Virginia Administrative Code
Title 9 - ENVIRONMENT
Agency 25 - STATE WATER CONTROL BOARD
Chapter 690 - VIRGINIA POLLUTANT DISCHARGE ELIMINATION SYSTEM (VPDES) PERMIT REGULATION
Section 9VAC25-690-100 - VWP general permit
Universal Citation: 9 VA Admin Code 25-690-100
Current through Register Vol. 41, No. 3, September 23, 2024
VWP GENERAL PERMIT NO. WP4 FOR IMPACTS FROM DEVELOPMENT AND CERTAIN MINING ACTIVITIES UNDER THE VIRGINIA WATER PROTECTION PERMIT AND THE VIRGINIA STATE WATER CONTROL LAW
Effective date: August 2, 2016
Expiration date: August 1, 2026
In compliance with § 401 of the Clean Water Act, as amended (33 USC § 1341) and the State Water Control Law and regulations adopted pursuant thereto, the board has determined that there is a reasonable assurance that this VWP general permit, if complied with, will protect instream beneficial uses, will not violate applicable water quality standards, and will not cause or contribute to a significant impairment of state waters or fish and wildlife resources. In issuing this VWP general permit, the board has not taken into consideration the structural stability of any proposed activities.
The permanent or temporary impact of up to two acres of nontidal wetlands or open water and up to 1,500 linear feet of nontidal stream bed shall be subject to the provisions of the VWP general permit set forth herein; any requirements in coverage granted under this general permit; the Clean Water Act, as amended; and the State Water Control Law and regulations adopted pursuant to it.
Part I.
Special Conditions.
A. Authorized activities.
1. The activities authorized by this chapter
shall not cause more than the permanent or temporary impacts of up to two acres
of nontidal wetlands or open water and up to 1,500 linear feet of nontidal
stream bed. Additional permit requirements as stipulated by the department in
the coverage letter, if any, shall be enforceable conditions of this
permit.
2. Any changes to the
authorized permanent impacts to surface waters shall require a notice of
planned change in accordance with
9VAC25-690-80. An application or
request for modification to coverage or another VWP permit application may be
required.
3. Any changes to the
authorized temporary impacts to surface waters shall require written
notification to and approval from the Department of Environmental Quality in
accordance with
9VAC25-690-80 prior to initiating
the impacts and restoration to preexisting conditions in accordance with the
conditions of this permit.
4.
Modification to compensation requirements may be approved at the request of the
permittee when a decrease in the amount of authorized surface waters impacts
occurs, provided that the adjusted compensation meets the initial compensation
goals.
B. Overall
conditions.
1. The activities authorized by
this VWP general permit shall be executed in a manner so as to minimize adverse
impacts on instream beneficial uses as defined in §
62.1-10 (b) of
the Code of Virginia.
2. No
activity may substantially disrupt the movement of aquatic life indigenous to
the water body, including those species that normally migrate through the area,
unless the primary purpose of the activity is to impound water. Pipes and
culverts placed in streams must be installed to maintain low flow conditions
and shall be countersunk at both inlet and outlet ends of the pipe or culvert,
unless otherwise specifically approved by the Department of Environmental
Quality on a case-by-case basis, and as follows: The requirement to countersink
does not apply to extensions or maintenance of existing pipes and culverts that
are not countersunk, floodplain pipes and culverts being placed above ordinary
high water, pipes and culverts being placed on bedrock, or pipes and culverts
required to be placed on slopes 5.0% or greater. Bedrock encountered during
construction must be identified and approved in advance of a design change
where the countersunk condition cannot be met. Pipes and culverts 24 inches or
less in diameter shall be countersunk three inches below the natural stream bed
elevations, and pipes and culverts greater than 24 inches shall be countersunk
at least six inches below the natural stream bed elevations. Hydraulic capacity
shall be determined based on the reduced capacity due to the countersunk
position. In all stream crossings appropriate measures shall be implemented to
minimize any disruption of aquatic life movement.
3. Wet or uncured concrete shall be
prohibited from entry into flowing surface waters, unless the area is contained
within a cofferdam and the work is performed in the dry or unless otherwise
approved by the Department of Environmental Quality. Excess or waste concrete
shall not be disposed of in flowing surface waters or washed into flowing
surface waters.
4. All fill
material shall be clean and free of contaminants in toxic concentrations or
amounts in accordance with all applicable laws and regulations.
5. Erosion and sedimentation controls shall
be designed in accordance with the Virginia Erosion and Sediment Control
Handbook, Third Edition, 1992, or for mining activities covered by this general
permit, the standards issued by the Virginia Department of Energy that are
effective as those in the Virginia Erosion and Sediment Control Handbook, Third
Edition, 1992. These controls shall be placed prior to clearing and grading and
maintained in good working order to minimize impacts to state waters. These
controls shall remain in place until the area is stabilized and shall then be
removed.
6. Exposed slopes and
streambanks shall be stabilized immediately upon completion of work in each
permitted impact area. All denuded areas shall be properly stabilized in
accordance with the Virginia Erosion and Sediment Control Handbook, Third
Edition, 1992.
7. All construction,
construction access (e.g., cofferdams, sheetpiling, and causeways) and
demolition activities associated with theproject shall be accomplished in a
manner that minimizes construction or waste materials from entering surface
waters to the maximum extent practicable, unless authorized by this VWP general
permit.
