Title of Regulation: 9VAC25-210. Virginia Water Protection Permit Program Regulation (amending 9VAC25-210-10 through 9VAC25-210-70, 9VAC25-210-80 through 9VAC25-210-110, 9VAC25-210-116, 9VAC25-210-130 through 9VAC25-210-170, 9VAC25-210-180 through 9VAC25-210-230; adding 9VAC25-210-55, 9VAC25-210-65, 9VAC25-210-300 through 9VAC25-210-390, 9VAC25-210-500, 9VAC25-210-600, 9VAC25-210-610; repealing 9VAC25-210-75, 9VAC25-210-115, 9VAC25-210-175, 9VAC25-210-240, 9VAC25-210-250, 9VAC25-210-260).

Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 401 of the Clean Water Act (33 USC § 1251 et seq.).

Public Hearing Information:

January 11, 2016 - 1:30 p.m. - James City County Board of Supervisors Board Room, Building F, 101 Mounts Bay Road, Williamsburg, VA 23185

January 12, 2016 - 1:30 p.m. - Department of Environmental Quality, Northern Regional Office, 13901 Crown Court, Woodbridge, VA 22193

January 13, 2016 - 1:30 p.m. - Department of Environmental Quality, Blue Ridge-Roanoke Regional Office, 3019 Peters Creek Road, Roanoke, VA 24019

Public Comment Deadline: January 29, 2016.

Agency Contact: William K. Norris, Department of Environmental Quality, 629 East Main Street, P.O. Box 1105, Richmond, VA 23218, telephone (804) 698-4022, FAX (804) 698-4347, TTY (804) 698-4021, or email william.norris@deq.virginia.gov.

Basis: Subdivision 10 of § 62.1-44.15 of the Code of Virginia sets forth the board's authority for the adoption of regulations deemed necessary to enforce the general water quality management program of the board in all or part of the Commonwealth. The basis for this regulatory action is the State Water Control Law (Chapter 3.1 of Title 62.1 of the Code of Virginia) with specific provisions (§§ 62.1-44.15:20 through 62.1-44.15:23.1 of the Code of Virginia) mandating certain actions and allowing discretionary authority over certain matters to the board.

Purpose: The purpose of this proposed regulatory action is to change the overall organization of the regulation such that it may be more reader friendly; to incorporate policies and guidance developed in recent years; to incorporate certain federal regulatory provisions relative to the program; and to clarify and correct grammar, spelling, references, and errors. Other amendments to the regulation may be considered by the board based on comments received in response to the public comment and participation process. The proposed amendments will protect public health, safety, and welfare as the amendments are designed to clarify, update, and streamline the regulation to protect the Commonwealth's wetland and surface water resources, which are important for maintaining water quality and providing flood control and wildlife habitat.

Substance: The following proposed revisions, clarifications, and additions to this regulation are being considered and include, but are not limited to, language, information, and provisions pertaining to surface water withdrawals, as regulated under the program, as well as program policy and guidance developed in recent years:

1. Change the organization of the regulation to consolidate all surface water specific provisions under a new Part V. Other reorganization of the regulation includes: revising the order in which information is provided; moving existing information to new locations, in whole or in part; adding new sections to expand or clarify existing provisions or incorporate new provisions; deleting sections, in whole or in part, to remove obsolete information and duplication; revising references and citations made in the regulation; and correcting sentence structure, grammar, spelling, and typographical errors.

2. Revise, clarify, move, add, or delete definitions.

3. Revise, clarify, add, or delete the activities that require application for a permit and those activities that are excluded from the need to obtain a permit, including activities in specific water sources.

4. Revise or clarify the application process to include the list of administrative and technical information required to achieve a complete permit application, such as applicant contact information, information specific to certain types of activities or to certain types of state waters, compensation plans including avoidance and minimization efforts, monitoring, and reporting; the provisions for application review suspension and application withdrawal; and required drawings, diagrams, and maps.

5. Revise or clarify the compensatory mitigation requirements, such as the sequencing of acceptable compensatory mitigation actions and compensatory mitigation provisions; the requirements necessary for mitigation banks and in-lieu fee funds to become operational; the requirements for compensating impacts to open waters; or compensation necessary for temporary impacts.

6. Revise or clarify the process, informational requirements, or provisions for permit actions that occur after initial permit issuance, such as modification of permits and permit authorizations, continuation of coverage for general permit authorizations, reissuance of permits, permit and permit authorization revocation, termination, and permit transitioning.

7. Revise, clarify, add, or delete Virginia Water Protection (VWP) general permit authorization provisions as necessary to accommodate those revisions made to each of the existing VWP general permit regulations.

Issues:

1. Reorganization of 9VAC25-210: The Department of Environmental Quality identified a lack of clarity in the existing regulation, particularly for provisions for surface water withdrawal activities, that stems from the current structure of 9VAC25-210. To address this, the department proposes to consolidate the surface water withdrawal provisions in a new Part V of the regulation and reorder provisions within other sections of the regulation, such as for application completion and modifications. Advantages for the regulated community and general public are improved clarity and ease of reading. The disadvantage, for some, may be temporary difficulty in finding familiar language that has been relocated.

2. Definition of public water supply safe yield: The Department of Environmental Quality (DEQ) and the Virginia Department of Health (VDH) staffs have worked closely together over the past year on the topic of safe yield and concluded it was desirable as a matter of public policy for the definition to reside in DEQ's, not VDH's, regulation. At its core, safe yield is a measure of the maximum quantity of water that can be removed from a given source of supply. Recently, the Technical Advisory Committee reviewing VDH's waterworks regulations reached consensus on removing the definition from VDH's regulation and supports the inclusion of the definition into DEQ's regulation, acknowledging DEQ's role and long-term practice of the agencies in determining the limits of a water source. Through these discussions, the agencies have also agreed on the definition currently proposed through this regulatory process. DEQ is responsible for evaluating, in cooperation with VDH and local water supply managers, the current and future capability of public water systems to provide adequate quantity and quality of water. DEQ is the agency with sole statutory authority over water quantity and the rates and volumes that may be withdrawn from a water source. An advantage of locating the term within DEQ's regulation is that it more accurately reflects the responsibilities of DEQ as the agency authorized to determine the availability for a given water withdrawal. One disadvantage is the perception by the regulated community that the proposal results in a change in how safe yield is determined and causes uncertainty in what is authorized by their VDH waterworks permits. The Department believes the proposal is prospective in nature, applying only to new withdrawals or excluded withdrawals that need a new 401 certificate to increase the withdrawal beyond what it was before July 1, 1989.

3. Term "public water supply": The department proposes to revise the term "public surface water supply withdrawal" to "public water supply" without changing the definition to clarify the term applies to the use type of a withdrawal. The advantages are improved clarity and readability. One disadvantage may be the perception that the definition may, sometime in the future, limit a public water supply system that includes other uses from being considered a public water supply. While the emphasis of this definition is on domestic use, the department disagrees that such limitations could occur as the existing definition is not limited solely to domestic use and does not preclude other uses that may comprise a diverse public water supply system.

4. Tidal surface water withdrawal exclusion: The department proposes to revise the surface water withdrawal exclusions pertaining to tidal resources to address confusion identified as to the intent of tidal surface water exclusion of two million gallons per day (mgd) for consumptive tidal withdrawals. The current and historical practice by the department in applying thresholds for exclusions and permits is based upon the total volume of water proposed to be withdrawn. The distinction between consumptive and nonconsumptive components of that volume is distinguished to enable the department to gain a better understanding of the water budget to facilitate project review. It would be a departure of practice to apply the two mgd limit to only the consumptive portion of the total withdrawal for this one exclusion and that was not intended when the language was added in 2007. The advantage is improved readability and reduced confusion regarding the department's intent. No disadvantage is expected.

5. Application informational requirements for surface water withdrawals: The department proposes to clarify and reduce confusion as to the permit application requirements for surface water withdrawals by consolidating all requirements into one comprehensive set and removing a distinction between a minor surface water withdrawal and a major surface water withdrawal. This distinction was created during the 2007 regulation revisions in an attempt to identify a reasonable threshold for which withdrawals could be considered "minor," that is to not have an impact on beneficial uses. It was assumed that smaller withdrawal volumes result in less impact and thus, less information is needed to assess those impacts, providing a more streamlined process. Based upon the department's experience implementing the regulation and reviewing "minor" surface water withdrawal projects, the department found that this presumption was flawed because the size of the withdrawal volume is not always indicative of the impact. Rather, it's the relative size of the withdrawal volume to the size of the waterbody and the presence of other existing beneficial uses. Therefore, the same set of information is necessary for all withdrawals for staff to conduct a review of the proposed impacts to instream flow and associated downstream beneficial users. Additionally, it is unclear that an alternatives analysis is currently required for any surface water withdrawal, regardless of withdrawal size, due to this set of requirements being located in a separate section of the regulation. Grouping together informational requirements necessary for staff to review an application for a surface water withdrawal is advantageous because it will provide clarity; reduce confusion to both staff and the regulated public; facilitate application review; and ensure statutory intent can be met in the protection of downstream beneficial uses. One disadvantage may be the perception that the department is removing a streamlined application process for smaller surface water withdrawals. The department believes the proposed revisions are the minimum necessary to review a surface water withdrawal and provides applicants with accurate portrayal of the information needed to assess their project.

6. Modification criteria for surface water withdrawals: The existing regulation lists what project changes may be considered under either major or minor modification of the permit, but only one of these pertains to surface water withdrawals. This results in uncertainty for permittees, the public, and staff as to the type of changes specific to withdrawals that may be allowable under a minor modification versus a major modification of the permit. As part of the reorganization of the regulation, the department proposes to add a section under the new Part V that establishes the criteria, which is consistent with the department's other permitting programs, for when minor and major modifications of the permit may occur that are specific to surface water withdrawal activities. The advantage is clarity to the regulated public. No disadvantage was identified.

7. Consistency between VWP and federal rules governing compensatory mitigation: While the Commonwealth has an independent nontidal wetlands regulatory program, it works closely with the U.S. Army Corps of Engineers (Corps) in its management of that program, including the required compensatory mitigation for impacts to surface waters, including wetlands. In 2008, the Corps adopted revised regulation 33 CFR 332 (2008 Mitigation Rule) regarding compensatory mitigation that essentially reversed the hierarchy of acceptable mitigation practices, thus causing the VWP permit regulations to be opposite that of the Corps' regarding the hierarchy. The department proposes to align its regulatory language as close as possible to the 2008 Mitigation Rule considering the existing State Water Control Law and regulatory framework in which the program must operate. The advantage is consistency in what the public may reasonably expect regarding compensation requirements when obtaining permits from both the federal and state agencies. Both agencies retain discretion to approve proposals that do not follow the rule verbatim, which may be a disadvantage when federal and state permits are issued and the permit programs do not concur as to the best course of action regarding compensation.

8. Compensation for open water impacts: During the advisory group meetings, a suggestion was made that compensation for open water impacts be made discretionary and that there be a limit for any required compensation for open water impacts. The department noted that 9VAC25-210-116 C 4 allows for discretionary open water compensation as appropriate. Studies were noted to suggest that too much open water is being created with little environmental benefit as compensation for impacts. The department proposes to parse out those small open water areas where compensation may not be warranted. Coordination with sister natural resource agencies on project proposals is expected to continue. An advantage may be reduced costs of compensation to those seeking permits for impacts to surface waters. A disadvantage may be unintentional impacts to aquatic-dependent fauna.

9. Conditional requirement for assessment of wetland functions: 9VAC25-210 currently requires that applicants that propose to impact one acre or more of wetlands provide an assessment of functions being lost. Historically, such analysis was used at the state and federal levels to support impact-to-loss ratios calculated for required compensatory mitigation for wetland impacts. The department proposes to revise the provision to only require as assessment of functions for certain situations, particularly when permittees desire, and can justify, conducting on the ground permittee-responsible compensation instead of purchasing bank or fee program credits. The advantages include less cost for applicants impacting wetlands and less review time by agency staff. A disadvantage may be the perception that adequate compensation is not being required to meet no-net-loss of wetland acreage and functions.

10. Permit application requirements: The department identified a need to receive project location information in a geographic information system (GIS) format to support agency data tracking initiatives and to better evaluate compensatory mitigation proposals. Thus the department added the need to provide certain information via GIS shapefiles, unless waived by the agency. The department also proposes to: 1) reorganize the requirements for a complete application listed in 9VAC25-210-80; 2) revise the provisions regarding complete applications to reduce the timeline that these applications may linger; 3) make the application provisions consistent across all VWP regulations; 4) update the manuals and methods used in the process of delineating surface waters as a result of changes in federal regulations governing activities in waters of the United States; and 5) revise the VWP complete application requirements to reflect the need for the approved jurisdictional determination when one is available. An advantage of the proposed revisions is clarity in what the agency expects for a complete application, potentially reducing the amount of time for staff to review an application and make a permitting decision. A disadvantage may be the availability of some information for some types of projects where minimal engineering takes place, or the cost of obtaining the information to some project proponents.

11. Adding provisions for administrative continuance: The department proposes to add the provision for administrative continuance, as allowed by subdivision 5 a of § 62.1-44.15 of the Code of Virginia, but which has not been previously included in the VWP regulations. While the provision exists in other department regulations, no timeframe exists for agency action. The advantage is that the regulated public is not penalized by the inability of the state to take a permit action. A disadvantage may be that the provision does not include a timeframe for the state to take action.

12. Permit modification procedures: The department proposes to 1) revise the existing additional impacts limits to be a percentage of original impacts, not to exceed one acre or 1,500 linear feet, under a minor modification process; 2) reorganize many of the provisions in 9VAC25-210-180 for better readability and to clarify program intent, such as for the transfer of a VWP individual permit from one permittee to another; 3) update the allowable substitution of compensatory mitigation options based on the 2008 Mitigation Rule; 4) move and clarify an existing provision for extending a VWP individual permit term if originally set at less than 15 years; 5) add a provision for the termination of an individual permit without cause when there is a substantial change to the nature or existence of the permittee; and 6) clarify language related to the modification of permits for increases, or decreases, in the amount of temporary impacts incurred by a permittee once the project begins. One advantage is that the minor modification process would greatly reduce the amount of staff time needed to process what staff has found to be largely insignificant additional impacts. Other advantages include earlier identification of temporary impacts for staff review; better clarity of what the agency may approve as a project modification; better consistency with the 2008 Federal Mitigation Rule; and better tracking and management of permits. Disadvantages may be that slightly more additional impacts are approved after permit issuance without an opportunity for public comment.

13. Revise, move, add, and delete definitions: Because 9VAC25-210 is the over-arching program regulation, the department determined that many definitions are unnecessarily duplicated in the VWP general permit regulations, while others may be duplicated for ease of reference or emphasis. Other definitions needed to be revised based on current practices, the 2008 Federal Mitigation Rule, or the literature. Still other definitions have become obsolete over the last 10 years, or reflect widely accepted concepts in environmental science and engineering and are no longer needed. The department proposes to move, revise, and delete various definitions. The advantage is improved clarity and understanding of the agency's intentions. No disadvantage was identified.

14. Informational requirements: The department proposes to streamline the regulation language in some places where additional information is requested or required by DEQ, and instead, add a new section entitled "Statewide information requirements." This provision is based in the Code of Virginia and appears in other regulations. The advantage is one location summarizing the responsibility of the VWP applicant or permittee to provide the information required to process an application or permit in a timely manner. No disadvantage was identified.

15. Permitting exclusions: Language is proposed to require applicants to demonstrate that any of the exclusions contained in 9VAC25-210-60 apply to the applicant's project. Also, based on staff experiences reviewing and processing applications for small impacts to open waters in the Commonwealth, the department determined that certain impacts to open waters not only may be excluded from the need to obtain a VWP permit, but also from the need for compensation. The department proposes to revise the regulation language to reflect this. Other proposed revisions include reorganizing the order of some exclusions; clarifying language in some exclusions; consolidating some exclusions; and moving and revising the exclusions related to surface water withdrawal activities to a new part in the regulation. Advantages include improved clarity and readability; time and resource savings for the department; and savings on project expenses for applicants. A disadvantage may be the perception that the agency is excluding less than was excluded from permitting previously.

16. Finalizing compensation plans: The department proposes to clarify what is required for a complete application regarding compensatory wetland and stream mitigation plans, including a draft of the intended protective mechanism to be placed over any permittee-responsible compensation site. The original regulation language gives the permittee 120 days to record the mechanism, which usually entails a survey of compensation site boundaries at a minimum. The department proposes to delete the 120-day requirement and make the deadline to be prior to initiating impacts in surface waters that are authorized by the permit. Advantages identified are more time to record for some compensation options, where 120 days have proven inadequate; less confusion on the timeline in which to record in those cases where local planning and permitting requirements overlap the department's; and clarity regarding what information is required to be submitted and when. A disadvantage may be a delay in project commencement due to availability of surveying professionals at the required time.

17. Approval of in-lieu fee programs as compensatory mitigation option: The department proposes to update the regulation to use of the term "program" instead of "fund" in reference to in-lieu fee funds, to be consistent with the 2008 Federal Mitigation Rule (Rule) choice of language. Other proposed revisions include changing the language to mimic the Rule; change the amount of time for which an approval is valid from the existing five years to 10 years; revise the language to address the new Wetland and Stream Replacement Fund that was mandated by the Virginia General Assembly in 2012; and revisions for wording choice, to remove duplicative language, and reorganize the language. The advantages include better clarity and understanding for the regulated public; bringing the regulation more in line with the Rule; and saving time and staff resources. No disadvantages were identified.

18. General permits: The department proposes to revise language in 9VAC25-210-130 of the VWP Permit Program Regulation to clarify the discussion of general permit terms and streamline provisions regarding compensation, both advantages of the proposed revisions. No disadvantage was identified.

19. Forms and documents: The department proposes to update, correct, and revise the forms and documents incorporated by reference at the end of the VWP Permit Program Regulation for clarity and to improve readability. No disadvantage was identified.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The State Water Control Board (Board) proposes to reorganize and amend the Virginia Water Protection Permit Program Regulation. The Board proposes to move all rules regarding surface water withdrawals into one part of this regulation (Part V). The Board also proposes to make many clarifying changes to regulatory text as well as making several substantive changes to the rules that permittees must follow. The substantive changes that the Board proposes include:

1. Adding a definition of public water supply safe yield to clarify for affected entities that safe yield for water supply means something different than the Virginia Department of Health's definition for safe yield which deals with the maximum capacity of water removing equipment,

2. Removing the distinction between minor surface water withdrawal and major surface water withdrawal,

3. Aligning the hierarchy of acceptable mitigation practices in this regulation as closely as practical to the hierarchy adopted in 2008 by the U.S. Army Corps of Engineers,

4. Changing the rule for compensation of open water impacts so that compensation is discretionary and not required at all "for permanent or temporary impacts open waters that are identified as palustrine¹ by the Cowardin classification method except when such open waters are located in areas of karst topography² in Virginia and are formed by the natural solution of limestone,"

5. Changing requirements for the assessment of functions lost so that applicants who are proposing to impact 1.01 acres or more of wetlands only have to complete an assessment if they plan to vary from the compensatory mitigation ratios³ in the regulation,

6. Allowing administrative continuances of expiring permits for permittees who have submitted a timely and complete application for permit reissuance,

7. Adding a requirement that entities that are claiming their activities are excluded from permitting requirements demonstrate to the satisfaction of the Board that they qualify for the exclusions claimed,

8. Changing the requirement that permittees complete all agreed upon compensatory wetlands building and submit a record of the title instrument that will preserve the mitigation to the Department of Environmental Quality (DEQ) within 120 days of the issuance of the permit to only requiring that this work be done and a title instrument recorded with DEQ prior to breaking ground on any activities covered by the permit,

9. Changing the timeframe for approval of in-lieu fee programs from every five years to every 10 years, and

10. Requiring that all project location (mapping) information submitted to the Board as part of a permit application be in geographic information system (GIS) format but also allowing DEQ to waive this format requirement on a case-by-case basis.

Although it is not a specific change that needs to be analyzed in this proposed regulation, it is very important to note that this regulation underpins four other general permit regulations which expire August 1, 2016. If this proposed regulation does not become effective, and the four general permit regulations are not renewed before that date, affected permittees may experience considerable disruption in their projects and incur considerable costs on account of their permits expiring along with the general permit regulations.

Result of Analysis. Benefits likely outweigh costs for most proposed changes. For one proposed change, costs will likely outweigh benefits.

Estimated Economic Impact. Most of the changes that the Board is proposing for this regulation are either to consolidate all of the surface water withdrawal rules into one part (Part V) of the regulation (so that they are easier to find) or to modify language to eliminate confusion about what the rules are. For instance, the wording of rules for tidal surface water withdrawal have, according to Board staff, caused confusion about permitting requirements for some individuals. The Board proposes to slightly reword these rules but does not propose to change the rules themselves in any substantive way. Affected entities are very unlikely to incur extra costs on account of changes such as these, but will benefit from the increased clarity of the regulatory text.

