into, within, or out of any regulated area, to any destination within Virginia when the regulated articles meet the following three conditions:

1. a. The regulated articles are to be moved intrastate to a specified destination under conditions which specify the limited handling, utilization, processing or treatment of the articles, when the inspector determines that such movement will not result in the spread of Beach Vitex because the life stage of the plant will be destroyed by such specified handling, utilization, processing or treatment; or

b. The regulated articles are to be moved by a state or federal agency, or person authorized by the Department, for experimental or scientific purposes;

2. The regulated articles are to be moved in compliance with any additional conditions deemed necessary under the Virginia Pest Law to prevent the spread of Beach Vitex;

3. The regulated articles are eligible for unrestricted movement under all other domestic plant quarantines and regulations applicable to the regulated articles.

B. Any certificate or limited permit that has been issued or authorized may be withdrawn by the inspector orally or in writing if the inspector determines that the holder of the certificate or limited permit has not complied with all conditions for the use of the certificate or limited permit, or with any applicable compliance agreement. If the withdrawal is oral, the withdrawal and the reasons for the withdrawal shall be confirmed in writing and communicated to the certificate or limited permit holder as promptly as circumstances allow.

§ 80. Assembly and inspection of regulated articles

A. Any person who desires to move a regulated article into, within, or out of any regulated area shall apply for a limited permit as far in advance as practical but no less than five (5) business days before the regulated articles are to be moved.

B. The regulated article must be assembled at the place and in the manner the inspector designates as necessary to facilitate inspection and shall be safeguarded from infestation.

§ 90. Attachment and disposition of certificates and limited permits

A. A certificate or limited permit required for the movement of a regulated article into, within, or out of any regulated area must be attached at all times during the intrastate movement to the outside of the container which contains the regulated article or to the regulated article itself. The requirements of this section may also be met by attaching the certificate or limited permit to the consignee's copy of the waybill, provided the regulated article is sufficiently described on the certificate or limited permit and on the waybill to facilitate the identification of the regulated article.

B. The certificate or limited permit for the intrastate movement of a regulated article must be furnished by the carrier to the consignee at the destination of the regulated article. A copy of the certificate or the limited permit must be retained by the sender of the regulated article at the place of shipment.

§ 100. Inspection and disposal of regulated articles and pests

Upon presentation of official credentials, an inspector is authorized to stop and inspect, and to seize, destroy, or otherwise dispose of, or require disposal of, regulated articles as provided in the Virginia Pest Law.

§ 110. Non-liability of the department

The Department shall not be liable for any costs incurred by third parties, whose costs result from, or are incidental to, inspections required under the provisions of the quarantine.

This Temporary Quarantine becomes effective on October 26, 2009, and shall continue for a period not to exceed 90 days.

Issued on October 19, 2009, in Richmond, Virginia.

/s/ Todd P. Haymore

Commissioner

Agricultural Stewardship Act Guidelines

(Draft Revision)

Section 3.2-408 of the Code of Virginia authorizes the Commissioner of Agriculture and Consumer Services to alter the Virginia Agricultural Stewardship Act Guidelines periodically after proposed changes have been published in The Virginia Register of Regulations and a public comment period has been provided. The revised guidelines are printed below.

Public comments may be submitted until 5 p.m. on January 8, 2010, to Roy E. Seward, Department of Agriculture and Consumer Services, Oliver Hill Building, Room 214, 102 Governor Street, Richmond, VA 23219, or by email to [e-mail].

NATURE OF GUIDELINES

The Agricultural Stewardship Act¹ ("ASA or Act") requires that the Commissioner of Agriculture and Consumer Services ("Commissioner") develop guidelines to assist in the implementation of the ASA. These guidelines are not regulations and no one is required to abide by them. In fact, there are no regulations concerning the ASA. The only document that anyone must abide by is the ASA itself.

These guidelines set out procedures for implementing the ASA.  As they are not regulations, they do not have the force of law.  Matters addressed in these guidelines that are not required by statute may be waived or changed at the discretion of the Commissioner. In the event of any conflict between the guidelines and the ASA, the ASA will prevail. The Commissioner expects that these guidelines will be reviewed periodically to determine whether changes are needed.

The Commissioner welcomes your questions and requests for information about the ASA Program. All correspondence regarding the ASA guidelines can be directed to the address listed below or you can contact the ASA Program at [phone].

Commissioner

Agricultural Stewardship Program

Virginia Department of Agriculture and Consumer Services

P.O. Box 1163

Richmond, Virginia 23218

BACKGROUND ON THE AGRICULTURAL STEWARDSHIP ACT

In response to increased public concerns for a clean environment, Virginia's agricultural leadership sought a way of dealing with agricultural water pollution that was different from the approaches used with other industries, such as manufacturers. Most manufacturing plants must obtain permits and follow strict rules of operation. The agricultural community wanted a different approach that did not rely on permits and strict operating rules, but took into account the wide variety of farming practices used in Virginia.

The ASA offers a positive approach to addressing pollution involving agricultural operations. It provides procedures by which individual agricultural producers can be alerted to areas of their operations that may be causing water pollution. Rather than developing regulations with strict rules governing every type of farming practice, the ASA looks at each farm individually.

BRIEF SUMMARY

AGRICULTURAL STEWARDSHIP ACT (ASA)

The procedures created by the ASA begin with a complaint made to the Commissioner of the Virginia Department of Agriculture and Consumer Services (VDACS). The Commissioner must accept complaints alleging that a specific agricultural activity is causing or will cause water pollution.  However, not all complaints have to be investigated as will be discussed below. After the Commissioner receives a complaint and the complaint is one that must be investigated, he will ask the local soil and water conservation district ("District" or "local district") whether it wishes to investigate the complaint. If the District does not wish to investigate the complaint, the Commissioner will conduct his own investigation. (A copy of the ASA is in Appendix A.)

The purpose of the investigation is to determine whether the agricultural activity (that was the subject of the complaint) is causing or will cause water pollution. If not, the Commissioner will dismiss the complaint.

If the agricultural activity is causing or will cause water pollution, the ASA gives the owner or operator an opportunity to correct the problem. The owner or operator will be asked to develop a plan containing "stewardship measures" (often referred to as "best management practices") to prevent the water pollution. The owner or operator then develops the plan, and once the plan is developed, the District reviews it and makes recommendations to the Commissioner. If the Commissioner approves the plan, he will then ask the owner or operator to implement the plan within specified periods of time.

If the owner or operator fails to implement stewardship measures after a plan is approved, enforcement action under the ASA will be taken against the owner or operator.

In some cases, the ASA investigation will not produce sufficient evidence to support the conclusion that the agricultural activity in question is causing or will cause pollution. In those cases, the investigator will offer suggestions on how the owner or operator might improve his practices to prevent complaints in the future.  The purpose of the ASA is to solve problems by working one-on-one with the farmers.

SECTION A - WHAT THE ACT COVERS

1. Activities Covered by the ASA

The ASA applies to agricultural activities that are causing or will cause water pollution by sedimentation, nutrients or toxins. The only exception is when the agricultural activity in question is already permitted by the State Water Control Board (through the Department of Environmental Quality). The permits are usually: a Virginia Pollution Abatement ("VPA") permit (general or individual) for the storage and land application of animal waste; a Virginia Pollution Discharge Elimination System ("VPDES") permit for certain aquaculture facilities or for mixed production and processing operations; or a permit issued by the Commonwealth of Virginia for the land application of sewage sludge.

The ASA does not apply to forestry activities, odor concerns, or landfills.  In terms of waste problems, the ASA would only apply to farm dumps where agricultural products or animal carcasses are disposed of and that have clear water quality impacts.  Finally, the ASA does not apply to air pollution, or to water pollution caused by non-agricultural activities.

The Commissioner's staff will use Form 1 to determine whether or not the complaint can be investigated under the ASA.  (A copy of Form 1 is in Appendix E.)

2. Definitions of Sedimentation, Nutrients and Toxins

Sedimentation is soil material, either mineral or organic matter, that has been transported from its original site by air, water, or ice and has been deposited in another location.  The primary focus under the ASA will be on erosion of soil and its deposition in surface water.

Nutrients are dry or liquid materials that provide elements, such as nitrogen, phosphorus, and potassium that can nourish plants.  Commercial fertilizers and animal manure are the two primary sources used to supply nutrients to plants in agricultural operations and will be the focal point of the ASA.

For the purposes of these guidelines, a toxin is any substance or mixture of substances intended to be used to prevent, destroy, repel or mitigate agricultural pests, or to be used as a plant regulator, defoliant or desiccant, commonly called pesticides.  In addition, oil, gasoline, diesel fuel and other petroleum products are potentially toxic materials that are usually employed in farming operations.

Soil, nutrients, pesticides, oil, gasoline, and other petroleum products are good and useful when they are kept in their proper places.  It is only when any of this material reaches a stream, river, well, lake or other water body that they become a problem.

3. What the Act Means by "Pollution"

The ASA defines pollution as "any alteration of the physical, chemical or biological properties of any state waters resulting from sedimentation, nutrients, or toxins." (Section 3.2-400 of the ASA.) When sediments, nutrients, or toxins enter the water from an agricultural activity, they constitute pollution under the ASA.

However, even if pollution is occurring, the ASA gives the Commissioner the power to dismiss a case if the Commissioner determines that:

" . . the pollution is a direct result of unusual weather events or other exceptional circumstances which could not have been reasonably anticipated, or determines that the pollution is not a threat to human health, animal health, or aquatic life, water quality or recreational or other beneficial uses . . ."  (From Section 3.2-402 C of the ASA.)

There are two key questions for determining whether pollution is occurring or will occur.

1. Are there any barriers to prevent the sediment, nutrients, or pesticides from reaching the water?

2. Is the owner or operator using any practices designed to prevent the pollutant from reaching the water?

SECTION B - HOW INVESTIGATIONS ARE CONDUCTED

1. Decision to Investigate

The ASA is "complaint-driven."  There can be no investigation of any farm activity unless the Commissioner receives a complaint.  If the person making the complaint gives his name and no valid exception to investigation is identified in the preliminary review, the ASA requires that the Commissioner or the local District investigate the validity of the complaint.  If the local District agrees to perform the District investigation, the Commissioner will ask the District to complete the investigation and provide evidence from its investigation within twenty-one days of the date the complaint was received by the Commissioner.  The ASA gives the Commissioner the choice of whether or not to investigate a complaint that was made anonymously with the investigation conducted by the local District, if it wishes, or by himself.  After the district and/or the Commissioner's staff submit the evidence to the Commissioner, the Commissioner will make the final determination on the complaint's validity.

The procedures described in the Guidelines are applicable to nonemergency situations. If the Commissioner is made aware of an emergency situation, special procedures may used, to the extent authorized by law, in order to protect the environment and the public.

2. Handling of Complaints

Complaints are accepted by either verbal or written statement. However, when a complainant does not wish to reveal his or her name and address, the Commissioner has discretion whether or not to investigate the alleged concern. In addition, if complaints are unclear and not site specific, the Commissioner may decide not to investigate them.

3. Who Investigates

With the exception of the anonymous complaint, the District decides who investigates a complaint. Upon receiving a complaint, the Commissioner must notify the District and give it the option to investigate the complaint. Form 2 shows the standard manner of notification to a District and requests the District's assistance.  (A copy of Form 2 is in Appendix E.)