8. No machinery may enter
flowing waters, unless authorized by this VWP general permit or approved prior
to entry by the Department of Environmental Quality.
9. Heavy equipment in temporarily-impacted
wetland areas shall be placed on mats, geotextile fabric, or other suitable
material to minimize soil disturbance to the maximum extent practicable.
Equipment and materials shall be removed immediately upon completion of
work.
10. All nonimpacted surface
waters and compensatory mitigation areas within 50 feet of authorized
activities and within the project or right-of-way limits shall be clearly
flagged or marked for the life of the construction activity at that location to
preclude unauthorized disturbances to these surface waters and compensatory
mitigation areas during construction. The permittee shall notify contractors
that no activities are to occur in these marked surface waters.
11. Temporary disturbances to surface waters
during construction shall be avoided and minimized to the maximum extent
practicable. All temporarily disturbed wetland areas shall be restored to
preexisting conditions within 30 days of completing work at each respective
temporary impact area, which shall include reestablishing preconstruction
elevations and contours with topsoil from the impact area where practicable and
planting or seeding with appropriate wetland vegetation according to cover type
(i.e., emergent, scrub-shrub, or forested). The permittee shall take all
appropriate measures to promote and maintain revegetation of temporarily
disturbed wetland areas with wetland vegetation through the second year
post-disturbance. All temporarily impacted streams and streambanks shall be
restored to their preconstruction elevations and contours with topsoil from the
impact area where practicable within 30 days following the construction at that
stream segment. Streambanks shall be seeded or planted with the same vegetation
cover type originally present, including any necessary supplemental erosion
control grasses. Invasive species identified on the Department of Conservation
and Recreation's Virginia Invasive Plant Species List shall not be used to the
maximum extent practicable or without prior approval from the Department of
Environmental Quality.
12.
Materials (including fill, construction debris, and excavated and woody
materials) temporarily stockpiled in wetlands shall be placed on mats or
geotextile fabric, immediately stabilized to prevent entry into state waters,
managed such that leachate does not enter state waters, and completely removed
within 30 days following completion of that construction activity. Disturbed
areas shall be returned to preconstruction elevations and contours with topsoil
from the impact area where practicable; restored within 30 days following
removal of the stockpile; and restored with the same vegetation cover type
originally present, including any necessary supplemental erosion control
grasses. Invasive species identified on the Department of Conservation and
Recreation's Virginia Invasive Plant Species List shall not be used to the
maximum extent practicable or without prior approval from the Department of
Environmental Quality.
13.
Continuous flow of perennial springs shall be maintained by the installation of
spring boxes, french drains, or other similar structures.
14. The permittee shall employ measures to
prevent spills of fuels or lubricants into state waters.
15. The permittee shall conduct activities in
accordance with the time-of-year restrictions recommended by the Virginia
Department of Wildlife Resources, the Virginia Marine Resources Commission, or
other interested and affected agencies, as contained, when applicable, in
Department of Environmental Quality VWP general permit coverage, and shall
ensure that all contractors are aware of the time-of-year restrictions
imposed.
16. Water quality
standards shall not be violated as a result of the construction
activities.
17. If stream
channelization or relocation is required, all work in surface waters shall be
done in the dry, unless otherwise authorized by the Department of Environmental
Quality, and all flows shall be diverted around the channelization or
relocation area until the new channel is stabilized. This work shall be
accomplished by leaving a plug at the inlet and outlet ends of the new channel
during excavation. Once the new channel has been stabilized, flow shall be
routed into the new channel by first removing the downstream plug and then the
upstream plug. The rerouted stream flow must be fully established before
construction activities in the old stream channel can begin.
C. Road crossings.
1. Access roads and associated bridges,
pipes, and culverts shall be constructed to minimize the adverse effects on
surface waters to the maximum extent practicable. Access roads constructed
above preconstruction elevations and contours in surface waters must be
bridged, piped, or culverted to maintain surface flows.
2. Installation of road crossings shall occur
in the dry via the implementation of cofferdams, sheetpiling, stream
diversions, or similar structures.
D. Utility lines.
1. All utility line work in surface waters
shall be performed in a manner that minimizes disturbance, and the area must be
returned to its preconstruction elevations and contours with topsoil from the
impact area where practicable and restored within 30 days of completing work in
the area, unless otherwise authorized the Department of Environmental Quality.
Restoration shall be the seeding of planting of the same vegetation cover type
originally present, including any necessary supplemental erosion control
grasses. Invasive specifies identified on the Department of Conservation and
Recreation's Virginia Invasive Plant Species List shall not be used to the
maximum extent practicable or without prior approval from the Department of
Environmental Quality.
2. Material
resulting from trench excavation may be temporarily sidecast into wetlands not
to exceed a total of 90 days, provided the material is not placed in a manner
such that it is dispersed by currents or other forces.
3. The trench for a utility line cannot be
constructed in a manner that drains wetlands (e.g., backfilling with extensive
gravel layers creating a french drain effect.). For example, utility lines may
be backfilled with clay blocks to ensure that the trench does not drain surface
waters through which the utility line is installed.
E. Stream modification and stream bank
protection.
1. Riprap bank stabilization shall
be of an appropriate size and design in accordance with the Virginia Erosion
and Sediment Control Handbook, Third Edition, 1992.
