Virginia 2016 General Assembly Update for Water Utilities

April 26, 2016

The 2016 General Assembly regular session ended March 11, a day earlier than its scheduled end date of March 12. Although it ended early, it was a busy session. The legislators considered 3,286 bills and resolutions, and passed 1,803 of them. April 10 was the last day for the governor to veto bills, and as of the 11th, all of the 2016 regular session legislation was set.

Set out below is some of the new legislation that approves or relates directly or indirectly to entities in the business of supplying water. We summarized a few of the key bills under the categories of eminent domain, FOIA/COIA, delinquent accounts, environmental, procurement and budget amendments. Unless otherwise indicated, all bills summarized here will go into effect July 1, 2016.

1. Eminent Domain

SB 109 – Commissioners in eminent domain proceedings. Requires commissioners in eminent domain proceedings to be summoned at least 30 days prior to service. Under current law, such summons is required at least one week prior to service.

SB 478 – Eminent domain; reimbursement of costs. Provides that costs and fees may be awarded in condemnation actions where the amount the owner is awarded at trial as compensation for the taking of or damage to his property is at least 25 percent greater than the amount of the condemnor’s initial written offer. Under current law, such costs and fees may be awarded if the amount awarded as compensation at trial is at least 30 percent greater than the petitioner’s final offer. The bill removes an exception for meeting the requirements for payment of costs and fees for condemnation actions involving easements valued at less than $10,000 and adds an exception for public service companies, public service corporations, and railroads that have been delegated the power of eminent domain. The bill also allows the court to order the condemnor to pay to the owner reasonable fees and travel costs incurred by the owner for up to three experts, or as many as called by the condemnor, whichever is greater, who testified at trial. The provisions of the bill do not apply to condemnation proceedings in which the petitioner filed, prior to July 1, 2016, a petition in condemnation or a certificate of take or deposit.


HB 817 – Virginia Freedom of Information Act; record exclusions; rule of redaction; no weight accorded to public body’s determination. Codifies the general rule of redaction, that FOIA does not allow a public body to withhold a public record in its entirety on the grounds that some portion of the public record is excluded from disclosure by FOIA or by any other provision of law. A public record may be withheld in its entirety only if an exclusion from disclosure under FOIA or other provision of law applies to the entire content of the public record. Only portions of a public record containing excluded information may be withheld or redacted, and all other portions of the record must be disclosed. Also provides that in a FOIA enforcement action, no weight is given to the determination of a public body as to whether an exclusion applies.

HB 818 – Virginia Freedom of Information Act (FOIA); designation of FOIA officer; posting of FOIA rights and responsibilities. Requires certain local public bodies to post a FOIA rights and responsibilities document on its respective public government website. Also requires that every local public body that is subject to FOIA designate and publicly identify one or more FOIA officers to serve as a point of contact for members of the public in requesting public records and to coordinate the public body’s compliance with the provisions of FOIA. The bill sets out where contact information for the designated FOIA officer is to be posted, and requires that any such FOIA officer must possess specific knowledge of the FOIA provisions and be trained at least annually by legal counsel for the public body or the Virginia Freedom of Information Advisory Council.

SB 288 – State and Local Government Conflict of Interests Act; advisory opinions for local officers and employees. Removes the provision that allows a county, city, or town attorney to issue to a local officer or employee an advisory opinion that would shield that officer or employee from future prosecution for knowing violations of the State and Local Government Conflict of Interests Act. An advisory opinion issued by the attorney for the commonwealth or the Virginia Conflict of Interest and Ethics Advisory Council will still shield the officer or employee from such prosecution. The bill provides that an advisory opinion issued to a local officer or employee by his county, city, or town attorney may be introduced at a trial for a knowing violation as evidence that he did not knowingly violate the Act.

SB 493 – Virginia Freedom of Information Act (FOIA); closed meeting not authorized for discussion of compensation matters for local governing bodies and elected school boards. Clarifies that nothing in the personnel exemption in the open meetings law of FOIA authorizes a closed meeting by a local governing body or an elected school board to discuss compensation matters that affect the membership of such body or board collectively.

SB 645 – Virginia Freedom of Information Act (FOIA); exempt records concerning critical infrastructure, government infrastructure, or security information. Defines the terms “critical infrastructure,” “government infrastructure,” “interdependency,” and “security information” for purposes of FOIA and revises the related FOIA public safety record exemption to incorporate those terms. The bill also sets out conditions precedent in cases where a custodian of any public safety records elects to exercise his discretion to release such records.

3. Delinquent Accounts

HB 919 – Water and sewer service provided by locality; canceling service for nonpayment of charges. Shortens from two months to 30 days the period after which a locality providing water or sewer service may shut off service for unpaid charges.

SB 542 – Delinquent sewer charges; lien; unlimited time. Allows a locality that provides water or sewer service to a property owner, rather than to a tenant, to place a lien on the property receiving the service in the amount of the number of months of delinquent charges. Current law allows the placement of liens in the amount of up to three months of delinquent water and sewer charges.

4. Environmental

HB 438 – Sediment reduction credits. Authorizes Municipal Separate Storm Sewer Systems (MS4) permittees to acquire and use sediment reduction credits as part of a compliance strategy for implementing the Chesapeake Bay TMDL. Currently, MS4s have similar authority for nitrogen and phosphorous. Sediment credits cannot be used if associated with phosphorous credits used in stormwater nonpoint nutrient runoff water quality criteria.