The District has five days to tell the Commissioner whether or not it will investigate the complaint. A District may decide to assist in a joint investigation. This type of investigation would include both District and VDACS staff with the VDACS investigator having the lead role. When the District chooses to conduct the investigation on its own, it may indicate in writing or orally its decision to the Commissioner or his staff.  Form 3 is designed to provide a District with sample language that it may use in responding to the Commissioner's requests to investigate. (A copy of Form 3 is in Appendix E.)

A District may choose not to perform any investigations.  Once a District has informed the Commissioner that it does not intend to perform ASA investigations, the District does not have to respond in the future to the Commissioner's notification that there is an ASA complaint involving an agricultural activity within its boundaries.  As a courtesy, the Commissioner will continue to inform each District of such complaints.

4. Time Limitations on Investigations

The ASA requires that, for complaints investigated by a local District, the investigation must be completed within twenty-one days of the Commissioner's receipt of the complaint. The ASA does not specify a length of time in which the Commissioner or his staff must complete the investigation; however, it is the Commissioner's policy that investigations his staff or he conducts are completed within that time period where possible. If the District conducts the investigation, the District will send its finding to the Commissioner so that he can determine whether a plan is necessary. The Commissioner is responsible for reporting his decision to the owner or operator.

5. Notice to Owner or Operator of Investigation

It is the policy of the Commissioner that his staff or the District, when it conducts the investigation, will give the owner or operator notice that the Commissioner has received a complaint, of the owner's or operator's agricultural activity which must be investigated. However, the Commissioner, in his discretion, may waive this policy.  To document the notice and the investigation arrangements, the investigator (District or VDACS) will follow-up with a letter to the owner or operator. Form 5 shows the standard manner of a written notification for informing the owner or operator about a complaint. (A copy of Form 5 is in Appendix E.)

In those instances in which a District may not wish to give notice to the owner or operator about the complaint after they have agreed to investigate, VDACS will assist in delivering the initial notice of the investigation.  VDACS will explain that a complaint has been received, that an investigation is necessary, and that someone from the District will contact the owner or operator to arrange a time to conduct a site investigation. Form 4 provides a place to document any telephone calls regarding this notice and other case activities. (A copy of Form 4 is in Appendix E.)

Regardless of who makes the initial contact, it is the policy of the Commissioner that the person who sends the written notice of the investigation to the owner or operator also send appropriate written information regarding the ASA. This policy may change at the discretion of the Commissioner. (VDACS will provide this information to the Districts if requested.) This information may provide the owner or operator an opportunity to learn more about the ASA, its procedures, and what the owner or operator can expect regarding resolution of the complaint.

6. Notice of Findings from Investigation

The Commissioner will notify the owner or operator of his decision as to whether a plan is necessary. When a District performs an investigation, it shall provide its findings to the Commissioner so that he can make this decision. This includes all materials produced and collected during the investigation period. Form 9 was created to record this type of information. The Commissioner's notice to the owner or operator will either dismiss the complaint or inform the owner or operator that he needs to submit a plan to the Commissioner describing conservation measures needed to correct the pollution problem. This plan is due 60 days after the owner or operator receives a written notice informing him that a plan is necessary. Form 6 is the standard manner of written notification to inform the owner or operator that a plan is needed to correct the water pollution problem.  Information regarding planning and implementation will be sent with this notification to assist the owner or operator. The owner/operator may seek assistance in developing a plan.  (See Section F of these Guidelines). The Commissioner may consider a corrective order if a plan is not submitted within 60 days.  (A copy of Forms 6 and 9 are in Appendix E.)

The owner or operator must begin implementing his plan within six months of receiving notice that a plan is necessary. Then, the owner or operator must complete implementation of his plan within a period specified by the Commissioner not to exceed 18 months of receiving the notice.  The owner or operator can receive an extension in some cases, as described in Section 7 below.

Upon approving the owner or operator's plan, the Commissioner will inform the owner or operator and the complainant. The District will be copied on this correspondence.

7. Extensions of Deadlines

Sometimes an owner or operator may need more time to complete implementation of his plan because of circumstances beyond his control.  The ASA provides that the Commissioner may grant an extension of up to six months (180 days) if a hardship exists and if the owner or operator has made a request for an extension at least 60 days prior to the date he was supposed to have completed implementing his plan.  The Commissioner will determine that a situation constitutes a hardship if it was caused by circumstances beyond the owner's or operator's control, and if the owner or operator has been making a good faith effort to implement his plan. Hardship can include financial problems. In his response the Commissioner will explain to the requestor of an extension the basis for his choosing to approve or reject such a request.

8. Notification of Landowner, if Different from Operator

The Commissioner will make a good faith effort to notify the landowner as well as the operator when the Commissioner determines that the complaint involves an agricultural activity on land that the operator rents from someone else or when the operator manages the agricultural activity for the owner of the land. If the investigation shows that no pollution problem exists, or if the problem is easily corrected by the operator's change in field management, the Commissioner may determine that notification of the landowner is unnecessary. If the problem involves an old feature (e.g., an old gully) that was created before the present operator began renting the land, or if correcting the problem requires construction, the Commissioner may determine that the landowner needs to be notified.

9. Right of Entry

It is the Commissioner's policy that entry onto the land to conduct an investigation will be made with the consent of the owner or operator.  However, it should be noted that the ASA gives the Commissioner, his designee, or a District the right to enter the land to determine whether or not the complaint is valid.  In addition, the Commissioner, his designee, or the District may enter the same land to check implementation of stewardship measures specified in a corrective order and maintenance of stewardship measures. This entry onto private property must be handled in accordance with constitutional requirements.

It is the Commissioner's policy that if a complaint alleges water pollution created by erosion coming from a specific field on the farm, then the ASA investigator will not enter other fields.  If the complaint is made more broadly to say that erosion is coming from the farm as a whole into X stream, then the investigation will cover all of the farm that drains into X stream.  If the complaint is made even more broadly to say that erosion is coming from the farm as a whole without naming the water body, then the investigation will cover the whole farm.

With the owner's or operator's consent, the ASA investigator may enter fields not covered by the complaint, examine or do other things that are relative to the investigation.

It is the policy of the Commissioner that the owner or operator of a farm that is subject of a complaint will be given notice of intended entry to investigate the complaint. A phone call or statement to the owner or operator is sufficient. After a call, written notice to the owner or operator will confirm the investigator's oral statements.  Form 5 shows the standard manner of written notification to the owner or operator before entering land that is the subject of a complaint.  (A copy of Form 5 is in Appendix E.)

If an owner or operator denies the Commissioner's representative entry onto the land or later withdraws his or her consent regarding entry, the investigator will leave the property immediately and report this to the Commissioner as soon as possible.  The ASA authorizes the Commissioner to obtain a court order allowing entry.

10. Purpose and Scope of Investigation

The principal purpose of the investigation is to determine if there is substantial evidence that the agricultural activity in question is causing or will cause water pollution from sedimentation, nutrients or toxins, as alleged in the complaint.  When performing an investigation, information to answer this question can be recorded on Form 9.  (A copy of Form 9 is in Appendix E.)

It is the Commissioner's policy that activities that are causing or will cause pollution that were not the subject of the complaint should be pointed out to the owner or operator as areas that should be voluntarily addressed, even though these areas are not covered by the ASA complaint. It is also the Commissioner's policy that the ASA's jurisdiction is "complaint-driven" and limited to the terms of the complaint.

11. Evidence

The ASA requires that there be "substantial evidence" that the agricultural activity is causing or will cause water pollution. 

12. Sample Collection Techniques

To maintain uniformity in the state's system of collecting water samples, VDACS will use the procedures developed by the State Water Control Board (SWCB), as set forth in the applicable sections of VWCB's "Water Quality Assessment Operating Procedures Manual".

Due to the complexity and cost of water and fecal sampling and analysis, samples should be taken only when they are absolutely necessary to prove a case.  When an investigator can see that pollutants are entering or will enter the water body in question, he will not need to take samples because the case can be proven through photographs, maps, eye-witness testimony, and other general evidence. The experience of other states that have programs similar to the ASA suggests that sampling is only necessary in a few cases. For scientific analysis of any water or other evidence, the District investigator should contact a VDACS Agricultural Stewardship Coordinator for specific instructions. VDACS will pay for the scientific analysis of any water or other evidence collected by the District during the investigation period.

SECTION C - CONFIDENTIALITY OF INFORMATION

The law requires the Commissioner of Agriculture and Consumer Services to hold records of active investigations in confidence. These records of active investigations include those records of active investigations created or held by the Districts pursuant to the Agricultural Stewardship Act. The owner or operator may review whatever notes and records the investigator has made after an ASA investigation is concluded. An investigation is concluded when the Commissioner has decided whether an agricultural activity is creating or will create pollution that requires an agricultural stewardship plan.

A District could receive a request under the Virginia Freedom of Information Act ("FOIA") (Chapter 37 (Sections 2.2-3700 et seq.) of Title 2.2 of the Code of Virginia) to disclose records regarding an active investigation. Any request made to the District for records of active investigations under the Agricultural Stewardship Act should be referred immediately to the attorney who represents the District.

SECTION D - SUBSEQUENT VISITS TO FARM TO CHECK IMPLEMENTATION

In most cases, after the site investigation has been completed, no further on-site reviews are necessary once the Commissioner has sent a notice advising that a stewardship plan will be required. However, subsequent on-site reviews are necessary when an ASA plan is required. The purpose of the subsequent on-site review is to determine whether the owner or operator is implementing his ASA plan in accordance with his implementation schedule.

Subsequent on-site reviews have enforcement implications, which are the Commissioner's responsibility; so, Districts should not undertake subsequent visits without VDACS' express agreement.  (This need for agreement from the Commissioner does not apply to a District's best management practices "spot-check" to determine compliance with a District cost-share agreement, even for a practice installed to meet ASA requirements.)

SECTION E - APPEALS AND FACT FINDING CONFERENCES

If an owner or operator who has been issued a notice under the Act fails to submit an agricultural stewardship plan, begin actively implementing the plan, complete implementation of the plan, or maintain the stewardship measures, the Commissioner shall issue a corrective order to such owner or operator.  The order shall require that such activity be accomplished within a stated period of time.

The Commissioner shall issue a corrective order only after an informal fact-finding conference. Informal fact-finding conferences are used to determine the factual basis for the Commissioner's decisions under the Agricultural Stewardship Act.

ASA gives "persons aggrieved" the right to appeal decisions of the Commissioner to the Virginia Soil and Water Conservation Board.

If the owner or operator fails to implement the corrective order, the Commissioner may seek a court order from the appropriate Circuit Court requiring the owner or operator to implement a plan developed by VDACS, or authorizing VDACS to enter the property to take action necessary to implement the plan itself.  This will result in the owner or operator losing the ability to choose the best plan.