2. Riprap apron for all outfalls shall be
designed in accordance with the Virginia Erosion and Sediment Control Handbook,
Third Edition, 1992.
3. For stream
bank protection activities, the structure and backfill shall be placed as close
to the stream bank as practicable. No material shall be placed in excess of the
minimum necessary for erosion protection.
4. All stream bank protection structures
shall be located to eliminate or minimize impacts to vegetated wetlands to the
maximum extent practicable.
5.
Asphalt and materials containing asphalt or other toxic substances shall not be
used in the construction of submerged sills or breakwaters.
6. Redistribution of existing stream
substrate for the purpose of erosion control is prohibited.
7. No material removed from the stream bottom
shall be disposed of in surface waters, unless otherwise authorized by this VWP
general permit.
F.
Dredging.
1. Dredging depths shall be
determined and authorized according to the proposed use and controlling depths
outside the area to be dredged.
2.
Dredging shall be accomplished in a manner that minimizes disturbance of the
bottom and minimizes turbidity levels in the water column.
3. If evidence of impaired water quality,
such as a fish kill, is observed during the dredging, dredging operations shall
cease, and the Department of Environmental Quality shall be notified
immediately.
4. Barges used for the
transportation of dredge material shall be filled in such a manner to prevent
the overflow of dredged materials.
5. Double handling of dredged material in
state waters shall not be permitted.
6. For navigation channels the following
shall apply:
a. A buffer of four times the
depth of the dredge cut shall be maintained between the bottom edge of the
design channel and the channelward limit of wetlands, or a buffer of 15 feet
shall be maintained from the dredged cut and the channelward edge of wetlands,
whichever is greater. This landward limit of buffer shall be flagged and
inspected prior to construction.
b.
Side slope cuts of the dredging area shall not exceed a
two-horizontal-to-one-vertical slope to prevent slumping of material into the
dredged area.
7. A
dredged material management plan for the designated upland disposal site shall
be submitted and approved 30 days prior to initial dredging activity.
8. Pipeline outfalls and spillways shall be
located at opposite ends of the dewatering area to allow for maximum retention
and settling time. Filter fabric shall be used to line the dewatering area and
to cover the outfall pipe to further reduce sedimentation to state
waters.
9. The dredge material
dewatering area shall be of adequate size to contain the dredge material and to
allow for adequate dewatering and settling out of sediment prior to discharge
back into state waters.
10. The
dredge material dewatering area shall utilize an earthen berm or straw bales
covered with filter fabric along the edge of the area to contain the dredged
material, filter bags, or other similar filtering practices, any of which shall
be properly stabilized prior to placing the dredged material within the
containment area.
11. Overtopping
of the dredge material containment berms with dredge materials shall be
strictly prohibited.
G.
Stormwater management facilities.
1.
Stormwater management facilities shall be installed in accordance with best
management practices and watershed protection techniques (e.g., vegetated
buffers, siting considerations to minimize adverse effects to aquatic
resources, bioengineering methods incorporated into the facility design to
benefit water quality and minimize adverse effects to aquatic resources) that
provide for long-term aquatic resources protection and enhancement, to the
maximum extent practicable.
2.
Compensation for unavoidable impacts shall not be allowed within maintenance
areas of stormwater management facilities.
3. Maintenance activities within stormwater
management facilities shall not require additional permit coverage or
compensation provided that the maintenance activities do not exceed the
original contours of the facility, as approved and constructed, and is
accomplished in designated maintenance areas as indicated in the facility
maintenance or design plan or when unavailable, an alternative plan approved by
the Department of Environmental Quality.
Part II.
Construction and Compensation Requirements, Monitoring, and Reporting.
A. Minimum compensation
requirements.
1. The permittee shall provide
any required compensation for impacts in accordance with the conditions in this
VWP general permit, the coverage letter, and the chapter promulgating the
general permit. For all compensation that requires a protective mechanism,
including preservation of surface waters or buffers, the permittee shall record
the approved protective mechanism in the chain of title to the property, or an
equivalent instrument for government-owned lands, and proof of recordation
shall be submitted to the Department of Environmental Quality prior to
commencing impacts in surface waters.
2. Compensation options that may be
considered under this VWP general permit shall meet the criteria in §
62.1-44.15:23 of the Code of
Virginia, 9VAC25-210-116, and
9VAC25-690-70.
3. The permittee-responsible compensation
site or sites depicted in the conceptual compensation plan submitted with the
application shall constitute the compensation site. A site change may require a
modification to coverage.
4. For
compensation involving the purchase of mitigation bank credits or the purchase
of in-lieu fee program credits, the permittee shall not initiate work in
permitted impact areas until documentation of the mitigation bank credit
purchase or of the in-lieu fee program credit purchase has been submitted to
and received by the Department of Environmental Quality.
5. The final compensation plan shall be
submitted to and approved by the department prior to a construction activity in
permitted impact areas. The department shall review and provide written
comments on the final plan within 30 days of receipt or it shall be deemed
approved. The final plan as approved by the department shall be an enforceable
requirement of any coverage under this VWP general permit. Deviations from the
approved final plan shall be submitted and approved in advance by the
department.
a. The final permittee-responsible
wetlands compensation plan shall include:
(1)
The complete information on all components of the conceptual compensation
plan.