HB 448 – Acquisition of nutrient offset credits. Allows a new or expanding facility registered under the Watershed General Permit to acquire nutrient offset credits, on land located in the same tributary as the facility, on which best management practices have been implemented that would achieve reductions greater than those currently required by federal or state law or the Chesapeake Bay TMDL Watershed Implementation Plan. Permits acquisition of credits or the allocation of credits under the general permit for more than five years, subject to the approval of the State Water Control Board.

HB 1250 – Virginia Erosion and Stormwater Management Act; consolidation of programs; opt-out for certain localities; penalties. Combines existing statutory programs relating to soil erosion and stormwater management, directing the State Water Control Board to permit, regulate, and control both erosion and stormwater runoff. Requires any locality that operates a municipal separate storm sewer system (MS4) or a Virginia Stormwater Management Program (VSMP) to adopt a Virginia Erosion and Stormwater Management Program (VESMP) that regulates any land-disturbing activity that disturbs an area of 10,000 square feet or more, or 2,500 square feet or more if in a Chesapeake Bay Preservation Area. A locality that lacks an MS4 and for which the Department of Environmental Quality (DEQ) is currently administering a VSMP is required to (i) adopt such a VESMP, (ii) adopt such a VESMP with DEQ conducting plan review and making recommendations on the compliance of each plan with technical criteria, or (iii) continue to operate a separate Virginia Erosion and Sediment Control Program (VESCP) that regulates any disturbance of 10,000 square feet or more and, in a Chesapeake Bay Preservation Area, regulates a disturbance of 2,500 square feet or more and meets certain other requirements. Any eligible locality that chooses the third option is to have a VSMP administered on its behalf by the board for any land-disturbing activity that disturbs one acre or more of land, including an activity that disturbs a smaller area but is part of a larger development that results in a disturbance of one acre or more. Towns are afforded additional options in relation to the counties in which they are located. The bill directs certain charges or penalties to the Stormwater Local Assistance Fund, which provides matching grants to local governments for stormwater best management practices. Directs DEQ to evaluate fees related to the consolidated Virginia Erosion and Stormwater Management Program and to adopt regulations to carry out the purposes of the bill, delaying the effective date of the bill until the later of July 1, 2017, or 30 days after the adoption of such regulations.

SB 443 – Nutrient credit certification; timeline for consideration. Directs the State Water Control Board to establish a timeline for consideration of applications for land conversion projects, and to certify credits that are located in tributaries outside the Chesapeake Bay Watershed. Requires that Department of Environmental Quality deny, approve, or approve with conditions an application within 15 days of determining that the application is complete.

SB 468 – Local stormwater utility; public-private partnership; waiver of charges to railroad right-of-way. Authorizes the creation of public-private stormwater management programs and adds contracting for the construction and operation of stormwater management facilities to the list of activities for which a local stormwater utility is authorized to recover charges.

SB 598 – Erosion and sediment control; stormwater management program. Clarifies that certain flow-rate capacity and velocity requirements for plans approved on and after July 1, 2014, are satisfied by compliance with Virginia Stormwater Management Program (VSMP) Permit Regulations where the land-disturbing activity is conducted in accordance with extended permit coverage regulations.

HJ 120 – Study; JLARC to study biosolids and industrial residuals; report. Directs the Joint Legislative Audit and Review Commission to, over a two-year period, analyze scientific literature on the health effects of biosolids (treated sewage sludge) and industrial residuals (wastes resulting from industrial processes), evaluate the feasibility of requiring municipal utilities that are currently permitted to generate “Class B” material to upgrade their facilities to generate “Class A” material, and undertake other analyses. This is a two-year study.

5. Procurement

HB 578/SB 169 – Virginia Public Procurement Act; process for competitive negotiation; architects and engineers. Provides that for architectural or engineering services, the public body shall not request or require offerors to list any exceptions to proposed contractual terms and conditions, unless such terms and conditions are required by law, regulation, ordinance, or standards developed pursuant to § 2.2-1132 until after the qualified offerors are ranked for negotiations.

HB 930/SB 150 – Virginia Public Procurement Act; procurement of information technology goods and services; contractor liability. Prohibits a public body from requiring that an offeror state any exception to any liability provisions in responding to a request for proposal for information technology goods and services. If selected for negotiation after the proposal is submitted, the offeror must state any exception to the liability provisions in writing at the beginning of the negotiation. This bill was a recommendation of the Joint Commission on Technology and Science.

6. Budget Amendments

SB 30 – This budget amendment requires JLARC to (i) identify and report a list of the water systems and other water-dependent facilities that could be affected by changes, including those that may be related to current “grandfathering” provisions, to the state’s water protection permit regulations pursuant to 9 VAC 25-210; and (ii) describe the nature and magnitude of the impact on affected water systems and other water-dependent facilities.

7. Occupational Safety

SB 607 – Currently, the Commonwealth and its political subdivisions are not subject to worker safety penalties under the Virginia Occupational Safety and Health Law. SB 607 requires the Department of Labor to adopt regulations that do allow for the Department of Labor to asses civil penalties for worker safety violations. The regulations are anticipated to be put into effect during 2018.