SECTION F - SOURCES OF ASSISTANCE FOR OWNER OR OPERATORS

There are several sources of assistance available to owners or operators to address pollution problems and to develop stewardship measures and plans.  Areas of assistance and possible sources are listed below:

1. Technical Assistance

Planning and, if necessary, engineering assistance is often available through:

- Local Soil and Water Conservation District

- Department of Conservation and Recreation

- U. S. Department of Agriculture, Natural Resources Conservation Service

- Virginia Cooperative Extension

- Virginia Department of Agriculture and Consumer Services

- Private businesses

- Consultants

2. Cost-Sharing

Cost-Share assistance that may be available to implement plans is offered by:

- Local Soil and Water Conservation District

- U. S. Department of Agriculture, Farm Service Agency

- U. S. Department of Agriculture, Natural Resources Conservation Service

- Virginia Department of Environmental Quality

3. Financial Planning

Financial planning is always a consideration when making decisions that affect a farming operation. These organizations can be of assistance to the farmer in his financial planning:

- Virginia Cooperative Extension (e.g., Farm Management Agents)

- Private financial institutions (e.g., commercial banks, agricultural financing organizations)

SECTION G - DEVELOPING PLAN THAT COMPLIES WITH ASA

The plan must include the following minimum requirements under the ASA:

- Stewardship measures needed to prevent the pollution, and

- Implementation schedule.

The plan should also include:

- A map showing area of concern and affected water feature- Statement of pollution problem

- Signature page for the owner or operator, local district director and Commissioner

The owner or operator will have received a letter from the Commissioner notifying the owner or operator of the results of the investigation.  This letter specifies the components of the agricultural activity that are causing or will cause water pollution. (A copy of this letter is in Appendix E, labeled as Form 6.) All of these components must be addressed in the plan.

If necessary, simple plans can be converted into more sophisticated formats after this deadline has been met.  Planners should be sensitive to the fact that the owner or operator has a second deadline to meet: the owner or operator must begin implementing the plan within six months of receiving the official notice that the plan has been approved.  Form 10 provides an example format of an ASA plan. (A copy of Form 10 is in Appendix E.)

Amendments to plans are acceptable as long as the amendments prevent or eliminate the pollution.  Amendments must be reviewed by VDACS before the plan completion date. An amendment that necessitates an extension of time will not be denied simply because the time of completion will be delayed; however, the Commissioner may consider whether the additional time is needed because of the actual change in plans or because of any lack of due diligence by the owner or operator.

To make the planning process most effective, owners or operators should be given options for solving their pollution problem whenever possible.  In terms of appropriate options, the ASA defines stewardship measures as "the best available nonpoint source control methods, technologies, processes, siting criteria, operating methods or other alternatives."  There are often a variety of best management practices that can be employed to solve a single pollution problem. Thus, the planner will often have a wide variety of options from structural practices to changes in operating methods that can be offered to the owner or operator as solutions to the pollution problem. These options need not be the most expensive or employ the most sophisticated technology; they only need to prevent the pollution in question within the timeframe of the plan to be the "best". A plan that merely substitutes one form of pollution for another, however, is not acceptable.

SECTION H - VIOLATIONS AND PENALTIES

Under the ASA, the Commissioner issues a corrective order when the owner or operator fails to comply with the ASA {Section 3.2-403}. Further, if the owner or operator fails to allow the Commissioner or the investigator entry onto the property to investigate, implement stewardship measures, or ensure stewardship measures are being maintained, the Commissioner may seek a court order from the appropriate circuit court authorizing such entry onto the property.

A person who is subject to a corrective order issued by the Commissioner has the right to go to the Soil and Water Conservation Board to appeal that corrective order. Further, that person has the right to appeal the decision of the Board to the appropriate circuit court.

If an owner or operator fails to comply with the ASA, he or she may be subject to civil penalties and orders issued by the Commissioner {Section 3.2-406}. The ASA does not create any crime -- only civil violations. (See Appendix B, Civil Penalty Matrix for the Agricultural Stewardship Act Program.)

SECTION I - INTERGOVERNMENTAL COOPERATION

The ASA requires that agricultural activities that are causing or will cause water pollution be corrected.  It is very important that agencies of local, state and federal government work together in a cooperative effort using a common-sense approach to assist owners or operators in effectively correcting these problems. Some of the agencies, besides the local Soil and Water Conservation Districts and Soil and Water Conservation District Board, that work in cooperation with the Commissioner and VDACS on water quality issues include the Department of Environmental Quality, the Department of Conservation and Recreation, the Natural Resources Conservation Service of the United States Department of Agriculture,  and Virginia Cooperative Extension.

Section 3.2-409 of the ASA makes it clear that any local government may, subject to certain conditions, adopt an ordinance establishing a process for filing complaints, investigating them, and creating agricultural stewardship plans where necessary to correct pollution problems.

Likewise, Section 3.2-410 seeks to address potential conflicts with Chesapeake Bay Preservation Act (Bay Act) regulations.  This section states that nothing in the ASA shall be interpreted to duplicate the agricultural requirements in the regulations adopted pursuant to the Bay Act.

VDACS serves as the primary coordinating agency for administering the ASA. VDACS' ASA staff assists the Commissioner with investigations and enforcement, and with communicating the results of the investigations with complainants. In addition to developing these guidelines, VDACS initiates the reporting and assessment processes annually. The purposes of the annual reporting and assessment process is to identify trends and needs and to seek means of addressing any problems that develop in the system of administering the ASA.

In some cases, VDACS provides technical and planning assistance to owners or operators in the wake of a complaint.  VDACS' other main role is to coordinate the administration of the ASA with the Districts and other partners. VDACS' main goal in administering the ASA is to institute a "farmer-friendly" set of mechanisms by which owners or operators can address water pollution problems on a case-by-case basis, without the necessity of further overall regulation.

APPENDIX A

Agricultural Stewardship Act

Code of Virginia ("Agricultural Stewardship Act")

§ 3.2-400. Definitions.

As used in this chapter, unless the context requires a different meaning:

"Agricultural activity" means any activity used in the production of food and fiber, including farming, feedlots, grazing livestock, poultry raising, dairy farming, and aquaculture activities.

"Agricultural stewardship plan" or "plan" means a site-specific plan for an agricultural activity to manage, through use of stewardship measures, one or more of the following: soil, water, plants, plant nutrients, pest controls, wastes, and animals.

"Board" means the Soil and Water Conservation Board.

"Complaint" means an allegation made by any person to the Commissioner that an owner's or operator's agricultural activity is creating or, if not changed, will create pollution and that states the location and nature of such agricultural activity.

"District" or "soil and water conservation district" means a political subdivision of the Commonwealth organized in accordance with the provisions of Chapter 5 (§ 10.1-500 et seq.) of Title 10.1.

"Informal fact-finding conference" means an informal fact-finding conference conducted in accordance with § 2.2-4019.

"Operator" means any person who exercises managerial control over any agricultural activity.

"Owner" means any person who owns land where an agricultural activity occurs.

"Pollution" means any alteration of the physical, chemical, or biological properties of any state waters resulting from sedimentation, nutrients, or toxins.

"State waters" means all water, on the surface or in the ground, wholly or partially within or bordering the Commonwealth or within its jurisdiction.

"Stewardship measures" or "measures" means measures for controlling the addition of pollutants from existing and new categories and classes of nonpoint sources of pollution that reflect the pollutant reduction achievable through the application of the best available nonpoint pollution control methods, technologies, processes, siting criteria, operating methods, or other alternatives.

"Stewardship measures" or "measures" includes: (i) agricultural water quality protection management measures described in the Virginia Agricultural Best Management Practices Manual; and (ii) agricultural water quality protection management measures contained in the U.S. Department of Agriculture's Natural Resources Conservation Service Field Office Technical Guide.

(1996, c. 773, § 10.1-559.1; 2000, c. 973; 2008, c. 860.)

§ 3.2-401. Exclusions from chapter.

This chapter shall not apply to any agricultural activity to which: (i) Article 12 (§ 10.1-1181.1 et seq.) of Chapter 11 of Title 10.1; or (ii) a permit issued by the State Water Control Board, applies.

(1996, c. 773, § 10.1-559.2; 2008, c. 860.)

§ 3.2-402. Complaint; investigation; agricultural stewardship plan.

A. After April 1, 1997, upon receiving a complaint, unless the complaint was made anonymously, the Commissioner shall request that the directors of the district where the land lies determine the validity of the information within 21 days. The Commissioner may investigate or ask the directors of the district to investigate an anonymous complaint.

B. The district chairman may, on behalf of the district, act upon or reject the Commissioner's request. If the district declines to act, it shall within five days so advise the Commissioner, who shall determine the validity of the complaint.

C. If, after investigating a complaint, the Commissioner determines that substantial evidence exists to prove that an agricultural activity is creating or will create pollution, the Commissioner shall notify the owner or operator by registered mail, return receipt requested. If, after investigation, the Commissioner determines that the pollution is a direct result of unusual weather events or other exceptional circumstances that could not have been reasonably anticipated, or determines that the pollution is not a threat to human health, animal health, or aquatic life, water quality or recreational or other beneficial uses, the Commissioner may forego any additional action. Copies of the notice shall be sent to the district where the agricultural activity is located. The notice shall state that, within 60 days of the receipt of the notice, the owner or operator shall submit to the Commissioner and district an agricultural stewardship plan that includes stewardship measures needed to prevent or cease the pollution. The district shall review the plan and, if the plan includes such measures, the Commissioner shall approve the plan within 30 days after he receives it. Upon approving the owner's or operator's plan, the Commissioner shall inform the owner or operator and the complainant that a plan has been approved. The owner or operator shall begin implementing the approved agricultural stewardship plan within six months of the date that the owner or operator received the notice that the agricultural activity is creating or will create pollution.

D. The plan shall include an implementation schedule, and implementation of the plan shall be completed within a period specified by the Commissioner, based upon the seasons and other temporal considerations so that the period is that during which the possibility of success in establishment or construction of the measures required in the plan is the greatest, which shall not exceed 18 months from receipt of notice. The Commissioner may grant an extension of up to 180 days if: (i) a hardship exists; and (ii) the request for an extension was made not later than 60 days before the scheduled completion date. The Commissioner shall, within 30 days of receiving the request, inform the owner or operator whether or not an extension has been granted.

E. After implementing the approved plan according to the provisions of this chapter, the owner or operator shall maintain the stewardship measures established pursuant to the plan. The owner or operator may change the agricultural activity so long as the Commissioner is notified.

F. If the Commissioner determines that substantial evidence does not exist to prove that an agricultural activity is creating or will create pollution or that any pollution was caused by unusual weather events or other exceptional circumstances or that the pollution is not a threat to human health, animal health, or aquatic life or recreational or other beneficial uses, he shall inform the complainant and the owner or operator of his determination. Upon approving the owner's or operator's agricultural stewardship plan, the Commissioner shall inform the owner or operator and the complainant that a plan has been approved.

(1996, c. 773, § 10.1-559.3; 2000, c. 973; 2008, c. 860.)

§ 3.2-403. Issuance of corrective orders.

A. If any owner or operator who has been issued a notice under § 3.2-402 fails to submit an agricultural stewardship plan, begin actively implementing the plan, complete implementation of the plan, or maintain the stewardship measures as provided in § 3.2-402, the Commissioner shall issue a corrective order to such owner or operator. The order shall require that such activity be accomplished within a stated period of time.

B. A corrective order issued pursuant to subsection A shall be issued only after an informal fact-finding conference, with reasonable notice being given to the owner or operator, or both, of the time, place, and purpose thereof, and shall become effective not less than five days after date of delivery to the last known address as provided in subsection C. The corrective order shall be suspended pending appeal by the recipient made within five days after delivery of such order to the last known address of the owner or operator.