Currently, the Board regulates surface water withdrawal but the Virginia Department of Health (VDH) regulates the equipment that permittees use to withdraw water. As a consequence of this, permittees can become confused because the differing regulations have differing meanings for the same words. To alleviate this confusion, the Board proposes to add a definition for "public water supply safe yield" to make it clear that the Board is referring to how much water it is safe to withdraw from a given surface water source when they use the term safe yield rather than referring to, as VDH does when using the term safe yield, the maximum capacity of equipment to process the withdrawn water safely. No affected entity is likely to incur costs on account of this change. Interested parties who have occasion to read both the Board's and VDH's regulations are likely to benefit from this clarification.

During the 2007 revision of this regulation, the Board attempted to set up a simplified application and a streamlined process for minor surface water withdrawals so that entities completing minor projects would incur fewer costs. In subsequent practice, however, Board staff discovered that they needed approximately the same information to evaluate a minor surface water withdrawal as they needed to evaluate a major surface water withdrawal. This has led to situations where filing a streamlined application for minor water withdrawal causes delays and greater costs for applicants as Board staff had to contact them repeatedly to obtain information that would have been readily available on the longer, non-streamlined application. The Board now proposes to eliminate the process for application for minor surface water withdrawal and instead require all applicants to fill out the same application and provide the same information to the Board. Board staff estimates that this will save applicants who would currently use the streamlined application between four and eight hours of a consultant's time at $200 per hour. Board staff also reports that this change will save Board staff time because they will be able to analyze applications as they first come in rather than having to contact the applicant, sometime multiple times, to obtain further information that the Board must have.

Prior to 2008, the Board's hierarchy of acceptable compensatory mitigation practices matched the hierarchy enforced by the U.S. Army Corps of Engineers fairly closely. In 2008, however, the Corps of Engineers adopted new rules that, according to Board staff, essentially flipped the hierarchy of mitigation practices on the federal level. This change meant that some permit applicants who need both federal and state permits may incur extra costs associated with the federal and state hierarchies being very different from each other. These costs may be associated with the applicant having to complete both federal and state mitigation priorities or they may be associated with the time spent and costs incurred appealing one or both of the compensation requirements. The Board now proposes to amend its compensatory mitigation hierarchy to align it as closely as possible with the federal hierarchy. This change will minimize any extra associated costs that might be incurred by applicants. Board staff reports that it will not, however, eliminate these costs completely in all cases because the Board and the Army Corps of Engineers will still sometimes differ in the mitigation practice that they order. Nonetheless, affected applicants will benefit greatly from the aligning of the hierarchy in this regulation to that used by the federal government.

Currently, all permit holders whose activities cause open water impacts must engage in compensatory mitigation. Board staff reports that the current regulation already allows for Department of Environmental Quality (DEQ) discretion to vary from this rule, but also reports that advisory groups that met to discuss this regulation recommended that the Board formalize exemptions from this rule in situations where more mitigation was being required than necessary to protect Virginia's surface water. The Board now proposes to not require compensatory mitigation "for permanent or temporary impacts open waters that are identified as palustrine by the Cowardin classification method except when such open waters are located in areas of karst topography in Virginia and are formed by the natural solution of limestone." This change will benefit permittees in the Commonwealth as it will decrease their mitigation costs.

Current regulation requires that permit holders who propose to impact more than one acre of wetlands provide an assessment of functions that will be lost on account of their proposed activity. The Board now proposes to amend this requirement so that an assessment will only need to be done if the permittee wants to vary from the compensatory mitigation ratios in the regulation. For instance, a permittee that proposes to impact two acres of forest wetlands would only need to pay for an assessment if he wanted to provide less compensatory mitigation than the 2:1 ratio (two acres of wetlands built or restored for every acre disturbed or destroyed) but would not have to pay for an assessment if he followed that ratio. This change will benefit permittees as they will not have to pay for an assessment independently of the assessment made by the Board that the default appropriate level of mitigation are the ratios in the regulation. Board staff reports that permittee assessments can cost between $500 and $1,500 each.

Current regulation requires permittees who want to have their permits reissued by the Board to submit a complete application in a timeframe set by the Board but does not address extraordinary situations that might arise which would delay Board staff in evaluating those applications before the end date of the permit requested to be reissued. Because of this, some permittees may suffer a permit lapse that could possible stop them from working on a project. The Board proposes to add an administrative continuance to this regulation so that Board staff can extend the expiration date of an existing permit so long as they have a completed application. This change will benefit permittees as it will eliminate the possibility of permitted work having to be stopped on account of an expiring permit even though the permit holder did everything he was supposed to in order to get the permit reissued in a timely fashion.

Current regulation contains numerous exclusions for activity that does not need to be permitted by the Board under this regulation. Board staff reports, however, that enforcement staff has many enforcement actions that start because individuals did not get permits that they were actually required to get because they thought that their activity was excluded. The Board now proposes to require that individuals who want to claim an exclusion demonstrate to the Board that the exclusion claimed is appropriate. Board staff reports that costs for this amendment will be minimal since staff will be working with affected individuals to both minimize those costs and to also minimize any need for enforcement against those individuals. The benefits of this change likely outweigh its costs.

Currently, permittees must complete compensatory mitigation wetlands creation and submit a record of the title instrument (deed restriction, etc.) that will preserve the mitigation to DEQ within 120 days of the issuance of a permit. This has led to situations where permittees incurred costs for either completing compensatory wetlands building or incurred costs for modifying their permits when their plans to engage in activities covered by the permit either were eliminated or were greatly delayed. For example, someone who planned to build a housing development might incur costs for mitigation required by his permit within 120 days of the issuing of his permit even if his plans to build are delayed for an extended time or if he never builds the development at all. The Board now proposes to amend this regulation to allow permit holders to complete their compensatory mitigation and submit their records to DEQ before they break ground on their project rather than within 120 days. This will benefit permittees as they will not incur costs for mitigation as soon or at all if they never engage in the permitted activities.

Current regulation requires organizations that run in-lieu fee compensatory mitigation programs to be re-approved by the Board every five years but allows the Board to remove approval at any time if the approved organization fails to follow Board rules. The Board proposes to only require program re-approval every ten years but will retain the ability to remove approval mid-cycle if that becomes necessary because the approved organization is failing to follow rules or doing a shoddy job. This change is unlikely to cause any entity to incur costs and is likely just as protective of the environment as the current rule is. Both Board staff and any approved organizations will benefit from their re-approval paperwork and costs only occurring half as often.

Currently, permit applicants are required to provide specific and detailed project location (mapping) information but the format that the information must be in is not currently specified. Board staff reports that, in order to support agency tracking initiatives, help support the goals and objectives identified by the Virginia Geographic Information Network and better evaluate compensatory mitigation proposals, the Board proposes to require that such information be provided in geographic information system (GIS) format. Board staff reports that the vast majority of permit applicants, including the 90% of applicants who hire a consultant to compile and submit permit application, already have access to GIS software (although only about 50% of applications are submitted with GIS format location information) and that several free drawing/mapping tools are available. Board staff further reports that conservation organizations have urged the Board to make this change so that they can more easily access permit application information that is subject to request under the Freedom of Information Act (FOIA).

Nonetheless, this change is likely to create a significant barrier for the dozen or so affected small permit applicants each year who do not currently have access to GIS software and who will either face a likely steep learning curve to utilize free GIS software or else will incur costs for easier to use, paid-for software or for hiring a consultant at $300-$500 per 3-4 hour time unit. Board staff reports that the Board will have the power to exempt applicants from this requirement but that the Board would likely only exempt a subset of the applicants who currently do not use GIS software. Because the applicants who are most likely to be affected by this requirement are the least likely to be able to easily absorb the costs of it, and because the Board's intent to offer exemptions indicates that not all applications need to be consistent, costs likely outweigh benefits for this proposed change.

Businesses and Entities Affected. Board staff reports that these proposed regulatory amendments will affect any entity whose activities would require a permit because those activities will affect surface waters. Such activities may include expansion of existing buildings, facilities or related appurtenances, new construction or changes to operational practices. The Board processes approximately 400 general permits and approximately 40 individual permits per year. Board staff reports that about 40% of those permits are obtained by the Virginia Department of Transportation. Small businesses will be affected by these proposed changes but Board staff does not have an estimate of how many permits per year are obtained by small businesses.

Localities Particularly Affected. No locality will be particularly affected by this proposed regulation.

Projected Impact on Employment. The GIS format requirement in the proposed regulation may lead to an increase in the utilization of permit consultants.

Effects on the Use and Value of Private Property. The GIS format requirement in the proposed regulation may increase the cost of developing private property.

Small Businesses: Costs and Other Effects. Some small businesses will likely be impacted by these proposed regulatory changes although the number of such entities is unknown. Some small businesses may incur time or money costs on account of being newly required to submit mapping information in GIS format.

Small Businesses: Alternative Method that Minimizes Adverse Impact. Given that the costs of requiring mapping information in GIS format will fall disproportionately on small permit applicants, including small business applicants, the Board may wish to eliminate this proposed requirement and allow applicants to submit mapping information as they do now.

Real Estate Development Costs. The GIS format requirement in the proposed regulation may increase the real estate development costs for some small permit applicants.

_________________________________________________

¹ According to the United States Department of the Interior's Fish and Wildlife Service information found at http://www.na.fs.fed.us/spfo/pubs/n_resource/wetlands/wetlands3_classification.htm, "(t)he palustrine system includes freshwater wetlands not associated with stream channels, wetlands associated with lakes of less than 20 acres and other wetlands bounded by uplands. Most forested wetlands are in the palustrine system."

² According to information from the Virginia Department of Conservation and Recreation found at http://www.dcr.virginia.gov/environmental_education/underground.shtml, Karst topography is land area that includes sinkholes, springs, sinking streams and caves. This landscape features underground streams and aquifers that supply the wells and springs communities use for drinking water.

³ Compensatory mitigation ratios in the regulation are 2:1 for forest, 1.5:1 for scrub-scrub and 1:1 for emergent or higher.

Agency's Response to Economic Impact Analysis: The department has reviewed the economic impact analysis prepared by the Department of Planning and Budget and has no comment.

Summary:

The proposed regulatory action (i) reorganizes the regulation, including by consolidating the surface water withdrawal provisions in a new Part V; (ii) updates definitions, including by adding a definition of "public water supply safe yield" and by revising the term "public surface water supply withdrawal" to "public water supply," without changing the definition; (iii) revises the surface water withdrawal exclusions pertaining to tidal resources; (iv) removes a distinction between a minor surface water withdrawal and a major surface water withdrawal; (v) establishes the criteria for when minor and major modifications of the permit may occur that are specific to surface water withdrawal activities; (vi) aligns the regulation as closely as possible to the 2008 Mitigation Rule of the U.S. Army Corps of Engineers; (vii) makes compensation for certain open water impacts discretionary and establishes a limit for any required compensation; (viii) requires only an assessment of functions for certain situations; (ix) revises permit application requirements and permit modification procedures; (x) allows an administrative continuance of a permit application; (xi) revises permitting exclusions; (xii) clarifies the requirements for a complete application regarding compensatory wetland and stream mitigation plans; and (xiii) makes other clarifying, technical, and grammatical changes.

Part I
VWP Permit Program Definitions, Exclusions, Prohibitions and Requirements

9VAC25-210-10. Definitions.

A. Definitions specific to surface water withdrawals are in 9VAC25-210-300.

B. Unless a different meaning is required by the context, the following terms as used in this chapter shall have the following meanings:

"Act" or "Clean Water Act" means 33 USC § 1251 et seq. as amended 1987.

"Adjacent" means bordering, contiguous, or neighboring; wetlands separated from other surface water by man-made dikes or barriers, natural river berms, sand dunes, and the like are adjacent wetlands.

"Administratively withdrawn" means a decision by the board that permanently discontinues the review or processing of a VWP permit application or request to modify a VWP permit.

"Affected stream reach" means the portion of a surface water body beginning at the location of a withdrawal and ending at a point where effects of the withdrawal are not reasonably expected to adversely affect beneficial uses.

"Agricultural surface water withdrawal" means a withdrawal of surface water in Virginia or from the Potomac River for the purpose of agricultural, silvicultural, horticultural, or aquacultural operations. Agricultural surface water withdrawals include withdrawals for turf farm operations, but do not include withdrawals for landscaping activities, or turf installment and maintenance associated with landscaping activities.

"Applicant" means a person applying for a VWP individual permit or for coverage under a VWP general permit authorization.

"Aquatic environment" means surface waters and the habitat they provide, including both plant and animal communities.

"Avoidance" means not taking or modifying a proposed action or parts of an action so that there is no adverse impact to the aquatic environment.

"Beneficial use" means both instream and offstream uses. Instream beneficial uses include, but are not limited to:, the protection of fish and wildlife resources and habitat;, maintenance of waste assimilation;, recreation;, navigation;, and cultural and aesthetic values. 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, and cultural and aesthetic values is an instream beneficial use of Virginia's waters. Offstream beneficial uses include, but are not limited to:, domestic uses (including public water supply);, agricultural; uses, electric power generation; and, commercial uses, and industrial uses.

"Best management practices (BMPs)" or "BMPs" means a schedule of activities, prohibition of practices, maintenance procedures, and other management practices that prevent or reduce the pollution of surface waters.

"Board" means the State Water Control Board.

"Channelization of streams" means the alteration of a stream channel by widening, deepening, straightening, cleaning, or paving certain areas.

"Compensation" or "compensatory mitigation" means actions taken that provide some form of substitute aquatic resource for the impacted aquatic resource (i) the restoration (reestablishment or rehabilitation), establishment (creation), enhancement, or in certain circumstances preservation of aquatic resources or (ii) in certain circumstances an out-of-kind measure having a water quality, habitat, or other desirable benefit for the purposes of offsetting unavoidable adverse impacts to aquatic resources that remain after all appropriate and practicable avoidance and minimization has been achieved.

"Construction site" means any site where land-disturbing activity is conducted or physically located for the purpose of erecting buildings, roads, or other discrete structures, including on-site or off-site areas used for dependent, support facilities, such as quarries, mines, or temporary stormwater management or erosion control structures.

"Consumptive water use" means the withdrawal of surface waters, without recycle of said waters to their source of origin.

"Coverage" means authorization to conduct a project in accordance with a VWP general permit.

"Conversion" means those impacts to surface waters that permanently change an existing wetland or aquatic resource type to a different wetland or aquatic resource type.

"Cowardin classification" or "Cowardin classification method," unless otherwise specified in this chapter, means the waters classification system in Classification of Wetlands and Deepwater Habitats of the United States (Cowardin, Lewis M. II, et al., U.S. Fish and Wildlife Service, December 1979, Reprinted 1992).

"Creation" means the establishment of a wetland or other aquatic resource where one did not formerly exist.

"Cross-sectional sketch" drawing" means a scaled graph or plot that represents the plane made by cutting across an object at right angles to its length. For purposes of this regulation, objects may include, but are not limited to, a surface water body or a portion of it, a man-made channel, an above-ground structure, a below-ground structure, a geographical feature, or the ground surface itself.

"Department" or "DEQ" means the Department of Environmental Quality.

"Director" means the Director of the Department of Environmental Quality (DEQ) or an authorized representative.

"Discharge" means, when used without qualification, a discharge of a pollutant, or any addition of any pollutant or combination of pollutants, to state waters or waters of the contiguous zone or ocean other than a discharge from a vessel or other floating craft when being used as a means of transportation.

"Draft VWP permit" means a document indicating the board's tentative decision relative to a VWP permit action.

"Draining" means human-induced activities such as ditching, excavation, installation of tile drains, hydrologic modification by surface water runoff diversion, pumping water from wells, or similar activities such that the activities have the effect of artificially dewatering the wetland or altering its hydroperiod.

"Dredged material" means material that is excavated or dredged from surface waters.

"Dredging" means a form of excavation in which material is removed or relocated from beneath surface waters.

"Drought" means that a Severe Intensity Drought (D2) has been declared by the weekly "U.S. Drought Monitor" for the location in which the withdrawal is located.

"Ecologically preferable" means capable of providing a higher likelihood than alternative proposals of replacing existing wetland or acreage or functions, stream functions and values, water quality, and fish and wildlife resources than alternative proposals.

"Emergency Virginia Water Protection Permit" means a Virginia Water Protection Permit issued pursuant to § 62.1-44.15:22 C of the Code of Virginia authorizing a new or increased surface water withdrawal to address insufficient public drinking water supplies that are caused by a drought and may result in a substantial threat to human health or public safety.

"Emergent wetland" means a class of wetlands dominated by erect, rooted, herbaceous plants growing in water or on a substrate, excluding mosses and lichens. This vegetation is present for most of the growing season in most years and is usually dominated by perennial plants.

"Enhancement" means activities conducted in existing wetlands or other portions of the aquatic environment that increase one or more aquatic functions or values.

"Excavate" or "excavation" means ditching, dredging, or mechanized removal of earth, soil, or rock.

"Fill" means replacing portions of surface water with upland, or changing raising the bottom elevation of a surface water for any purpose, by placement of any pollutant or material including but not limited to rock, sand, earth, and man-made materials and debris.

"Fill material" means any pollutant which that replaces portions of surface water with dry land or which changes that raises the bottom elevation of a surface water for any purpose.

"Forested wetland" means a class of wetlands dominated by woody vegetation that is approximately 20 feet (six meters) tall or taller and three inches (7.6 centimeters) or larger in diameter at breast height (DBH). These areas typically possess an overstory of trees, an understory of trees or shrubs, and an herbaceous layer.

"General permit" means a permit authorizing a specified category of activities.

"Geographic area of a delineated wetland" means the area contained within and up to a wetland boundary determined by delineation methods consistent with this chapter.

"Hydrologic regime" means the entire state of water movement in a given area. It is a function of the climate and includes the phenomena by which water first occurs as atmospheric water vapor, passes into a liquid or solid form, falls as precipitation, moves along or into the ground surface, and returns to the atmosphere as vapor by means of evaporation and transpiration.

"Impacts" means results caused by human-induced those activities conducted in surface waters, as specified in § 62.1-44.15:20 A of the Code of Virginia.

"Impairment" means the damage, loss, or degradation of the acreage or functions of wetlands or the functions and values of state waters.

"Independent utility" means a test to determine what constitutes a single and complete project. A project is considered to have independent utility if it would be constructed absent the construction of other projects in the project area. Portions of a phased development project that depend upon other phases of the project do not have independent utility. Portions of a phased development project that would be constructed even if the other phases are not built can be considered as separate single complete projects with independent public and economic utility.

"In-lieu fee fund" program" means a monetary fund program operated by a nonprofit organization or governmental agency which that receives financial contributions moneys from persons impacting wetlands or streams pursuant to an authorized, permitted activity and which that expends the moneys received to provide consolidated compensatory mitigation for permitted wetland or stream impacts.

"Intake structure" means any portion of a withdrawal system used to withdraw surface water that is located within the surface water, such as, but not limited to, a pipe, culvert, hose, tube, or screen.

"Isolated wetlands of minimal ecological value" means those wetlands that: (i) do not have a surface water connection to other state waters;, (ii) are less than one-tenth of an acre (0.10 acre or 4,356 square feet) in size;, (iii) are not located in a Federal Emergency Management Agency designated 100-year floodplain;, (iv) are not identified by the Virginia Natural Heritage Program as a rare or state significant natural community;, (v) are not forested;, and (vi) do not contain listed federal or state threatened or endangered species.

"Joint Permit Application (JPA)" or "JPA" means an application form that is used to apply for permits from the Norfolk District Army Corps of Engineers, the Virginia Marine Resources Commission, the Virginia Department of Environmental Quality, and local wetland boards for work in waters of the United States and in surface waters of Virginia.

"Law" means the State Water Control Law of Virginia.

"Legal name" means the full legal name of an individual, business, or other organization. For an individual, legal name means the first name, middle initial, last name, and suffix. For an entity authorized to do business in Virginia, the legal name means the exact name set forth in the entity's articles of incorporation, organization or trust, or formation agreement, as applicable.

"Major surface water withdrawal" means a surface water withdrawal of 90 million gallons per month (mgm) or greater.

"Minimization" means lessening impacts by reducing the degree or magnitude of the proposed action and its implementation.

"Minor surface water withdrawal" means a surface water withdrawal of less than 90 million gallons per month (mgm).

"Mitigation" means sequentially avoiding and minimizing impacts to the maximum extent practicable, and then compensating for remaining unavoidable impacts of a proposed action.

