Current through Register Vol. 41, No. 3, September 23, 2024
A. VWP
individual permits may be modified in whole or in part, revoked and reissued,
extended, transferred, or terminated only as authorized by this
section.
B. VWP permits may be
modified upon the request of the permittee or upon department initiative when
any of the following developments occur:
1.
When new information becomes available about the project or activity covered by
the VWP permit, including project additions or alterations, that was not
available at VWP permit issuance and would have justified the application of
different VWP permit conditions at the time of VWP permit issuance;
2. When a change is made in the promulgated
standards or regulations on which the VWP permit was based;
3. When changes occur that are subject to
"reopener clauses" in the VWP permit; or
4. When developments applicable to surface
water withdrawals as specified in
9VAC25-210-380
occur.
C. A request for
a modification, except those addressed in subsection E of this section, shall
include the applicable informational requirements of
9VAC25-210-80
B, updated to reflect the proposed changes to the project. The department may
request additional information as necessary to review and prepare a draft
permit. If the department tentatively decides to modify a permit, it shall
prepare a draft permit incorporating the proposed changes in accordance with
9VAC25-210-120
and process the draft permit in accordance with
9VAC25-210-140
through
9VAC25-210-170.
D. During the drafting and authorization of a
permit modification under this section, only those conditions to be modified
shall be addressed with preparing a draft modified permit. VWP permit terms and
conditions of the existing permit shall remain in full force and effect during
the modification of the permit.
E.
Upon request of the permittee, or upon department initiative with the consent
of the permittee, minor modifications may be made in the VWP permit without
following the public involvement procedures contained in
9VAC25-210-140,
9VAC25-210-160,
or
9VAC25-210-170.
Any request for a minor modification shall be in writing and shall contain the
facts or reasons supporting the request. The department may request additional
information as necessary to review a request for minor modification. The
department, at its discretion, may require that the changes proposed under a
minor modification to be processed as a modification in accordance with
subsections B and C of this section. For VWP permits, a minor modification may
only be processed to:
1. Correct
typographical errors.
2. Require
monitoring and reporting by the permittee at a different frequency than
required in the VWP permit, based on new information justifying the change in
conditions.
3. Change a compliance
date provided it will not result in a net loss of wetland acreage or of
functions in all surface waters.
4.
Allow for a change in permittee provided that a written agreement containing a
specific date for transfer of VWP permit responsibility, authorization, and
liability from the current to the new permittee has been submitted to the
department. A VWP permit shall be transferred only if the VWP permit has been
modified to reflect the transfer, has been revoked and reissued to the new
permittee, or has been automatically transferred. Any individual VWP permit
shall be automatically transferred to a new permittee if the current permittee:
a. Notifies the department of the proposed
transfer of the permit and provides a written agreement between the current and
proposed permittees containing the date of transfer of VWP permit
responsibility, authorization, and liability to the new permittee;
and
b. The department does not
within 15 days notify the current and new permittees of its intent to modify
the VWP permit.
5.
Change project plans or uses that do not result in a change to permitted
project impacts other than allowable by subdivisions 6 and 7 of this
subsection.
6. Reduce wetland or
stream impacts. Compensatory mitigation requirements may be modified in
relation to the adjusted impacts, provided that the adjusted compensatory
mitigation meets the initial compensatory mitigation goals. The Department of
Environmental Quality shall not be responsible for ensuring refunds for
mitigation bank credit purchases or in-lieu fee program credit
purchases.
7. Authorize additional
impacts to surface waters that are proposed prior to impacting the additional
areas. Proposed additional impacts shall meet the following requirements:
a. The proposed additional impacts are
located within the project boundary as depicted in the application for permit
issuance, or are located in areas of directly related off-site work.
b. The permittee has provided sufficient
documentation that the Department may reasonably determine that the additional
impacts will not impact federal or state listed threatened or endangered
species or designated critical habitat, or result in a taking of threatened or
endangered species. The department recommends that the permittee verify that
the project will not impact any proposed threatened or endangered species or
proposed critical habitat.
c. The
cumulative, additional permanent wetland or open water impacts for one or more
minor modifications do not exceed one-quarter of an acre (0.25 acre or 10,890
square feet).
d. The cumulative,
additional permanent stream impacts for one or more minor modifications do not
exceed 100 linear feet.
e.
Documentation is provided demonstrating that the proposed surface water impacts
have been avoided to the maximum extent practicable in accordance with the
informational requirements of
9VAC25-210-80
B1g.
f. Compensatory mitigation for
the proposed impacts, if required, meets the requirements of §
62.1-44.15:23 of the Code of Virginia,
9VAC25-210-80
B1m, and
9VAC25-210-116.
Prior to a minor modification approval, DEQ may require submission of a
compensatory mitigation plan for the additional impacts.
g. Where such additional impacts are
temporary, and prior to initiating the impacts, the permittee provides a
written statement to the department that the area to be temporarily impacted
will be restored to its preconstruction elevations and contours with topsoil
from the impact area where practicable, such that the previous acreage and
functions are restored. The proposed temporary impacts shall be deemed approved
if DEQ does not respond within 10 days of receipt of the request for
authorization to temporarily impact additional surface waters.