C. The Commissioner shall mail a copy of the corrective order by certified mail, return receipt requested, sent to the last known address of the owner or operator, or by personal delivery by an agent of the Commonwealth.

D. Notwithstanding other provisions of this chapter, if the Commissioner determines that a recurring polluting condition that is the subject of an approved plan is occurring or that an emergency condition exists due to runoff from an agricultural activity that is causing or is likely to cause an imminent or substantial danger to: (i) the public health, safety, or welfare or to the health of animals, fish, or aquatic life; (ii) a public water supply; or (iii) recreational, commercial, industrial, agricultural, or other beneficial uses, the Commissioner may issue, without advance notice, informal fact-finding conference, or hearing, an emergency corrective order. Such order may direct the owner or operator of the agricultural activity, or both, to cease immediately all or part of the agricultural activity and to implement specified stewardship measures or any necessary emergency measures within a stated period of time. Following the issuance of an emergency corrective order, the Commissioner shall provide the opportunity for a hearing or an informal fact-finding conference, after reasonable notice as to the time and place thereof, to the owner or operator, for the purpose of affirming, modifying, amending, or canceling the emergency corrective order.

E. The Commissioner shall not issue a corrective order to any land owner or operator if the person is:

1. Actively implementing the agricultural stewardship plan that has been reviewed by the district where the agricultural activity is located and approved by the Commissioner, or

2. Actively implementing stewardship measures that have failed to prevent pollution, if the Commissioner determines that the pollution is a direct result of unusual weather events or other exceptional circumstances that could not have been reasonably anticipated.

(1996, c. 773, § 10.1-559.4; 2000, c. 973; 2008, c. 860.)

§ 3.2-404. Right of entry; court enforcement.

A. The district or the Commissioner may enter land that is the subject of a complaint, after notice to the owner or operator, to determine whether the agricultural activity is causing or will cause pollution of state waters.

B. Upon failure of any owner or operator to allow the Commissioner entry in accordance with subsection A, to implement stewardship measures in the time specified in a corrective order, or to maintain stewardship measures in accordance with subsection E of § 3.2-402, the Commissioner may present to the circuit court of the county or city where the land is located, a petition asking the court to require the owner or operator to allow the Commissioner entry or to carry out such measures within a specified time. If the owner or operator fails to implement the stewardship measures specified in the court order, the Commissioner may enter the land involved and implement the measures. The Commissioner may recover the costs of implementing the stewardship measures from the owner or operator.

(1996, c. 773, § 10.1-559.5; 2000, c. 973; 2008, c. 860.)

§ 3.2-405. Appeal.

Decisions of the Commissioner may be appealed by persons aggrieved to the Board and thereafter to the circuit court in accordance with the Administrative Process Act (§ 2.2-4000 et seq.). The imposition of any civil penalty shall be suspended pending such appeals.

(1996, c. 773, § 10.1-559.6; 2008, c. 860.)

§ 3.2-406. Penalties; injunctions; enforcement actions.

A. Any person violating § 3.2-403 or 3.2-404 shall be subject to a civil penalty not to exceed $5,000 for every violation assessed by the Commissioner or Board. Each day the violation continues is a separate offense. Payments to satisfy such penalties shall be deposited in a nonreverting, special fund to be used by the Department of Conservation and Recreation to provide financial assistance to persons implementing measures specified in the Virginia Agricultural Best Management Practices Manual. No person who has been assessed a civil penalty under this section shall be eligible for such financial assistance until the violation has been corrected and the penalty paid.

B. In determining the amount of any penalty, factors to be considered shall include the willfulness of the violation, any history of noncompliance, the actions of the owner or operator in notifying, containing and cleaning up any discharge, the damage or injury to state waters or the impairment of its uses, and the nature and degree of injury to or interference with general health, welfare and property.

C. The Attorney General shall, upon request, bring an action for an injunction or other appropriate legal action on behalf of the Commissioner or Board to enforce the provisions of this chapter.

(1996, c. 773, § 10.1-559.7; 2008, c. 860.)

§ 3.2-407. Liens.

If a person who is required to pay a civil penalty under this chapter fails to do so, the Commissioner may transmit a true copy of the order assessing such penalty to the clerk of the circuit court of any county or city wherein it is ascertained that the person owing such penalty has any estate; and the clerk to whom such copy is transmitted shall record it, as a judgment is required by law to be recorded, and shall index it in the name of the Commonwealth as well as in the name of the person owing the civil penalty, and thereupon there shall be a lien in favor of the Commonwealth on the property within such locality of the person owing the civil penalty in the amount of the civil penalty. The Commissioner and Board may collect civil penalties that are owed in the same manner as provided by law in respect to judgment of a circuit court.

(1996, c. 773, § 10.1-559.8; 2008, c. 860.)

§ 3.2-408. Guidelines to be published by Commissioner; report.

A. In consultation with the districts, the Department of Conservation and Recreation, and interested persons, the Commissioner shall develop guidelines for the implementation of this chapter. These guidelines shall address, among other things, the conduct of investigations, sources of assistance for owners and operators, and intergovernmental cooperation. Within 90 days of the effective date of this section, the Commissioner shall submit the proposed guidelines to the Registrar of Regulations for publication in the Virginia Register of Regulations. At least 30 days shall be provided for public comment after the publication of the proposed guidelines. After the close of the public comment period, the Commissioner shall consider the comments that he has received and may incorporate any changes into the guidelines that he deems appropriate. He shall develop a written summary and analysis of the comments, which shall be made available to the public upon request. Thereafter, the Commissioner shall submit final guidelines for publication in the Register. The guidelines shall become effective on April 1, 1997. The Commissioner may alter the guidelines periodically after his proposed changes have been published in the Register and a public comment period has been provided.

B. The Commissioner shall compile a report by August 31 annually listing the number of complaints received, the nature of each complaint, the actions taken in resolution of each complaint, and any penalties that may have been assessed. The Commissioner shall have the discretion to exclude and keep confidential specific information regarding ongoing investigations. The Commissioner shall: (i) provide the report to the Board, the Department of Conservation and Recreation, and to every district; (ii) publish notice in the Virginia Register that the report is available; and (iii) make the report available to the public upon request.

(1996, c. 773, § 10.1-559.9; 2008, c. 860.)

§ 3.2-409.  Ordinances.

A. Any locality may adopt an ordinance creating a complaint, investigation, and agricultural stewardship plan development program. Ordinances adopted hereunder may contain only provisions that parallel §§ 3.2-401 and 3.2-402. No such ordinance shall provide for the imposition of civil or criminal sanctions against an operator or owner who fails to implement a plan. If an owner or operator fails to implement a plan, the local governing body shall submit a complaint to the Commissioner as provided in § 3.2-402.

B. This section shall not apply to any ordinance: (i) in existence on July 1, 1996; or (ii) adopted pursuant to the Chesapeake Bay Preservation Act (§ 10.1-2100 et seq.).

(1996, c. 773, § 10.1-559.10; 2008, c. 860.)

§ 3.2-410. Construction of chapter.

Nothing in this chapter shall be construed as duplicative of regulations governing agricultural practices under the Chesapeake Bay Preservation Act.

(1996, c. 773, § 10.1-559.11; 2008, c. 860.)

APPENDIX B

Civil Penalties Matrix for the Agricultural Stewardship Act Program 

DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES

Civil Penalties Matrix for the Agricultural Stewardship Act Program (Authority: Section 3.2-406 of the Code of Virginia)

VIOLATION

"Any person violating Section 3.2-403 or Section 3.2-404 shall be subject to a civil penalty not to exceed $5,000 for every violation assessed by the Commissioner of Agriculture and Consumer Services. Each day the violation continues shall constitute a separate offense." (Section 3.2-406(A) of the Code of Virginia)

The following are violations of Section 3.2-403 of the Code of Virginia:

1. The owner or operator fails to submit an Agricultural Stewardship Plan after the Commissioner has issued a Corrective Order (Authority: Section 3.2-403(A) of the Code of Virginia);

(Base civil penalty-$200)

2. The owner or operator fails to begin actively implementing an Agricultural Stewardship Plan after the Commissioner has issued a Corrective Order (Authority: Section 3.2-403(A) of the Code of Virginia);

(Base civil penalty-$500)

3. The owner or operator fails to complete the implementation of an Agricultural Stewardship Plan after the Commissioner has issued a Corrective Order (Authority: Section 3.2-403(A) of the Code of Virginia);

(Base civil penalty-$500)

4. The owner or operator fails to maintain the required stewardship measures after the Commissioner has issued a Corrective Order (Authority: Section 3.2-403(A) of the Code of Virginia); and

(Base civil penalty-$250)

5. The owner or operator fails to comply with an Emergency Corrective Order (Authority: Section 3.2-403(D) of the Code of Virginia).

(Base civil penalty-$500)

The following are violations of Section 3.2-404 of the Code of Virginia:

The owner or operator denies the Commissioner or his designee the right of entry (Authority: Section 3.2-404(A) of the Code of Virginia).

(Base civil penalty-$500)

The following factors shall be considered in determining the amount of any civil penalty:

1. If there is willfulness of violation, add $500 to the base civil penalty;

2. If there is history of noncompliance with Agricultural Stewardship Act, add $1000 to the base civil penalty;

3. If there is failure of owner in notifying, containing and cleaning up any discharge, add $1000 to the base civil penalty;

4. If there is damage or injury to state waters or the impairment of its uses, add $1500 to the base civil penalty; and

5. When the injury is of such a nature and degree as to interfere with general health, welfare and property, add $1500 to the base civil penalty.

6. As stated in Section 3.2-406, the maximum civil penalty the Commissioner may assess per violation is $5,000.

7. If any combination of applicable penalties under this matrix exceeds $5,000 for a single violation, $5,000 is the maximum amount that will be assessed for that violation.

APPENDIX C

Steps In Addressing Agricultural Stewardship Act Complaints

STEPS IN ADDRESSING AN ASA COMPLAINT

1. Commissioner's Office receives complaint:

Ø Commissioner's Office reviews complaint and determines if the ASA has jurisdiction.

· If not under ASA's jurisdiction, Commissioner dismisses complaint.

· If under the ASA's jurisdiction, Commissioner determines whether investigation is necessary.

2. Commissioner's Office determines whether the investigation is necessary:

Ø In cases with non-anonymous complaints, an investigation is required.

Ø In cases with anonymous complaints, the Commissioner has the option to investigate.

3. If investigation is needed:

Ø Commissioner's Office contacts local Soil and Water Conservation District and informs it of the complaint.

Ø District has five days to notify the Commissioner's Office whether or not it will investigate.

4. Contact the owner/operator to inform him or her of complaint and the need to investigate, followed by a letter.

Ø If farmer denies request to enter land, the Commissioner may seek a court order.

5. Investigate complaint and report findings to Commissioner's Office within 21 days of receiving complaint.

6. Commissioner's Office reviews investigation report and, if needed, gathers more information.  Commissioner's Office then makes decision as to whether complaint is founded, then contacts farmer with findings (via registered mail, return receipt requested) and the District within 30 days of receiving investigation report.

Ø If complaint is unfounded

· Action on complaint complete

· Complainant contacted and informed on reasons why complaint was unfounded.