(2) 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.
(3) The approved protective mechanism. The
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 the Department of Environmental Quality prior
to commencing impacts in surface waters.
b. The final permittee-responsible stream
compensation plan shall include:
(1) The
complete information on all components of the conceptual compensation
plan.
(2) An evaluation,
discussion, and plan drawing or drawings of existing conditions on the proposed
compensation stream, including the identification of functional and physical
deficiencies for which the measures are proposed, and summary of geomorphologic
measurements (e.g., stream width, entrenchment ratio, width-depth ratio,
sinuosity, slope, substrate, etc.); a site access plan; 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; an abatement and control plan for
undesirable plant species; an erosion and sedimentation control plan, if
appropriate; a construction schedule; 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 protection of the compensation site or
sites, including all surface waters and buffer areas within its
boundaries.
(3) The approved
protective mechanism. The 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 the Department of
Environmental Quality prior to commencing impacts in surface waters.
6. The following
criteria shall apply to permittee-responsible wetland or stream compensation:
a. The vegetation used shall be native
species common to the area, shall be suitable for growth in local wetland or
riparian conditions, and shall be from areas within the same or adjacent U.S.
Department of Agriculture Plant Hardiness Zone or Natural Resources
Conservation Service Land Resource Region as that of the project site. Planting
of woody plants shall occur when vegetation is normally dormant, unless
otherwise approved in the final wetlands or stream compensation plan or
plans.
b. All work in permitted
impact areas shall cease if compensation site construction has not commenced
within 180 days of commencement of project construction, unless otherwise
authorized by the department.
c.
The Department of Environmental Quality shall be notified in writing prior to
the initiation of construction activities at the compensation site.
d. Point sources of stormwater runoff shall
be prohibited from entering a wetland compensation site prior to treatment by
appropriate best management practices. Appropriate best management practices
may include sediment traps, grassed waterways, vegetated filter strips, debris
screens, oil and grease separators, or forebays.
e. The success of the compensation shall be
based on meeting the success criteria established in the approved final
compensation plan.
f. If the
wetland or stream compensation area fails to meet the specified success
criteria in a particular monitoring year, other than the final monitoring year,
the reasons for this failure shall be determined, and a corrective action plan
shall be submitted to the Department of Environmental Quality for approval with
or before that year's monitoring report. The corrective action plan shall
contain at minimum the proposed actions, a schedule for those actions, and a
monitoring plan, and shall be implemented by the permittee in accordance with
the approved schedule. Should significant changes be necessary to ensure
success, the required monitoring cycle shall begin again, with monitoring year
one being the year that the changes are complete, as confirmed by the
Department of Environmental Quality. If the wetland or stream compensation area
fails to meet the specified success criteria by the final monitoring year or if
the wetland or stream compensation area has not met the stated restoration
goals, reasons for this failure shall be determined and a corrective action
plan, including proposed actions, a schedule, and a monitoring plan, shall be
submitted with the final year monitoring report for Department of Environmental
Quality approval. Corrective action shall be implemented by the permittee in
accordance with the approved schedule. Annual monitoring shall be required to
continue until two sequential, annual reports indicate that all criteria have
been successfully satisfied and the site has met the overall restoration goals
(e.g., that corrective actions were successful).
g. The surveyed wetland boundary for the
wetlands compensation site shall be based on the results of the hydrology,
soils, and vegetation monitoring data and shall be shown on the site plan.
Calculation of total wetland acreage shall be based on that boundary at the end
of the monitoring cycle. Data shall be submitted by December 31 of the final
monitoring year.
h. Herbicides or
algicides shall not be used in or immediately adjacent to the wetlands or
stream compensation site or sites without prior authorization by the
department. All vegetation removal shall be done by manual means, unless
authorized by the Department of Environmental Quality in advance.
B. Impact site
construction monitoring.
1. Construction
activities authorized by this permit that are within impact areas shall be
monitored and documented. The monitoring shall consist of:
a. Preconstruction photographs taken at each
impact area prior to initiation of activities within impact areas. Photographs
shall remain on the project site and depict the impact area and the nonimpacted
surface waters immediately adjacent to and downgradient of each impact area.
Each photograph shall be labeled to include the following information: permit
number, impact area number, date and time of the photograph, name of the person
taking the photograph, photograph orientation, and photograph subject
description.
b. Site inspections
shall be conducted by the permittee or the permittee's qualified designee once
every calendar month during activities within impact areas. Monthly inspections
shall be conducted in the following areas: all authorized permanent and
temporary impact areas; all avoided surface waters, including wetlands, stream
channels, and open water; surface water areas within 50 feet of any land
disturbing activity and within the project or right-of-way limits; and all
on-site permanent preservation areas required under this permit. Observations
shall be recorded on the inspection form provided by the Department of
Environmental Quality. The form shall be completed in its entirety for each
monthly inspection and shall be kept on site and made available for review by
the Department of Environmental Quality staff upon request during normal
business hours. Inspections are not required during periods of no activity
within impact areas.
2.
Monitoring of water quality parameters shall be conducted during permanent
relocation of perennial streams through new channels in the manner noted in
this subdivision. The permittee shall report violations of water quality
standards to the Department of Environmental Quality in accordance with the
procedures in
9VAC25-690-100 Part II E.
