Current through Register Vol. 41, No. 3, September 23, 2024
A. Any person
granted coverage under the VWP general permit effective August 2, 2016, may
permanently or temporarily impact up to two acres of nontidal wetlands or open
water and up to 1,500 linear feet of nontidal stream bed for general
development and certain mining activities, provided that:
1. The applicant submits notification as
required in
9VAC25-690-50 and
9VAC25-690-60.
2. The applicant remits any required permit
application fee.
3. The applicant
receives general permit coverage from the Department of Environmental Quality
and complies with the limitations and other requirements of the VWP general
permit; the general permit coverage letter; the Clean Water Act, as amended;
and the State Water Control Law and attendant regulations.
4. The applicant has not been required to
obtain a VWP individual permit under 9VAC25-210 for the proposed project
impacts. The applicant, at his discretion, may seek a VWP individual permit, or
coverage under another applicable VWP general permit, in lieu of coverage under
this VWP general permit.
5.
Impacts, both temporary and permanent, result from a single and complete
project including all attendant features.
a.
Where a road segment (e.g., the shortest segment of a road with independent
utility that is part of a larger project) has multiple crossings of surface
waters (several single and complete projects), the department may, at its
discretion, require a VWP individual permit.
b. For the purposes of this chapter, when an
interchange has multiple crossings of surface waters, the entire interchange
shall be considered the single and complete project.
6. The stream impact criterion applies to all
components of the project, including structures and stream channel
manipulations.
7. Dredging does not
exceed 5,000 cubic yards.
8. When
required, compensation for unavoidable impacts is provided in accordance with
§ 62.1-44.15:23 of the Code of Virginia,
9VAC25-690-70, and
9VAC25-210-116.
B. Activities that may be granted
coverage under this VWP general permit include the following:
1. Residential, commercial, institutional.
The construction or expansion of building foundations, building pads, and
attendant features for residential, commercial, and institutional development
activities.
a. Residential developments
include both single and multiple units.
b. Commercial developments include retail
stores, industrial facilities, restaurants, business parks, office buildings,
and shopping centers.
c.
Institutional developments include schools, fire stations, government office
buildings, judicial buildings, public works buildings, libraries, hospitals,
and places of worship.
d. Attendant
features include roads, parking lots, garages, yards, utility lines, stormwater
management facilities, and recreation facilities (such as playgrounds, playing
fields, and golf courses). Attendant features must be necessary for the use and
maintenance of the structures.
2. Recreational facilities. The construction
or expansion of recreational facilities and small support facilities.
a. Recreational facilities include hiking
trails, bike paths, horse paths, nature centers, and campgrounds (but not
trailer parks). Boat ramps (concrete or open-pile timber), boathouses, covered
boat lifts, mooring piles and dolphins, fender piles, camels (wooden floats
serving as fenders alongside piers), and open-pile piers (including floating
piers, travel-lift piers, etc.) associated with recreational facilities are
also included.
b. Recreational
facilities do not include as a primary function the use of motor vehicles,
buildings, or impervious surfaces.
c. Golf courses and ski area expansions may
qualify as recreational facilities provided the construction of the proposed
facility does not result in a substantial deviation from the natural contours
and the facility is designed to minimize adverse effects on state waters and
riparian areas. Measures that may be used to minimize adverse effects on waters
and riparian areas include the implementation of integrated pest management
plans, adequate stormwater management, vegetated buffers, and fertilizer
management plans.
d. Small support
facilities are authorized provided they are directly related to the
recreational activity. Small support facilities include maintenance storage
buildings and stables.
e. The
following do not qualify as recreational facilities: hotels, restaurants,
playing fields (e.g., baseball, soccer, or football fields), basketball and
tennis courts, racetracks, stadiums, arenas, or new ski areas.
f. The recreational facility must have an
adequate water quality management plan, such as a stormwater management plan,
to ensure that the recreational facility results in no substantial adverse
effects to water quality.
3. Stormwater management facilities. The
construction, maintenance, and excavation of stormwater management facilities;
the installation and maintenance of water control structures, outfall
structures, and emergency spillways; and the maintenance dredging of existing
stormwater management facilities.
a.