Ø If complaint is founded – Finding is reviewed and discussed with farmer

· Farmer accepts decision, or

· Farmer appeals decision to the Virginia Soil and Water Conservation Board

· Farmer may appeal Board's decision to local Circuit Court

7. Farmer develops plan to address pollution and sends copy to the Commissioner's Office and District within 60 days after receiving notice of investigation findings and of the need to develop a plan.

Ø If farmer fails to develop own plan, Commissioner may seek court order requiring farmer to implement plan developed by VDACS.

8. District reviews plan and sends its recommendations to the Commissioner's Office.

9. Commissioner's Office reviews plan; District recommendations and notifies farmer.

Ø Plan approved, and/or amended with conditions

Ø Plan rejected

· Farmer develops new plan and repeats submittal process, or

· Farmer appeals through the process described in item 6.

10. Commissioner's Office contacts complainant, informs him or her of action taken, and plan implementation completion date.

11. Six months after farmer is notified that plan is necessary, Commissioner's Office will check to ensure that farmer has begun implementing plan.

Ø Implementation has begun, or

Ø Implementation has not begun

· Commissioner institutes an informal fact-finding conference with the owner / operator

· ASA requires Commissioner to issue a corrective order (via certified mail, return receipt requested) to farmer at this point

· Owner/operator may appeal though same process as described in item 6.

12. By the completion date, a site review will be conducted to ensure complete plan implementation.

Ø Once plan is implemented, farmer is required to maintain

Ø Hardship cases can receive a 180-day extension if farmer's request is received 60 days prior to completion date and is approved by the Commissioner's Office.

Ø Farmer can appeal through the same process described above in item 6.

APPENDIX D

Steps to Consider During An Agricultural Stewardship Act Investigation

When beginning an investigation, it is likely to help if you keep several key questions in the back of your mind. These questions are:

1. What pollutant (sediment, nutrient, pesticide or petroleum product) was the subject of the complaint?

2. What water body (stream, river, well, etc.) was the subject of the complaint?

3. Is there a physical barrier (e.g., buffer, berm, slope, etc.) that would help prevent the pollutant in question (soil, nutrients, pesticides or petroleum products) from reaching the stream, river or well?

4. Is the farmer using any BMPs that are designed to help prevent the pollutant in question from reaching the stream, river or well?

With these questions in mind, begin to assess the physical layout and the farmer's operation of the field, feedlot or pasture that is the subject of your investigation.  Some things to assess are as follows (Use the ones that would be applicable to the pollutant that was the subject of the complaint):

v Is there evidence of erosion?

v What sources of nutrients are used or produced in the operation?

v What types of pesticides and petroleum products are used in the operation?

v If pesticides are used, are they water-soluble, evaporative or do they tend to bind to soil?

v What are the characteristics of the topography in relation to the water body?

§ Slope

§ Sink holes

§ Soil Types

§ Etc.

v Is there a buffer or other barrier between the site where the problem is alleged to be occurring and the water body?

v If there is a buffer, what are the characteristics for the buffer?

§ Mixed vegetation (trees and shrubs, etc.)

§ Grass

§ Etc.

v What condition is the buffer in?

§ Well vegetated

§ Killed areas

§ Eroded

§ Etc.

v Does the farmer use nutrient management practices, and if so what are they?

v Are stream banks eroded, and if so, what was the cause?

§ Natural causes

§ Livestock

§ Etc.

v Are BMPs used on the land, such as residue management, conservation tillage, sod waterways, animal waste system, hardened access, etc.?

v Are BMPs well maintained?

§ Is sod waterway or filter strip being filled with sediment?

§ Is animal waste storage facility emptied on schedule?

§ Etc.

This is not an all-inclusive list because there may be other site-specific and complaint-specific circumstances that you'll want to consider, but this gives you an idea of what to assess.

Taking what you've learned about this operation in your assessment, begin to answer the following questions:

Ø Can the alleged pollution even be a product of this farming operation?

Ø Is there a route from the field, feedlot or pasture that the pollutants would travel easily (e.g., unobstructed by a physical barrier) to the water body?

Ø Given the management of the field, feedlot or pasture and other factors, how large is the level of pollution that could be occurring (e.g., large, medium, minimal, none)?

Ø If there is a pollution occurring, could the pollution in question be occurring from natural causes (e.g., natural stream bank erosion)?

Ø If there is pollution occurring, was it caused by circumstances beyond the farmer's control?

Using your answers to these questions, you can begin to write up your investigation report and formulate your opinion regarding this case.  If you have questions during this process, please contact one of the Agricultural Stewardship Coordinators at [phone].

APPENDIX E

Forms for the Agricultural Stewardship Act Program

Today's Date ___________________                                                                                           Complaint No. _____________

FORM 1

COMPLAINT TRACKING FORM

AGRICULTURAL STEWARDSHIP ACT

Name of person receiving complaint:  __________________________________

1.             Was the complaint made anonymously? ‘ Yes   ‘ No               

If "Yes," what reason (if any) did complainant give for not wanting to give

(his/her) name?

___________________________________________________________

___________________________________________________________

___________________________________________________________

Note:  If complainant would not give his/her name, Commissioner must make decision regarding whether or not to investigate.

If "No," complainant's name and mailing address and phone number are:

___________________________________________________________

___________________________________________________________

___________________________________________________________

2.             Does this complaint concern an agricultural activity? ‘ Yes   ‘ No    

If "Yes," go to question 3.  If "No," inform complainant that we have no jurisdiction over non-agricultural activities.

3.             What was the agricultural activity?  Circle:  Beef     Dairy    Poultry    Hogs                       

                                                                                                                                                                                               

                                                                                                                Horses    Cropland

                list additional activities:___________________

4.             Is the agricultural activity is causing; or, will the agricultural activity cause water pollution?

‘ Yes   ‘ No   ‘  Uncertain

If "Yes," go to question 5.  If "No," inform complainant that we have jurisdiction only over complaints concerning water pollution.

5.             What is the nature of the alleged water pollution?  ________________________________________________________________

________________________________________________________________

                                                                                                               

6.             What Is the cause of this alleged water pollution?   Circle:   sedimentation

nutrient enrichment     toxins

                list additional causes:___________________

 If additional causes are given then dismiss complaint and inform complainant that we have jurisdiction only over complaints alleging water pollution caused by sedimentation nutrient enrichment and toxins coming from agricultural activities.

7.             Is this specific agricultural activity covered by a government permit (e.g, VPA, VPDES, etc.)?

‘ Yes   ‘ No   ‘  Uncertain

If "No" OR "Uncertain" go to question 8.  If "Yes," inform complainant that we have no jurisdiction over complaints concerning water pollution from activities that are covered by a government permit .

8.             Name and address of owner or operator whose operation is subject of complaint: 

________________________________________________________________

________________________________________________________________

________________________________________________________________

Phone Number(s): _________________________________________________

9. County Name: _________________________________________________________

10. Directions to complaint site: ______________________________________________

________________________________________________________________

________________________________________________________________

11.        Name of the local soil and water conservation district in which this agricultural activity is located:

_______________________________________________________________

(VDACS Letterhead)

FORM 2

[NOTIFICATION TO DISTRICT OF COMPLAINT

AND REQUEST TO INVESTIGATE]

 

TO:                                          Directors, [list district name] Soil & Water Conservation District

FROM:                        Commissioner of Agriculture and Consumer Services

THROUGH:                      [Coordinator's name]

Agricultural Stewardship Coordinator

DATE:                              [current date]

RE:                                          Water Pollution Complaint from Agricultural Activity in Your District

                                                (Complaint No.  [number] )

We have received a complaint alleging that an agricultural activity in your District is causing or will cause water pollution.  That agricultural activity is described in greater detail on the attached Complaint Tracking Form.  Pursuant to Section 3.2-402 of the Code of Virginia, I hereby request that you determine the validity of the information in the complaint.

According to Section 3.2-402, you must advise me by the end of the fifth (5th) calendar day following the day on which you receive this request of your decision regarding whether or not you wish to determine the validity of the information in this complaint.  (Our standard response form #3 can be used.)

The Agricultural Stewardship Act gives the District] only 21 days to complete investigations to determine the validity of complaints, so if you choose to investigate to determine the validity of the information in the complaint, I will need to receive your decision by the date of [five days from current date].  If you choose to investigate, the standard investigation form #9 can be used.

Thank you for your consideration of this request.  If you have any questions, please feel free to call me at 804/786-3501 or my staff at 804/786-3538.

[District letterhead]

FORM 3

[DISTRICT'S DECISION REGARDING

REQUEST TO INVESTIGATE VALIDITY OF COMPLAINT]

TO:                              Commissioner of Agriculture and Consumer Services

FROM:                                    [district name]

Soil & Water Conservation District

DATE:                       [current date]

RE:                                          Water Pollution Complaint from Agricultural Activity in Our District 

                                                (Complaint No.  [number]  )

We have received your request regarding a complaint alleging that an agricultural activity in our District is causing or will cause water pollution by sedimentation, nutrient enrichment or toxins.  That agricultural activity is described in greater detail on the attached copy of the first page of the corresponding Complaint Tracking Form.  Pursuant to Section 3.2-402 of the Code of Virginia, I hereby notify you that this Soil & Water Conservation District [insert the words will investigate, will not investigate or will assistance in a joint investigation with the Virginia Department of Agriculture and Consumer Services]  to determine the validity of the information in that complaint.

Copy:                                Agricultural Stewardship Coordinator

Case # ___________________

FORM 4

SITE VISITS AND PHONE CALLS

Follow-up Notes

DATE	TYPE OF ACTIVITY

(VDACS Letterhead)

FORM 5

                    [Letter to notify the owner or operator about the complaint]

[current date]

[name and address of owner or operator]

                                                                                                        Re:  Water Pollution Complaint from

Agricultural Activities (Complaint   [number])

Dear [last name]:

This letter is to notify you that on [date] the Virginia Department of Agriculture and Consumer Services (VDACS) received a complaint alleging that an agricultural activity involving a [describe activity and location] is causing water pollution.  This complaint falls under the jurisdiction of the Agricultural Stewardship Act (Act) and needs to be investigated within 21 days.  During our phone conversation today, you indicated that you would be available to meet with me on [date and time].  At that time I will investigate the alleged water pollution concern.

During this investigation, evidence will be collected to determine if your [activity description] is allowing [describe type of pollution] to enter state waters.  If the Commissioner of Agriculture determines that a sufficient amount of evidence is present to cause a threat to human health, animal health, aquatic life, water quality or recreational uses, a plan to correct the water pollution would be required.  Then, you would be required to begin implementing this plan within six months.  Once the stewardship measures within the plan are completed, the Commissioner of Agriculture will send a letter to document that you have completed your obligations under the Act.

I have enclosed additional information regarding the Agricultural Stewardship Act requirements for your review.  If you have any questions, I can be reached at my office by calling [list phone number].

                                                                                                                Sincerely,

                                                                                                                Agricultural Stewardship Coordinator

Copy:                        [local soil and water conservation district ]

(VDACS Letterhead)

FORM 6

[Notification to owner or operator of investigation findings]

[current date]

[name and address of owner or operator]

Re: Notification to owner or operator pursuant to the Agricultural Stewardship Act regarding the complaint involving [farming activity] (COMPLAINT [number])

Dear [last name]:

After I received a complaint alleging that an agricultural activity on your farm is causing or will cause water pollution by [list type(s)of pollution], an investigation was performed on [date] by [list investigator(s) and agency name(s)].