Corrective measures and additional monitoring may be required if water quality
standards are not met. Reporting shall not be required if water quality
standards are not violated.
a. A sampling
station shall be located upstream and immediately downstream of the relocated
channel.
b. Temperature, pH, and
dissolved oxygen (D.O.) measurements shall be taken every 30 minutes for at
least two hours at each station prior to opening the new channels and
immediately before opening new channels.
c. Temperature, pH, and D.O. readings shall
be taken after opening the channels and every 30 minutes for at least three
hours at each station.
C. Permittee-responsible wetland compensation
site monitoring.
1. An as-built ground survey,
or an aerial survey provided by a firm specializing in aerial surveys, shall be
conducted for the entire compensation site or sites, including invert
elevations for all water elevation control structures and spot elevations
throughout the site or sites. Aerial surveys shall include the variation from
actual ground conditions, such as +/- 0.2 feet. Either type of survey shall be
certified by a licensed surveyor or by a registered professional engineer to
conform to the design plans. The survey shall be submitted within 60 days of
completing compensation site construction. Changes or deviations in the
as-built survey or aerial survey shall be shown on the survey and explained in
writing.
2. Photographs shall be
taken at the compensation site or sites from the permanent markers identified
in the final compensation plan, and established to ensure that the same
locations and view directions at the site or sites are monitored in each
monitoring period. These photographs shall be taken after the initial planting
and at a time specified in the final compensation plan during every monitoring
year.
3. Compensation site
monitoring shall begin on day one of the first complete growing season
(monitoring year one) after wetland compensation site construction activities,
including planting, have been completed. Monitoring shall be required for
monitoring years one, two, three, and five, unless otherwise approved by the
Department of Environmental Quality. In all cases, if all success criteria have
not been met in the final monitoring year, then monitoring shall be required
for each consecutive year until two annual sequential reports indicate that all
criteria have been successfully satisfied.
4. The establishment of wetland hydrology
shall be measured during the growing season, with the location and number of
monitoring wells, and frequency of monitoring for each site, set forth in the
final monitoring plan. Hydrology monitoring well data shall be accompanied by
precipitation data, including rainfall amounts either from on site or from the
closest weather station. Once the wetland hydrology success criteria have been
satisfied for a particular monitoring year, monitoring may be discontinued for
the remainder of that monitoring year following Department of Environmental
Quality approval. After a period of three monitoring years, the permittee may
request that hydrology monitoring be discontinued, providing that adequate
hydrology has been established and maintained. Hydrology monitoring shall not
be discontinued without written approval from the Department of Environmental
Quality.
5. The presence of hydric
soils or soils under hydric conditions shall be evaluated in accordance with
the final compensation plan.
6. The
establishment of wetland vegetation shall be in accordance with the final
compensation plan. Monitoring shall take place in August, September, or October
during the growing season of each monitoring year, unless otherwise authorized
in the monitoring plan.
7. The
presence of undesirable plant species shall be documented.
8. All wetland compensation monitoring
reports shall be submitted in accordance with
9VAC25-690-100 Part II E
6.
D.
Permittee-responsible stream compensation and monitoring.
1. Riparian buffer restoration activities
shall be detailed in the final compensation plan and shall include, as
appropriate, the planting of a variety of native species currently growing in
the site area, including appropriate seed mixtures and woody species that are
bare root, balled, or burlapped. A minimum buffer width of 50 feet, measured
from the top of the stream bank at bankfull elevation landward on both sides of
the stream, shall be required where practical.
2. The installation of root wads, vanes, and
other instream structures, shaping of the stream banks, and channel relocation
shall be completed in the dry whenever practicable.
3. Livestock access to the stream and
designated riparian buffer shall be limited to the greatest extent
practicable.
4. Stream channel
restoration activities shall be conducted in the dry or during low flow
conditions. When site conditions prohibit access from the streambank or upon
prior authorization from the Department of Environmental Quality, heavy
equipment may be authorized for use within the stream channel.
5. Photographs shall be taken at the
compensation site from the vicinity of the permanent photo-monitoring stations
identified in the final compensation plan. The photograph orientation shall
remain constant during all monitoring events. At a minimum, photographs shall
be taken from the center of the stream, facing downstream, with a sufficient
number of photographs to view the entire length of the restoration site.
Photographs shall document the completed restoration conditions. Photographs
shall be taken prior to site activities, during instream and riparian
compensation construction activities, within one week of completion of
activities, and during at least one day of each monitoring year to depict
restored conditions.
6. An as-built
ground survey, or an aerial survey provided by a firm specializing in aerial
surveys, shall be conducted for the entire compensation site or sites. Aerial
surveys shall include the variation from actual ground conditions, such as +/-
0.2 feet. The survey shall be certified by the licensed surveyor or by a
registered, professional engineer to conform to the design plans. The survey
shall be submitted within 60 days of completing compensation site construction.
Changes or deviations from the final compensation plans in the as-built survey
or aerial survey shall be shown on the survey and explained in
writing.
7. Compensation site
monitoring shall begin on day one of the first complete growing season
(monitoring year one) after stream compensation site construction activities,
including planting, have been completed. Monitoring shall be required for
monitoring years one and two, unless otherwise approved by the Department of
Environmental Quality. In all cases, if all success criteria have not been met
in the final monitoring year, then monitoring shall be required for each
consecutive year until two annual sequential reports indicate that all criteria
have been successfully satisfied.