"Mitigation bank" means a site providing off-site, consolidated compensatory mitigation that is developed and approved in accordance with all applicable federal and state laws or regulations for the establishment, use, and operation of mitigation banks, and is operating under a signed banking agreement.

"Mitigation banking" means compensating for unavoidable wetland or stream losses in advance of development actions through the sale, or purchase or use of credits from a mitigation bank.

"Multi-project mitigation site" means an area of wetland restoration, creation, enhancement and, in appropriate circumstances, preservation of wetlands or streams or upland buffers adjacent to wetlands or other state waters, that is or has been utilized to meet compensation requirements for more than one project but that is not a mitigation bank.

"Nationwide permit" means a general permit issued by the USACE U.S. Army Corps of Engineers (USACE) under 40 CFR Part 241 33 CFR Part 330 and, except where suspended by individual USACE Corps Districts, applicable nationwide.

"Nontidal wetland" means those wetlands other than tidal wetlands that are inundated or saturated by surface water or groundwater at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions, as defined by the U.S. Environmental Protection Agency pursuant to § 404 of the federal Clean Water Act in 40 CFR 230.3(t). Wetlands generally include swamps, marshes, bogs, and similar areas.

"Normal agricultural activities" means those activities defined as an agricultural operation in § 3.2-300 of the Code of Virginia and any activity that is conducted as part of or in furtherance of such agricultural operation, but shall not include any activity for which a permit would have been required as of January 1, 1997, under 33 USC § 1344 or any regulations promulgated pursuant thereto.

"Normal residential gardening, and lawn and landscape maintenance" means ongoing noncommercial residential activities conducted by or on behalf of an individual occupant, including mowing; planting; fertilizing; mulching; tilling; vegetation removal by hand or by hand tools; and placement of decorative stone, fencing, and play equipment. Other appurtenant noncommercial activities, provided that they do not result in the conversion of a wetland to upland or to a different wetland type, may also be included.

"Normal silvicultural activities" means any silvicultural activity as defined in § 10.1-1181.1 of the Code of Virginia, and any activity that is conducted as part of or in furtherance of such silvicultural activity, but shall not include any activity for which a permit would have been required as of January 1, 1997, under 33 USC § 1344 or any regulations promulgated pursuant thereto.

"Notice of project completion" means a statement submitted by the permittee or authorized agent that the authorized activities and any required compensatory mitigation have been completed.

"Open water" means an area that, during a year with normal patterns of precipitation, has standing water for sufficient duration to establish an ordinary high water mark. The term "open water" includes lakes and ponds but does not include ephemeral waters, stream beds, or wetlands.

"Ordinary high water" or "ordinary high water mark" means that line on the shore established by the fluctuations of water and indicated by physical characteristics such as a clear, natural line impressed on the bank; shelving; changes in the character of soil; destruction of terrestrial vegetation; the presence of litter and debris, or other appropriate means that consider the characteristics of the surrounding areas.

"Out-of-kind compensatory mitigation" or "out-of-kind mitigation" means compensatory mitigation a measure that does not replace the same type of wetland or surface water as was impacted, but does replace lost wetland or surface water functions, values, or beneficial uses provide a water quality, habitat, or other desirable benefit.

"Perennial stream" means a well-defined channel that contains water year round during a year of normal rainfall. Generally, the water table is located above the stream bed for most of the year and groundwater is the primary source for stream flow. A perennial stream exhibits the typical biological, hydrological, and physical characteristics commonly associated with the continuous conveyance of water.

"Permanent flooding or impounding" means a permanent increase in the duration or depth of standing water on a land surface, such as from a dam. Permanent increases in duration or depth of standing water that result from extended-detention basins and enhanced extended-detention basins, when designed, constructed, and maintained to function in accordance with Virginia Department of Conservation and Recreation (DCR) standards for such facilities (Virginia Stormwater Management Handbook, First Edition, 1999, Volume 1, Chapter 3), or when designed in accordance with local standards that, at a minimum, meet the DCR standards, are not considered to be permanent flooding and impounding.

"Permanent impacts" are means those impacts to surface waters, including wetlands, that cause a permanent alteration of the physical, chemical, or biological properties of the surface waters or of the acreage or functions and values of a wetland.

"Permittee" means the person who holds a VWP individual or general permit.

"Permittee-responsible compensatory mitigation" or "permittee-responsible mitigation" means compensation or compensatory mitigation, as defined in this section, that is undertaken by the permittee, or an authorized agent or contractor, for which the permittee retains full responsibility.

"Person" means one or more individuals, a individual, corporation, a partnership, an association, a governmental body, a municipal corporation, or any other legal entity.

"Phased development" means more than one project proposed for a single piece of property or an assemblage of contiguous properties under consideration for development by the same person, or by related persons, that will begin and be completed at different times. Depending on the relationship between the projects, a phased development may be considered a single and complete project or each project may be considered a single and complete project if each project has independent utility, as defined in this section.

"Plan view sketch" drawing" means a scaled graph or plot that represents the view of an object as projected onto orthogonal planes. For purposes of this regulation chapter, objects may include, but are not limited to, structures, contours, or boundaries.

"Pollutant" means any substance, radioactive material, or heat which that causes or contributes to, or may cause or contribute to pollution.

"Pollution" means such alteration of the physical, chemical, or biological properties of any state waters as will or is likely to create a nuisance or render such waters: (i) harmful or detrimental or injurious to the public health, safety, or welfare, or to the health of animals, fish, or aquatic life; (ii) unsuitable with reasonable treatment for use as present or possible future sources of public water supply; or (iii) unsuitable for recreational, commercial, industrial, agricultural, or other reasonable uses; provided that (a) an alteration of the physical, chemical, or biological property of state waters, or a discharge or deposit of sewage, industrial wastes or other wastes to state waters by any owner which by itself is not sufficient to cause pollution, but which, in combination with such alteration of or discharge or deposit to state waters by other owners is sufficient to cause pollution; (b) the discharge of untreated sewage by any owner into state waters; and (c) contributing to the contravention of standards of water quality duly established by the board, are "pollution" for the terms and purposes of this chapter.

"Potomac River Low Flow Allocation Agreement" means the agreement among the United States of America, the State of Maryland, the Commonwealth of Virginia, the District of Columbia, the Washington Suburban Sanitation Commission, and the Fairfax County Water Authority dated January 11, 1978, consented to by Congress in § 181 of the Water Resources Development Act of 1976, Public Law 94-587, as modified on April 22, 1986.

"Practicable" means available and capable of being done after taking into consideration cost, existing technology and logistics in light of overall project purposes.

"Preservation" means the protection of resources in perpetuity through the implementation of appropriate legal and physical mechanisms.

"Profile sketch" drawing" means a scaled graph or plot that represents the side view of an object. For purposes of this regulation chapter, objects may include, but are not limited to, a surface water body or a portion of it, a man-made channel, an above-ground structure, a below-ground structure, a geographical feature, or the ground surface itself.

"Public hearing" means a fact finding proceeding held to afford interested persons an opportunity to submit factual data, views, and comments to the board pursuant to the board's Procedural Rule No. 1 - Public and Formal Hearing Procedures (9VAC25-230) § 62.1-44.15:02 of the Code of Virginia.

"Public surface water supply withdrawal" means a withdrawal of surface water in Virginia or from the Potomac River for the production of drinking water, distributed to the general public for the purpose of, but not limited to, domestic use.

"Public water supply emergency" means a substantial threat to public health or safety due to insufficient public drinking water supplies caused by drought.

"Regional permit" means a general permit issued by the USACE U.S. Army Corps of Engineers under 40 CFR Part 241 33 CFR Part 330 and applicable within a specified geographic area.

"Restoration" means the reestablishment of a wetland or other aquatic resource in an area where it previously existed. Wetland restoration means the reestablishment of wetland hydrology and vegetation in an area where a wetland previously existed. Stream restoration means the process of converting an unstable, altered, or degraded stream corridor, including adjacent areas and floodplains, to its natural conditions.

"Riprap" means a layer of nonerodible material such as stone or chunks of concrete.

"Schedule of compliance" means a schedule of remedial measures including a sequence of enforceable actions or operations leading to compliance with the Act, the law, and the board regulations, standards and policies.

"Section 401" means § 401 of the Clean Water Act, or 33 USC § 1341, as amended in 1987.

"Section for Cooperative Water Supply Operations on the Potomac (CO-OP)" means a section of the Interstate Commission on the Potomac River Basin designated by the Water Supply Coordination Agreement as responsible for coordination of water resources during times of low flow in the Potomac River.

"Scrub-shrub wetland" means a class of wetlands dominated by woody vegetation, excluding woody vines, approximately three to 20 feet (one to six meters) tall. The species include true shrubs, young trees, and trees or shrubs that are small or stunted because of environmental conditions.

"Significant alteration or degradation of existing wetland acreage or function" means human-induced activities that cause either a diminution of the areal extent of the existing wetland or cause a change in wetland community type resulting in the loss or more than minimal degradation of its existing ecological functions.

"Single and complete project" means the total project proposed or accomplished by a person, which also has independent utility as defined in this section. For linear projects, the single and complete project (e.g., a single and complete crossing) will apply to each crossing of a separate surface water (e.g., a single water body) and to multiple crossings of the same water body at separate and distinct locations. Phases of a project that have independent utility may each be considered single and complete.

"State waters" means all water, on the surface and under the ground, wholly or partially within or bordering the Commonwealth or within its jurisdiction, including wetlands.

"Stream bed" or "stream channel" means the substrate of a stream, as measured between the ordinary high water mark along each side of a stream. The substrate may consist of organic matter, bedrock, or inorganic particles that range in size from clay to boulders, or a combination of both. Areas contiguous to the stream bed, but outside of the ordinary high water mark along each side of a stream, are not considered part of the stream bed.

"Surface water" means all state waters that are not ground water groundwater as groundwater is defined in § 62.1-255 of the Code of Virginia.

"Surface water supply project" means a project that withdraws or diverts water from a surface water body for consumptive or nonconsumptive purposes thereby altering the hydrologic regime of the surface water body. Projects that do not alter the hydrologic regime or that alter the hydrologic regime but whose sole purpose is flood control or storm water management are not included in this definition.

"Surface water withdrawal" means a removal or diversion of surface water from its natural water course in Virginia or from the Potomac River.

"Suspend" or "suspension" means a decision by the board that stops the review or processing of a permit application or request to modify a permit or permit coverage until such time that information requested by the board is provided, reviewed, and deemed adequate.

"Temporary impacts" means those impacts to wetlands or other surface waters, including wetlands, that do not cause a permanent alteration of the physical, chemical, or biological properties of the surface water waters or of the functions and values of a wetland the permanent alteration or degradation of existing wetland acreage or functions. Temporary impacts include activities in which the ground impact area is restored to its preconstruction elevations and contours and elevations, with topsoil from the impact area where practicable, such that previous wetland acreage and functions and values or surface water functions are restored.

"Tidal wetland" means vegetated and nonvegetated wetlands as defined in § 28.2-1300 of the Code of Virginia.

"Toxic pollutant" means any agent or material including, but not limited to, those listed under § 307(a) of the Water Pollution Prevention and Control Act (33 USC § 1317(a)), which after discharge will, on the basis of available information, cause toxicity. Toxicity means the inherent potential or capacity of a material to cause adverse effects in a living organism, including acute or chronic effects to aquatic life, detrimental effects on human health, or other adverse environmental effects.

"Undesirable plant species" means any species that invades, naturally colonizes, or otherwise dominates a compensatory mitigation site or mitigation bank and may cause, such that it causes or contribute contributes to the failure of the vegetative success criteria for a particular compensatory mitigation site or, mitigation bank, or in-lieu fee program project, or it otherwise prohibits the restoration of the same vegetation cover type that was originally present.

"USACE" means the United States Army Corps of Engineers.

"VMRC" means the Virginia Marine Resources Commission.

"VWP general permit" means the general permit text, terms, requirements, and conditions set forth in a regulation that constitutes a VWP permit for a authorizing a specified category of activities.

"VWP permit" means an individual or general permit issued by the board under § 62.1-44.15:20 of the Code of Virginia that authorizes activities otherwise unlawful under § 62.1-44.5 of the Code of Virginia or otherwise serves as the Commonwealth of Virginia's § 401 certification.

"Water quality standards" means water quality standards adopted by the board and approved by the administrator of the EPA U.S. Environmental Protection Agency under § 303 of the Clean Water Act as defined at 9VAC25-260 in 9VAC25-260-10.

"Water Supply Coordination Agreement" means the agreement among the United States of America, the Fairfax County Water Authority, the Washington Suburban Sanitary Commission, the District of Columbia, and the Interstate Commission on the Potomac River Basin, dated July 22, 1982, which establishes agreement among the suppliers to operate their respective water supply systems in a coordinated manner and which outlines operating rules and procedures for reducing impacts of severe droughts in the Potomac River Basin.

"Watershed approach" means an analytical process for making compensatory mitigation decisions that support the sustainability or improvement of aquatic resources in a watershed and that ensures authorized impacts and mitigation have been considered on a watershed scale.

"Wetlands" means those areas that are inundated or saturated by surface or groundwater at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas.

"Withdrawal system" means any device or combination of evices used to withdraw surface water, such as, but not limited to, a machine, pump, pipe, culvert, hose, tube, screen, or fabricated concrete or metal structure.

9VAC25-210-45. Wetland delineation Surface waters delineations.

A. Wetlands. Each wetland delineation, including those for isolated wetlands, shall be conducted in accordance with the USACE U.S. Army Corps of Engineers (USACE) "Wetland Delineation Manual, Technical Report Y-87-1, January 1987, Final Report" (Federal Manual) and any regional wetland supplements approved for use by USACE. The These Federal Manual Manuals shall be interpreted in a manner consistent with USACE guidance and the requirements of this regulation chapter, and any delineation guidance adopted by the board as necessary to ensure consistency with the USACE implementation of delineation practices. USACE regulatory guidance letters or Department of Environmental Quality policy or guidance may be used to supplement preparation of wetlands delineations.

B. Other surface waters. Delineations for surface waters other than wetlands may be conducted in accordance with USACE or DEQ policy or USACE or DEQ guidance and shall take into consideration the location of an ordinary high water mark, if applicable.

9VAC25-210-50. Prohibitions and requirements for VWP permits.

A. Except in compliance with a VWP permit, unless the activity is otherwise exempted or excluded, no person shall dredge, fill, or discharge any pollutant into, or adjacent to surface waters,; withdraw surface water,; otherwise alter the physical, chemical, or biological properties of surface state waters regulated under this chapter and make them detrimental to the public health, or to animal or aquatic life, or to the uses of such waters for domestic or industrial consumption, or for recreation, or for other uses; excavate in wetlands; or on or after October 1, 2001, conduct the following activities in a wetland:

1. New activities to cause draining that significantly alters or degrades existing wetland acreage or functions;

2. Filling or dumping;

3. Permanent flooding or impounding; or

4. New activities that cause significant alteration or degradation of existing wetland acreage or functions.

B. No VWP permit shall be issued for the following:

1. Where the proposed activity or the terms or conditions of the VWP permit do not comply with state law or regulations including but not limited to § 10.1-1408.5 of the Code of Virginia;

2. For the discharge of any radiological, chemical, or biological warfare agent or high level radioactive material into surface waters.

9VAC25-210-55. Statewide information requirements..

The board may request (i) such plans, specifications, and other pertinent information as may be necessary to determine the effect of an applicant's discharge on the quality of state waters or (ii) such other information as may be necessary to accomplish the purposes of this chapter. Any owner, permittee, or person applying for a VWP permit or general permit coverage shall provide the information requested by the board.

9VAC25-210-60. Exclusions.

A. The following activities in this subsection do not require a VWP permit but may require other permits under state and federal law:. Upon request by the board, any person claiming one of these exclusions shall demonstrate to the satisfaction of the board that he qualifies for the exclusion. Exclusions pertaining to surface water withdrawals are established in 9VAC25-210-310.

1. Discharges of dredged or fill material into state waters, excepting except wetlands, which are addressed under a USACE Regional, General or Nationwide Permit, and for which no § 401 Water Quality Certificate is required.

2. Discharges of dredged or fill material into wetlands when addressed under a USACE Regional, General, or Nationwide Permit and that meet the provisions of subdivision 10 a of this subsection.

3. 2. Any discharge, other than an activity in a surface water governed by § 62.1-44.15:20 of the Code of Virginia, permitted of stormwater from municipal separate storm sewer systems or land disturbing activities authorized by 9VAC25-870, or the discharge of sewage, industrial wastes, or other wastes or any noxious or deleterious substances into surface waters that is authorized by a Virginia Pollutant Discharge Elimination System (VPDES) permit in accordance with 9VAC25-31 or a Virginia Pollution Abatement (VPA) permit in accordance with 9VAC25-32.

4. Any activity, other than an activity in a surface water governed by § 62.1-44.15:20 of the Code of Virginia, permitted by a Virginia Pollution Abatement (VPA) permit in accordance with 9VAC25-32.

5. Septic tanks, when authorized by a state Department of Health permit.

6. 3. Any activity permitted governed under Chapter 13 (§ 28.2-1300 et seq.) of Title 28.2 of the Code of Virginia, unless state certification is required by § 401 of the Clean Water Act. State certification is waived if the activity meets the provisions of subdivision 10 a of this subsection. The activity does not require a VWP permit pursuant to § 62.1-44.15:21 H G of the Code of Virginia.

7. 4. Normal residential gardening, and lawn and landscape maintenance in a wetland, or other similar activity, that is incidental to an occupant's ongoing residential use of property and is of minimal ecological impact. The criteria governing this exclusion are set forth in the definition of "normal residential gardening and lawn and landscape maintenance" in 9VAC25-210-10.

5. Maintenance, including emergency reconstruction of recently damaged parts of currently serviceable structures, such as purpose-built stormwater and utility structures, transportation structures, dikes, groins, levees, dams, riprap breakwaters, causeways, or bridge abutments or approaches. Maintenance does not include modifications that change the character, scope, or size of the original design. If the original design is not available, the permittee shall submit the best available information on the design for consideration and approval by the board. In order to quality for this exclusion, emergency reconstruction shall occur as soon as practicable after damage occurs.

6. Impacts to open waters that do not have a detrimental effect on public health, animal life, or aquatic life or to the uses of such waters for domestic or industrial consumption, recreation, or other uses.

7. Flooding or back-flooding impacts to surface waters resulting from the construction of temporary sedimentation basins on a construction site when such structures are necessary for erosion and sediment control or stormwater management purposes.

8. Normal agriculture and silviculture activities in a wetland such as plowing, seeding, cultivating, minor drainage, and harvesting for the production of food, fiber, and forest products, or upland soil and water conservation practices.

a. To fall under this exclusion, the activities specified in this subdivision 8 of this section must be part of an established (i.e., ongoing) agriculture or silviculture operation, and must be in accordance with applicable best management practices set forth in either Forestry Best Management Practices for Water Quality in Virginia Technical Guide (Fourth Edition, July 2002) or Virginia Agricultural BMP Manual (2000), which facilitate compliance with the § 404(b)(1) Guidelines (40 CFR Part 230). Activities on areas lying fallow as part of a conventional, rotational cycle are part of an established operation.

b. Activities which bring a new area into agricultural or silvicultural use are not part of an established operation. An operation ceases to be established when the area in which it was conducted has been converted to another use or has lain idle so long that modifications to the hydrological regime are necessary to resume operation. If the activity takes place outside surface waters, it does not need a VWP permit, whether or not it is part of an established agriculture or silviculture operation.

c. For the purposes of this subdivision 8 of this section, cultivating, harvesting, minor drainage, plowing, and seeding are defined as follows:

(1) "Cultivating" means physical methods of soil treatment employed within established agriculture and silviculture lands on farm or forest crops to aid and improve their growth, quality, or yield.

(2) "Harvesting" means physical measures employed directly upon farm, forest, or crops within established agricultural and silviculture lands to bring about their removal from farm or forest land, but does not include the construction of farm or forest roads.

