Virginia Administrative Code
Title 9 - ENVIRONMENT
Agency 25 - STATE WATER CONTROL BOARD
Chapter 210 - VIRGINIA WATER PROTECTION PERMIT PROGRAM REGULATION
Part II - VWP Permit Application and Development
Section 9VAC25-210-116 - Compensation
Universal Citation: 9 VA Admin Code 25-210-116
Current through Register Vol. 41, No. 3, September 23, 2024
A. No net loss. Compensatory mitigation for project impacts shall be sufficient to achieve no net loss of existing wetland acreage and no net loss of functions in all surface waters. Compensatory mitigation ratios appropriate for the type of aquatic resource impacted and the type of compensation provided shall be applied to permitted impacts to help meet this requirement. Credit may be given for preservation of upland buffers already protected under other ordinances to the extent that additional protection and water quality and fish and wildlife resource benefits are provided.
B. Practicable and ecologically and environmentally preferable compensation alternatives.
1. An analysis shall be
required to justify that permittee-responsible compensatory mitigation is
ecologically and environmentally preferable to the purchase of mitigation bank
credits or in-lieu fee program credits with a primary service area that covers
the impact site if such credits are available in sufficient quantity for the
project at the projected time of need. The analysis shall address the ability
of the permittee-responsible compensatory mitigation sites to replace lost
wetland acreage and functions or lost stream functions and water quality
benefits. The analysis comparing the impacted and compensation sites may use a
method that assesses water quality or habitat metrics, such as that required by
9VAC25-210-80 C, or a method that
assesses such criteria as water quality benefits, distance from impacts,
hydrologic source and regime, watershed, vegetation type, soils,
constructability, timing of compensation versus impact, property acquisition,
and cost.
2. The applicant shall
demonstrate that permittee-responsible compensatory mitigation can be protected
in perpetuity through a protective mechanism approved by the Department of
Environmental Quality, such as, but not limited to, a conservation easement
held by a third party in accordance with the Virginia Conservation Easement Act
(§
10.1-1009 et seq. of the Code of
Virginia) or the Virginia Open-Space Act (§
10.1-1700 et seq. of the Code of
Virginia), a duly recorded declaration of restrictive covenants, or other
protective instrument.
C. Compensatory mitigation proposals shall be evaluated as follows:
1. The purchase of
mitigation bank credits and in-lieu fee program credits with a primary service
area that covers the impact site when available shall in most cases be deemed
the ecologically and environmentally preferable form of compensation for
project impacts. However, permittee-responsible compensatory mitigation may be
considered when the applicant satisfactorily demonstrates that
permittee-responsible compensatory mitigation is ecologically and
environmentally preferable in accordance with subdivision B 1 of this
section.
2. Compensatory mitigation
for unavoidable wetland impacts may be met through the following options, which
are preferred in the following sequence: mitigation banking, in-lieu fee
program, and permittee-responsible compensatory mitigation. However, the
department shall evaluate the appropriate compensatory mitigation option on a
case-by-case basis with consideration for which option is practicable and
ecologically and environmentally preferable, including, in terms of replacement
of acreage and functions, which option offers the greatest likelihood of
success and avoidance of temporal loss of acreage and function. This evaluation
shall be consistent with the U.S. Army Corps of Engineers Compensatory
Mitigation for Losses of Aquatic Resources as provided in 33 CFR Part 332. When
considering options for providing the required compensatory mitigation, DEQ
shall consider the type and location options in the following order:
a. Mitigation bank credits;
b. In-lieu fee program credits;
c. Permittee-responsible mitigation under a
watershed approach;
d.
Permittee-responsible mitigation through on-site and in-kind
mitigation;
e.
Permittee-responsible mitigation through off-site or out-of-kind
mitigation;
f. Restoration,
enhancement, or preservation of upland buffers adjacent to wetlands when
utilized in conjunction with subdivision 2 a, 2 b, 2 c, 2 d, or 2 e of this
subsection and when consistent with subsection A of this section; and
g. Preservation of wetlands when utilized in
conjunction with subdivision 2 a, 2 b, 2 c, 2 d, or 2 e of this subsection and
when consistent with subsection A of this section.
3. Compensatory mitigation for unavoidable
stream impacts may be met through the following options, which are preferred in
the following sequence: mitigation banking, in-lieu fee program, and
permittee-responsible mitigation. However, the department shall evaluate the
appropriate compensatory mitigation option on a case-by-case basis with
consideration for which option is practicable and ecologically and
environmentally preferable, including, in terms of replacement of acreage and
functions, which option offers the greatest likelihood of success and avoidance
of temporal loss of acreage and function. This evaluation shall be consistent
with the U.S. Army Corps of Engineers Compensatory Mitigation for Losses of
Aquatic Resources as provided in 33 CFR Part 332. One factor in determining the
required compensation shall be an analysis of stream impacts utilizing a stream
impact assessment methodology approved by the department. When considering
options for providing the required compensatory mitigation, DEQ shall consider
the type and location options in the following order:
a. Mitigation bank stream credits;
b. In-lieu fee program credits;
c. Permittee-responsible mitigation under a
watershed approach;
d.
Permittee-responsible mitigation through on-site and in-kind
mitigation;
e.
Permittee-responsible mitigation through off-site or out-of-kind
mitigation;
f. Restoration,
enhancement, or preservation of upland buffers adjacent to streams when
utilized in conjunction with subdivision 3 a, 3 b, 3 c, 3 d, or 3 e of this
subsection and when consistent with subsection A of this section; and
g. Preservation of stream channels and
adjacent riparian buffers when utilized in conjunction with subdivision 3 a, 3
b, 3 c, 3 d, or 3 e of this subsection and when consistent with subsection A of
this section.