8. All stream compensation site monitoring
reports shall be submitted by in accordance with
9VAC25-690-100 Part II E
6.
E. Reporting.
1. Written communications required by this
VWP general permit shall be submitted to the appropriate Department of
Environmental Quality office. The VWP general permit tracking number shall be
included on all correspondence.
2.
The Department of Environmental Quality shall be notified in writing prior to
the start of construction activities at the first permitted impact
area.
3. A construction status
update form provided by the Department of Environmental Quality shall be
completed and submitted to the Department of Environmental Quality twice per
year for the duration of coverage under a VWP general permit. Forms completed
in June shall be submitted by or on July 10, and forms completed in December
shall be submitted by or on January 10. The form shall include reference to the
VWP permit tracking number and one of the following statements for each
authorized surface water impact location:
a.
Construction activities have not yet started;
b. Construction activities have
started;
c. Construction activities
have started but are currently inactive; or
d. Construction activities are
complete.
4. The
Department of Environmental Quality shall be notified in writing within 30 days
following the completion of all activities in all authorized impact
areas.
5. The Department of
Environmental Quality shall be notified in writing prior to the initiation of
activities at the permittee-responsible compensation site. The notification
shall include a projected schedule of activities and construction
completion.
6. All
permittee-responsible compensation site monitoring reports shall be submitted
annually by December 31, with the exception of the last year, in which case the
report shall be submitted at least 60 days prior to the expiration of the
general permit, unless otherwise approved by the Department of Environmental
Quality.
a. All wetland compensation site
monitoring reports shall include, as applicable, the following:
(1) General description of the site including
a site location map identifying photo-monitoring stations, vegetative and soil
monitoring stations, monitoring wells, and wetland zones.
(2) Summary of activities completed during
the monitoring year, including alterations or maintenance conducted at the
site.
(3) Description of monitoring
methods.
(4) Analysis of all
hydrology information, including monitoring well data, precipitation data, and
gauging data from streams or other open water areas, as set forth in the final
compensation plan.
(5) Evaluation
of hydric soils or soils under hydric conditions, as appropriate.
(6) Analysis of all vegetative community
information, including woody and herbaceous species, both planted and
volunteers, as set forth in the final compensation plan.
(7) Photographs labeled with the permit
number, the name of the compensation site, the photo-monitoring station number,
the photograph orientation, the date and time of the photograph, the name of
the person taking the photograph, and a brief description of the photograph
subject. This information shall be provided as a separate attachment to each
photograph, if necessary. Photographs taken after the initial planting shall be
included in the first monitoring report after planting is complete.
(8) Discussion of wildlife or signs of
wildlife observed at the compensation site.
(9) Comparison of site conditions from the
previous monitoring year and reference site.
(10) Discussion of corrective measures or
maintenance activities to control undesirable species, to repair damaged water
control devices, or to replace damaged planted vegetation.
(11) Corrective action plan that includes
proposed actions, a schedule, and monitoring plan.
b. All stream compensation site monitoring
reports shall include, as applicable, the following:
(1) General description of the site including
a site location map identifying photo-monitoring stations and monitoring
stations.
(2) Summary of activities
completed during the monitoring year, including alterations or maintenance
conducted at the site.
(3)
Description of monitoring methods.
(4) Evaluation and discussion of the
monitoring results in relation to the success criteria and overall goals of
compensation.
(5) Photographs shall
be labeled with the permit number, the name of the compensation site, the
photo-monitoring station number, the photograph orientation, the date and time
of the photograph, the name of the person taking the photograph, and a brief
description of the photograph subject. Photographs taken prior to compensation
site construction activities, during instream and riparian restoration
activities, and within one week of completion of activities shall be included
in the first monitoring report.
(6)
Discussion of alterations, maintenance, or major storm events resulting in
significant change in stream profile or cross section, and corrective actions
conducted at the stream compensation site.
(7) Documentation of undesirable plant
species and summary of abatement and control measures.
(8) Summary of wildlife or signs of wildlife
observed at the compensation site.
(9) Comparison of site conditions from the
previous monitoring year and reference site, and as-built survey, if
applicable.
(10) Corrective action
plan that includes proposed actions, a schedule and monitoring plan.
(11) Additional submittals that were approved
by the Department of Environmental Quality in the final compensation
plan.
7. The
permittee shall notify the Department of Environmental Quality in writing when
unusual or potentially complex conditions are encountered that require debris
removal or involve potentially toxic substance. Measures to remove the
obstruction, material, or toxic substance or to change the location of a
structure are prohibited until approved by the Department of Environmental
Quality.
8. The permittee shall
report fish kills or spills of oil or fuel immediately upon discovery. If
spills or fish kills occur between the hours of 8:15 a.m. to 5 p.m., Monday
through Friday, the appropriate Department of Environmental Quality regional
office shall be notified; otherwise, the Department of Emergency Management
shall be notified at 1-800-468-8892.
9. Violations of state water quality
standards shall be reported to the appropriate Department of Environmental
Quality office no later than the end of the business day following
discovery.
10. The permittee shall
notify the Department of Environmental Quality no later than the end of the
third business day following the discovery of additional impacts to surface
waters including wetlands, stream channels, and open water that are not
authorized by the Department of Environmental Quality or to any required
preservation areas. The notification shall include photographs, estimated
acreage or linear footage of impacts, and a description of the
impacts.