(3) "Minor drainage" means:

(a) The discharge of dredged or fill material incidental to connecting upland drainage facilities to surface waters, adequate to effect the removal of excess soil moisture from upland croplands. Construction and maintenance of upland (dryland) facilities, such as ditching and tiling, incidental to the planting, cultivating, protecting, or harvesting of crops;

(b) The discharge of dredged or fill material for the purpose of installing ditching or other water control facilities incidental to planting, cultivating, protecting, or harvesting of rice, or other wetland crop species, where these activities and the discharge occur in surface waters which are in established use for such agricultural and silviculture wetland crop production;

(c) The discharge of dredged or fill material for the purpose of manipulating the water levels of, or regulating the flow or distribution of water within, existing impoundments which that have been constructed in accordance with applicable requirements of the Clean Water Act, and which that are in established use for the production of rice, or other wetland crop species;

(d) The discharge of dredged or fill material incidental to the emergency removal of sandbars, gravel bars, or other similar blockages which are formed during flood flows or other events, where such blockages close or constrict previously existing drainageways and, if not promptly removed, would result in damage to or loss of existing crops or would impair or prevent the plowing, seeding, harvesting or cultivating of crops on land in established use for crop production. Such removal does not include enlarging or extending the dimensions of, or changing the bottom elevations of, the affected drainageway as it existed prior to the formation of the blockage. Removal must be accomplished within one year after such blockages are discovered in order to be eligible for exclusion; and

(e) Minor drainage in surface waters is limited to drainage within areas that are part of an established agriculture or silviculture operation. It does not include drainage associated with the immediate or gradual conversion of a wetland to a nonwetland (for example, wetland species to upland species not typically adapted to life in saturated soil conditions), or conversion from one wetland use to another (for example, silviculture to agriculture). In addition, minor drainage does not include the construction of any canal, ditch, dike or other waterway or structure which drains or otherwise significantly modifies a stream, lake, swamp, bog or any other wetland or aquatic area constituting surface water. Any discharge of dredged or fill material into surface water incidental to the construction of any such structure or waterway requires a VWP permit, unless otherwise excluded or exempted by this regulation.

(4) "Plowing" means all forms of primary tillage, including moldboard, chisel, or wide-blade plowing, discing, harrowing, and similar physical means used on farm or forest land for the breaking up, cutting, turning over, or stirring of soil to prepare it for the planting of crops. Plowing does not include the redistribution of soil, rock, sand, or other surficial materials in a manner which changes any area of surface water to dry land. For example, the redistribution of surface materials by blading, grading, or other means to fill in wetland areas is not plowing. Rock crushing activities which result in the loss of natural drainage characteristics, the reduction of water storage and recharge capabilities, or the overburden of natural water filtration capacities does not constitute plowing. Plowing as described above will never involve a discharge of dredged or fill material.

(5) "Seeding" means the sowing of seed and placement of seedlings to produce farm or forest crops and includes the placement of soil beds for seeds or seedlings on established farm and forest lands.

9. Maintenance, including emergency reconstruction of recently damaged parts of currently serviceable structures, such as dikes, groins, levees, dams, riprap breakwaters, causeways, bridge abutments or approaches, and transportation and utility structures. Maintenance does not include modifications that change the character, scope, or size of the original design. In order to qualify for this exclusion, emergency reconstruction must occur within a reasonable period of time after damage occurs. Discharges of dredged or fill material into wetlands when addressed under a U.S. Army Corps of Engineers Regional, General, or Nationwide Permit and that meet the provisions of subdivision 10 a of this section.

10. Construction or maintenance of farm ponds or impoundments, stock ponds or impoundments, or irrigation ditches, or the maintenance (but not construction) of drainage ditches.

a. The exclusion for the construction and maintenance of farm or stock ponds and farm or stock impoundments applies to those structures that are operated for normal agricultural or silvicultural purposes, and are less than 25 feet in height or create a maximum impoundment capacity smaller than 100 acre-feet.

b. The exclusion for the construction and maintenance of farm or stock ponds and farm or stock impoundments does not include the impacts associated with the withdrawal of surface water from, within, or behind such structures. A VWP permit may be required for the surface water withdrawal.

c. Discharge associated with siphons, pumps, headgates, wingwalls, weirs, diversion structures, and such other facilities as are appurtenant and functionally related to irrigation ditches are included in this exclusion.

d. The maintenance dredging of existing ditches is included in this exclusion provided that the final dimensions of the maintained ditch do not exceed the average dimensions of the original ditch. This exclusion does not apply to the construction of new ditches or to the channelization of streams.

11. Construction of temporary sedimentation basins on a construction site which does not include the placement of fill materials into surface waters or excavation in wetlands. The term "construction site" refers to any site involving the erection of buildings, roads, and other discrete structures and the installation of support facilities necessary for construction and utilization of such structures. The term "construction site" also includes any other land areas which involve land-disturbing excavation activities, including quarrying or other mining activities, where an increase in run-off of sediment is controlled through the use of temporary sedimentation basins.

12. 11. Construction or maintenance of farm roads, forest roads, or temporary roads for moving mining equipment, where such roads are constructed and maintained in accordance with applicable best management practices (BMPs) set forth in either Forestry Best Management Practices for Water Quality in Virginia, Technical Guide, Fourth Edition, July 2002, or Virginia Agricultural BMP Manual, 2000, to ensure that flow and circulation patterns and chemical and biological characteristics of surface waters are not impaired, that the reach of such waters is not reduced, and that any adverse effect on the aquatic environment will otherwise be minimized. The BMPs which must be applied to satisfy this provision include the following baseline provisions:

a. Permanent roads (for agriculture or forestry activities), temporary access roads (for mining, forestry, or farm purposes), and skid trails (for logging) in surface waters shall be held to the minimum feasible number, width, and total length consistent with the purpose of specific agriculture, silviculture or mining operations, and local topographic and climatic conditions;

b. All roads, temporary or permanent, shall be located sufficiently far from streams or other water bodies (except for portions of such roads which must cross water bodies) to minimize discharges of dredged or fill material into surface waters;

c. The road fill shall be bridged, piped, culverted, or otherwise designed to prevent the restriction of expected flood flows;

d. The fill shall be properly stabilized and maintained to prevent erosion during and following construction;

e. Discharges of dredged or fill material into surface waters to construct road fill shall be made in a manner which minimizes the encroachment of trucks, tractors, bulldozers, or other heavy equipment within state waters (including adjacent wetlands) that lie outside the lateral boundaries of the fill itself;

f. In designing, constructing, and maintaining roads, vegetative disturbance in surface waters shall be kept to a minimum;

g. The design, construction and maintenance of the road crossing shall not disrupt the migration or other movement of those species of aquatic life inhabiting the water body;

h. Borrow material shall be taken from upland sources whenever feasible;

i. The discharge shall not take, or jeopardize the continued existence of a state- or federally-listed threatened or endangered species as defined under the Endangered Species Act (16 USC § 1531 et seq.), in § 29.1-566 of the Code of Virginia and in 4VAC15-20-130 B and C, except as provided in § 29.1-568 of the Code of Virginia, or adversely modify or destroy the critical habitat of such species;

j. Discharges into the nesting and breeding areas for migratory waterfowl, spawning areas, and wetlands shall be avoided if practical on-site or off-site alternatives exist;

k. The discharge shall not be located in proximity of a public water supply or intake;

l. The discharge shall not occur in areas of concentrated shellfish production;

m. The discharge shall not occur in a component to the National Wild and Scenic River System;

n. The discharge material shall consist of suitable material free from toxic pollutants in toxic amounts; and

o. All temporary fills shall be removed in their entirety and the area restored to its original elevation.

B. The following surface water withdrawals are excluded from VWP permit requirements. Activities, other than the surface water withdrawal, which are contained in 9VAC25-210-50 and are associated with the construction and operation of the surface water withdrawal, are subject to VWP permit requirements unless excluded by subsection A of this section. Other permits under state and federal law may be required.

1. Any surface 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. To qualify for this exclusion, the surface water withdrawal shall be deemed to be in existence on July 1, 1989, if there was an actual withdrawal on or before that date that has not been abandoned.

a. Abandonment of a surface water withdrawal. A surface water withdrawal shall be deemed to be abandoned if the owner of the withdrawal system (i) notifies the DEQ in writing that the withdrawal has been abandoned or (ii) removes or disables the withdrawal system with the intent to permanently cease such withdrawal. Transfer of ownership or operational control of the withdrawal system, a change in use of the water, or temporary cessation of the withdrawal shall not be deemed evidence of abandonment. The notification shall be signed by the owner of record or shall include evidence satisfactory to the DEQ that the signatory is authorized to submit the notice on behalf of the owner of record. Evidence may include, but shall not be limited to, a resolution of the governing body of the owner or corporate minutes.

b. Information to be furnished to the DEQ. Each owner or operator of a permanent withdrawal system engaging in a withdrawal that is subject to this exclusion shall provide the DEQ the estimated maximum capacity of the intake structure, the location of the existing intake structure and any other information that may be required by the board. Each owner or operator of a temporary withdrawal system engaging in a withdrawal that is subject to this exclusion, where the purpose of the withdrawal is for agriculture, shall provide to the DEQ the maximum annual surface water withdrawal over the last 10 years. The information shall be provided within one year of the date that notice of such request is received from the DEQ and shall be updated when the maximum capacity of the existing intake structure changes. The information provided to the DEQ shall not constitute a limit on the exempted withdrawal. Such information shall be utilized by the DEQ and board to protect existing beneficial uses and shall be considered when evaluating applications for new withdrawal permits.

2. Any surface water withdrawal not in existence on July 1, 1989, if the person proposing to make the withdrawal 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.

3. Any existing lawful unpermitted surface water withdrawal initiated between July 1, 1989, and July 25, 2007, which is not subject to other exclusions contained in this section. These withdrawals shall be excluded from permit requirements only if they comply with the conditions in this subdivision. Regardless of complying with the conditions of this subdivision, these withdrawals shall require a permit for any increased withdrawal amount.

a. Information to be furnished to the DEQ. Each owner or operator of a withdrawal system engaging in a withdrawal that is subject to this exclusion shall provide the DEQ with copies of water withdrawal reports required by Water Withdrawal Reporting Regulations (9VAC25-200) documenting the largest 12-consecutive month withdrawal that occurred in the 10 years prior to July 25, 2007. In the case of unreported agricultural surface water withdrawals, estimates of withdrawals will be accepted that are based on one of the following:

(1) The area irrigated, depth of irrigation, and annual number of irrigations; pumping capacity and annual pumping time; annual energy consumption for pumps; number and type of livestock watered annually; number and type of livestock where water is used for cooling purposes; or

(2) Other methods approved by the board for the largest 12 consecutive month withdrawal that occurred in the 10 years prior to July 25, 2007. The board shall evaluate all estimates of surface water withdrawals based on projected water demands for crops and livestock as published by the Virginia Cooperative Extension Service, the United States Natural Resources Conservation Service, or other similar references and make a determination whether they are reasonable. In all cases only reasonable estimates will be used to document the excluded withdrawal amount.

b. The information noted in subdivision 3 a of this subsection shall be provided within 12 months of July 25, 2007. The information provided to the DEQ shall constitute a limit on the withdrawal that is excluded from permit requirements; any increase in that withdrawal above the limited amount shall require an application for a permit for the withdrawal system. Information regarding excluded withdrawal amounts shall be utilized by the DEQ and board to protect existing beneficial uses and shall be considered when evaluating applications for new withdrawal permits.

c. All owners and operators of surface water withdrawals excluded from permit requirements by this section shall annually report withdrawals as required by Water Withdrawal Reporting Regulations (9VAC25-200). Failure to file annual reports either reporting actual withdrawals or the fact that withdrawals did not occur may result in the owner or operator being required to file an application and receive a permit prior to resuming any withdrawal.

4. Agricultural surface water withdrawals from nontidal waters that total less than one million gallons in a single month.

5. Surface water withdrawals from nontidal waters for all other purposes that total less than 10,000 gallons per day.

6. Surface water withdrawals from tidal waters for nonconsumptive uses.

7. Agricultural surface water withdrawals from tidal waters that total less than 60 million gallons in a single month.

8. Surface water withdrawals from tidal waters for all other consumptive purposes that total less than two million gallons per day.

9. Surface water withdrawals for firefighting or for the training activities related to firefighting, such as dry hydrants and emergency surface water withdrawals.

10. Surface water withdrawals placed into portable containers by persons owning property on, or holding easements to, riparian lands.

11. Surface water withdrawals for the purposes of hydrostatic pressure testing of water tight containers, pipelines, and vessels.

12. Surface water withdrawals for normal single family home residential gardening, lawn, and landscape maintenance.

13. Surface water withdrawals that are located on a property, such that the withdrawal returns to the stream of origin; not more than half of the instantaneous flow is diverted; not more than 1,000 feet of stream channel separate the withdrawal point from the return point; and both banks of the affected stream segment are located within that property boundary.

14. Surface water withdrawals from quarry pits, such that the withdrawal does not alter the physical, biological, or chemical properties of surface waters connected to the quarry pit.

15. Surface water withdrawals from a privately owned agriculture pond, emergency water storage facility, or other water retention facility, provided that such pond or facility is not placed in the bed of a perennial or intermittent stream or wetland. Surface water withdrawals from such facilities constructed in beds of ephemeral streams are excluded from permit requirements.

C. DEQ may require any owner or operator of a withdrawal system excluded from permit requirements by subdivisions B 3 through 15 of this section to cease withdrawals and file an application and receive a permit prior to resuming any withdrawal when the board's assessment indicates that a withdrawal, whether individually or in combination with other existing or proposed projects:

1. Causes or contributes to, or may reasonably be expected to cause or contribute to, a significant impairment of the state waters or fish and wildlife resources;

2. Adversely impacts other existing beneficial uses; or

3. Will cause or contribute to a violation of water quality standards.

9VAC25-210-65. Administrative continuance.

A. Administrative continuance provisions shall apply to all VWP permits.

B. When the permittee has submitted a timely and complete application for reissuance of an existing VWP individual permit, but through no fault of the permittee, the board does not reissue or reissue with conditions a VWP individual permit, or the board does not provide notice of its tentative decision to deny the application before an existing VWP individual permit, the conditions of the expiring VWP individual permit may be administratively continued in full force and effect until the effective date of a reissued permit. Complete application requirements for a VWP individual permit are located in 9VAC25-210-80 and 9VAC25-210-340. Timely application shall be a minimum of 180 days for an individual permit or a minimum of 270 days for an individual permit for a surface water withdrawal, unless otherwise specified in the existing permit.

C. Administrative continuance of a specific VWP general permit shall be in accordance with the corresponding VWP general permit regulation.

9VAC25-210-70. Effect of a VWP permit.

A. As to the permitted activity, compliance with a VWP permit constitutes compliance with the VWP permit requirements of the Law and regulations.

B. The issuance of a VWP permit does not convey any property rights in either real or personal property, or any exclusive privileges, nor does it authorize injury to private property or any invasion of personal rights or any infringement of federal, state, or local law or regulation laws or regulations.

Part II
VWP Permit Application and Development

9VAC25-210-75. Preapplication procedures for a new or expanded VWP permit for major surface water withdrawals. (Repealed.)

A. Preapplication review panel. At the request of an applicant for a surface water supply project, a preapplication review panel shall be convened prior to submission of a VWP application upon request by a potential applicant to the Department of Environmental Quality. The preapplication review panel shall assist potential applicants that are proposing surface water supply projects with the early identification of issues related to the protection of beneficial instream and offstream uses of state waters and the identification of the affected stream reach. The DEQ shall notify the Virginia Marine Resources Commission, the Virginia Institute of Marine Science, the Virginia Department of Game and Inland Fisheries, the Virginia Department of Conservation and Recreation, the Virginia Department of Health, the Corps of Engineers, the U.S. Fish and Wildlife Service, the Environmental Protection Agency and any other appropriate local, state, and federal agencies of the preapplication review panel request. These agencies shall participate to the extent practicable in the preapplication review panel by providing information and guidance on the potential natural resource impacts and regulatory implications of the options being considered by the applicant and shall provide comments within 60 days of the initial meeting of the preapplication panel.

B. Preapplication public notice. For new or expanded surface water supply projects requiring an individual VWP permit, a potential applicant shall provide information on the project, shall provide an opportunity for public comment on the proposed project, and shall assist in identifying public concerns or issues prior to filing a VWP individual permit application.

1. Except as provided in this subsection, the potential applicant shall provide for publication of notice once a week for two consecutive weeks in a newspaper of general circulation serving the locality where the surface water supply project is proposed to be located.

2. If requested by any person, the potential applicant shall hold at least one public information meeting. Notice of any public information meeting held pursuant to this subsection shall be provided at least 14 days prior to the public information meeting date and shall be published in the same manner as required in subdivision 1 of this subsection. A potential applicant shall submit the notice to the DEQ for posting on the DEQ website. At a minimum, any notice required by this subsection shall include:

a. A statement of the potential applicant's intent to apply for a VWP permit for a surface water supply project;

b. The proposed location of the surface water supply project;

c. Information on how the public may request a public information meeting or in the alternative, the date, time and location of the public information meeting;

d. The name, address and telephone number of the potential applicant, or an authorized representative who can answer questions or receive comments on the proposed surface water supply project; and

e. A statement of how any oral or written public comments will be used.

3. In accordance with the provisions of 9VAC25-780-50 C 11 and 9VAC25-780-150, a potential applicant shall not be required to publish public notice or provide an opportunity for a public information meeting if a public meeting has been held within two years prior to the submittal of an application for a VWP permit on a local or regional water supply plan, which includes the proposed project.

4. The potential applicant shall maintain a list of persons and their addresses making comment and shall make a good faith effort to notify commenters, at the address provided by the commenter, when the public notice for the draft VWP individual permit is available.

9VAC25-210-80. Application for a VWP permit.

A. Application for a VWP Permit. Any person who is required to obtain a VWP permit, except those persons applying for a VWP permit for a minor surface water withdrawal or an emergency VWP permit for a public water supply emergency, shall submit a complete VWP permit application to DEQ the Department of Environmental Quality through the most current Joint Permit Application procedures, as established within each type of Joint Permit Application (JPA). The Virginia Department of Transportation (VDOT) may use its monthly Interagency Coordination Meeting (IACM) process for submitting JPAs. There shall be no commencement of any activity subject to the VWP permit program regulation prior to the issuance of a VWP permit or granting VWP general permit authorization coverage.

B. Informational requirements for a VWP Permit Application, except applications for minor surface water withdrawals or all VWP individual permit applications are identified in this subsection with the exception of applications for emergency VWP permits to address a public water supply emergency, for which the information required in 9VAC25-210-340 C shall be submitted. In addition to the information in this subsection, applications involving a surface water withdrawal or a Federal Energy Regulatory Commission (FERC) license or relicense associated with a surface water withdrawal shall also submit the information required in 9VAC25-210-340 B.

1. A complete application for a VWP individual permit application, at a minimum, consists of the following information:

a. Name Legal name, mailing address, telephone number, and if applicable, electronic mail address and fax number of applicant.

b. If different from applicant, legal name, mailing address, telephone number, and if applicable, electronic mail address and fax number of property owner.

c. If applicable, name of the authorized agent agent's name, mailing address, telephone number, and if applicable, fax number and electronic mail address.

d. Name of the impacted waterbody or waterbodies, or receiving waters, as applicable, at the project site.

e. Name of the city or county where the project occurs.

f. Project purpose, need and description. The purpose and need for the project shall be specified. A complete narrative description of the project shall include: the name of the project; the type of activity to be conducted; any physical alteration to surface waters; and all impacts, permanent and temporary, associated with the project. Wetland impacts should be quantified and identified according to their Cowardin classification or similar terminology. Conversion of one type of wetland to another type of wetland is considered to be a permanent impact. Stream impacts should be quantified and identified based on geomorphological types.

g. Amount of wetland impacts (by type in acres or square feet), stream impacts (in linear feet), and in square feet for purposes of calculating the permit application fee, when applicable, and open water impacts (by type in square feet or acres, as applicable).

h. Materials assessment. If dredged material from on-site areas or fill material from off-site areas is involved, the applicant must provide evidence or certification that the material is free from toxic contaminants prior to disposal, or that the material, if not free of contaminants, will be placed in an approved disposal area. If applicable, the applicant may be required to conduct grain size and composition analyses, tests for specific parameters or chemical constituents, or elutriate tests on the dredge material.

i. Proposed construction schedule. An estimate of the construction timeframe for the project will be used to determine the VWP permit term.

j. Signed and dated signature page. The application signature page, either on the copy submitted to VMRC or to the DEQ, must have an original signature. Electronic submittals containing the original-signature page, such as that contained in a scanned document file, are acceptable.

k. The latitude and longitude (to the nearest second) at the center of the project, United States Geological Survey Hydrologic Unit Code for the project and compensatory mitigation site, DEQ stream classification, stream drainage area, functions and values assessment for wetlands impacts (if applicable), beneficial uses evaluation for instream flow and surface water withdrawal projects (if applicable), wetlands delineation information, state- and federally-listed threatened and endangered species information, mitigation plan (demonstrating avoidance and minimization to the maximum extent practicable, and compensation for unavoidable impacts).