The findings from this investigation are as follows:

¨ [describe the location and specific agricultural activity that is or will cases water pollution]

Several factors that contribute to this problem are:

¨ [describe factors that contribute to the specific agricultural activity]

In conclusion, this agricultural activity was found to be one that is causing and will cause water pollution and measures must be taken to correct the water pollution problem according to the Agricultural Stewardship Act.  You need to submit an Agriculture Stewardship Plan that addresses the water pollution problem within 60 days of receiving this notice [approximately date] to the Commissioner of Agriculture and Consumer Services and a copy to the [local Soil and Water Conservation District].  A list of possible sources of assistance and the requirements for this plan are attached.

Best Management Practices that will correct the water pollution problem

¨ An implementation schedule to begin within six months of receiving this notice [approximate date].

¨ Complete implementation within twelve months of receiving this notice [approximate date].

Possible assistance in plan development and cost-share

¨ [Local Soil and Water Conservation District and phone number]

¨ [Local USDA Natural Resources Conservation Services and phone number]

¨ [Local County Cooperative Extension and phone number]

¨ Virginia Department of Agriculture and Consumer Services

[Agricultural Stewardship Coordinator and phone number] 

¨ Private consultants in your area

[include information about the appeal process] If you have questions, please contact [name of the Agricultural Stewardship Coordinator and phone number] .

                                                                                                                Sincerely,

                                                                                                                Commissioner

Copy:  [Local Soil and Water Conservation District]

(VDACS Letterhead)

FORM 7

[Notification to owner or operator of Agricultural Stewardship Plan status]

                                                                                                             

[current date]

[name and address of  owner or operator]

Re: Notification to owner or operator

pursuant to the Agricultural Stewardship Act regarding the approval of a Agricultural Stewardship Plan involving [farming activity]

(Complaint [number])

Dear [last name]:

This letter is to notify you that I have approved your Agricultural Stewardship Plan [indicate who developed the plan and list any conditions that may go with the approval]. Please be mindful of the implementation schedule to ensure that all dates are met.  In your case, the Agriculture Stewardship Act (ASA) requires you to begin correcting the identified water pollution problem before [date].

[Explain any specific conditions about the plan or the use of state or federal assistance]. The best management practices identified in your Agricultural Stewardship Plan to address [specific agricultural activity] are needed to prevent the water pollution identified in my letter dated [Form 6 date].  If you have any questions, please call my office at [phone number].   

 

Thank you for cooperating with the Agricultural Stewardship Program. Through cooperation from producers like you, agriculture can address water pollution problems without the need for more stringent legislation and regulations.

Copy:                     [Local Soil and Water Conservation District]

(VDACS Letterhead)

FORM 8

[Response to complainant regarding status of their complaint]

[current date]

[name and address of  complainant ]

Re: Status of [name of farmer or operation]

complaint pursuant to the Agricultural

Stewardship Act (Complaint [number])

Dear [last name]:

 

An investigation was conducted after receiving your complaint alleging that an agricultural activity on [name of farmer or operation] is causing or will cause water pollution by [list the type(s) of pollution], an investigation was performed on [date] by [list investigator(s) and agency name(s)].  

 

[Explain the findings during the investigation and the Commissioner's decision]. 

[Describe the obligations of the owner or operator as it relates to the Agricultural Stewardship Act].  

Thank you for making us aware of this situation and for being patient as we address water pollution problems caused by agricultural activities.

Copy:  [Local Soil and Water Conservation District]

Today's date__________________                                             Complaint Number _______________

FORM 9

COMPLAINT INVESTIGATION FOR AGRICULTURAL STEWARDSHIP ACT

Investigator(s) Name/Agency: ___________________________________________________

List of all present during investigation: _____________________________________________

Date of complaint and description: ________________________________________________

____________________________________________________________________________

____________________________________________________________________________

Did you find that the complained-of agricultural activity is subject to a VPA or VPDES permit?

 ‘ Yes    ‘ No

If yes, stop here and return this form to the Commissioner's Office.

Description of the site during the investigation. (Attach additional sheets if necessary):

____________________________________________________________________________

____________________________________________________________________________

____________________________________________________________________________

In your opinion, does the evidence support the claim that this agricultural activity is causing or will cause water pollution?                                                                ‘ Yes   ‘ No   

If no, please list reasons for your conclusion.  (Use additional sheets, if necessary.):__________

____________________________________________________________________________

____________________________________________________________________________

____________________________________________________________________________

____________________________________________________________________________

Stop here and return this form to the Commissioner's Office or continue.

If yes, list all evidence that was collected on site and other supporting data (e.g., pictures, water samples, aerial photographs with stream, topographical maps and technical drawings of the problem areas).

FORM 10

[Farm or operation name and address]

Agricultural Stewardship Plan

[date]

Objective:                                     [state the objective of the plan]

Statement of water pollution problem: [describe each activity or structure that was identified in Form 6 as causing, or that will cause, water pollution.  Then describe each solution to correct the water pollution problem.]

Implementation schedule:                                                              

As directed by the Virginia Department of Agriculture and Consumer Services, the implementation of these corrective conservation measures will begin prior to [use date found on Form 6 under plan requirements].             

[list each solution and indicate implementation dates]

Solution(s)                                                                                                                                                                                            Implementation Date(s)

___________________________________________            _____________________

___________________________________________            _____________________

___________________________________________            _____________________

___________________________________________            _____________________

ATTACHMENTS

· [Use aerial photographs from USDA Farm Service Agency]

· [Use a technical drawing to indicated the affected water feature, problem area, and the corrective conservation measures.]

 

SIGNATURES:  

Owner or Operator ___________________________________  Date ______________

Soil and Water Conservation

District Representative __________________________________Date _____________

Commissioner of Agricultural

and Consumer Services  _________________________________Date ____________

[This planning form is only a guide.  Other types of plans are acceptable providing the plan meets Agricultural Stewardship Act requirements.]

INVESTIGATION TRACKING CALENDAR

REGARDING THE AGRICULTURAL STEWARDSHIP ACT

Complaint No.  _________________

Completion Date	Required Completion Date	Steps in Addressing Complaints
		1. Commissioner's office receives complaint (use Form 1)
		2. Letter from Commissioner's office to inform District of       complaint (use Form 2)
		3. District sends response back within five days to Commissioner     to inform if they will investigate the complaint (use Form 3)
		4. Phone calls to owner/operator to inform them of the complaint      and inform of intent to investigate (use Form 4)
		5.   Letter sent to owner/operator to follow-up on phone call as        well as provide information on the Act (use  Form 5)
		6.    Investigate and report to Commissioner within 21 days (use         Form 9)
		7.   Commissioner's decision to owner/operator (via certified          mail) and District  within 30 days (use Form 6)
		8. Agricultural Stewardship Plan to Commissioner's Office       within 60 days (can use Form 10)
		9.    Agricultural Stewardship Plan reviewed by SWCD
		10.    Agricultural Stewardship approval letter to owner/operator           within 30 days (use Form 7)
		11.    Letter to Complainant informing them of complaint status           (use Form 8)
		12.    Implementation of plan (begin within six months)     Ž yes Ž no           Site visit after six months to insure compliance           If not implementing, Commissioner sends a corrective           action by certified mail
		13.    Implementation completion not to exceed 18 months.            Hardship cases can be extended by Commissioner for 180             days only if  request is received 60 days before the final             implementation or after a natural disaster occurs.           Request received:                       __________________           Granted date:                              __________________           New Implementation Completion Date: _____________
		14.    Plan implementation complete
		15.    Site inspection review

STATE CORPORATION COMMISSION

AT RICHMOND, NOVEMBER 3, 2009

COMMONWEALTH OF VIRGINIA, ex rel.

STATE CORPORATION COMMISSION

                                                          CASE NO. PUE-2009-00117

Ex Parte: In the matter of considering
§ 532 (b) of the Energy Independence
and Security Act of 2007

ORDER ESTABLISHING PROCEEDING

Section 303 (a) of the Public Utility Regulatory Policies Act of 1978 ("PURPA")¹ requires each state regulatory authority, with respect to each gas utility for which it has ratemaking authority, to consider certain federal standards established by PURPA. Each such state regulatory authority is required to determine whether it is appropriate, to the extent consistent with otherwise applicable state law, to adopt these standards.² The State Corporation Commission ("Commission") has conducted various proceedings concerning energy standards since PURPA's adoption in 1978.³

On December 19, 2007, President George W. Bush signed the Energy Independence and Security Act of 2007⁴ ("Energy Independence and Security Act" or "Act") into law. The stated purposes of this Act include moving the United States toward greater energy independence; increasing the production of clean renewable fuels; promoting research on the capture and storage of greenhouse gases; increasing energy efficiency in buildings, vehicles, and other products; improving the energy performance of the federal government; and protecting consumers.

Section 532 (b) of the Energy Independence and Security Act amends § 303(b) of PURPA⁵ by adding the following standards for consideration:

(5) Energy efficiency

Each natural gas utility shall—

(A) integrate energy efficiency resources into the plans and planning processes of the natural gas utility; and

(B) adopt policies that establish energy efficiency as a priority resource in the plans and planning processes of the natural gas utility.

(6) Rate design modifications to promote energy efficiency investments

(A) In general

The rates allowed to be charged by a natural gas utility shall align utility incentives with the deployment of cost-effective energy efficiency.

(B) Policy options

In complying with subparagraph (A), each State regulatory authority and each nonregulated utility shall consider—

(i) separating fixed-cost revenue recovery from the volume of transportation or sales service provided to the customer;

(ii) providing to utilities incentives for the successful management of energy efficiency programs, such as allowing utilities to retain a portion of the cost-reducing benefits accruing from the programs;

(iii) promoting the impact on adoption of energy efficiency as 1 of the goals of retail rate design, recognizing that energy efficiency must be balanced with other objectives; and

(iv) adopting rate designs that encourage energy efficiency for each customer class.

For purposes of applying the provisions of this subtitle to this paragraph, any reference in this subtitle to the date of enactment of this Act [November 9, 1978], shall be treated as a reference to the date of enactment of this paragraph [December 19, 2007].

Section 532 (c) of the Energy Independence and Security Act also amends § 303 (a) of PURPA by adding the following conforming amendment: "Section 303 (a) of the Public Utility Regulatory Policies Act of 1978 (15 U.S.C. 3203(a)) is amended by striking 'and (4)' inserting '(4), (5), and (6)'."

NOW THE COMMISSION, upon consideration of the matter, is of the opinion and finds that, notwithstanding the Commission's reservations as to its legal propriety,⁶ a proceeding will be established to consider for implementation in the Commonwealth the two federal standards enumerated in Section 532 (b) of the Energy Independence and Security Act.  This action shall not constitute a waiver of any right of the Commission or the Commonwealth of Virginia, including hereafter any right to claim immunity or to challenge or object to any actions that may be taken by any person, federal authority, or other entity in relation to the Energy Independence and Security Act.