11. Submittals required by
this VWP general permit shall contain the following signed certification
statement:
"I certify under penalty of law that this document and all attachments were prepared under my direction or supervision in accordance with a system designed to assure that qualified personnel properly gather and evaluate the information submitted. Based on my inquiry of the person or persons who manage the system, or those persons directly responsible for gathering the information, the information submitted is, to the best of my knowledge and belief, true, accurate, and complete. I am aware that there are significant penalties for submitting false information, including the possibility of fine and imprisonment for knowing violation."
Part III.
Conditions Applicable to All VWP General Permits.
A. Duty to comply. The permittee shall comply
with all conditions, limitations, and other requirements of the VWP general
permit; any requirements in coverage granted under this VWP general permit; the
Clean Water Act, as amended; and the State Water Control Law and regulations
adopted pursuant to it. Any VWP general permit violation or noncompliance is a
violation of the Clean Water Act and State Water Control Law and is grounds for
(i) enforcement action, (ii) VWP general permit coverage termination for cause,
(iii) VWP general permit coverage revocation, (iv) denial of application for
coverage, or (v) denial of an application for a modification to VWP general
permit coverage. Nothing in this VWP general permit shall be construed to
relieve the permittee of the duty to comply with all applicable federal and
state statutes, regulations, and toxic standards and prohibitions.
B. Duty to mitigate. The permittee shall take
all reasonable steps to minimize or prevent impacts in violation of the VWP
general permit that may have a reasonable likelihood of adversely affecting
human health or the environment.
C.
Reopener. This VWP general permit may be reopened to modify its conditions when
the circumstances on which the previous VWP general permit was based have
materially and substantially changed, or special studies conducted by the
department or the permittee show material and substantial change since the time
the VWP general permit was issued and thereby constitute cause for revoking and
reissuing the VWP general permit.
D. Compliance with state and federal law.
Compliance with this VWP general permit constitutes compliance with the VWP
permit requirements of the State Water Control Law. Nothing in this VWP general
permit shall be construed to preclude the institution of any legal action under
or relieve the permittee from any responsibilities, liabilities, or other
penalties established pursuant to any other state law or regulation or under
the authority preserved by § 510 of the Clean Water Act.
E. Property rights. The issuance of this VWP
general permit does not convey property rights in either real or personal
property or any exclusive privileges, nor does it authorize injury to private
property, any invasion of personal property rights, or any infringement of
federal, state, or local laws or regulations.
F. Severability. The provisions of this VWP
general permit are severable.
G.
Inspection and entry. Upon presentation of credential, the permittee shall
allow the department or any duly authorized agent of the department, at
reasonable times and under reasonable circumstances, to enter upon the
permittee's property, public or private, and have access to inspect and copy
any records that must be kept as part of the VWP general permit conditions; to
inspect any facilities, operations, or practices (including monitoring and
control equipment) regulated or required under the VWP general permit; and to
sample or monitor any substance, parameter, or activity for the purpose of
ensuring compliance with the conditions of the VWP general permit or as
otherwise authorized by law. For the purpose of this section, the time for
inspection shall be deemed reasonable during regular business hours. Nothing
contained herein shall make an inspection time unreasonable during an
emergency.
H. Transferability of
VWP general permit coverage. VWP general permit coverage may be transferred to
another permittee when all of the criteria listed in this subsection are met.
On the date of the VWP general permit coverage transfer, the transferred VWP
general permit coverage shall be as fully effective as if it had been granted
directly to the new permittee.
1. The current
permittee notifies the department of the proposed transfer of the general
permit coverage and provides a written agreement between the current and new
permittees containing a specific date of transfer of VWP general permit
responsibility, coverage, and liability to the new permittee, or that the
current permittee will retain such responsibility, coverage, or liability,
including liability for compliance with the requirements of enforcement
activities related to the authorized activity.
2. The department does not within 15 days
notify the current and new permittees of the board's intent to modify or revoke
and reissue the VWP general permit.
I. Notice of planned change. VWP general
permit coverage may be modified subsequent to issuance in accordance with
9VAC25-690-80.
J. VWP general permit coverage termination
for cause. VWP general permit coverage is subject to termination for cause by
the department after public notice and opportunity for a hearing in accordance
with 9VAC25-210-180. Reasons for
termination for cause are as follows:
1.
Noncompliance by the permittee with any provision of this chapter, any
condition of the VWP general permit, or any requirement in general permit
coverage;
2. The permittee's
failure in the application or during the process of granting VWP general permit
coverage 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 authorized activity endangers human health or the
environment and can be regulated to acceptable levels by a modification to VWP
general permit coverage or a termination;
5. A change in any condition that requires
either a temporary or permanent reduction or elimination of any activity
controlled by the VWP general permit; or
6. A determination that the authorized
activity has ceased and that the compensation for unavoidable adverse impacts
has been successfully completed.
K. The department may terminate VWP general
permit coverage without cause when the permittee is no longer a legal entity
due to death or 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
9VAC25-210-180 and §
62.1-44.15:25 of the Code of
Virginia.