(1) For wetland impacts greater than one acre (1.0 acre or 43,560 square feet), the assessment of functional values of the affected surface waters must include information on: surrounding land uses and cover types; nutrient, sediment, and pollutant trapping; flood control and flood storage capacity; erosion control and shoreline stabilization; groundwater recharge and discharge; aquatic and wildlife habitat; and unique or critical habitats. Functional values may also include: water quality, floodflow desynchronization, nutrient import or export, stormwater retention or detention, recreation, education, aesthetics, or other beneficial uses. These values shall be assessed using an acceptable method appropriate for the type of impacted resource. This information will be used to determine the type of compensatory mitigation required to ensure no net loss of wetland functions.

(2) Evaluation of beneficial uses for instream flow and surface water withdrawal projects includes both instream and offstream uses. Instream beneficial uses include, but are not limited to: the protection of fish and wildlife habitat; maintenance of waste assimilation; recreation; navigation; and cultural and aesthetic values. Offstream beneficial uses include, but are not limited to: domestic (including public water supply); agricultural; electric power generation; and commercial and industrial uses.

(3) The assessment of potential impacts to federally-listed and state-listed threatened or endangered species shall include correspondence or documentation from federal or state resource agencies addressing potential impacts to listed species.

(4) A delineation map must be provided of the geographic area of a delineated wetland for all wetlands on the site, in accordance with 9VAC25-210-45, including the wetlands data sheets, and the latitude and longitude (to the nearest second) of the center of the wetland impact area. Wetland types shall be noted according to their Cowardin classification or similar terminology. A copy of the USACE delineation confirmation, or other correspondence from the USACE indicating their approval of the wetland boundary, shall also be provided at the time of application, or if not available at that time, as soon as it becomes available during the VWP permit review. The delineation map should also include the location of all impacted and non-impacted streams, open water and other surface waters on the site. The approximate limits of any Chesapeake Bay Resource Protection Areas (RPAs) shall be shown on the map as additional state or local requirements may apply if the project is located within an RPA.

(5) The plan of mitigation for impacts to surface waters must include, in accordance with current federal regulations: measures taken to avoid impacts to the maximum extent practicable, the measures proposed to reduce the impacts to surface waters to the maximum extent practicable, and where impacts could not be avoided, the means by which compensation will be accomplished to achieve no net loss of wetland acreage and functions or stream functions and water quality benefits.

(a) A narrative description must be provided detailing the measures taken during project design and development both to avoid and minimize impacts to surface waters to the maximum extent practicable (see 9VAC25-210-115).

(b) In order for an application to be deemed complete, a conceptual wetland compensatory mitigation plan must be submitted for unavoidable permanent impacts to wetlands, unless dependent solely on mitigation banking or monetary contribution to an in-lieu fee fund, and shall include at a minimum: the goals and objectives in terms of replacement of wetland acreage and functions; a detailed location map (for example, a United States Geologic Survey topographic quadrangle map), including latitude and longitude (to the nearest second) and the hydrologic unit code (HUC) at the center of the site; a description of the surrounding land use; a hydrologic analysis, including a draft water budget based on expected monthly inputs and outputs which will project water level elevations for a typical year, a dry year and a wet year; groundwater elevation data, if available, or the proposed location of groundwater monitoring wells to collect these data; wetland delineation confirmation and data sheets and maps for existing surface water areas on the proposed site(s); a conceptual grading plan; a conceptual planting scheme, including suggested plant species and zonation of each vegetation type proposed; a description of existing soils, including general information on both topsoil and subsoil conditions, permeability, and the need for soil amendments; a draft design of any water control structures; inclusion of buffer areas; a description of any structures and features necessary for the success of the site; the schedule for compensatory mitigation site construction; and proposed deed restriction language for protecting the compensation site or sites, including all surface waters and buffer areas within its boundaries, in perpetuity.

(c) In order for an application to be deemed complete, a conceptual stream compensatory mitigation plan must be submitted for unavoidable permanent impacts to streams, unless dependent solely on mitigation banking or monetary contribution to an in-lieu fee fund, and shall include at a minimum: the goals and objectives in terms of water quality benefits and replacement of stream functions; a detailed location map (for example, a United States Geologic Survey topographic quadrangle map), including the latitude and longitude (to the nearest second) and the hydrologic unit code (HUC) at the center of the site; a description of the surrounding land use; the proposed stream segment restoration locations, including plan view and cross-section sketches; the stream deficiencies that need to be addressed; the proposed restoration measures to be employed, including channel measurements, proposed design flows, types of instream structures, and conceptual planting scheme; reference stream data, if available; inclusion of buffer areas; schedule for restoration activities; and proposed deed restriction language for protecting the compensation site or sites, including all surface waters and buffer areas within its boundaries, in perpetuity.

(d) Compensation for open water impacts may be required, as appropriate, to protect state waters and fish and wildlife resources from significant impairment.

(e) Any compensation plan shall include measures for the control of undesirable species.

(f) Any compensation plan proposing to include contributions to an in-lieu fee fund shall include proof of the willingness of the entity to accept the donation and documentation of how the amount of the contribution was calculated.

(g) Any compensation plan proposing the purchase or use of mitigation banking credits shall include: (i) the name of the proposed mitigation bank and the HUC in which it is located; (ii) the number of credits proposed to be purchased or used; and (iii) certification from the bank owner of the availability of credits.

(h) Applicants proposing off-site compensatory mitigation, including purchase or use of mitigation bank credits, or contribution to an in-lieu fee fund shall first discuss the feasibility of on-site compensatory mitigation. If on-site compensatory mitigation is practicable, applicants must provide documentation as to why the proposed off-site compensatory mitigation is ecologically preferable (see 9VAC25-210-116 B).

l. Detailed project location map. The detailed location map (for example, a United States Geologic Survey topographic quadrangle map) including the project boundary. The map should be of sufficient detail such that the site may be easily located for site inspection.

m. Project plan view and cross-sectional sketches. All plan view sketches and cross-sectional sketches must include, at a minimum, north arrow, scale, existing structures, existing and proposed (if available) contours, limit of surface water areas, ebb and flood or direction of flow, ordinary high water elevation, impact limits, and location and dimension of all structures in impact areas. Profile sketches with the above information shall be required as appropriate to demonstrate minimization of impacts.

n. Application processing fee. The applicant will be notified by the board as to the appropriate fee for the project in accordance with 9VAC25-20. The board will continue to process the application, but the fee must be received prior to release of a draft VWP permit.

2. In addition to requirements of subdivision 1 of this subsection, applications involving instream flow requirements, major surface water withdrawals or a Federal Energy Regulatory Commission (FERC) license or re-license shall include:

a. The drainage area, the average annual flow and the median monthly flows at the withdrawal point, and historical low flows if available;

b. The average daily withdrawal, the maximum daily and instantaneous withdrawals and information on the variability of the demand by season;

c. The consumptive use and the average daily return flow of the proposed project and the location of the return flow;

d. Information on flow dependent beneficial uses along the affected stream reach;

e. Information on the aquatic life along the affected stream reach, including species and habitat requirements;

f. Information on how the proposed withdrawal will alter flows along the affected stream reach;

g. Information on the proposed use of and need for the surface water and information on how demand for surface water was determined (for example, per capita use, population growth rates, new uses, changes to service areas, and if applicable; acreage irrigated and evapotranspiration effects). If during the water supply planning process, the need for the withdrawal was established, the applicant may submit said planning process information, provided that the submittal address all requirements of 9VAC25-210-115 B. The board shall deem such a submittal as meeting the requirements of this subsection. For public surface water supply withdrawal projects see also 9VAC25-780-100 and 9VAC25-780-130;

h. For new or expanded surface water supply projects, a summary of the steps taken to seek public input as required by 9VAC25-210-75 and an identification of the issues raised during the course of the public information meeting process; and

i. For surface water withdrawals, other than public water supplies, information to demonstrate that alternate sources of water supply are available to support the operation of the facility during times of reduced instream flow.

C. Applications for new or expanded minor surface water withdrawals, using the DEQ Application for New or Expanded Minor Surface Water Withdrawals Initiated On or After July 25, 2007, shall include:

1. Name, mailing address, telephone number, and if applicable, fax number and electronic mail address of applicant;

2. If different from applicant, name, mailing address, telephone number, and if applicable, fax number and electronic mail address of property owner;

3. If applicable, name of authorized agent, mailing address, telephone number, and if applicable, fax number and electronic mail address;

4. Name of waterbody or waterbodies, or receiving waters, as applicable;

5. Documentation of all withdrawals associated with the application, including, but not limited to, the amount of the requested surface water withdrawal, a description of the proposed intake structure, and a schedule of the proposed withdrawal that describes any seasonal variations in withdrawal patterns;

6. Locations of all withdrawals associated with the application shown on a detailed location map (for example, a United States Geological Survey 7.5-minute topographic map or similar maps of reasonable detail to show land and water features);

7. Name of the city or county where the project occurs;

8. Signed and dated signature page (electronic submittals containing the original-signature page, such as that contained in a scanned document file are acceptable);

9. Application processing fee in accordance with 9VAC25; and

10. Any application for a minor surface water withdrawal for a public surface water supply withdrawal project shall provide an evaluation of project alternatives as required in 9VAC25-210-115.

D. Applications for an Emergency Virginia Water Protection Permit to address a public water supply emergency:

1. Applications for an Emergency Virginia Water Protection Permit shall include the information noted below in subdivisions a through o. The JPA may be used for emergency applications purposes, provided that all of the information below is included:

a. Name, mailing address, telephone number, and if applicable, fax number and electronic mail address of applicant;

b. If different from applicant, name, mailing address, telephone number, and if applicable, fax number and electronic mail address of property owner;

c. If applicable, name of authorized agent, mailing address, telephone number, and if applicable, fax number and electronic mail address;

d. Name of waterbody or waterbodies, or receiving waters, as applicable;

e. Name of the city or county where the project occurs;

f. Signed and dated signature page (electronic submittals containing the original-signature page, such as that contained in a scanned document file are acceptable);

g. Application processing fee in accordance with 9VAC25-20;

h. The drainage area, the average annual flow and the median monthly flows at the withdrawal point, and historical low flows if available;

i. Information on the aquatic life along the affected stream reach, including species and habitat requirements;

j. Recent and current water use including monthly water use in the previous calendar year and weekly water use in the previous six months prior to the application. The application shall identify the sources of such water and also identify any water purchased from other water suppliers;

k. A description of the severity of the public water supply emergency, including for reservoirs, an estimate of days of remaining supply at current rates of use and replenishment; for wells, current production; for intakes, current streamflow;

l. A description of mandatory water conservation measures taken or imposed by the applicant and the dates when the measures were implemented; for the purposes of obtaining an Emergency Virginia Water Protection Permit, mandatory water conservation measures shall include, but not be limited to, the prohibition of lawn and landscape watering, vehicle washing, the watering of recreation fields, refilling of swimming pools, the washing of paved surfaces;

m. An estimate of water savings realized by implementing mandatory water conservation measures;

n. Documentation that the applicant has exhausted all management actions that would minimize the threat to public welfare, safety and health and will avoid the need to obtain an emergency permit, and that are consistent with existing permit limitations; and

o. Any other information that demonstrates that the condition is a substantial threat to public health or safety.

2. Within 14 days after the issuance of an Emergency Virginia Water Protection Permit, the permit holder shall apply for a VWP permit under the other provisions of this regulation.

E. Additional information. The board shall require additional information if needed to evaluate compliance with this chapter.

d. Project name and proposed project schedule. This schedule will be used to determine the VWP permit term.

e. The following information for the project site location, and any related permittee-responsible compensatory mitigation site, if applicable:

(1) The physical street address, nearest street, or nearest route number; city or county; zip code; and if applicable, parcel number of the site or sites.

(2) Name of the impacted water body or water bodies, or receiving waters, as applicable, at the site or sites.

(3) The latitude and longitude to the nearest second at the center of the site or sites.

(4) The fourth order subbasin, as defined by the hydrologic unit boundaries of the National Watershed Boundary Dataset, for the site or sites.

(5) A detailed map depicting the location of the site or sites, including the project boundary. The map (e.g., a United States Geologic Survey topographic quadrangle map) should be of sufficient detail to easily locate the site or sites for inspection.

(6) GIS-compatible shapefile or shapefiles of the project boundary and existing preservation areas on the site or sites, unless otherwise approved by of coordinated with DEQ. The requirement for a GIS-compatible shapefile or shapefiles may be waived by DEQ on a case-by-case basis.

f. A narrative description of the project, including project purpose and need.

g. An alternatives analysis for the proposed project detailing the specific on-site and off-site measures taken during project design and development to first avoid and then minimize impacts to surface waters to the maximum extent practicable in accordance with the Guidelines for Specification of Disposal Sites for Dredged or Fill Material, 40 CFR Part 230. Avoidance and minimization includes, but is not limited to, the specific on-site and off-site measures taken to reduce the size, scope, configuration, or density of the proposed project, including review of alternative sites where required for the project, which would avoid or result in less adverse impact to surface waters, and documentation demonstrating the reason the applicant determined less damaging alternatives are not practicable. The analysis shall demonstrate to the satisfaction of the board that avoidance and minimization opportunities have been identified and measures have been applied to the proposed activity such that the proposed activity in terms of impacts to state waters and fish and wildlife resources is the least environmentally damaging practicable alternative.

h. A narrative description of all impacts proposed to surface waters, including the type of activity to be conducted in surface waters and any physical alteration to surface waters. Surface water impacts shall be identified as follows:

(1) Wetland impacts identified according to their Cowardin classification (i.e., emergent, scrub-shrub, or forested) and for each classification the individual impacts quantified in square feet to the nearest whole number, cumulatively summed in square feet, and then the sum converted to acres and rounded to two decimal places using commonly accepted arithmetic principles of rounding.

(2) Individual stream impacts quantified in linear feet to the nearest whole number and then cumulatively summed, and when compensatory mitigation is required, the impacts identified according to the assessed type using the United Stream Methodology.

(3) Open water impacts identified according to type; and for each type, the individual impacts quantified in square feet to the nearest whole number, cumulatively summed in square feet, and then the sum converted to acres and rounded to two decimal places using commonly accepted arithmetic principles of rounding.

(4) A copy of the approved jurisdictional determination, if available, or the preliminary jurisdictional determination from the U.S. Army Corps of Engineers (USACE), U.S. Department of Agriculture Natural Resources Conservation Service (NRCS), or DEQ, or other correspondence from the USACE, NRCS, or DEQ indicating approval of the boundary of applicable jurisdictional surface waters, including wetlands data sheets if applicable.

(5) A delineation map and GIS-compatible shapefile or shapefiles of the delineation map that depicts the geographic area or areas of all surface water boundaries delineated in accordance with 9VAC25-210-45 and confirmed in accordance with the jurisdictional determination process; identifies such areas in accordance with subdivisions 1 h (1) through 1 h (3) of this subsection; and quantifies and identifies any other surface waters according to their Cowardin classification (i.e., emergent, scrub-shrub, or forested) or similar terminology, if applicable. The requirement for a delineation map or GIS-compatible shapefile or shapefiles may be waived by DEQ on a case-by-case basis.

i. Plan view drawing or drawings of the project site sufficient to assess the project, including at a minimum the following:

(1) North arrow, graphic scale, and existing and proposed topographic or bathymetric contours.

(2) Limits of proposed impacts to surface waters.

(3) Location of all existing and proposed structures.

(4) All delineated wetlands and all jurisdictional surface waters on the site, including the Cowardin classification (i.e., emergent, scrub-shrub, or forested) for those surface waters and waterway name, if designated; ebb and flood or direction of flow; ordinary high water mark in nontidal areas; tidal wetlands boundary; and mean low water and mean high water lines in tidal areas.

(5) The limits of Chesapeake Bay Resources Protection Areas (RPAs) as field-verified by the applicant and, if available, the limits as approved by the locality in which the project site is located, unless the proposed use is exempt from the Chesapeake Bay Preservation Area Designation and Management Regulations (9VAC25-830).

(6) The limits of any areas that are under a deed restriction, conservation easement, restrictive covenant, or other land use protective instrument (i.e., protected areas).

j. Cross-sectional and profile drawing or drawings. Cross-sectional drawing or drawings of each proposed impact area includes at a minimum a graphic scale, existing structures, existing and proposed elevations, limits of surface water areas, ebb and flood or direction of flow (if applicable), ordinary high water mark in nontidal areas, tidal wetland boundary, mean low water and mean high water lines in tidal areas, impact limits, and location of all existing and proposed structures. Profile drawing or drawings with this information may be required on a case-by-case basis to demonstrate minimization of impacts. Any application that proposes piping or culverting stream flows shall provide a longitudinal profile of the pipe or culvert position and stream bed thalweg, or shall provide spot elevations of the stream thalweg at the beginning and end of the pipe or culvert, extending to a minimum of 10 feet beyond the limits of the proposed impact.

k. Materials assessment. Upon request by the board, the applicant shall provide evidence or certification that the material is free from toxic contaminants prior to disposal or that the dredging activity will not cause or contribute to a violation of water quality standards during dredging. The applicant may be required to conduct grain size and composition analyses, tests for specific parameters or chemical constituents, or elutriate tests on the dredge material.

l. An assessment of potential impacts to federal or state listed threatened or endangered species, including any correspondence or documentation from federal or state resource agencies addressing potential impacts to listed species.

m. A compensatory mitigation plan to achieve no net loss of wetland acreage or functions or stream functions and water quality benefits.

(1) If permittee-responsible compensation is proposed for wetland impacts, a conceptual wetland compensatory mitigation plan shall be submitted in order for an application to be deemed complete and shall include at a minimum (i) the goals and objectives in terms of replacement of wetland acreage or functions; (ii) a detailed location map including latitude and longitude to the nearest second and the fourth order subbasin, as defined by the hydrologic unit boundaries of the National Watershed Boundary Dataset, at the center of the site; (iii) a description of the surrounding land use; (iv) a hydrologic analysis including a draft water budget for nontidal areas based on expected monthly inputs and outputs that will project water level elevations for a typical year, a dry year, and a wet year; (v) groundwater elevation data, if available, or the proposed location of groundwater monitoring wells to collect these data; (vi) wetland delineation confirmation, data sheets, and maps for existing surface water areas on the proposed site or sites; (vii) a conceptual grading plan; (viii) a conceptual planting scheme including suggested plant species and zonation of each vegetation type proposed; (ix) a description of existing soils including general information on both topsoil and subsoil conditions, permeability, and the need for soil amendments; (x) a draft design of water control structures; (xi) inclusion of buffer areas; (xii) a description of any structures and features necessary for the success of the site; (xiii) the schedule for compensatory mitigation site construction; and (xiv) measures for the control of undesirable species.

(2) If permittee-responsible compensation is proposed for stream impacts, a conceptual stream compensatory mitigation plan shall be submitted in order for an application to be deemed complete and shall include at a minimum (i) the goals and objectives in terms of water quality benefits and replacement of stream functions; (ii) a detailed location map including the latitude and longitude to the nearest second and the fourth order subbasin, as defined by the hydrologic unit boundaries of the National Watershed Boundary Dataset, at the center of the site; (iii) a description of the surrounding land use; (iv) the proposed stream segment restoration locations including plan view and cross-section drawings; (v) the stream deficiencies that need to be addressed; (vi) data obtained from a DEQ-approved, stream impact assessment methodology such as the Unified Stream Methodology; (vii) the proposed restoration measures to be employed including channel measurements, proposed design flows, types of instream structures, and conceptual planting scheme; (viii) reference stream data, if available; (ix) inclusion of buffer areas; (x) schedule for restoration activities; and (xi) measures for the control of undesirable species.

(3) For any permittee-responsible compensatory mitigation, the conceptual compensatory mitigation plan shall also include a draft of the intended protective mechanism or mechanisms, in accordance with 9VAC25-210-116 B 2, 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 Land Act (§ 10.1-7100 et seq. of the Code of Virginia), a duly recorded declaration of restrictive covenants, or other protective instrument. The draft intended protective mechanism shall contain the information in subdivisions (a), (b), and (c) of this subdivision B 1 m (3) or in lieu thereof shall describe the intended protective mechanism or mechanisms that contain or contains the information required as follows:

(a) A provision for access to the site;

(b) The following minimum restrictions: no ditching, land clearing, or discharge of dredge or fill material, and no activity in the area designated as compensatory mitigation area with the exception of maintenance; corrective action measures; or DEQ-approved activities described in the approved final compensatory mitigation plan or long-term management plan; and

(c) A long-term management plan that identifies a long-term steward and adequate financial assurances for long-term management in accordance with the current standard for mitigation banks and in-lieu fee program sites, except that financial assurances will not be necessary for permittee-responsible compensation provided by government agencies on government property. If approved by DEQ, permittee-responsible compensation on government property and long-term protection may be provided through federal facility management plans, integrated natural resources management plans, or other alternate management plans submitted by a government agency or public authority.

