2006 Code of Virginia § 62.1-44.15:5 - Virginia Water Protection Permit

62.1-44.15:5. Virginia Water Protection Permit.

A. Issuance of a Virginia Water Protection Permit shall constitute thecertification required under 401 of the Clean Water Act.

B. The Board shall, after providing an opportunity for public comment, issuea Virginia Water Protection Permit if it has determined that the proposedactivity is consistent with the provisions of the Clean Water Act and theState Water Control Law and will protect instream beneficial uses.

C. The preservation of instream flows for purposes of the protection ofnavigation, maintenance of waste assimilation capacity, the protection offish and wildlife resources and habitat, recreation, cultural, and aestheticvalues is a beneficial use of Virginia's waters. Conditions contained in aVirginia Water Protection Permit may include, but are not limited to, thevolume of water which may be withdrawn as a part of the permitted activity.Domestic and other existing beneficial uses shall be considered the highestpriority uses.

D. Except in compliance with an individual or general Virginia WaterProtection Permit issued in accordance with this subsection, it shall beunlawful to excavate in a wetland. On and after October 1, 2001, except incompliance with an individual or general Virginia Water Protection Permitissued in accordance with this subsection, it shall also be unlawful toconduct the following activities in a wetland: (i) new activities to causedraining that significantly alters or degrades existing wetland acreage orfunctions, (ii) filling or dumping, (iii) permanent flooding or impounding,or (iv) new activities that cause significant alteration or degradation ofexisting wetland acreage or functions. Permits shall address avoidance andminimization of wetland impacts to the maximum extent practicable. A permitshall be issued only if the Board finds that the effect of the impact,together with other existing or proposed impacts to wetlands, will not causeor contribute to a significant impairment of state waters or fish andwildlife resources. Permits shall contain requirements for compensatingimpacts on wetlands. Such compensation requirements shall be sufficient toachieve no net loss of existing wetland acreage and functions, and may be metthrough wetland creation or restoration, purchase or use of mitigation bankcredits pursuant to subsection E, or contributing to a fund that is approvedby the Board and is dedicated to achieving no net loss of wetland acreage andfunctions. When utilized in conjunction with creation, restoration ormitigation bank credits, compensation may incorporate (i) preservation orrestoration of upland buffers adjacent to wetlands or other state waters or(ii) preservation of wetlands. The Board shall assess compensationimplementation, inventory permitted wetland impacts, and work to preventunpermitted impacts. Within 15 days of receipt of an individual permitapplication, the Board shall review the application for completeness andeither accept the application or request additional specific information fromthe applicant. Within 120 days of receipt of a complete application, theBoard shall issue the permit, issue the permit with conditions, deny thepermit or decide to conduct a public meeting or hearing. If a public meetingor hearing is held, it shall be held within 60 days of the decision toconduct such a proceeding and a final decision as to the permit shall be madewithin 90 days of completion of the public meeting or hearing.

The Board shall develop general permits for such activities in wetlands as itdeems appropriate. General permits shall include such terms and conditions asthe Board deems necessary to protect state waters and fish and wildliferesources from significant impairment. The Board shall deny, approve orapprove with conditions any application for coverage under a general permitwithin 45 days of receipt of a complete preconstruction application. Within15 days of receipt of a general permit application, the Board shall reviewthe application for completeness and either accept the application or requestadditional specific information from the applicant. A determination that anapplication is complete shall not mean the Board will issue the permit butmeans only that the applicant has submitted sufficient information to processthe application. The application shall be deemed approved if the Board failsto act within 45 days. The Board is authorized to waive the requirement for ageneral permit, or deem an activity in compliance with a general permit, whenit determines that an isolated wetland is of minimal ecological value.