Stormwater management facilities include stormwater ponds and facilities,
detention basins, retention basins, traps, and other facilities designed to
reduce pollutants in stormwater runoff.
b. The stormwater management facility must:
(1) To the maximum extent practicable, be
designed to maintain preconstruction downstream flow conditions (e.g.,
location, capacity, and flow rates).
(2) Not permanently restrict or impede the
passage of normal or expected high flows, unless the primary purpose of the
facility is to impound waters.
(3)
Withstand expected high flows.
(4)
To the maximum extent practicable, provide for retaining excess flows from the
site, provide for maintaining surface flow rates from the site similar to
preconstruction conditions, and not increase water flows from the project site,
relocate water, or redirect flow beyond preconstruction conditions.
(5) To the maximum extent practicable, reduce
adverse effects such as flooding or erosion downstream and upstream of the
project site, unless the facility is part of a larger system designed to manage
water flows.
(6) Be designed using
best management practices (BMPs) and watershed protection techniques. Examples
of such BMPs are described in the Virginia Stormwater Management Handbook and
include for ebays, vegetated buffers, bioengineering methods, and siting
considerations to minimize adverse effects to aquatic resources.
c. Maintenance excavation shall be
in accordance with the original facility maintenance plan, or when unavailable,
an alternative plan approved by the Department of Environmental Quality, and
shall not exceed to the maximum extent practicable, the character, scope, or
size detailed in the original design of the facility.
4. Mining facilities. The construction or
expansion of mining facilities and attendant features for a single and complete
project. This general permit may not be used to authorize impacts from
in-stream mining activities or operations as defined in
9VAC25-690-10.
a. Mining facilities include activities
directly associated with aggregate mining (e.g., sand, gravel, and crushed or
broken stone); hard rock/mineral mining (e.g., metalliferous ores); and surface
coal, natural gas, and coalbed methane gas mining, as authorized by the
Virginia Department of Energy.
b.
Attendant features are authorized provided they are directly related to the
mining facility, and include access road construction, parking lots, offices,
maintenance shops, garages, and stormwater management facilities.
c. Both direct impacts (e.g., footprints of
all fill areas, road crossings, sediment ponds, and stormwater management
facilities; mining through state waters; stockpile of overburden, and
excavation) and indirect impacts (e.g., diversion of surface water and reach of
state waters affected by sediment pond pool and sediment transport) shall be
considered when granting coverage under this general permit.
C. The board waives the
requirement for coverage under a VWP general permit for activities that occur
in an isolated wetland of minimal ecological value, as defined in
9VAC25-210-10. Upon
request by the department, any person claiming this waiver shall demonstrate to
the satisfaction of the department that he qualifies for the waiver.
D. Coverage under VWP general permit does not
relieve the permittee of the responsibility to comply with any other applicable
federal, state, or local statute, ordinance, or regulation.
E. Coverage under a nationwide or regional
permit promulgated by the U.S. Army Corps of Engineers (USACE), and for which
the department has issued § 401 certification in accordance with
9VAC25-210-130
H as of August 2, 2016, shall constitute coverage under this VWP general permit
unless (i) a state program general permit (SPGP) is required and granted for
the activity or impact; or (ii) coverage under a VWP general permit is not
allowed pursuant to subdivision D 2 of § 62.1-44.15:21 of the State Water
Control Law.
F. Coverage under a
permit issued by the Department of Energy under the Virginia Coal Surface
Mining Control and Reclamation Act, Chapter 10 (§ 45.2-1000 et seq.) of
Title 45.2 of the Code of Virginia, where such permit authorizes activities
that may be permitted by this chapter and contains a mitigation plan for the
impacts from the mining activities, shall also constitute coverage under this
VWP general permit.
G. When the
department determines on a case-by-case basis that concerns for water quality
and the aquatic environment so indicate, the department may require a VWP
individual permit in accordance with
9VAC25-210-130
B rather than granting coverage under this VWP general permit.
Statutory Authority: § 62.1-44.15 of the Code of
Virginia; § 401 of the Clean Water Act (33 USC §
1251 et
seq.).