4.
Compensatory mitigation for open water impacts may be required to protect state
waters and fish and wildlife resources from significant impairment, as
appropriate. Compensation shall not be required for permanent or temporary
impacts to open waters that are identified as palustrine by the Cowardin
classification method, but compensation may be required when such open waters
are located in areas of karst topography in Virginia and are formed by the
natural solution of limestone.
D. In-lieu fee program approval.
1. The department may approve the use of a
program by issuing a VWP permit for a specific project or by taking an
enforcement action and following applicable public notice and comment
requirements, or by granting approval of a program after publishing a notice of
its intent in the Virginia Register of Regulations and accepting public
comments on its approval for a minimum of 30 days.
2. Where a program is mandated by the Code of
Virginia to be implemented and such program is approved by the U.S. Army Corps
of Engineers, the program may be used as deemed appropriate for any VWP permit
or enforcement action.
3. An
approved program must meet the following criteria:
a. Demonstration of a no net loss policy in
terms of wetland acreage and functions or stream functions and water quality
benefits by adoption of operational goals or objectives for restoration,
creation, enhancement, or preservation;
b. DEQ approval of each site for inclusion in
the program;
c. A commitment to
provide annual reports to the department detailing contributions received and
acreage and type of wetlands or streams preserved, created, or restored in each
watershed with those contributions, as well as the compensatory mitigation
credits contributed for each watershed of project impact;
d. A mechanism to establish fee amounts that
will ensure each contribution will be adequate to compensate for the wetland
acreage and functions or stream functions and water quality benefits lost in
the impacted watershed; and
e. Such
terms and conditions as the department deems necessary to ensure a no net loss
of wetland acreage and functions or stream functions and water quality benefits
from permitted projects providing compensatory mitigation.
4. Approval may be granted for up to 10 years
and may be renewed by the department upon a demonstration that the program has
met the criteria in subdivision 3 of this subsection.
E. Use of mitigation banks. The use of mitigation banks for compensating project impacts shall be deemed appropriate if the following criteria are met:
1. The bank
meets the criteria and conditions found in §
62.1-44.15:23 of the Code of
Virginia;
2. The bank is
ecologically and environmentally preferable to practicable on-site and off-site
individual compensatory mitigation options;
3. The banking instrument, if approved after
July 1, 1996, has been approved by a process that involved public review and
comment in accordance with federal guidelines; and
4. The applicant provides verification to DEQ
of purchase of the required amount of credits.
F. For permittee-responsible mitigation, the final compensatory mitigation plan shall include complete information on all components of the conceptual compensatory mitigation plan detailed in 9VAC25-210-80 B 1 m and:
1. For wetlands, the final compensation plan
for review and approval by DEQ shall also include a summary of the type and
acreage of existing wetland impacts anticipated during the construction of the
compensation site and the proposed compensation for these impacts; a site
access plan; a monitoring plan, including proposed success criteria, monitoring
goals, and the location of photo-monitoring stations, monitoring wells,
vegetation sampling points, and reference wetlands or streams if available; an
abatement and control plan for undesirable plant species; an erosion and
sedimentation control plan; a construction schedule; and the final protective
mechanism for the compensation site or sites, including all surface waters and
buffer areas within its boundaries. The approved protective mechanism shall be
recorded in the chain of title to the property, or an equivalent instrument for
government-owned lands, and proof of recordation shall be submitted to DEQ
prior to commencing impacts in surface waters.
2. For streams, the final compensation plan
for review and approval by DEQ shall also include a site access plan; an
erosion and sedimentation control plan, if appropriate; an abatement and
control plan for undesirable plant species; a monitoring plan, including a
monitoring and reporting schedule, monitoring design, and methodologies for
success; proposed success criteria; location of photo-monitoring stations,
vegetation sampling points, survey points, bank pins, scour chains, and
reference streams; a plan view drawing depicting the pattern and all
compensation measures being employed; a profile drawing; cross-sectional
drawing or drawings of the proposed compensation stream; and the final
protective mechanism for the compensation site or sites, including all surface
waters and buffer areas within its boundaries. The approved protective
mechanism shall be recorded in the chain of title to the property, or an
equivalent instrument for government-owned lands, and proof of recordation
shall be submitted to DEQ prior to commencing impacts in surface
waters.
G. Notwithstanding any provision of this section restricting the location of the source of credits, the department may, for tidal wetland impacts, authorize the use of, including without the application of § 62.1-44.15:23C of the Code of Virginia, a tidal wetland mitigation bank located in an adjacent river watershed when such bank contains the same plant community type and salinity regime as the impacted wetlands, which shall be the preferred form of compensation. This subsection shall apply only (i) to tidal wetland mitigation banks with a polyhaline salinity regime located in subbasins 02080102, 02080107, 02080108, and 02080208 and (ii) when a tidal wetland mitigation bank with the same plant community type and salinity regime as the impacted wetlands is not available in the same river watershed as the impacted wetland.
Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 401 of the Clean Water Act (33 USC § 1251 et seq.).
Disclaimer: These regulations may not be the most recent version. Virginia may have more current or accurate information. We make no warranties or guarantees about the accuracy, completeness, or adequacy of the information contained on this site or the information linked to on the state site. Please check official sources.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