The Commission will direct that notice be given to the public and that interested persons have an opportunity to comment on the issues raised herein. The Staff has developed lists of individuals, organizations, and companies that may be interested in this proceeding. We will direct the Staff to provide copies of this Order Establishing Proceeding by electronic transmission, or when electronic transmission is not possible, by mail, to individuals, organizations, and companies on these lists.  We will also direct that a copy of this Order Establishing Proceeding be forwarded to the Virginia Register for publication.

Therefore, the Commission invites interested persons to comment on any of the following issues: (1) whether the Commission has the authority to consider these two federal standards; (2) whether the implementation of such standards would be consistent with otherwise applicable Virginia law; (3) whether any Virginia laws presently address the issues presented in these two federal standards; (4) whether the energy efficiency requirements set forth in § 532 (b) (5) of the Energy Independence and Security Act should be adopted by this Commission; and (5) whether the rate design modifications to promote energy efficiency investments set forth in § 532 (b) (6) of the Energy Independence and Security Act should be adopted by this Commission.  If an interested person advocates implementing either of the standards listed in § 532 (b) of the Energy Independence and Security Act, such person should describe in their comments how such standards would best be implemented. 

Accordingly, IT IS ORDERED THAT:

(1) This case is docketed and assigned Case No. PUE-2009-00117.

(2) The Commission's Division of Information Resources shall forward a copy of this Order to the Registrar of Regulation for publication in the Virginia Register.

(3) Within five business days of the filing of this Order with the Clerk of the Commission, the Staff shall transmit electronically or mail copies of this Order to interested persons and organizations as discussed in this Order.

(4) On or before November 20, 2009, the Staff shall file with the Clerk of the Commission a certificate of the transmission or mailing required by Ordering Paragraph (3) and include a list of the names and addresses of persons to whom the Order was transmitted or mailed.

(5) On or before December 2, 2009, any interested person may file an original and fifteen (15) copies of comments with Joel H. Peck, Clerk, State Corporation Commission, c/o Document Control Center, P.O. Box 2118, Richmond, Virginia 23218. Comments shall refer to Case No. PUE-2009-00117 and address the specific issues raised in this Order. Interested persons desiring to submit comments electronically may do so by following the instructions available at the Commission's website: http://www.scc.virginia.gov/case.

(6) On or before December 8, 2009, the Staff may file comments with the Commission presenting its findings and recommendations, or responding to any comments filed by interested persons in this matter.

AN ATTESTED COPY hereof shall be sent by the Clerk of the Commission to: C. Meade Browder, Jr., Senior Assistant Attorney General, Division of Consumer Counsel, Office of Attorney General, 900 East Main Street, 2nd Floor, Richmond, Virginia 23219; the natural gas public utilities subject to the Commission's jurisdiction set forth in Appendix A to this Order; and the Commission's Divisions of Economics and Finance and Energy Regulation.

_____________________________

¹ 15 U.S.C.S. § 3203 (a) (2006).

² Id.

³ Such proceedings include, for example: Commonwealth of Virginia, ex rel. State Corporation Commission, Ex Parte, In re: Consideration of standards for integrated resource planning and investments in conservation and demand management for natural gas utilities, Case No. PUE-1994-00030 (Final Order) (Oct. 14, 1994).

⁴ Pub. L. 110-140, 121 Stat. 1492.

⁵ 15 U.S.C.S. § 3203 (b) (2006).

⁶ The Commission notes that developments in the law subsequent to the original adoption of PURPA raise doubt about the constitutionality of the co-opting of state regulatory agencies to implement a federal regulatory scheme.  See, e.g., New York v. United States, 505 U.S. 144 (1992); Printz v. United States, 521 U.S. 898 (1997).

DEPARTMENT OF ENVIRONMENTAL QUALITY

Notice to Restore Water Quality for Portions of Assamoosick Swamp

Public meetings: Public meetings will be held on Wednesday, December 2, 2009, from 2 p.m. to 4 p.m. and 6 p.m. to 8 p.m. at the Newsome Human Services Building located at 20103 Princeton Road, Sussex, VA 23884. Both meetings are open to the public.

Purpose of notice: The Virginia Department of Environmental Quality and the Department of Conservation and Recreation are announcing a study to restore water quality for portions of Assamoosick Swamp, unnamed tributary to Assamoosick Swamp, Seacorrie and unnamed tributary to Seacorrie Swamp, Black Swamp, and German Swamp located within Sussex and Southampton counties. This notice also announces the first public meetings and a public comment opportunity.

Meeting description: Overview and summary of the research to date of the water quality impairments of the recreation/swimming use for portions of Assamoosick Swamp and tributaries (mentioned above), which are impaired due to bacterial violations.

Description of study: Virginia agencies are working to identify sources of the bacterial contamination for portions of the Assamoosick Swamp and its tributaries. This impairment spans approximately 34 miles. These waterways are impaired for failure to meet the recreational (swimming) designated use due to exceedances of the bacterial water quality standard.

Waterbody	Location	Impaired Length (mi)	Impairment
Assamoosick Swamp	Sussex, Southampton	15.76	Recreational Use (Swimming)
Tributary to Assamoosick Swamp	Southampton	2.06
Seacorrie Swamp	Sussex	6.91
Tributary to Seacorrie Swamp	Sussex	1.46
German Swamp	Sussex	3.65
Black Swamp	Sussex	3.76
Total Impaired Length		33.60

The study reports on the current status of the Assamoosick Swamp and its tributaries via sampling performed by the Virginia Department of Environmental Quality and the possible sources of bacterial contamination. The study recommends total maximum daily loads (TMDLs) for the above impairments. A TMDL is the total amount of a pollutant a water body can contain and still meet water quality standards. To restore water quality, bacteria levels have to be reduced to the TMDL amount.

How to comment: DEQ accepts written comments by email, fax, or postal mail. Written comments should include the name, address, and telephone number of the person commenting and be received by DEQ during the comment period, which expires December 31, 2009. DEQ also accepts written and oral comments at the public meeting announced in this notice.

Contact for additional information: Margaret Smigo, TMDL Coordinator, Department of Environmental Quality, Piedmont Regional Office, 4949A Cox Road, Glen Allen, VA 23060, telephone [phone], FAX [phone], or email [e-mail].

Total Maximum Daily Load for Beaver Creek

Virginia's Region 2000 Local Government Council and the Virginia Department of Environmental Quality (DEQ) will host a public meeting on Thursday, December 3, 2009, in Rustburg, Virginia, to provide information and hear public comment on a water quality study for a portion of Beaver Creek and it tributaries, which drain from portions of Campbell County.

Thursday, December 3, 2009, a public meeting will be held at 6 p.m. in the Agricultural Building, 163 Kabler Lane, Rustburg, Virginia. Kabler Lane is located just off of Route 24/Village Highway across from the Campbell County Administrative Offices.

Virginia agencies are working to identify sources of bacteria contamination in a portion of Beaver Creek within the James River Watershed in Central Virginia. This stream is listed on the federal § 303 D list of impaired waters and has been targeted for the development of a total maximum daily load (TMDL) study. A TMDL is the total amount of a pollutant a water body can contain and still meet water quality standards. To restore water quality, contamination levels for a specified pollutant have to be reduced to the TMDL amount.

The December 3 meeting will be the first of two public meetings that will be held during the TMDL study. At this first pubic meeting, the public will be provided an overview of (i) what a TMLD is and how a TMDL is developed, (ii) initial data about the streams and surrounding watershed, (iii) how the public can provide comment and input to the study over the coming year. In addition, the pubic will be given an overview of how the TMDL development is used within the state.

The public comment period on the materials presented at the public meeting will extend from December 3, 2009, until 11:59 p.m. on January 4, 2010.  Comments may be submitted via email, fax, or postal mail. Written comments should include the name, address, and telephone number of the person commenting, and be received during the comment period. Please send all comments to the contact listed below.

For more information, please contact Kelly Hitchcock, Senior Planner, Virginia's Region 2000 Local Government Council at [phone] ext 218 or at [e-mail].

Restore Water Quality for Portions of the Blackwater River

Public meetings: Public meetings will be held on Thursday, December 3, 2009, from 2 p.m. to 4 p.m. and 6 p.m. to 8 p.m. at the Disputanta Community Center located at 10010-B County Drive, Disputanta, VA 23974. Both meetings are open to the public.

Purpose of notice: The Virginia Department of Environmental Quality and the Department of Conservation and Recreation are announcing a study to restore water quality for portions of the Blackwater River, Blackwater Swamp, tributary to Coppahaunk Swamp, Warwick Swamp, Second Swamp, and Otterdam Swamp within the City of Petersburg, and Prince George, Dinwiddie, Surry, and Sussex counties.  This notice also announces the first public meetings and a public comment opportunity.

Meeting description: Overview and summary of the research to date of the water quality impairments of the recreation/swimming use for portions of the Blackwater River and tributaries (mentioned above), which are impaired due to bacterial violations.

Description of study: Virginia agencies are working to identify sources of the bacterial contamination for portions of the Blackwater River and its tributaries. This impairement spans approximately 82 miles.  These waterways are impaired for failure to meet the recreational (swimming) designated use due to exceedances of the bacterial water quality standard.

Waterbody	Location	Impaired Length (mi)	Impairment
Blackwater Swamp	Petersburg, Prince George, Surry, Sussex	22.53	Recreational Use (Swimming)
Blackwater River	Sussex, Surry	24.59
Warwick Swamp	Dinnwidde, Prince George	12.89
Second Swamp	Petersburg, Prince George	15.24
Otterdam Swamp	Surry	5.57
Tributary to Coppahaunk Swamp	Sussex	0.89
Total Impairment Length		81.71

The study reports on the current status of the river and its tributaries via sampling performed by the Virginia Department of Environmental Quality and the possible sources of bacterial contamination. The study recommends total maximum daily loads (TMDLs) for the above impairments. A TMDL is the total amount of a pollutant a water body can contain and still meet water quality standards. To restore water quality, bacteria levels have to be reduced to the TMDL amount.

How to comment: DEQ accepts written comments by email, fax, or postal mail.  Written comments should include the name, address, and telephone number of the person commenting and be received by DEQ during the comment period, which expires January 1, 2010. DEQ also accepts written and oral comments at the public meeting announced in this notice.

Contact for additional information: Margaret Smigo, TMDL Coordinator, Department of Environmental Quality, Piedmont Regional Office, 4949A Cox Road, Glen Allen, VA 23060, telephone [phone], FAX [phone], or email [e-mail].

Notice of Revised Water Quality Restoration Study: James River – City of Richmond, Tributaries in Richmond City, Chesterfield, Henrico, and Powhatan Counties, Virginia

Purpose of notice: The Virginia Department of Environmental Quality is announcing a comment period for the revised final draft document as a result of requests by the public. As of this notice, November 23, 2009, DEQ will accept public comments on the revised draft document for 30 days that will expire on December 22, 2009.