The Board shall develop general permits for:

1. Activities causing wetland impacts of less than one-half of an acre;

2. Facilities and activities of utilities and public service companiesregulated by the Federal Energy Regulatory Commission or State CorporationCommission. No Board action on an individual or general permit for suchfacilities shall alter the siting determination made through Federal EnergyRegulatory Commission or State Corporation Commission approval. The Board andthe State Corporation Commission shall develop a memorandum of agreementpursuant to 56-46.1, 56-265.2, 56-265.2:1 and 56-580 to ensure thatconsultation on wetland impacts occurs prior to siting determinations;

3. Coal, natural gas, and coalbed methane gas mining activities authorized bythe Department of Mines, Minerals and Energy, and sand mining;

4. Virginia Department of Transportation or other linear transportationprojects; and

5. Activities governed by nationwide or regional permits approved by theBoard and issued by the U.S. Army Corps of Engineers. Conditions contained inthe general permits shall include, but not be limited to, filing with theBoard copies of any preconstruction notification, postconstruction report andcertificate of compliance required by the U.S. Army Corps of Engineers.

The Board shall utilize the U.S. Army Corps of Engineers' "WetlandsDelineation Manual, Technical Report Y-87-1, January 1987, Final Report" asthe approved method for delineating wetlands. The Board shall adoptappropriate guidance and regulations to ensure consistency with the U.S. ArmyCorps of Engineers' implementation of delineation practices. The Board shallalso adopt guidance and regulations for review and approval of the geographicarea of a delineated wetland. Any such approval of a delineation shall remaineffective for a period of five years; however, if the Board issues a permitpursuant to this subsection for an activity in the delineated wetland withinthe five-year period, the approval shall remain effective for the term of thepermit. Any delineation accepted by the U.S. Army Corps of Engineers assufficient for its exercise of jurisdiction pursuant to 404 of the CleanWater Act shall be determinative of the geographic area of that delineatedwetland.

This subsection shall not apply to activities governed under Chapter 13 (28.2-100 et seq.) of Title 28.2 or normal agricultural activities or normalsilvicultural activities. This subsection shall also not apply to normalresidential gardening, lawn and landscape maintenance, or other similaractivities which are incidental to an occupant's ongoing residential use ofproperty and of minimal ecological impact; the Board shall develop criteriagoverning this exemption and shall specifically identify the activitiesmeeting these criteria in its regulations.

No locality may impose wetlands permit requirements duplicating state orfederal wetlands permit requirements.

E. When a Virginia Water Protection Permit is conditioned upon compensatorymitigation for adverse impacts to wetlands, the applicant may be permitted tosatisfy all or part of such mitigation requirements by the purchase or use ofcredits from any wetlands mitigation bank in the Commonwealth, or in Marylandon property wholly surrounded by and located in the Potomac River if themitigation banking instrument provides that the Board shall have the right toenter and inspect the property and that the mitigation bank instrument andthe contract for the purchase or use of such credits may be enforced in thecourts of the Commonwealth, including any banks owned by the permitapplicant, that has been approved and is operating in accordance withapplicable federal and state guidance, laws or regulations for theestablishment, use and operation of mitigation banks as long as: (1) the bankis in the same U.S.G.S. cataloging unit, as defined by the Hydrologic UnitMap of the United States (U.S.G.S. 1980), or an adjacent cataloging unitwithin the same river watershed, as the impacted site, or it meets all theconditions found in clauses (i) through (iv) and either clause (v) or (vi) ofthis subsection; (2) the bank is ecologically preferable to practicableon-site and off-site individual mitigation options, as defined by federalwetland regulations; and (3) the banking instrument, if approved after July1, 1996, has been approved by a process that included public review andcomment. When the bank is not located in the same cataloging unit or adjacentcataloging unit within the same river watershed as the impacted site, thepurchase or use of credits shall not be allowed unless the applicantdemonstrates to the satisfaction of the Department of Environmental Qualitythat (i) the impacts will occur as a result of a Virginia Department ofTransportation linear project or as the result of a locality project for alocality whose jurisdiction crosses multiple river watersheds; (ii) there isno practical same river watershed mitigation alternative; (iii) the impactsare less than one acre in a single and complete project within a catalogingunit; (iv) there is no significant harm to water quality or fish and wildliferesources within the river watershed of the impacted site; and either (v)impacts within the Chesapeake Bay watershed are mitigated within theChesapeake Bay watershed as close as possible to the impacted site or (vi)impacts within U.S.G.S. cataloging units 02080108, 02080208, and 03010205, asdefined by the Hydrologic Unit Map of the United States (U.S.G.S. 1980), aremitigated in-kind within those hydrologic cataloging units, as close aspossible to the impacted site. After July 1, 2002, the provisions of clause(vi) shall apply only to impacts within subdivisions of the listed catalogingunits where overlapping watersheds exist, as determined by the Department ofEnvironmental Quality, provided the Department has made such a determinationby that date. The Department of Environmental Quality is authorized to serveas a signatory to agreements governing the operation of wetlands mitigationbanks. The Commonwealth, its officials, agencies, and employees shall not beliable for any action taken under any agreement developed pursuant to suchauthority. State agencies are authorized to purchase credits from wetlandmitigation banks.

