Current through Register Vol. 41, No. 3, September 23, 2024
The activities in this section do not require a VWP permit
but may require other permits under state and federal law. Upon request by the
department, any person claiming one of these exclusions shall demonstrate to
the satisfaction of the department that he qualifies for the exclusion.
Exclusions pertaining to surface water withdrawals are established in
9VAC25-210-310.
1. Discharges of dredged or fill material
into state waters, except wetlands, which are addressed under a USACE Regional,
General, or Nationwide Permit, and for which no § 401 Water Quality
Certificate is required.
2. Any
discharge of stormwater from municipal separate storm sewer systems or
land-disturbing activities authorized by 9VAC25-875, or the discharge of
sewage, industrial wastes, or other wastes or any noxious or deleterious
substances into surface waters that is authorized by a Virginia Pollutant
Discharge Elimination System (VPDES) permit in accordance with 9VAC25-31 or a
Virginia Pollution Abatement (VPA) permit in accordance with
9VAC25-32.
3. Any activity governed
under Chapter 13 (§
28.2-1300 et seq.) of Title 28.2
of the Code of Virginia, unless state certification is required by § 401
of the Clean Water Act. State certification is waived if the activity meets the
provisions of subdivision 10 a of this section. The activity does not require a
VWP permit pursuant to §
62.1-44.15:21G
of the Code of Virginia.
4. Normal
residential gardening and lawn and landscape maintenance in a wetland, or other
similar activity, that is incidental to an occupant's ongoing residential use
of property and is of minimal ecological impact. The criteria governing this
exclusion are set forth in the definition of "normal residential gardening and
lawn and landscape maintenance" in
9VAC25-210-10.
5. Maintenance of currently serviceable
structures, such as purpose-built stormwater and utility structures,
transportation structures, dikes, groins, levees, dams, riprap breakwaters,
causeways, or bridge abutments or approaches. Maintenance includes the
emergency reconstruction of recently damaged parts but does not include
modifications that change the character, scope, or size of the original design.
If the original design is not available, the permittee shall submit the best
available information on the design for consideration and approval by the
department. In order to quality for this exclusion, emergency reconstruction
shall occur as soon as practicable after damage occurs.
6. Impacts to open waters that do not have a
detrimental effect on public health, animal life, or aquatic life or to the
uses of such waters for domestic or industrial consumption, recreation, or
other uses.
7. Flooding or
back-flooding impacts to surface waters resulting from the construction of
temporary sedimentation basins on a construction site when such structures are
necessary for erosion and sediment control or stormwater management
purposes.
8. Normal agriculture and
silviculture activities in a wetland such as plowing; seeding; cultivating;
minor drainage and harvesting for the production of food, fiber, and forest
products; or upland soil and water conservation practices.
a. To fall under this exclusion, the
activities specified in this subdivision 8 must be part of an established
(i.e., ongoing) agriculture or silviculture operation, and must be in
accordance with applicable best management practices set forth in either
Forestry Best Management Practices for Water Quality in Virginia Technical
Guide (Fourth Edition, July 2002) or Virginia Agricultural BMP Manual (2000),
which facilitate compliance with the § 404(b)(1) Guidelines (40 CFR Part
230). Activities on areas lying fallow as part of a conventional, rotational
cycle are part of an established operation.
b. Activities which bring a new area into
agricultural or silvicultural use are not part of an established operation. An
operation ceases to be established when the area in which it was conducted has
been converted to another use or has lain idle so long that modifications to
the hydrological regime are necessary to resume operation. If the activity
takes place outside surface waters, it does not need a VWP permit, whether or
not it is part of an established agriculture or silviculture
operation.
c. For the purposes of
this subdivision 8, cultivating, harvesting, minor drainage, plowing, and
seeding are defined as follows:
(1)
"Cultivating" means physical methods of soil treatment employed within
established agriculture and silviculture lands on farm or forest crops to aid
and improve their growth, quality, or yield.