(4) Any compensatory mitigation plan proposing the purchase of mitigation bank or in-lieu fee program credits shall include the number and type of credits proposed to be purchased and documentation from the approved bank or in-lieu fee program sponsor of the availability of credits at the time of application.

n. A written description and a graphical depiction identifying all upland areas including buffers, wetlands, open water, other surface waters, and compensatory mitigation areas located within the proposed project boundary or permittee-responsible compensatory mitigation areas, that are under a deed restriction, conservation easement, restrictive covenant, or other land use protective instrument (i.e., protected areas). Such description and a graphical depiction shall include the nature of the prohibited activities within the protected areas and the limits of Chesapeake Bay Resource Protection Areas (RPAs) as field-verified by the applicant, and if available, the limits as approved by the locality in which the project site is located, unless the proposed use is exempt from the Chesapeake Bay Preservation Area Designation and Management Regulations (9VAC25-830), as additional state or local requirements may apply if the project is located within an RPA.

o. Information for (i) all riparian landowners located within one-half mile downstream from each proposed impact area in nontidal areas and one-quarter mile upstream and downstream in tidal areas and (ii) all landowners located adjacent to proposed impact areas. The information must include, at a minimum, the following: property owner's name, mailing address (street name, city, state and zip code), property parcel number or numbers used by the locality, and a map depicting those property parcels. The requirements for riparian landowner information may be waived by DEQ on a case-by-case basis.

p. Signature page that has been signed, dated, and certified by the applicant in accordance with 9VAC25-210-100. If the applicant is a business or other organization, the signature must be made by an individual with the authority to bind the business or organization, and the title of the signatory must be provided. The application signature page, either on the copy submitted to the Virginia Marine Resources Commission or to DEQ, must have an original signature. Electronic submittals containing the original signature page, such as that contained in a scanned document file, are acceptable.

2. Reserved.

q. Permit application fee. The applicant will be notified by the board as to the appropriate fee for the project. The board will continue to process the application, but the fee must be received prior to release of a draft VWP permit.

C. An analysis of the functions of wetlands proposed to be impacted may be required by DEQ. When required, the method selected for the analysis shall assess water quality or habitat metrics and shall be coordinated with DEQ in advance of conducting the analysis.

1. No analysis shall be required when:

a. Wetland impacts per each single and complete project total 1.00 acre or less; or

b. The proposed compensatory mitigation consists of purchasing mitigation bank or in-lieu fee program credits at standard mitigation ratios of 2:1 forest, 1.5:1 scrub-shrub, and 1:1 emergent, or higher.

2. Analysis shall be required when wetland impacts per each single and complete project total 1.01 acres or more, and when any of the following applies:

a. The proposed compensatory mitigation consists of permittee-responsible compensatory mitigation, including water quality enhancements as replacement for wetlands; or

b. The proposed compensatory mitigation consists of purchasing mitigation bank or in-lieu fee program credits at less than the standard mitigation ratios of 2:1 forest, 1.5:1 scrub-shrub, and 1:1 emergent.

F. D. Incomplete application. Where an application is not accepted as complete by the board within 15 days of receipt, the board shall require the submission of additional information from the applicant, and may suspend processing of any application until such time as the applicant has supplied the requested information and the board considers the application complete. Further, where Where the applicant becomes aware that he omitted one or more relevant facts from a VWP permit application or submitted incorrect information in a VWP permit application or in any report to the board, the applicant shall immediately submit such facts or the correct information. A revised application with new information shall be deemed a new application for purpose of reviews, review but shall not require an additional notice or an additional permit application fee. An incomplete permit application may be administratively withdrawn from processing by the board for failure to provide the required information after 180 60 days from the date that of the original permit application was received latest written information request made by the board for failure to provide required information. An applicant may request a suspension of application review by the board. A submission by the applicant making such a request shall not preclude the board from administratively withdrawing an incomplete application. Resubmittal of a permit application for the same or similar project, after such time that the original permit application was administratively withdrawn, shall require submittal of an additional permit application fee and may be subject to additional noticing requirements.

9VAC25-210-90. Conditions applicable to all VWP permits.

A. Duty to comply. The permittee shall comply with all conditions and limitations of the VWP permit. Nothing in this chapter shall be construed to relieve the permittee of the duty to comply with all applicable federal and state statutes, regulations, toxic standards, and prohibitions. Any VWP permit violation or noncompliance is a violation of the law, Clean Water Act and State Water Control Law and is grounds for enforcement action, VWP permit termination, VWP permit revocation, VWP permit modification, or denial of an application for a VWP permit extension or reissuance.

B. 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 a VWP permit has been granted in order to maintain compliance with the conditions of the VWP permit.

C. Duty to mitigate. The permittee shall take all reasonable steps to minimize or prevent any impacts in violation of the VWP permit which that may have a reasonable likelihood of adversely affecting human health or the environment.

D. Inspection and entry. Upon presentation of credentials, the permittee shall allow the board or any duly authorized agent of the board, at reasonable times and under reasonable circumstances, to conduct the actions listed in this section. 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.

1. Enter upon permittee's property, public or private, and have access to, inspect and copy any records that must be kept as part of the VWP permit conditions;

2. Inspect any facilities, operations or practices (including monitoring and control equipment) regulated or required under the VWP permit; and

3. Sample or monitor any substance, parameter, or activity for the purpose of ensuring compliance with the conditions of the VWP permit or as otherwise authorized by law.

E. Duty to provide information. 1. The permittee shall furnish to the board any information which the board may request to determine whether cause exists for modifying, revoking, reissuing, or terminating the VWP permit, or to determine compliance with the VWP permit. The permittee shall also furnish to the board, 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 board prior to commencing construction.

F. Monitoring and records requirements.

1. Monitoring of parameters, other than pollutants, shall be conducted according to approved analytical methods as specified in the VWP permit. Analysis of pollutants will be conducted according to 40 CFR Part 136 (2000), 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 permit, and records of all data used to complete the application for the VWP permit, for a period of at least three years from the date of the permit expiration of a granted VWP permit. This period may be extended by request of the board 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.

G. Duty to reapply. Any permittee desiring to continue a previously permitted activity after the expiration date of the VWP permit shall apply for and obtain a new permit or, if applicable, shall request an extension in accordance with 9VAC25-210-180.

9VAC25-210-100. Signatory requirements.

A. Application. Any application for a VWP permit under this chapter must shall bear the applicant's signature or the signature of a person acting in the applicant's behalf, with the authority to bind the applicant. Electronic submittals containing the original-signature original signature page, such as that contained in a scanned document file, are acceptable.

B. Reports. All reports required by VWP permits and other information requested by the board shall be signed by:

1. One of the persons described in subsection A of this section; or

2. A duly authorized representative of that person. A person is a duly authorized representative only if:

a. The authorization is made in writing by a person described in subsection A of this section; and

b. The authorization specifies either an individual or a position having responsibility for the overall operation of the regulated facility or activity, such as the position of plant manager, superintendent, or position of equivalent responsibility. A duly authorized representative may thus be either a named individual or any individual occupying a named position.

c. If an authorization is no longer accurate because a different individual or position has responsibility for the overall operation of the facility, a new authorization must be submitted to the board prior to or together with any separate information, or applications to be signed by an authorized representative.

C. Certification of application and reports. Any person signing a document under subsection A or B of this section shall make the following certification: "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 violations."

9VAC25-210-110. Establishing applicable standards, limitations, or other VWP permit conditions.

A. In addition to the conditions established in 9VAC25-210-90 and 9VAC25-210-100, and for surface water withdrawals in 9VAC25-210-370, each VWP permit shall include conditions meeting the following requirements established in this section where applicable:.

A. Conditions applicable to surface water withdrawals:

1. Instream flow conditions. Subject to the provisions of Chapter 24 (§ 62.1-242 et seq.) of Title 62.1 of the Code of Virginia, and subject to the authority of the State Corporation Commission over hydroelectric facilities contained in Chapter 7 (§ 62.1-80 et seq.) of Title 62.1 of the Code of Virginia, instream flow conditions may include but are not limited to conditions that limit the volume and rate at which surface water may be withdrawn at certain times and conditions that require water conservation and reductions in water use.

a. In the development of conditions that limit the volume and rate at which surface water may be withdrawn, consideration shall be given to the seasonal needs of water users and the seasonal availability of surface water flow.

b. Consideration shall also be given to the affected stream reach and the amount of water that is put to a consumptive use in the process.

c. In the development of instream flow conditions for new withdrawals, the board shall take into consideration the combined effect on the hydrologic regime within an affected stream reach due to consumptive water uses associated with:

(1) All existing permitted withdrawals;

(2) The total amount of withdrawals excluded from VWP permit requirements; and

(3) Any other existing lawful withdrawals.

d. VWP Permits for surface water withdrawals, other than public water supplies, shall identify how alternate sources of water supply will be made available to support the operation of the permitted facility during times when surface water withdrawals will be curtailed due to instream flow requirements or shall provide for modification of the operation of the facility to assure compliance with permit conditions. Such modifications may include, but are not limited to, termination or reduction of activities at the facility that are dependent on the permitted withdrawal, increase capacity to capture and store higher flows or implementation of other potential management options.

2. VWP permits issued for surface water withdrawals from the Potomac River between the Shenandoah River confluence and Little Falls shall contain a condition that requires the permittee to reduce withdrawals when the restriction or emergency stage is declared in the Washington Metropolitan Area under the provisions of the Potomac River Low Flow Allocation Agreement; or when the operating rules outlined by the Drought-Related Operations Manual for the Washington Metropolitan Area Water Suppliers, an attachment to the Water Supply Coordination Agreement, are in effect. The department, after consultation with the Section for Cooperative Water Supply Operations on the Potomac (CO-OP) shall direct the permittee as to when, by what quantity and for what duration withdrawals shall be reduced.

3. New or expanded minor surface water withdrawals. The board may issue permits for new or expanded minor surface water withdrawals after July 25, 2007, which are not excluded from the requirements of this chapter by 9VAC25-210-60, based on the following criteria:

a. The amount of the surface water withdrawal is limited to the amount of water that can be put to beneficial use.

b. Based on the size and location of the surface water withdrawal, the withdrawal is not likely to have a detrimental impact on existing instream or off-stream uses.

c. Based on an assessment by the board, this withdrawal, whether individually or in combination with other existing or proposed projects, does not cause or contribute to, or may not reasonably be expected to cause or contribute to:

(1) A significant impairment of the state waters or fish and wildlife resources;

(2) Adverse impacts on other existing beneficial uses; or

(3) A violation of water quality standards.

d. In cases where the board's assessment indicates that criteria contained subdivision 3 b or c of this subsection are not met, the board may:

(1) Issue a permit with any special conditions necessary to assure these criteria are met, or

(2) Require the applicant to apply for a VWP permit as described in 9VAC25-210-80 A and B. Such applications shall be subject to all applicable requirements contained in this regulation.

B. Water quality standards and state requirements. The VWP permit shall include requirements to comply with all appropriate provisions of state laws and regulations.

C. Toxic pollutants.

1. Where the board finds that appropriate limitations may not ensure compliance with the law or state water quality standards the board shall require the permittee to follow a program of biological or chemical toxics monitoring. The requirement may include a VWP permit reopener to allow the imposition of toxicity reduction or elimination measures determined to be necessary as a result of the board's evaluation of the results of the toxic monitoring and other available information. Based upon this determination, appropriate limitations will be included in the VWP permit to ensure the reduction or elimination of toxic pollutants and allow the board to ensure that the proposed project will comply with water quality standards and other appropriate requirements of the law.

2. Limitations will be included in the VWP permit to control all toxic pollutants which the board determines (based on information reported in a VWP permit application or a notification or on other information) are or may be discharged at a level which would adversely affect the beneficial use of the receiving waters.

D. Monitoring requirements as conditions of VWP permits may include but are not limited to:

1. Requirements concerning the proper use, maintenance and installation, when appropriate, of monitoring equipment or methods (including biological monitoring methods when appropriate) when required as a condition of the VWP permit;

2. Required monitoring including type, intervals, and frequency sufficient to yield data which are representative of the monitored activity and including, when appropriate, continuous monitoring and composite samples;

3. Applicable reporting requirements based upon the impact of the regulated activity on water quality; and

4. Requirements to report monitoring results with a frequency dependent on the nature and effect of the regulated activity.

E. Best Management Practices management practices (BMPs). The VWP permit may require the use of BMPs to control or abate the discharge of pollutants.

F. Reissued VWP permits. When a VWP permit is renewed or reissued, limitations, standards, or conditions must be in conformance with current limitations, standards, or conditions.

G. Reopening VWP permits. Each VWP permit shall have a condition allowing the reopening of the VWP permit for the purpose of modifying the conditions of the VWP permit to meet new regulatory standards duly adopted by the board. Cause for reopening VWP permits includes, but is not limited to when the circumstances on which the previous VWP permit was based have materially and substantially changed, or special studies conducted by the board or the permittee show material and substantial change, since the time the VWP permit was issued and thereby constitute cause for VWP permit modification or revocation and reissuance.

9VAC25-210-115. Evaluation of project alternatives. (Repealed.)

A. When a proposed activity involves a major surface water withdrawal, public surface water supply withdrawal project, or alteration of instream flows, the applicant shall first identify the purpose of the proposed project. In identifying the project purpose, the applicant shall provide a narrative describing the water supply issues that form the basis of the proposed project purpose.

B. When a proposed activity involves a major surface water withdrawal, a public surface water supply withdrawal project, or the alteration of instream flows, the applicant shall subsequently demonstrate to the satisfaction of the board that the project meets an established local water supply need. In establishing local need, the applicant shall provide the following information:

1. Existing supply sources, yields and demands, including:

a. Peak day and average daily withdrawal;

b. The safe yield and lowest daily flow of record;

c. Types of water uses; and

d. Existing water conservation measures and drought response plan, including what conditions trigger their implementation.

2. Projected demands over a minimum 30-year planning period, including the following:

a. Projected demand contained in the local or regional water supply plan developed in accordance with 9VAC25-780 or for the project service area, if such area is smaller than the planning area; or

b. Statistical population (growth) trends; and

c. Projected demands by use type; and

d. Projected demand without water conservation measures; and

e. Projected demands with long-term water conservation measures.

C. For all proposed projects, the applicant shall demonstrate to the satisfaction of the board that avoidance and minimization opportunities have been identified and applied to the proposed activity, that practicable alternatives, including design alternatives, have been evaluated for the proposed activity, and that the proposed activity, in terms of impacts to water quality and fish and wildlife resources, is the least environmentally damaging practicable alternative.

1. Avoidance and minimization includes, but is not limited to, steps taken in accordance with the Guideline for Specification of Disposal Sites for Dredged or Fill Material, 40 CFR Part 230 (Federal Register, December 24, 1980) to first avoid and then minimize adverse impacts to surface waters to the maximum extent practicable. Measures, such as reducing the size, scope, configuration, or density of the proposed project, that would avoid or result in less adverse impact to surface waters shall be considered to the maximum extent practicable.

2. Any alternatives analysis conducted specifically for public surface water supply withdrawal projects shall include:

a. The range of alternatives to be analyzed by the applicant as follows:

(1) All applicable alternatives contained in the local or regional water supply plan developed in accordance with 9VAC25-780;

(2) Alternatives that are practicable or feasible from both a technical and economic standpoint that had not been identified in the local or regional water supply plan developed in accordance with 9VAC25-780;

(3) Alternatives that are available to the applicant but not necessarily under the current jurisdiction of the applicant; and

(4) Water conservation measures that could be considered as a means to reduce demand for each alternative considered by the applicant.

b. The applicant shall provide a narrative description that outlines the opportunities and status of regionalization efforts undertaken by the applicant.

c. The criteria used to evaluate each alternative for the purpose of establishing the least environmentally damaging practicable alternative, which includes but is not limited to:

(1) Demonstration that the proposed alternative meets the project purpose and project demonstrated need as documented pursuant to subsections A and B of this section;

(2) Availability of the alternative to the applicant;

(3) Evaluation of interconnectivity of water supply systems (both existing and proposed);

(4) Evaluation of the cost of the alternative on an equivalent basis;

(5) Evaluation of alternative safe yields;

(6) Presence and potential impact of alternative on state and federally listed threatened and endangered species;

(7) Presence and potential impact of alternative on wetlands and streams (based on maps and aerial photos for all alternatives, field delineation required for preferred alternative);

(8) Evaluation of effects on instream flow; and

(9) Water Quality Considerations, including:

(a) Land use within a watershed where the type of land use may impact the water quality of the source;

(b) The presence of impaired streams and the type of impairment;

(c) The location of point source discharges; and

(d) Potential threats to water quality other than those listed in subdivisions 2 c (9) (a) through (c) of this subsection.

3. Any alternatives analysis conducted for projects that involve a surface water withdrawal or alteration of instream flows, other than public surface water supply withdrawal projects shall include all applicable items included in subdivision 2 of this subsection.

9VAC25-210-116. Compensation.

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 preferable compensation alternatives.

1. An analysis shall be required to justify that off-site compensatory mitigation (including purchase or use of mitigation bank credits or contribution to an in-lieu fee fund) or out-of-kind compensatory mitigation permittee-responsible compensatory mitigation is more ecologically preferable to practicable on-site or in-kind compensation the purchase of mitigation bank credits or in-lieu fee program credits, 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 site or sites to replace lost wetland acreage and functions or lost stream functions and water quality benefits. The analysis comparing the impacted and compensation site or 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. Such analysis shall include, but is not limited to, the following criteria, which shall be compared between the impacted and replacement sites: water quality benefits; acreage of impacts; distance from impacts; hydrologic source and regime; watershed; functions and values; vegetation type; soils; constructability; timing of compensation versus impact; property acquisition; and cost. The analysis shall compare the ability of each compensatory mitigation option to replace lost wetland acreage and functions or lost stream functions and water quality benefits. 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 (§ 10.1-1700 et seq. of the Code of Virginia) or the Virginia Open-Space Act (§ 10.1-1009 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. On-site, in-kind compensatory mitigation, The purchase of mitigation bank credits and in-lieu fee program credits, when available, shall in most cases be deemed the most ecologically preferable form of compensation for project impacts, in most cases. However, off-site or out-of-kind compensation opportunities that prove to be more ecologically preferable or practicable permittee-responsible compensatory mitigation may be considered. When when the applicant can demonstrate satisfactorily demonstrates that an off-site or out-of-kind compensatory mitigation proposal permittee-responsible compensatory mitigation is practicable and ecologically preferable, then such proposal may be deemed appropriate for compensation of project impacts 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 appropriate compensatory mitigation option for project impacts shall be evaluated on a case-by-case basis, in terms of replacement of wetland acreage or functions and the greatest likelihood of success. When considering options for providing the required compensatory mitigation, DEQ shall consider the type and location options in the following order:

a. Wetland creation Mitigation bank credits;

b. Wetland restoration In-lieu fee program credits;

c. The purchase or use of credits from a mitigation bank, pursuant to § 62.1-44.15:23 of the Code of Virginia Permittee-responsible mitigation under a watershed approach;

d. A contribution to an approved in-lieu fee fund Permittee-responsible mitigation through on-site and in-kind mitigation;

e. Preservation of upland buffers adjacent to state waters, when utilized in conjunction with subdivision 2 a, b, or c of this subsection, and when consistent with subsection A of this section Permittee-responsible mitigation through off-site or out-of-kind mitigation;

f. Restoration, enhancement, or preservation of upland buffers adjacent to state waters, wetlands when utilized in conjunction with subsection a, b, or c, 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, or 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 to streams may be met through the following options, as appropriate to replace functions or water quality benefits which are preferred in the following sequence: mitigation banking, in-lieu fee program, and permittee-responsible mitigation. However, the appropriate compensatory mitigation option for project impacts shall be evaluated on a case-by-case basis, in terms of replacement of stream functions and water quality benefits and the greatest likelihood of success. One factor in determining the required compensation shall be an analysis of stream impacts utilizing a stream impact assessment methodology acceptable to the DEQ approved by the board. When considering options for providing the required compensatory mitigation, DEQ shall consider the type and location options in the following order:.

a. Stream channel restoration or enhancement Mitigation bank stream credits;

b. Riparian buffer restoration or enhancement In-lieu fee program credits;

c. Riparian buffer preservation, when consistent with subsection A of this section Permittee-responsible mitigation under a watershed approach;

d. A contribution to an approved in-lieu fee fund Permittee-responsible mitigation through on-site and in-kind mitigation;

e. The purchase or use of credits from a mitigation bank, pursuant to § 62.1-44.15:23 of the Code of Virginia 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. Generally, preference shall be given in the following sequence: restoration, creation, mitigation banking, in-lieu fee fund. However, the appropriate compensatory mitigation option for project impacts shall be evaluated on a case-by-case basis, in terms of replacement of wetland acreage and functions or stream functions and water quality benefits 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, except 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 fund program approval.