F. Prior to the issuance of a Virginia Water Protection Permit, the Boardshall consult with, and give full consideration to the writtenrecommendations of, the following agencies: the Department of Game and InlandFisheries, the Department of Conservation and Recreation, the Virginia MarineResources Commission, the Department of Health, the Department of Agricultureand Consumer Services and any other interested and affected agencies. Suchconsultation shall include the need for balancing instream uses withoffstream uses. Agencies may submit written comments on proposed permitswithin 45 days after notification by the Board. The Board shall assume thatif written comments are not submitted by an agency within this time period,the agency has no comments on the proposed permit.

G. No Virginia Water Protection Permit shall be required for any waterwithdrawal in existence on July 1, 1989; however, a permit shall be requiredif a new 401 certification is required to increase a withdrawal.

H. No Virginia Water Protection Permit shall be required for any waterwithdrawal not in existence on July 1, 1989, if the person proposing to makethe withdrawal has received a 401 certification before January 1, 1989,with respect to installation of any necessary withdrawal structures to makesuch withdrawal; however, a permit shall be required before any suchwithdrawal is increased beyond the amount authorized by the certification.

I. On and after July 1, 2000, and prior to the adoption of regulationspromulgated pursuant to subsection D, absent the issuance of a permit by theU.S. Army Corps of Engineers pursuant to 404 of the Clean Water Act, noperson shall excavate in a wetland without compensating for the impact to thewetland to the satisfaction of the Board in a manner sufficient to achieve nonet loss of existing wetland acreage and functions.

J. The Board may issue an Emergency Virginia Water Protection Permit for anew or increased withdrawal when it finds that because of drought there is aninsufficient public drinking water supply that may result in a substantialthreat to human health or public safety. Such a permit may be issued toauthorize the proposed activity only after conservation measures mandated bylocal or state authorities have failed to protect public health and safetyand notification of the agencies designated in subsection F, and only for theamount of water necessary to protect public health and safety. These agenciesshall have five days to provide comments or written recommendations on theissuance of the permit. Notwithstanding the provisions of subsection B, nopublic comment shall be required prior to issuance of the emergency permit.Not later than 14 days after the issuance of the emergency permit, the permitholder shall apply for a Virginia Water Protection Permit authorized underthe other provisions of this section. The application for the Virginia WaterProtection Permit shall be subject to public comment for a period establishedby the Board. Any Emergency Virginia Water Protection Permit issued underthis subsection shall be valid until the Board approves or denies thesubsequent request for a Virginia Water Protection Permit or for a period ofone year, whichever occurs sooner. The fee for the emergency permit shall be50 percent of the fee charged for a comparable Virginia Water ProtectionPermit.

(1989, c. 720; 1990, c. 2; 1996, c. 736; 1999, c. 8; 2000, cc. 1032, 1054;2003, c. 399; 2004, cc. 94, 293.)