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1999 SESSION
999225758Be it enacted by the General Assembly of Virginia:
1. That §§ 28.2-1308, 33.1-223.2:1, and 62.1-44.15:5 of the Code of Virginia are amended and reenacted as follows:
§ 28.2-1308. Standards for use and development of wetlands; utilization of guidelines.
A. The following standards shall apply to the use and development of wetlands and shall be considered in the determination of whether any permit required by this chapter should be granted or denied:
1. Wetlands of primary ecological significance shall not be altered so that the ecological systems in the wetlands are unreasonably disturbed; and
2. Development in Tidewater Virginia, to the maximum extent practical, shall be concentrated in wetlands of lesser ecological significance, in vegetated wetlands which have been irreversibly disturbed before July 1, 1972, in nonvegetated wetlands which have been irreversibly disturbed prior to January 1, 1983, and in areas of Tidewater Virginia outside of wetlands.
B. The provisions of guidelines promulgated by the Commission pursuant to § 28.2-1301 shall be considered in applying the standards listed in subsection A of this section.
C. When any activity authorized by a permit issued pursuant to this chapter is
conditioned upon compensatory mitigation for adverse impacts to wetlands, the
applicant may be permitted to satisfy all or part of such mitigation
requirements by the purchase or use of credits from any wetlands mitigation
bank, including any banks owned by the permit applicant, that has been approved
and is operating in accordance with applicable federal and state guidance,
laws, or regulations for the establishment, use and operation of mitigation
banks as long as: (1) the bank is in the same U.S.G.S. cataloging unit, as defined by
the Hydrologic Unit Map of the United States (U.S.G.S. 1980), or an adjacent
cataloging unit within the same river watershed, as to the impacted site, or it
meets all the conditions found in clauses (i) through (v) of this subsection;
(2) the bank is ecologically preferable to practicable on-site and off-site
individual mitigation options, as defined by federal wetland regulations; and (3) the
banking instrument, if approved after July 1, 1996, has been approved by a process
that included public review and comment. In no instance shall the purchase or
use of credits from a bank be allowed for the mitigation of impacts to wetlands
outside the river watershed in which the bank is located unless the applicant
demonstrates to the satisfaction of the Commission that (i) the impacts will
occur as a result of a Virginia Department of Transportation linear project or
as the result of a locality project for a locality whose jurisdiction crosses
multiple river watersheds; (ii) there is no practical same river watershed
mitigation alternative; (iii) the impacts are less than one acre within a
cataloging unit; (iv) there is no significant harm to water quality or fish and
wildlife resources within the river watershed of the impacted site; and (v)
impacts within the Chesapeake Bay watershed are mitigated within the Chesapeake
Bay watershed as close as possible to the impacted site.
§ 33.1-223.2:1. Wetlands mitigation banking.
When authorization is required by federal or state law for any project
affecting wetlands and such authorization is conditioned upon compensatory
mitigation for adverse impacts to wetlands, the Commonwealth Transportation
Commissioner is authorized to expend funds for the purchase of, or is
authorized to use, credits from any wetlands mitigation bank, including any
owned by the Department, that has been approved and is operating in accordance
with applicable federal and state guidance, law or regulations for the
establishment, use and operation of mitigation banks as long as: (1) the bank is in the same U.S.G.S.
cataloging unit, as defined by the Hydrologic Unit Map of the United States (U.S.G.S. 1980), or an
adjacent cataloging unit within the same river watershed, asto the impacted
site, or it meets all the conditions found in clauses (i) through (v) of this
subsection; (2) the bank is ecologically preferable to practicable on-site and
off-site individual mitigation options, as defined by federal wetland regulations;
and (3) the banking instrument, if approved after July 1, 1996, has been approved by
a process that included public review and comment. In no instance shall the
purchase or use of credits from a bank be allowed for the mitigation of impacts to
wetlands outside the river watershed in which the bank is located unless the
Commissioner demonstrates to the satisfaction of the agency requiring
compensatory mitigation that (i) the impacts will occur as a result of a
Virginia Department of Transportation linear project; (ii) there is no
practical same river watershed mitigation alternative; (iii) the impacts are
less than one acre within a cataloging unit; (iv) there is no significant harm
to water quality or fish and wildlife resources within the river watershed of
the impacted site; and (v) impacts within the Chesapeake Bay watershed are
mitigated within the Chesapeake Bay watershed as close as possible to the
impacted site.