1. In order for contribution to an in-lieu fee fund to be an acceptable form of compensatory mitigation, the fund must be approved for use by the board and must be dedicated to the achievement of no net loss of wetland acreage and functions or stream functions and water quality benefits through the preservation, restoration and creation of wetlands or streams The board 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. The board may approve the use of a fund by: a. Approving use of a fund for a specific project when approving a VWP permit; or b. Granting approval of a fund at a board meeting. 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. In order for the board to approve the use of a fund, the fund An approved program must meet the following criteria:

a. Demonstration of a no net loss policy in terms of wetland acreage and or functions or stream functions and water quality benefits by adoption of operational goals or objectives for preservation, restoration, creation or restoration, enhancement, or preservation;

b. Consultation with DEQ on selection of sites for preservation, restoration, or creation DEQ approval of each site for inclusion in the program;

c. A commitment to provide annual reports to the board 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 or functions or stream functions and water quality benefits lost in the impacted watershed; and

e. Such terms and conditions as the board deems necessary to ensure a no net loss of wetland acreage and or functions or stream functions and water quality benefits from permitted projects providing compensatory mitigation through contributions to the fund.

4. Such approval Approval may be granted for up to five 10 years and may be renewed by the board upon a demonstration that the fund program has enhanced wetland acreage or functions or stream functions and water quality benefits through the preservation, creation or restoration of wetlands or streams. Such demonstration may be made with the reports submitted pursuant to met the criteria in subdivision 3 c of this subsection.

5. The board may approve the use of an in-lieu fund only after publishing a notice of its intent in the Virginia Register of Regulations at least 45 days prior to taking such action and after accepting and considering public comments on its approval of the fund for at least a 30-day period. Where approval is contemplated in accordance with subdivision 2 a of this subsection, compliance with the public notice and comment requirements for approval of the VWP permit shall meet this requirement.

E. Use of mitigation banks and multi-project mitigation sites. The use of mitigation banks or multi-project mitigation sites for compensating project impacts shall be deemed appropriate if the following criteria are met:

1. The bank or multi-project mitigation site meets the criteria and conditions found in § 62.1-44.15:23 of the Code of Virginia:;

2. The bank or multi-project mitigation site is ecologically preferable to practicable on-site and off-site individual compensatory mitigation options;

3. For mitigation banks only, the 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; and.

5. For multi-project mitigation sites, the VWP permit shall include conditions sufficient to ensure long term monitoring and maintenance of surface water functions and values.

F. The For permittee-responsible mitigation, the final compensatory mitigation plan must shall include complete information on all components of the conceptual compensatory mitigation plan detailed in 9VAC25-210-80 B 1 k (5) (b) and (c) m:

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 photostations, 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 protection of the compensation site or sites, including all surface waters and buffer areas within its boundaries. The final wetland compensation plan or plans shall include a mechanism for protection in perpetuity of the compensation sites to include all state waters within the compensation site boundary or boundaries. Such protections shall be in place within 120 days of final compensation plan approval. The restrictions, protections, or preservations, or similar instrument, shall state that no activity will be performed on the property in any area designated as a compensation area with the exception of maintenance or corrective action measures authorized by the board. Unless specifically authorized by the board through the issuance of a VWP individual or general permit, or waiver thereof, this restriction applies to ditching, land clearing or discharge of dredge or fill material. Such instrument shall contain the specific phrase "ditching, land clearing or discharge of dredge or fill material" in the limitations placed on the use of these areas. The protective instrument shall be recorded in the chain of title to the property, or an equivalent instrument for government-owned lands. Proof of recordation shall be submitted within 120 days of final compensation plan approval. 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; and location of photo-monitoring stations, vegetation sampling points, survey points, bank pins, scour chains, and reference streams; the mechanism for the protection of the compensation site or sites, including all surface waters and buffer areas within its boundaries; a plan view sketch drawing depicting the pattern and all compensation measures being employed; a profile sketch drawing; and cross-sectional sketches 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 final stream compensation plan or plans shall include a mechanism for protection in perpetuity of the compensation sites to include all state waters within the compensation site boundary or boundaries. Such protections shall be in place within 120 days of final compensation plan approval. The restrictions, protections, or preservations, or similar instrument, shall state that no activity will be performed on the property in any area designated as a compensation area with the exception of maintenance or corrective action measures authorized by the board. Unless specifically authorized by the board through the issuance of a VWP individual or general permit, or waiver thereof, this restriction applies to ditching, land clearing or discharge of dredge or fill material. Such instrument shall contain the specific phrase "ditching, land clearing or discharge of dredge or fill material" in the limitations placed on the use of these areas. The protective instrument shall be recorded in the chain of title to the property, or an equivalent instrument for government-owned lands. Proof of recordation shall be submitted within 120 days of final compensation plan approval. 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.

9VAC25-210-130. VWP general permits.

A. The board may issue VWP general permits by regulation for certain specified categories of activities as it deems appropriate.

B. When the board determines on a case-by-case basis that concerns for water quality and the aquatic environment so indicate, the board may require individual applications and VWP individual permits rather than approving coverage under a VWP general permit regulation. Cases where an individual VWP permit may be required include the following:

1. Where the activity may be a significant contributor to pollution;

2. Where the applicant or permittee is not in compliance with the conditions of the VWP general permit regulation or authorization coverage;

3. When an applicant or permittee no longer qualifies for coverage under the VWP general permit regulation or authorization; and

4. When a permittee operating under a VWP general permit authorization coverage requests to be excluded from the coverage of the VWP general permit regulation by applying for a VWP individual permit.

C. When a VWP individual permit is issued to a permittee, the applicability of the VWP general permit authorization coverage to the individual permittee is automatically terminated on the effective date of the VWP individual permit.

D. When a VWP general permit regulation is issued which applies to a permittee that is already covered by a VWP individual permit, such person may request exclusion from the provisions of the VWP general permit regulation and subsequent coverage under a VWP individual permit.

E. A VWP general permit authorization coverage may be revoked from an individual permittee for any of the reasons set forth in 9VAC25-210-180 subject to appropriate opportunity for a hearing.

F. When all permitted activities requiring notification have been completed, the The permittee shall be required to submit a written notice of termination unless the permittee has previously submitted a termination by consent request for the same permitted activities and such request has been approved by the board project completion and request a permit termination by consent within 30 days following the completion of all activities in all permitted impact areas.

G. Activities authorized under a VWP general permit and general permit regulation shall be authorized for a the fixed term based upon project length and duration. When a general permit regulation is amended or replaced, it shall contain provisions such that coverage authorized under the general permit existing as of the effective date of the amended or replacement VWP general permit regulation may continue under the amended or replacement VWP general permit and that all terms and conditions of the authorization may continue in full force and effect. Notwithstanding any other provision, a request for continuation of a VWP general permit authorization beyond the expiration date of such authorization in order to complete monitoring requirements shall not be considered a new application for coverage and no application fee will be charged stated in the applicable VWP general permit and VWP general permit regulation.

H. The board may certify or certify with conditions a general, regional, or nationwide permit proposed by the USACE U.S. Army Corps of Engineers (USACE) in accordance with § 401 of the federal Clean Water Act as meeting the requirements of this regulation chapter and a VWP general permit, provided that the nationwide or regional permit and the certification conditions:

1. Require that wetland or stream impacts be avoided and minimized to the maximum extent practicable;

2. Prohibit impacts that cause or contribute to a significant impairment of state waters or fish and wildlife resources;

3. Require compensatory mitigation sufficient to achieve no net loss of existing wetland acreage and or functions or stream functions and water quality benefits; and

4. Require that compensatory mitigation for unavoidable wetland impacts be provided through the following options, as appropriate to replace acreage and function: in accordance with 9VAC25-210-116.

a. Wetland creation;

b. Wetland restoration;

c. The purchase or use of credits from a mitigation bank, pursuant to § 62.1-44.15:23 of the Code of Virginia;

d. A contribution to an approved in-lieu fee fund;

e. Preservation of upland buffers adjacent to state waters, when utilized in conjunction with subdivision 4 a, b, or c of this subsection, and when consistent with 9VAC25-210-116 A;

f. Restoration of upland buffers adjacent to state waters, when utilized in conjunction with subdivision 4 a, b, or c of this subsection, and when consistent with 9VAC25-210-116 A;

g. Preservation of wetlands, when utilized in conjunction with subdivision 4 a, b, or c of this subsection.

5. Require that compensatory mitigation for unavoidable stream impacts be met through the following options as appropriate to replace functions or water quality benefits; one factor in determining the required compensation shall be provided in accordance with 9VAC25-210-116, including but not limited to an analysis of stream impacts utilizing a stream impact assessment methodology approved by the board:

a. Stream channel restoration or enhancement;

b. Riparian buffer restoration or enhancement;

c. Riparian buffer preservation, when consistent with 9VAC25-210-116 A;

d. A contribution to an approved in-lieu fee fund;

e. The purchase or use of credits from a mitigation bank, pursuant to § 62.1-44.15:23 of the Code of Virginia.

I. The certifications allowed by subsection H of this section may be provided only after the board has advertised and accepted public comment on its intent to provide certification for at least 30 days.

J. Coverage under a general, regional, or nationwide permit promulgated by the USACE and certified by the board in accordance with this section shall be deemed coverage under a VWP general permit regulation upon submission of proof of coverage under the general, regional, or nationwide permit and any other information required by the board through the certification process. Notwithstanding the provisions of 9VAC25-20-10 9VAC25-20, no fee shall be required from applicants seeking coverage under this subsection.

Part III
Public Involvement

9VAC25-210-140. Public notice of VWP permit applications, individual permit actions and public comment periods.

A. The initial application for surface water supply projects that requires both an individual Virginia Water Protection Permit and a Virginia Marine Resources permit under § 28.2-1205 of the Code of Virginia shall be advertised concurrently by the Department of Environmental Quality and the Virginia Marine Resources Commission. Such advertising shall be paid for by the applicant.

B. A. Every draft VWP individual permit, with the exception of an a VWP Emergency Virginia Water Protection Permit, shall be given public notice paid for by the applicant, by publication once in a newspaper of general circulation in the area affected by the proposed activity. The public notice must be published within 14 days of the applicant's receipt of a draft VWP permit, or the 120-day VWP permit processing timeframe will be suspended until such publication.

C. B. The board shall provide a comment period of at least 30 days following the date of the public notice for interested persons to submit written comments on the tentative decision and to request a public hearing on the VWP permit. All written comments submitted during the comment period shall be retained by the board and considered during its final decision on the VWP permit.

D. C. The contents of the public notice for a VWP permit application or proposed VWP permit action shall include:

1. Name and mailing address of the applicant;

2. The permit application number;

3. Project location. If the location of the activity differs from the address of the applicant the notice shall also state the location in sufficient detail such that the specific location may be easily identified;

4. Brief description of the business or activity to be conducted at the site of the proposed activity;

5. Description of the area affected. Information on the number of acres of wetlands and/or the number of linear feet of streams affected, as well as the name of the receiving waterway and the name of the affected watershed should be included;

6. Description of what the applicant plans to do to compensate for the affected area;

7. A statement of the tentative determination to issue or deny a VWP permit;

8. A brief description of the final determination procedure;

9. The address, e-mail address and phone number of a specific person or persons at the state office from whom further information may be obtained; and

10. A brief description on how to submit comments and request a public hearing.

E. D. Public notice shall not be required for submission or approval of plans and specifications or conceptual engineering reports not required to be submitted as part of the application.

F. E. When a VWP permit is denied, the board will shall do so in accordance with 9VAC25-210-230.

9VAC25-210-150. Public access to information.

All information (i) pertaining to VWP permit or VWP general permit coverage processing or (ii) in reference to any activity requiring a VWP permit or VWP general permit coverage under this chapter shall be available to the public, unless the applicant has made a showing that the information is protected by the applicant as a trade secret covered prohibited by § 62.1-44.21 of the Code of Virginia. All information claimed confidential must be identified as such at the time of submission to the board and VMRC the Virginia Marine Resources Commission.

9VAC25-210-160. Public comments and hearing.

A. The board shall consider all written comments and requests for a public hearing received during the VWP individual permit comment period, and shall make a determination on the necessity of a public hearing in accordance with Procedural Rule No. 1 (9VAC25-230-10 et seq.) § 62.1-44.15:02 of the Code of Virginia. All proceedings, public hearings and decisions from it will be in accordance with Procedural Rule No. 1 (9VAC25-230-10 et seq.) § 62.1-44.15:02 of the Code of Virginia.

B. Should the board, in accordance with Procedural Rule No. 1 (9VAC25-230-10 et seq.) § 62.1-44.15:02 of the Code of Virginia, determine to dispense with the public hearing, it may grant the VWP individual permit, or, at its discretion, transmit the application or request, together with all written comments from it and relevant staff documents and staff recommendations, if any, to the board for its decision.

C. Any applicant or permittee aggrieved by an action of the board taken without a public hearing, or inaction of the board, may request in writing a hearing pursuant to Procedural Rule No. 1 (9VAC25-230-10 et seq.) § 62.1-44.15:02 of the Code of Virginia.

9VAC25-210-170. Public notice of hearing.

A. Public notice of any public hearing held pursuant to 9VAC25-210-160 shall be circulated as follows:

1. Notice shall be published once in a newspaper of general circulation in the county or city where the activity is to occur; and

2. Notice of the public hearing shall be sent to all persons and government agencies that received a copy of the notice of VWP permit application and to those persons requesting a public hearing or having commented in response to the public notice.

B. Notice shall be effected pursuant to subdivisions A 1 and 2 of this section at least 30 days in advance of the public hearing.

C. The content of the public notice of any public hearing held pursuant to 9VAC25-210-160 shall include at least the following:

1. Name and mailing address of each person whose application will be considered at the public hearing and a brief description of the person's activities or operations including information on the number of acres of wetlands and/or the number of linear feet of streams affected, a description of the nature of the withdrawal and the amount of the withdrawal; as well as the name of the receiving waterway and the name of the affected watershed;

2. The precise location of the proposed activity and the surface waters that will, or may, be affected including, where possible, reference to route numbers, road intersections, map coordinates or similar information;

3. Description of what the applicant plans to do to compensate for the affected area;

4. A brief reference to the public notice issued for the VWP permit application or permit action, including the permit application number and date of issuance, unless the public notice includes the public hearing notice;

5. Information regarding the time and location for the public hearing;

6. The purpose of the public hearing;

7. A concise statement of the relevant water quality, or fish and wildlife resource issues raised by the persons requesting the public hearing;

8. Contact person and the mailing address, e-mail email address, name of the DEQ Department of Environmental Quality regional office and phone number of the DEQ office at which the interested persons may obtain further information or request a copy of the draft VWP permit prepared pursuant to 9VAC25-210-120; and

9. A brief reference to the rules and procedures to be followed at the public hearing.

D. Public notice of any public hearing held pursuant to 9VAC25-210-160 C shall be in accordance with Procedural Rule No. 1 (9VAC25-230) § 62.1-44.15:02 of the Code of Virginia.

Part IV
VWP Permit Variances; VWP Permit Modification, Revocation and Reissuance, Transfer, Termination and Denial

9VAC25-210-175. Variance from VWP permit conditions. (Repealed.)

A. For public water supplies. The board may grant a temporary variance to any condition of a VWP permit for a public surface water supply withdrawal that supports a public water supply to address a public water supply emergency during a drought. A permittee requesting such variance must provide all information required in the application for an Emergency Virginia Water Protection Permit identified in 9VAC25-210-80 D.

B. For all other water supplies. The board may grant a temporary variance to any condition of a VWP permit for a surface water withdrawal during a drought. A permittee requesting such variance must affirmatively demonstrate;

1. Public health and safety interests are served by the issuance of such variance; and

2. All management actions consistent with existing permits have been exhausted.

C. As a condition of any variance granted, the permittee shall:

1. Modify operations or facilities to comply with existing VWP permit conditions as soon as practicable; or

2. Provide new information to the board that alternate permit conditions are appropriate and either apply for a new VWP permit or a modification to their existing VWP permit. The board shall review any such application consistent with other sections of this regulation.

D. In addition, the board may require the permittee to take any other appropriate action to minimize adverse impacts to other beneficial uses.

E. Any variances issued by the board shall be of the shortest duration necessary for the permittee to gain compliance with existing permit conditions, apply for a new VWP permit, or request modification of existing permit conditions.

F. Public notice of any variance issued by the board shall be given as required for draft permits in 9VAC25-210-140 B, C, and D. Such notice shall be given concurrently with the issuance of any variance and the board may modify such variances based on public comment. Publication costs of all public notices shall be the responsibility of the permittee.

9VAC25-210-180. Rules for modification, revocation and reissuance, extension, transfer, and termination of VWP individual permits.

A. VWP individual permits shall may be modified in whole or in part, revoked and reissued, extended, transferred, or terminated only as authorized by this section.

B. A VWP permit may be modified in whole or in part, revoked and reissued, transferred or terminated.

C. VWP permit modifications shall not be used to extend the term of a VWP permit beyond 15 years from the date of original issuance. If the permittee wishes to continue one or more activities regulated by the VWP permit after the expiration date of the VWP permit, regardless of pending changes to the permitted activities, the permittee must apply for and obtain a new VWP permit or comply with the provisions of 9VAC25-210-185.

D. Modification, revocation and reissuance, or termination may be initiated by the board, upon the request of the permittee, or upon the request by another person at the board's discretion under applicable laws or the provisions of subsections D through H of this section. A B. VWP permit permits may be modified, or revoked and reissued with permittee consent, upon the request of the permittee or upon board initiative when any of the following developments occur:

1. When additions or alterations have been made to the affected facility or activity that require the application of VWP permit conditions that differ from those of the existing VWP permit or are absent from it;

2. 1. When new information becomes available about the operation 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;

3. 2. When a change is made in the promulgated standards or regulations on which the VWP permit was based;

4. When it becomes necessary to change final dates in schedules due to circumstances over which the permittee has little or no control such as acts of God, materials shortages, etc. However, in no case may a compliance schedule be modified to extend beyond any applicable statutory deadline of the Act;

5. 3. When changes occur that are subject to "reopener clauses" in the VWP permit; or

6. When the board determines that minimum instream flow levels resulting directly from the permittee's withdrawal of surface water are detrimental to the instream beneficial use, existing at the time of permit issuance, and the withdrawal of surface water should be subject to further net limitations or when an area is declared a surface water management area pursuant to §§ 62.1-242 through 62.1-253 of the Code of Virginia, during the term of the VWP permit

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 board may request additional information as necessary to review and prepare a draft permit. If the board 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. 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:

1. The current permittee notifies the board within 30 days of the proposed transfer of the title to the facility or property;

2. The notice to the board includes a written agreement between the existing and proposed permittee containing a proposed date of transfer of VWP permit responsibility, coverage and liability to the new permittee, or that the existing permittee will retain such responsibility, coverage, or liability, including liability for compliance with the requirements of any enforcement activities related to the permitted activity;

3. The board does not within the 30-day time period notify the existing permittee and the new permittee of its intent to modify or revoke and reissue the VWP permit; and

4. The permit transferor and the permit transferee provide written notice to the board of the actual transfer date.

F. E. Upon request of the permittee, or upon board 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 board may request additional information as necessary to review a request for minor modification. The board, 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 an interim a compliance date in a schedule of compliance to no more than 180 days from the original compliance date and provided it will not interfere with the final compliance date; result in a net loss of wetland acreage or of functions in all surface waters.

4. Allow for a change in ownership or operational control when the board determines that no other change in the VWP permit is necessary, permittee provided that a written agreement containing a specific date for transfer of VWP permit responsibility, coverage authorization, and liability from the current to the new permittee has been submitted to the board;. 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 board 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 board 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 an increase a change to permitted project impacts other than allowable by 9VAC25-210-180 F 8; 9VAC25-210-180 F 9; and 9VAC25-210-180 F 10; subdivisions 6 and 7 of this subsection.