8. Substitute a specific,
DEQ-approved mitigation bank or in-lieu fee program with another DEQ-approved
mitigation bank or in-lieu fee program, or substitute all or a portion of the
prior authorized permittee-responsible compensatory mitigation with a purchase
of mitigation credits in accordance with § 62.1-44.15:23 of the Code of
Virginia and
9VAC25-210-116 C
from a DEQ-approved mitigation bank or in-lieu fee program. The amount of
credits proposed to be purchased shall be sufficient to meet the compensatory
mitigation requirement for which the compensatory mitigation is proposed to
replace.
9. Allow for extension of
the expiration date of the VWP permit. Any permittee with an effective VWP
permit for an activity that is expected to continue after the expiration date
of the VWP permit, without any change in the activity authorized by the VWP
permit other than as may be allowed under this section, shall submit written
notification requesting an extension. The permittee must file the request 90
days prior to the expiration date of the VWP permit. VWP permit modifications
shall not be used to extend the term of a VWP permit beyond 15 years from the
date of original issuance.
10.
Activities or development applicable to surface water withdrawals as specified
in
9VAC25-210-380
B.
F. After notice and
opportunity for a formal hearing pursuant to § 2.2-4020 of the Code of
Virginia, a VWP permit can be terminated for cause. Reasons for termination for
cause are as follows:
1. Noncompliance by the
permittee with any condition of the VWP permit;
2. The permittee's failure in the application
or during the VWP permit process to disclose fully all relevant facts or the
permittee's misrepresentation of any relevant facts at any time;
3. The permittee's violation of a special or
judicial order;
4. A determination
by the department that the permitted activity endangers human health or the
environment and can be regulated to acceptable levels by VWP permit
modification or termination;
5. A
change in any condition that requires either a temporary or permanent reduction
or elimination of any activity controlled by the VWP permit; or
6. A determination that the permitted
activity has ceased and that the compensation for unavoidable adverse impacts
has been successfully completed.
G. The epartment may terminate the permit
without cause when the permittee is no longer a legal entity due to death,
dissolution, or when a company is no longer authorized to conduct business in
the Commonwealth. The termination shall be effective 30 days after notice of
the proposed termination is sent to the last known address of the permittee or
registered agent, unless the permittee objects within that time. If the
permittee does object during that period, the department shall follow the
applicable procedures for termination under § 62.1-44.15:25 of the Code of
Virginia and 9VAC25-230.
H. A VWP
permit may be terminated by consent, as initiated by the permittee. The
permittee shall submit a request for termination by consent within 30 days of
completing or canceling all permitted activities and all required compensatory
mitigation requirements. When submitted for project completion, the request for
termination by consent shall constitute a notice of project completion. The
director may accept this termination on behalf of the department. The permittee
shall submit the following information:
1.
Name, mailing address, and telephone number;
2. Name and location of the
activity;
3. The VWP permit number;
and
4. One of the following
certifications:
a. For project completion: "I
certify under penalty of law that all activities and any required compensatory
mitigation authorized by a VWP permit have been completed. I understand that by
submitting this notice of termination that I am no longer authorized to perform
activities in surface waters in accordance with the VWP permit, and that
performing activities in surface waters is unlawful where the activity is not
authorized by a VWP permit, unless otherwise excluded from obtaining a permit.
I also understand that the submittal of this notice does not release me from
liability for any violations of this VWP permit."
b. For project cancellation: "I certify under
penalty of law that the activities and any required compensatory mitigation
authorized by this VWP permit will not occur. I understand that by submitting
this notice of termination that I am no longer authorized to perform activities
in surface waters in accordance with the VWP permit, and that performing
activities in surface waters is unlawful where the activity is not authorized
by a VWP permit, unless otherwise excluded from obtaining a permit. I also
understand that the submittal of this notice does not release me from liability
for any violations of this VWP permit, nor does it allow me to resume the
permitted activities without reapplication and issuance of another
permit."
c. For events beyond
permittee control, the permittee shall provide a detailed explanation of the
events, to be approved by DEQ, and the following certification statement: "I
certify under penalty of law that the activities or the required compensatory
mitigation authorized by this VWP permit have changed as the result of events
beyond my control (see attached). I understand that by submitting this notice
of termination that I am no longer authorized to perform activities in surface
waters in accordance with the VWP permit, and that performing activities in
surface waters is unlawful where the activity is not authorized by a VWP
permit, unless otherwise excluded from obtaining a permit. I also understand
that the submittal of this notice does not release me from liability for any
violations of this VWP permit, nor does it allow me to resume the permitted
activities without reapplication and issuance of another permit.
Statutory Authority: § 62.1-44.15 of the Code of
Virginia; § 401 of the Clean Water Act (33 USC §
1251 et
seq.).