§ 62.1-44.15:5. Virginia Water Protection Permit.
A. After the effective date of regulations adopted by the Board pursuant to this section, issuance of a Virginia Water Protection Permit shall constitute the certification required under § 401 of the Clean Water Act.
B. The Board shall issue a Virginia Water Protection Permit for an activity
requiring § 401 certification if it has determined that the proposed activity
is consistent with the provisions of the Clean Water Act and will protect instream
beneficial uses. The preservation of instream flows for purposes of the
protection of navigation, maintenance of waste assimilation capacity, the
protection of fish and wildlife resources and habitat, recreation, cultural,
and aesthetic values is a beneficial use of Virginia's waters. Conditions
contained in a Virginia Water Protection Permit may include, but are not
limited to, the volume of water which may be withdrawn as a part of the
permitted activity. Domestic and other existing beneficial uses shall be
considered the highest priority uses. When a Virginia Water Protection Permit
is conditioned upon compensatory mitigation for adverse impacts to wetlands,
the applicant may be permitted to satisfy all or part of such mitigation
requirements by the purchase or use of credits from any wetlands mitigation
bank, including any banks owned by the permit applicant, that has been approved
and is operating in accordance with applicable federal and state guidance, laws
or regulations for the establishment, use and operation of mitigation banks as
long as: (1) the bank is in the same U.S.G.S. cataloging unit, as defined by the
Hydrologic Unit Map of the United States (U.S.G.S. 1980), or an adjacent cataloging
unit within the same river watershed, as to the impacted site, or it meets all
the conditions found in clauses (i) through (v) of this subsection; (2) the
bank is ecologically preferable to practicable on-site and off-site individual
mitigation options, as defined by federal wetland regulations; and (3) the banking
instrument, if approved after July 1, 1996, has been approved by a process that
included public review and comment. In no instance shall the purchase or use
of credits from a bank be allowed for the mitigation of impacts to wetlands
outside the river watershed in which the bank is located unless the applicant
demonstrates to the satisfaction of the Department of Environmental Quality
that (i) the impacts will occur as a result of a Virginia Department of
Transportation linear project or as the result of a locality project for a
locality whose jurisdiction crosses multiple river watersheds; (ii) there is no
practical same river watershed mitigation alternative; (iii) the impacts are
less than one acre within a cataloging unit; (iv) there is no significant harm
to water quality or fish and wildlife resources within the river watershed of
the impacted site; and (v) impacts within the Chesapeake Bay watershed are
mitigated within the Chesapeake Bay watershed as close as possible to the
impacted site.
C. Prior to the issuance of a Virginia Water Protection Permit, the Board shall consult with, and give full consideration to the written recommendations of, the following agencies: the Department of Game and Inland Fisheries, the Department of Conservation and Recreation, the Virginia Marine Resources Commission, the Department of Health, the Department of Agriculture and Consumer Services and any other interested and affected agencies. Such consultation shall include the need for balancing instream uses with offstream uses. Agencies may submit written comments on proposed permits within forty-five days after notification by the Board. The Board shall assume that if written comments are not submitted by an agency within this time period, the agency has no comments on the proposed permit.
D. No Virginia Water Protection Permit shall be required for any water withdrawal in existence on July 1, 1989; however, a permit shall be required if a new § 401 certification is required to increase a withdrawal.
No Virginia Water Protection Permit shall be required for any water withdrawal not in existence on July 1, 1989, if the person proposing to make the withdrawal has received a § 401 certification before January 1, 1989, with respect to installation of any necessary withdrawal structures to make such withdrawal; however, a permit shall be required before any such withdrawal is increased beyond the amount authorized by the certification.