(2) "Harvesting" means physical measures
employed directly upon farm, forest, or crops within established agricultural
and silviculture lands to bring about their removal from farm or forest land,
but does not include the construction of farm or forest roads.
(3) "Minor drainage" means:
(a) The discharge of dredged or fill material
incidental to connecting upland drainage facilities to surface waters, adequate
to effect the removal of excess soil moisture from upland croplands.
Construction and maintenance of upland (dryland) facilities, such as ditching
and tiling, incidental to the planting, cultivating, protecting, or harvesting
of crops;
(b) The discharge of
dredged or fill material for the purpose of installing ditching or other water
control facilities incidental to planting, cultivating, protecting, or
harvesting of rice, or other wetland crop species, where these activities and
the discharge occur in surface waters which are in established use for such
agricultural and silviculture wetland crop production;
(c) The discharge of dredged or fill material
for the purpose of manipulating the water levels of, or regulating the flow or
distribution of water within, existing impoundments that have been constructed
in accordance with applicable requirements of the Clean Water Act, and that are
in established use for the production of rice, or other wetland crop
species;
(d) The discharge of
dredged or fill material incidental to the emergency removal of sandbars,
gravel bars, or other similar blockages which are formed during flood flows or
other events, where such blockages close or constrict previously existing
drainageways and, if not promptly removed, would result in damage to or loss of
existing crops or would impair or prevent the plowing, seeding, harvesting, or
cultivating of crops on land in established use for crop production. Such
removal does not include enlarging or extending the dimensions of, or changing
the bottom elevations of, the affected drainageway as it existed prior to the
formation of the blockage. Removal must be accomplished within one year after
such blockages are discovered in order to be eligible for exclusion;
and
(e) Minor drainage in surface
waters is limited to drainage within areas that are part of an established
agriculture or silviculture operation. It does not include drainage associated
with the immediate or gradual conversion of a wetland to a nonwetland (for
example, wetland species to upland species not typically adapted to life in
saturated soil conditions), or conversion from one wetland use to another (for
example, silviculture to agriculture). In addition, minor drainage does not
include the construction of any canal, ditch, dike, or other waterway or
structure which drains or otherwise significantly modifies a stream, lake,
swamp, bog, or any other wetland or aquatic area constituting surface water.
Any discharge of dredged or fill material into surface water incidental to the
construction of any such structure or waterway requires a VWP permit, unless
otherwise excluded or exempted by this chapter.
(4) "Plowing" means all forms of primary
tillage, including moldboard, chisel, or wide-blade plowing, discing,
harrowing, and similar physical means used on farm or forest land for the
breaking up, cutting, turning over, or stirring of soil to prepare it for the
planting of crops. Plowing does not include the redistribution of soil, rock,
sand, or other surficial materials in a manner which changes any area of
surface water to dry land. For example, the redistribution of surface materials
by blading, grading, or other means to fill in wetland areas is not plowing.
Rock crushing activities which result in the loss of natural drainage
characteristics, the reduction of water storage and recharge capabilities, or
the overburden of natural water filtration capacities does not constitute
plowing. Plowing as described above will never involve a discharge of dredged
or fill material.
(5) "Seeding"
means the sowing of seed and placement of seedlings to produce farm or forest
crops and includes the placement of soil beds for seeds or seedlings on
established farm and forest lands.
9. Discharges of dredged or fill material
into wetlands when addressed under a U.S. Army Corps of Engineers Regional,
General, or Nationwide Permit and that meet the provisions of subdivision 10 a
of this section.