Description of study: Virginia agencies have been working to identify sources of the bacterial contamination in the waters of the James River and it's tributaries in the following jurisdictions:

Stream	County/City	Length (mi.)	Impairment
Bernards Creek	Chesterfield, Powhatan	6.97	Recreation Use (Swimming) due to Bacteria
Powhite Creek	Chesterfield, Richmond City	8.12
Reedy Creek	Richmond City	3.68
James River	Richmond City	2.99
Gillies Creek	Richmond City, Henrico	5.79
Almond Creek	Henrico	2.26
Goode Creek	Richmond City	1.23
Falling Creek	Chesterfield	3.81
No Name Creek	Chesterfield	1.83
James River	Chesterfield, Henrico, Richmond City	10.84

These streams are impaired due to bacterial standard violations and failure to meet the primary contact (recreational) designated use. The study describes the sources of bacterial contamination and recommends total maximum daily loads (TMDLs) for these impaired waters. A TMDL is the total amount of a pollutant a water body can contain and still meet water quality standards. To restore water quality, bacterial levels have to be reduced to meet Virginia's bacterial water quality standards. Please visit: http://www.deq.virginia.gov/tmdl/mtgppt.html to review the March 10, 2009, final public meetings presentations. The revised draft TMDL report is available for review at https://www.deq.virginia.gov/TMDLDataSearch/DraftReports.jspx

Also at this site is a "Revision Summary" document, provided to indicate the tables, graphs, and sections that have undergone significant change from the original version of the report.  Due to the revision and requests made during the most recent public comment period that ended April 10, 2009, DEQ is holding this additional public comment opportunity for 30 days for the revised draft report.

How to comment: DEQ accepts written comments by email, fax or postal mail. Written comments should include the name, address, and telephone number of the person commenting and be received by DEQ during the comment period, which will end on December 22, 2009.

Contact for additional information: Margaret Smigo, TMDL Coordinator, Department of Environmental Quality, Piedmont Regional Office, 4949A Cox Road, Glen Allen, VA 23060, telephone [phone], FAX [phone], or email [e-mail].

Restore Water Quality for Meherrin River

Public meeting: December 9, 2009, at the Southside Virginia Community College, Workforce Development Center, Room 108, at the corner of US Rt.1 and Rt.46, 109 Campus Drive, Alberta, VA 23821. An afternoon public meeting will be held from 2 p.m. to 4 p.m.

Purpose of notice: The Virginia Department of Environmental Quality and the Department of Conservation and Recreation are presenting the final draft report of a study to restore water quality, a public comment opportunity, and a public meeting.

Meeting description: Final public meeting on a study to restore water quality of the recreation/swimming use of portions of the Meherrin River and its tributaries to include Briery Branch, Genito Creek, and Great Creek that are impaired for the recreational use (swimming) due to exceedances of the bacteria water quality standard.

Description of study: Virginia agencies have been working to identify sources of the bacterial contamination in portions of the Meherrin River and its tributaries. The bacterial impairements span a total of approximately 70 miles.

Stream	County	Impairment Length (mi)	Impairment
North Meherrin River	Lunenburg	7.55	Recreational (swimming) Use
Meherrin River	Brunswick	26.14
Briery Branch	Brunswick	3.97
Gentio Creek	Brunswick	7.89
Great Creek	Brunswick	24.34
Total Impaired Length		69.89

The study reports the current status of these waterways via sampling performed by the Virginia Department of Environmental Quality and the possible sources of bacterial contamination. The study recommends total maximum daily loads (TMDLs) for the impaired river and creek segments. A TMDL is the total amount of a pollutant a water body can contain and still meet water quality standards. To restore water quality, bacterial levels have to be reduced to the TMDL amount.

How to comment: DEQ accepts written comments by email, fax, or postal mail. Written comments should include the name, address, and telephone number of the person commenting and be received by DEQ during the comment period, which will expire on January 7, 2010. DEQ also accepts written and oral comments at the public meeting announced in this notice.

Contact for additional information: Margaret Smigo, TMDL Coordinator, Department of Environmental Quality, Piedmont Regional Office, 4949A Cox Road, Glen Allen, VA 23060, telephone [phone], FAX [phone], or email [e-mail].

Total Maximum Daily Load for Implementation Plan for Middle River

The Department of Environmental Quality (DEQ) and the Department of Conservation and Recreation (DCR) seek written and oral comments from interested persons on the development of a Total Maximum Daily Load (TMDL) Implementation Plan for Middle River and its tributaries in Augusta County. The Upper Middle River, Lower Middle River, Moffett Creek, and Polecat Draft were originally listed as impaired in the 1996 § 303d report. All streams were listed for violations of the water quality standard for bacteria and the Upper Middle River segment and Moffett Creek were additionally listed for the general aquatic life (benthic) standard.  TMDLs for bacteria were developed to address the bacterial impairments in all streams. A TMDL for sediment in Upper Middle River and Moffett Creek were developed to address the benthic impairments. These TMDLs were approved by EPA on August 10, 2004, and are available on DEQ's website at http://gisweb.deq.virginia.gov/tmdlapp/tmdl_report_search.cfm.

Section 62.1-44.19:7 C of the Code of Virginia requires the development of an implementation plan (IP) for approved TMDLs. The IP should provide measurable goals and the date of expected achievement of water quality objectives.  The IP should also include the corrective actions needed and their associated costs, benefits, and environmental impacts.

DEQ and DCR will hold a final public meeting on Thursday, December 10, 2009, at 7 p.m. to inform the public of the IP development and to solicit comments on the draft document.  The meeting will be held in the Board Room of the Augusta County Government Center in Verona.

The draft implementation plan will be available for review on the web no later than December 10, 2009, at http://www.deq.virginia.gov/tmdl/iprpts.html. The public comment period for this final public meeting will end on Monday, January 11, 2010. Questions or information requests should be addressed to Nesha McRae, DCR. Written comments should include the name, address, and telephone number of the person submitting the comments and should be sent to Nesha McRae, Department of Conservation and Recreation, 44 Sangers Lane, Suite 102, Staunton, VA 24401, telephone [phone], or email [e-mail].

STATE LOTTERY DEPARTMENT

Director's Orders

The following Director's Orders of the State Lottery Department were filed with the Virginia Registrar of Regulations on November 2, 2009. The orders may be viewed at the State Lottery Department, 900 East Main Street, Richmond, Virginia, or at the office of the Registrar of Regulations, 910 Capitol Street, 2nd Floor, Richmond, Virginia.

Final Rules for Game Operation:

Director's Order Number Seventy-Seven (09)

Virginia's Twenty-Second On-Line Game "Virginia's New Year Millionaire Raffle" (effective 10/30/09)

DEPARTMENT OF MEDICAL ASSISTANCE SERVICES

The Virginia State Plan for Family Medical Insurance Security (FAMIS)

The Virginia Department of Medical Assistance Services (DMAS) hereby affords the public notice of its intention to amend the Virginia State Plan for Family Medical Insurance Security (FAMIS), specifically, the FAMIS MOMS program and the FAMIS Select program. The department intends to implement a number of changes for these programs as directed by the federal authority of the Centers for Medicare and Medicaid Services (CMS). CMS oversees state Children's Health Insurance Program (CHIP) as established by § 2101 of the Social Security Act 42 USC § 1397aa. DMAS is renewing the federal waivers for these programs and anticipates changes based upon input from CMS. The FAMIS MOMS and FAMIS Select programs are authorized by CMS under a § 1115(a) demonstration waiver that expires June 30, 2010. DMAS may request continuation and expansion of the demonstration beyond this date. One requirement for continuation is to obtain input from all interested parties regarding the possibility of continuation of the demonstration program. CMS is expected to require some changes as a condition of continuation of the waiver.

FAMIS Select is an optional program available to children determined eligible for Family Access to Medical Insurance Security (FAMIS), whereby the Department of Medical Assistance Services (DMAS) provides premium assistance to the family to cover the child through a private or employer-sponsored health plan instead of directly through the FAMIS program. No changes to this program are anticipated. Wrap-around coverage will continue to be provided for immunizations only.

FAMIS MOMS provides health care coverage for pregnant women without creditable insurance coverage in families with income above the Medicaid limit of 133% of the federal poverty level (FPL) up to and including 200% FPL. DMAS anticipates no change in the following policies:

•  FAMIS MOMS will continue to provide coverage with federal reimbursement at the Title XXI rate for pregnant women without creditable insurance coverage in families with income above the Medicaid limit of 133% FPL up to and including 200% FPL.

• FAMIS MOMS will continue to use Medicaid methodology for determining income eligibility.

•  FAMIS MOMS will continue to provide benefits that are identical to benefits provided to pregnant women under the Medicaid state plan.

DMAS anticipates the following changes to the FAMIS MOMS program:

•  Applicants will be required to provide documentation of citizenship and identity. DMAS plans to implement this requirement through a separate regulatory action effective January 1, 2010, as mandated in Section 211 of the Children's Health Insurance Program Reauthorization Act (CHIPRA) of 2009 (Public Law 111-3).

•  Applicants will be required to provide their Social Security number in order to facilitate compliance with the new requirement to document citizenship.

•  Infants born to FAMIS MOMS will be deemed eligible for FAMIS coverage for the first year of life.

This notice is intended to satisfy the State Notice Procedures set forth in Vol. 59, No. 186 of the Federal Register (September 27, 1994). A copy of this notice is available for public review from Molly Carpenter at Department of Medical Assistance Services, 600 East Broad Street, Richmond, VA 23219, telephone [phone], FAX [phone], email [e-mail] and this notice is available for public review on the Regulatory Town Hall (www.townhall.com). Comments or inquiries may be submitted in writing within 30 days of this notice publication to Ms. Carpenter and such comments are available for review at the same address.

Contact Information: Molly Carpenter, Maternal and Child Health Division, Department of Medical Assistance Services, 600 East Broad Street, Richmond, VA 23219, telephone [phone], FAX [phone].

VIRGINIA CODE COMMISSION

Notice to State Agencies

Mailing Address: Virginia Code Commission, 910 Capitol Street, General Assembly Building, 2nd Floor, Richmond, VA 23219.

Cumulative Table of Virginia Administrative Code Sections Adopted, Amended, or Repealed

Beginning with Volume 26, Issue 1 of the Virginia Register of Regulations dated September 14, 2009, the Cumulative Table of Virginia Administrative Code Sections Adopted, Amended, or Repealed will no longer be published in the Virginia Register of Regulations. The cumulative table may be accessed on the Virginia Register Online webpage at http://register.dls.virginia.gov/cumultab.htm.

Filing Material for Publication in the Virginia Register of Regulations

Agencies are required to use the Regulation Information System (RIS) when filing regulations for publication in the Virginia Register of Regulations. The Office of the Virginia Register of Regulations implemented a web-based application called RIS for filing regulations and related items for publication in the Virginia Register. The Registrar's office has worked closely with the Department of Planning and Budget (DPB) to coordinate the system with the Virginia Regulatory Town Hall. RIS and Town Hall complement and enhance one another by sharing pertinent regulatory information.

The Office of the Virginia Register is working toward the eventual elimination of the requirement that agencies file print copies of regulatory packages. Until that time, agencies may file petitions for rulemaking, notices of intended regulatory actions and general notices in electronic form only; however, until further notice, agencies must continue to file print copies of proposed, final, fast-track and emergency regulatory packages.

ERRATA

VIRGINIA DEPARTMENT OF TRANSPORTATION

Title of Regulation: 24VAC30-73. Access Management Regulations: Minor Arterials, Collectors, and Local Streets.

Publication: 26:1 VA.R. 105-116 September 14, 2009.

Correction to Final Regulation:

Statutory Authority: change to § 33.1-198.1 of the Code of Virginia.

Agency Contact: change telephone number for Paul Grasewicz to [phone]

VA.R. Doc. R09-1410