L. VWP general permit
coverage termination by consent. The permittee shall submit a request for
termination by consent within 30 days of completing or canceling all authorized
activities requiring notification under
9VAC25-690-50 A and all
compensatory mitigation requirements. When submitted for project completion,
the request for termination by consent shall constitute a notice of project
completion in accordance with
9VAC25-210-130 F. The director may
accept this termination of coverage 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 general permit
tracking 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 the VWP general permit and general permit coverage have been completed. I understand that by submitting this notice of termination I am no longer authorized to perform activities in surface waters in accordance with the VWP general permit and general permit coverage, and that performing activities in surface waters is unlawful where the activity is not authorized by the VWP permit or coverage, unless otherwise excluded from obtaining coverage. I also understand that the submittal of this notice does not release me from liability for any violations of the VWP general permit or coverage."
b. For
project cancellation:
"I certify under penalty of law that the activities and any required compensatory mitigation authorized by the VWP general permit and general permit coverage will not occur. I understand that by submitting this notice of termination I am no longer authorized to perform activities in surface waters in accordance with the VWP general permit and general permit coverage, and that performing activities in surface waters is unlawful where the activity is not authorized by the VWP permit or coverage, unless otherwise excluded from obtaining coverage. I also understand that the submittal of this notice does not release me from liability for any violations of the VWP general permit or coverage, nor does it allow me to resume the authorized activities without reapplication and coverage."
c. For events beyond permittee control, the
permittee shall provide a detailed explanation of the events, to be approved by
the Department of Environmental Quality, and the following certification
statement:
"I certify under penalty of law that the activities or the required compensatory mitigation authorized by the VWP general permit and general permit coverage have changed as the result of events beyond my control (see attached). I understand that by submitting this notice of termination I am no longer authorized to perform activities in surface waters in accordance with the VWP general permit and general permit coverage, and that performing activities in surface waters is unlawful where the activity is not authorized by the VWP permit or coverage, unless otherwise excluded from obtaining coverage. I also understand that the submittal of this notice does not release me from liability for any violations of the VWP general permit or coverage, nor does it allow me to resume the authorized activities without reapplication and coverage."
M. Civil and criminal liability. Nothing in
this VWP general permit shall be construed to relieve the permittee from civil
and criminal penalties for noncompliance.
N. Oil and hazardous substance liability.
Nothing in this VWP general permit shall be construed to preclude the
institution of legal action or relieve the permittee from any responsibilities,
liabilities, or penalties to which the permittee is or may be subject under
§ 311 of the Clean Water Act or §§
62.1-44.34:14 through
62.1-44.34:23 of the State Water
Control Law.
O. Duty to cease or
confine activity. It shall not be a defense for a permittee in an enforcement
action that it would have been necessary to halt or reduce the activity for
which VWP general permit coverage has been granted in order to maintain
compliance with the conditions of the VWP general permit or coverage.
P. Duty to provide information.
1. The permittee shall furnish to the
department any information that the department may request to determine whether
cause exists for modifying, revoking, or terminating VWP permit coverage or to
determine compliance with the VWP general permit or general permit coverage.
The permittee shall also furnish to the department, upon request, copies of
records required to be kept by the permittee.
2. Plans, maps, conceptual reports, and other
relevant information shall be submitted as required by the department prior to
commencing construction.
Q. Monitoring and records requirements.
1. Monitoring of parameters, other than
pollutants, shall be conducted according to approved analytical methods as
specified in the VWP general permit. Analysis of pollutants will be conducted
according to 40 CFR Part 136 as published in the July 1, 2023, update,
Guidelines Establishing Test Procedures for the Analysis of
Pollutants.
2. Samples and
measurements taken for the purpose of monitoring shall be representative of the
monitored activity.
3. The
permittee shall retain records of all monitoring information, including all
calibration and maintenance records and all original strip chart or electronic
recordings for continuous monitoring instrumentation, copies of all reports
required by the VWP general permit, and records of all data used to complete
the application for coverage under the VWP general permit, for a period of at
least three years from the date of general permit expiration. This period may
be extended by request of the department at any time.
4. Records of monitoring information shall
include, as appropriate:
a. The date, exact
place, and time of sampling or measurements;
b. The name of the individuals who performed
the sampling or measurements;
c.
The date and time the analyses were performed;
d. The name of the individuals who performed
the analyses;
e. The analytical
techniques or methods supporting the information such as observations,
readings, calculations, and bench data used;
f. The results of such analyses;
and
g. Chain of custody
documentation.
R. Unauthorized discharge of pollutants.
Except in compliance with this VWP general permit, it shall be unlawful for the
permittee to:
1. Discharge into state waters
sewage, industrial wastes, other wastes, or any noxious or deleterious
substances;
2. Excavate in a
wetland;
3. Otherwise alter the
physical, chemical, or biological properties of state waters and make them
detrimental to the public health, to animal or aquatic life, or to the uses of
such waters for domestic or industrial consumption, for recreation, or for
other uses; or
4. On and after
October 1, 2001, conduct the following activities in a wetland:
a. New activities to cause draining that
significantly alters or degrades existing wetland acreage or
functions;
b. Filling or
dumping;
c. Permanent flooding or
impounding; or
d. New activities
that cause significant alteration or degradation of existing wetland acreage or
functions.
S.
Duty to reapply. Any permittee desiring to continue a previously authorized
activity after the expiration date of the VWP general permit shall comply with
the provisions in
9VAC25-690-27.
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.
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