10. Construction
or maintenance of farm ponds or impoundments, stock ponds or impoundments, or
irrigation ditches, or the maintenance (but not construction) of drainage
ditches.
a. The exclusion for the construction
and maintenance of farm or stock ponds and farm or stock impoundments applies
to those structures that are operated for normal agricultural or silvicultural
purposes, and are less than 25 feet in height or create a maximum impoundment
capacity smaller than 100 acre-feet.
b. The exclusion for the construction and
maintenance of farm or stock ponds and farm or stock impoundments does not
include the impacts associated with the withdrawal of surface water from,
within, or behind such structures. A VWP permit may be required for the surface
water withdrawal.
c. Discharge
associated with siphons, pumps, headgates, wingwalls, weirs, diversion
structures, and such other facilities as are appurtenant and functionally
related to irrigation ditches are included in this exclusion.
d. The maintenance dredging of existing
ditches is included in this exclusion provided that the final dimensions of the
maintained ditch do not exceed the average dimensions of the original ditch.
This exclusion does not apply to the construction of new ditches or to the
channelization of streams.
11. Construction or maintenance of farm
roads, forest roads, or temporary roads for moving mining equipment, where such
roads are constructed and maintained in accordance with applicable best
management practices (BMPs) set forth in either Forestry Best Management
Practices for Water Quality in Virginia, Technical Guide, Fourth Edition, July
2002, or Virginia Agricultural BMP Manual, 2000, to ensure that flow and
circulation patterns and chemical and biological characteristics of surface
waters are not impaired, that the reach of such waters is not reduced, and that
any adverse effect on the aquatic environment will otherwise be minimized. The
BMPs which must be applied to satisfy this provision include the following
baseline provisions:
a. Permanent roads (for
agriculture or forestry activities), temporary access roads (for mining,
forestry, or farm purposes), and skid trails (for logging) in surface waters
shall be held to the minimum feasible number, width, and total length
consistent with the purpose of specific agriculture, silviculture or mining
operations, and local topographic and climatic conditions;
b. All roads, temporary or permanent, shall
be located sufficiently far from streams or other water bodies (except for
portions of such roads which must cross water bodies) to minimize discharges of
dredged or fill material into surface waters;
c. The road fill shall be bridged, piped,
culverted, or otherwise designed to prevent the restriction of expected flood
flows;
d. The fill shall be
properly stabilized and maintained to prevent erosion during and following
construction;
e. Discharges of
dredged or fill material into surface waters to construct road fill shall be
made in a manner which minimizes the encroachment of trucks, tractors,
bulldozers, or other heavy equipment within state waters (including adjacent
wetlands) that lie outside the lateral boundaries of the fill itself;
f. In designing, constructing, and
maintaining roads, vegetative disturbance in surface waters shall be kept to a
minimum;
g. The design,
construction, and maintenance of the road crossing shall not disrupt the
migration or other movement of those species of aquatic life inhabiting the
water body;
h. Borrow material
shall be taken from upland sources whenever feasible;
i. The discharge shall not take, or
jeopardize the continued existence of a state-listed or federally-listed
threatened or endangered species as defined under the Endangered Species Act
(16 USC §
1531 et seq.), in §
29.1-566 of the Code of Virginia
and in 4VAC15-20-130 B and C, except as
provided in §
29.1-568 of the Code of
Virginia, or adversely modify or destroy the critical habitat of such
species;
j. Discharges into the
nesting and breeding areas for migratory waterfowl, spawning areas, and
wetlands shall be avoided if practical on-site or off-site alternatives
exist;
k. The discharge shall not
be located in proximity of a public water supply or intake;
l. The discharge shall not occur in areas of
concentrated shellfish production;
m. The discharge shall not occur in a
component to the National Wild and Scenic River System;
n. The discharge material shall consist of
suitable material free from toxic pollutants in toxic amounts; and
o. All temporary fills shall be removed in
their entirety and the area restored to its original elevation.
12. Wetland and open water impacts
to a stormwater management facility that was created on dry land for the
purpose of conveying, treating, or storing stormwater.
Statutory Authority: §
62.1-44.15 of the Code of
Virginia; § 401 of the Clean Water
Act
