2006 Code of Virginia § 28.2-1308 - Standards for use and development of wetlands; utilization of guidelines

28.2-1308. Standards for use and development of wetlands; utilization ofguidelines.

A. The following standards shall apply to the use and development of wetlandsand shall be considered in the determination of whether any permit requiredby this chapter should be granted or denied:

1. Wetlands of primary ecological significance shall not be altered so thatthe ecological systems in the wetlands are unreasonably disturbed; and

2. Development in Tidewater Virginia, to the maximum extent practical, shallbe concentrated in wetlands of lesser ecological significance, in vegetatedwetlands which have been irreversibly disturbed before July 1, 1972, innonvegetated wetlands which have been irreversibly disturbed prior to January1, 1983, and in areas of Tidewater Virginia outside of wetlands.

B. The provisions of guidelines promulgated by the Commission pursuant to 28.2-1301 shall be considered in applying the standards listed in subsectionA of this section.

C. When any activity authorized by a permit issued pursuant to this chapteris conditioned upon compensatory mitigation for adverse impacts to wetlands,the applicant may be permitted to satisfy all or part of such mitigationrequirements by the purchase or use of credits from any wetlands mitigationbank, including any banks owned by the permit applicant, that has beenapproved and is operating in accordance with applicable federal and stateguidance, laws, or regulations for the establishment, use and operation ofmitigation banks as long as (1) the bank is in the same U.S.G.S. catalogingunit, as defined by the Hydrologic Unit Map of the United States (U.S.G.S.1980), or an adjacent cataloging unit within the same river watershed, as theimpacted site, or it meets all the conditions found in clauses (i) through(iv) and either clause (v) or (vi) of this subsection; (2) the bank isecologically preferable to practicable on-site and off-site individualmitigation options, as defined by federal wetland regulations; and (3) thebanking instrument, if approved after July 1, 1996, has been approved by aprocess that included public review and comment. When the bank is not locatedin the same cataloging unit or adjacent cataloging unit within the same riverwatershed as the impacted site, the purchase or use of credits shall not beallowed unless the applicant demonstrates to the satisfaction of theCommission that (i) the impacts will occur as a result of a VirginiaDepartment of Transportation linear project or as the result of a localityproject for a locality whose jurisdiction crosses multiple river watersheds;(ii) there is no practical same river watershed mitigation alternative; (iii)the impacts are less than one acre in a single and complete project within acataloging unit; (iv) there is no significant harm to water quality or fishand wildlife resources within the river watershed of the impacted site; andeither (v) impacts within the Chesapeake Bay watershed are mitigated withinthe Chesapeake Bay watershed as close as possible to the impacted site or(vi) impacts within U.S.G.S. cataloging units 02080108, 02080208, and03010205, as defined by the Hydrologic Unit Map of the United States(U.S.G.S. 1980), are mitigated in-kind within those hydrologic catalogingunits, as close as possible to the impacted site. After July 1, 2002, theprovisions of clause (vi) shall apply only to impacts within subdivisions ofthe listed cataloging units where overlapping watersheds exist, as determinedby the Department of Environmental Quality, provided the Department has madesuch a determination by that date.

(1972, c. 711, 62.1-13.3; 1982, c. 300; 1992, c. 836; 1996, c. 736; 1999,c. 8.)