6. Occur when facility expansion or production increases and modification will not cause significant change in the discharge of pollutants; 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. Delete VWP permit limitation or monitoring requirements for specific pollutants when the activities generating these pollutants are terminated; 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 board may reasonably determine that the additional impacts will not impact federal or state listed or proposed threatened or endangered species or proposed or designated critical habitat, or to be a taking of threatened or endangered species.

c. The cumulative, additional permanent wetland or open water impacts for one or more minor modifications do not exceed the greater of either (i) 0.25 acre or (ii) 10% of the acres of originally permitted permanent wetland or open water impacts, not to exceed 1.00 acre.

d. The cumulative, additional permanent stream impacts for one or more minor modifications do not exceed the greater of either (i) 100 linear feet or (ii) 10% of the linear feet of originally permitted permanent stream impacts, not to exceed 1,500 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 B 1 g.

f. Compensatory mitigation for the proposed impacts, if required, meets the requirements of 9VAC25-210-80 B 1 m 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 board 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. Occur when subsequent to issuance of a VWP individual or general permit authorization, the permittee determines that additional permanent wetland or stream impacts are necessary, provided that the additional impacts are associated with the previously authorized activities in authorized locations within the same phase of development or within logical termini, the unavoidable cumulative increase in the acreage of wetland or open water impacts is not greater than one-quarter of an acre (0.25 acre or 10,890 square feet) and the unavoidable cumulative increase in stream impacts is less than 100 linear feet, and also provided that the additional permanent impacts are fully mitigated at ratios not less than compensatory mitigation ratios for the original impacts. A modification is not required subsequent to issuance for additional temporary impacts to surface waters, provided DEQ is notified in writing regarding additional temporary impacts, and the area is restored to preexisting conditions; 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 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. Occur when, subsequent to issuance of a VWP individual or general permit authorization, the project results in less wetland or stream impacts. Compensation requirements may be modified in relation to the adjusted impacts at the request of the permittee, provided that the adjusted compensation meets the initial compensation goals. DEQ shall not be responsible for ensuring refunds for mitigation bank credit purchases, mitigation bank usage, or in-lieu fee fund contributions; 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. Occur when, subsequent to issuance of a VWP individual or general permit authorization, substitution of a specified, approved mitigation bank(s) with another specified, approved mitigation bank is necessary. Activities or development applicable to surface water withdrawals as specified in 9VAC25-210-380 B.

G. F. After notice and opportunity for a formal hearing pursuant to Procedural Rule No. 1 (9VAC25-230-100) § 62.1-44.15:02 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 issuance 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 board 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; and or

6. A determination that the permitted activity has ceased and that the compensatory mitigation compensation for unavoidable adverse impacts has been successfully completed.

G. The board 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 board 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 can may be terminated by consent, as initiated by the permittee, when all permitted activities have been completed or if the authorized impacts will not occur. The permittee shall submit a request for termination by consent within 30 days of project completion or project cancellation 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. The director may accept this termination on behalf of the board. 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 authorization number; and

4. One of the following certifications:

a. For project completion: "I certify under penalty of law that all activities and any requested 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 a 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.

I. If a permittee files a request for VWP permit modification, revocation and reissuance, or termination, or files a notice of planned changes or anticipated noncompliance, the VWP permit terms and conditions shall remain effective until the request is acted upon by the board.

9VAC25-210-185. Duration of VWP individual permits; extensions.

A. Duration of VWP permits. VWP permits issued under this chapter shall have an effective date and expiration date that will determine the life of specified in the permit. VWP permits The permit term shall be effective for a fixed term based upon the projected duration of the project, the length of any required monitoring, or other project operations or VWP permit conditions; however, the term shall not exceed 15 years and will be specified in the conditions of the VWP permit, unless administratively continued. When a permit term, other than that of an Emergency Virginia Water Protection Permit, is less than 15 years, an extension of the permit terms and conditions may be granted in accordance with 9VAC25-210-180. Emergency Virginia Water Protection Permits shall not exceed a duration of one year or shall expire upon the issuance of a regular Virginia Water Protection Permit, whichever comes first.

B. VWP permit extension. 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, shall submit written notification requesting an extension. The permittee must file the request prior to the expiration date of the VWP permit. Under no circumstances will the original and the extended permit terms together exceed a total of 15 years. If the request for extension is denied, the VWP permit will expire on its original date and, therefore, the permittee should allow sufficient time for the board to evaluate the extension request and, in the case of denial of the request, to process a new VWP permit application or an application for a VWP permit modification, if applicable.

9VAC25-210-220. Waiver of VWP permit or § 401 certification.

A. The board may waive permitting requirements when the board determines that a proposed project impacts an isolated wetland that is of minimal ecological value as defined in 9VAC25-210-10. Any Upon request by the board, any person claiming this waiver bears the burden to shall demonstrate to the satisfaction of the board that he qualifies for the waiver.

B. The board may waive the requirement for a VWP individual permit when the proposed activity qualifies for a permit issued by the USACE U.S. Army Corps of Engineers and receives a permit from the VMRC Virginia Marine Resources Commission or wetlands boards, pursuant to Chapter 12 (§ 28.2-1200 et seq.) or Chapter 13 (§ 28.2-1300 et seq.) of Title 28.2 of the Code of Virginia, and the activity does not impact instream flows.

C. The board shall waive the requirement for not require coverage under a VWP general permit authorization or a VWP individual permit when the proposed activity meets the exclusion set forth in 9VAC25-210-60 A 10 a regardless of the issuance of an individual a permit by the United States U.S. Army Corps of Engineers.

9VAC25-210-230. Denial of the VWP permit or variance request.

A. The board shall make a decision to tentatively deny the VWP permit or variance request if the requirements of this chapter are not met. Basis for denial include, but are not limited to, the following:

1. The project will result in violations of water quality standards or will impair the beneficial uses of state waters.

2. As a result of project implementation, shellfish waters would be condemned in accordance with 9VAC25-260.

3. The project that the applicant proposed fails to adequately avoid and minimize impacts to state waters to the maximum extent practicable.

4. The proposed compensatory mitigation plan is insufficient or unsatisfactory for the proposed impacts and fails to achieve no net loss of existing wetland acreage and or function and no net loss of functions in all surface waters.

5. The Department of Game and Inland Fisheries indicates that natural or stockable trout waters would be permanently and negatively impacted by the proposed activity.

6. The proposed activity is prohibited by 9VAC25-210-50.

7. The effect of project impacts, together with other existing or proposed impacts to wetlands, will cause or contribute to a significant impairment of state waters or fish and wildlife resources.

8. Failure to submit the required permit fee in accordance with 9VAC25-210-80 B 1 n, C 9 q or D 1 g or 9VAC25-210-340 C 1 g.

9. The board determines that the applicant for an Emergency Virginia Water Protection Permit has not demonstrated that there is a substantial threat to public health and safety, and that normal Virginia Water Protection Permit procedures, including public comment provisions, should be followed.

B. The applicant shall be notified by letter of the board's preliminary decision to tentatively deny the VWP permit requested.

C. Should the applicant withdraw his application, no VWP permit or variance will be issued.

D. Should the applicant elect to proceed as originally proposed, the board may deny the application and advise the applicant pursuant to Procedural Rule No. 1 - Public and Formal Hearing Procedures (9VAC25-230) § 62.1-44.15:02 of the Code of Virginia of his right to a public hearing to consider the denial.

Part V
Enforcement

9VAC25-210-240. Enforcement. (Repealed.)

The board may enforce the provisions of this chapter utilizing all applicable procedures under the law and § 10.1-1186 of the Code of Virginia.

Part VI
Miscellaneous

9VAC25-210-250. Delegation of authority. (Repealed.)

The director, or a designee acting for him, may perform any act of the board provided under this chapter, except as limited by § 62.1-44.14 of the Code of Virginia.

9VAC25-210-260. Transition. (Repealed.)

A. All applications received on or after July 25, 2007, will be processed in accordance with these new procedures.

B. VWP individual permits issued prior to July 25, 2007, will remain in full force and effect until such permits expire, are revoked, or are terminated.

C. Modifications and all other types of modification that are received by the board prior to July 25, 2007, will be processed in accordance with the VWP permit regulations in effect at that time. Modifications and all other types of notification to the board that are received on or after July 25, 2007, will be processed in accordance with these new procedures.

D. Section 401 Water Quality Certificates issued prior to December 31, 1989, have the same effect as a VWP permit. Water Quality Certificates issued after this date will remain in effect until reissued as Virginia Water Protection Permits.

Part V
Surface Water Withdrawals

9VAC25-210-300. Definitions for surface water withdrawals.

The following words and terms when used in this part shall have the following meanings:

"Affected stream reach" means the portion of a surface water body beginning at the location of a withdrawal and ending at a point where effects of the withdrawal are not reasonably expected to adversely affect beneficial uses.

"Agricultural surface water withdrawal" means a withdrawal of surface water in Virginia or from the Potomac River for the purpose of agricultural, silvicultural, horticultural, or aquacultural operations. Agricultural surface water withdrawals include withdrawals for turf farm operations, but do not include withdrawals for landscaping activities, or turf installment and maintenance associated with landscaping activities.

"Consumptive use" means any use of water withdrawn from a surface water other than a nonconsumptive use.

"Drought" means the declaration of a drought stage by the Virginia Drought Coordinator or the Governor of Virginia for a particular area or locality within Virginia. Drought stage declarations include watch, warning, and emergency, depending upon severity, as defined by the Virginia Drought Assessment and Response Plan dated March 28, 2003.

"Drought of record" means the time period during which the most severe drought conditions occurred for a particular area or location, as indicated by the available hydrologic and meteorologic data.

"Emergency Virginia Water Protection Permit" means a Virginia Water Protection Permit issued pursuant to § 62.1-44.15:22 C of the Code of Virginia authorizing a new or increased surface water withdrawal to address insufficient public drinking water supplies that are caused by a drought and may result in a substantial threat to human health or public safety.

"Human consumption" means the use of water to support human survival and health, including drinking, bathing, showering, cooking, dishwashing, and maintaining hygiene.

"Instream flow" means the existing volume of water flowing in a stream or water body including any seasonal variations of water levels and flow.

"Intake structure" means any portion of a surface water withdrawal system used to withdraw surface water that is located within the surface water, such as, but not limited to, a pipe, culvert, hose, tube, or screen.

"Major river basin" means the Potomac-Shenandoah River Basin, the Rappahannock River Basin, the York River Basin, the James River Basin, the Chowan River Basin, the Roanoke River Basin, the New River Basin, or the Tennessee-Big Sandy River Basin.

"Nonconsumptive use" means the use of water withdrawn from a surface water in such a manner that it is returned to the surface water without substantial diminution in quantity at or near the point from which it was taken and would not result in or exacerbate low flow conditions.

"Potomac River Low Flow Allocation Agreement" means the agreement among the United States of America, the State of Maryland, the Commonwealth of Virginia, the District of Columbia, the Washington Suburban Sanitation Commission, and the Fairfax County Water Authority dated January 11, 1978, consented to by the United States Congress in § 181 of the Water Resources Development Act of 1976, Public Law 94-587, as modified on April 22, 1986.

"Public water supply" means a withdrawal of surface water in Virginia or from the Potomac River for the production of drinking water, distributed to the general public for the purpose of, but not limited to, domestic use.

"Public water supply emergency" means a substantial threat to public health or safety due to insufficient public drinking water supplies caused by drought.

"Public water supply safe yield" means the highest volumetric rate of water that can be withdrawn by a surface water withdrawal during the drought of record since 1930, including specific operational conditions established in a Virginia Water Protection permit, when applicable.

"Section for Cooperative Water Supply Operations on the Potomac" means a section of the Interstate Commission on the Potomac River Basin designated by the Water Supply Coordination Agreement as responsible for coordination of water resources during times of low flow in the Potomac River.

"Surface water withdrawal" means a removal or diversion of surface water in Virginia or from the Potomac River for consumptive or nonconsumptive use thereby altering the instream flow or hydrologic regime of the surface water. Projects that do not alter the instream flow or that alter the instream flow but whose sole purpose is flood control or stormwater management are not included in this definition.

"Surface water withdrawal system" means any device or combination of devices used to withdraw surface water such as, but not limited to, a machine, pump, culvert, hose, tube, screen, or fabricated concrete or metal structure.

"Variance" means a mechanism that allows temporary waiver of the generally applicable withdrawal limitation requirements or instream flow conditions of a VWP permit during a drought.

"Water Supply Coordination Agreement" means the agreement among the United States of America, the Fairfax County Water Authority, the Washington Suburban Sanitary Commission, the District of Columbia, and the Interstate Commission on the Potomac River Basin, dated July 22, 1982, which establishes agreement among the suppliers to operate their respective water supply systems in a coordinated manner and which outlines operating rules and procedures for reducing impacts of severe droughts in the Potomac River Basin.

"Water supply plan" means a document developed in compliance with 9VAC25-780.

9VAC25-210-310. Exclusions from permits for surface water withdrawals.

A. The following surface water withdrawals are excluded from VWP permit requirements. Activities, other than the surface water withdrawal, that are contained in 9VAC25-210-50 and are associated with the construction and operation of the surface water withdrawal are subject to VWP permit requirements unless excluded by 9VAC25-210-60. Other permits under state and federal law may be required.

1. Any surface 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. To qualify for this exclusion, the surface water withdrawal shall be deemed to be in existence on July 1, 1989, if there was an actual withdrawal on or before that date that has not been abandoned.

a. Abandonment of a surface water withdrawal. A surface water withdrawal shall be deemed to be abandoned if the owner of the surface water withdrawal system (i) notifies the Department of Environmental Quality in writing that the withdrawal has been abandoned or (ii) removes or disables the surface water withdrawal system with the intent to permanently cease such withdrawal. Transfer of ownership or operational control of the surface water withdrawal system, a change in use of the water, or temporary cessation of the withdrawal shall not be deemed evidence of abandonment. The notification shall be signed by the owner of record or shall include evidence satisfactory to DEQ that the signatory is authorized to submit the notice on behalf of the owner of record. Evidence may include, but shall not be limited to, a resolution of the governing body of the owner or corporate minutes.

b. Information to be furnished to DEQ. Each owner or operator of a permanent surface water withdrawal system engaging in a withdrawal that is subject to this exclusion shall provide DEQ the estimated maximum capacity of the intake structure, the location of the existing intake structure, and any other information that may be required by the board. Each owner or operator of a temporary surface water withdrawal system engaging in a withdrawal that is subject to this exclusion, where the purpose of the withdrawal is for agriculture, shall provide to DEQ the maximum annual surface water withdrawal over the last 10 years. The information shall be provided within one year of the date that notice of such request is received from DEQ and shall be updated when the maximum capacity of the existing intake structure changes. The information provided to DEQ shall not constitute a limit on the exempted withdrawal. Such information shall be utilized by DEQ and board to protect existing beneficial uses and shall be considered when evaluating applications for new withdrawal permits.

2. Any surface water withdrawal not in existence on July 1, 1989, if the person proposing to make the withdrawal 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.

3. Any existing lawful unpermitted surface water withdrawal initiated between July 1, 1989, and July 25, 2007, that has complied with the Water Withdrawal Reporting regulations (9VAC25-200) and that is not subject to other exclusions contained in this section. Any increase in that withdrawal above the limited amount identified in subdivision a of this subdivision A 3 shall require an application for a permit for the surface water withdrawal system.

a. The largest 12-consecutive month surface water withdrawal that occurred in the 10 years prior to July 25, 2007, shall constitute a limit on the withdrawal that is excluded from permit requirements. For agricultural surface water withdrawals that did not report annually as required by the Water Withdrawal Reporting regulations (9VAC25-200) prior to July 25, 2007, the limit excluded from permit requirements was established for the operations that were in existence during the 10 years prior to July 25, 2007, by estimating the largest 12-consecutive month withdrawal based upon the following information associated with that timeframe: the area irrigated, depth of irrigation, and annual number of irrigations; pumping capacity and annual pumping time; annual energy consumption for pumps; number and type of livestock watered annually; and number and type of livestock where water is used for cooling purposes.

b. All owners and operators of surface water withdrawals excluded from permit requirements by this section shall annually report withdrawals as required by the Water Withdrawal Reporting regulations (9VAC25-200). Failure to file annual reports either reporting actual withdrawals or the fact that withdrawals did not occur may result in the owner or operator being required to cease withdrawals, file an application, and receive a permit prior to resuming any withdrawal. Information regarding excluded withdrawal amounts shall be utilized by DEQ and the board to protect existing beneficial uses and shall be considered when evaluating applications for new withdrawal permits.

4. Agricultural surface water withdrawals that total less than:

a. One million gallons in a single month from nontidal waters.

b. 60 million gallons in a single month from tidal waters.

5. Surface water withdrawals from tidal waters for nonconsumptive uses.

6. Surface water withdrawals from nontidal or tidal waters, regardless of the volume withdrawn, for the following uses:

a. Firefighting or for the training activities related to firefighting, such as dry hydrants and emergency surface water withdrawals.

b. Hydrostatic pressure testing of water tight containers, pipelines, and vessels.

c. Normal single-family home residential gardening and lawn and landscape maintenance.

7. Surface water withdrawals placed into portable containers by persons owning property on or holding easements to riparian lands.

8. Surface water withdrawals that return withdrawn water to the stream of origin; do not divert more than half of the instantaneous flow of the stream; have the withdrawal point and the return point not separated by more than 1,000 feet of stream channel; and have both banks of the affected stream segment located within one property boundary.

9. Surface water withdrawals from quarry pits that do not alter the physical, biological, or chemical properties of surface waters connected to the quarry pit.

10. Surface water withdrawals from a privately owned agriculture pond, emergency water storage facility, or other water retention facility, provided that such pond or facility is not placed in the bed of a perennial or intermittent stream or wetland. Surface water withdrawals from such facilities constructed in beds of ephemeral streams are excluded from permit requirements.

11. Surface water withdrawals for all other purposes not otherwise excluded by subdivisions 4 through 10 of this subsection that total less than:

a. 10,000 gallons per day from nontidal waters.

b. Two million gallons per day from tidal waters.

B. DEQ may require any owner or operator of a surface water withdrawal system excluded from permit requirements by subdivisions A 3 through A 11 of this section to cease withdrawals and file an application and receive a permit prior to resuming any withdrawal when the board's assessment indicates that a withdrawal, whether individually or in combination with other existing or proposed projects:

1. Causes or contributes to, or may reasonably be expected to cause or contribute to, a significant impairment of the state waters or fish and wildlife resources;

2. Adversely impacts other existing beneficial uses; or

3. Will cause or contribute to a violation of water quality standards.

9VAC25-210-320. Preapplication procedures for new or expanded surface water withdrawals.

A. Preapplication review panel. At the request of a potential applicant for a surface water withdrawal proposing to the Department of Environmental Quality to withdraw 90 million gallons a month or greater, a preapplication review panel shall be convened prior to submission of a VWP application. The preapplication review panel shall assist potential applicants that are proposing surface water withdrawals with the early identification of issues related to the protection of beneficial instream and offstream uses of state waters and the identification of the affected stream reach. DEQ shall notify the Virginia Marine Resources Commission, the Virginia Institute of Marine Science, the Virginia Department of Game and Inland Fisheries, the Virginia Department of Conservation and Recreation, the Virginia Department of Health, the U.S. Army Corps of Engineers, the U.S. Fish and Wildlife Service, the U.S. Environmental Protection Agency, and other appropriate local, state, and federal agencies of the preapplication review panel request. These agencies shall participate to the extent practicable in the preapplication review panel by providing information and guidance on the potential natural resource impacts and regulatory implications of the options being considered by the applicant and shall provide comments within 60 days of the initial meeting of the preapplication panel.

B. Preapplication public notice. For new or expanded surface water withdrawals requiring an individual VWP permit and proposing to withdraw 90 million gallons a month or greater, a potential applicant shall provide information on the project, shall provide an opportunity for public comment on the proposed project, and shall assist in identifying public concerns or issues prior to filing a VWP individual permit application.

1. Except as provided in this subsection, the potential applicant shall provide for publication of notice once a week for two consecutive weeks in a newspaper of general circulation serving the locality where the surface water withdrawal is proposed to be located.

2. If requested by any person, the potential applicant shall hold at least one public information meeting. Notice of any public information meeting held pursuant to this subsection shall be provided at least 14 days prior to the public information meeting date and shall be published in the same manner as required in subdivision 1 of this subsection. A potential applicant shall submit the notice to DEQ for posting on the DEQ website. At a minimum, any notice required by this subsection shall include:

a. A statement of the potential applicant's intent to apply for a VWP permit for a surface water withdrawal;

b. The proposed location of the surface water withdrawal;

c. Information on how the public may request a public information meeting or, in the alternative, the date, time, and location of the public information meeting;

d. The name, address, and telephone number of the potential applicant, or an authorized representative who can answer questions or receive comments on the proposed surface water withdrawal; and

e. A statement of how oral or written public comments will be used.

3. In accordance with the provisions of 9VAC25-780-50 C 11 and 9VAC25-780-150, a potential applicant shall not be required to publish public notice or provide an opportunity for a public information meeting if a public meeting has been held within two years prior to the submittal of an application for a VWP permit on a local or regional water supply plan, which includes the proposed project.

4. The potential applicant shall maintain a list of persons making comment and their addresses and shall make a good faith effort to notify commenters at the address provided by the commenter when the public notice for the draft VWP individual permit is available.

9VAC25-210-330. Coordinated review with the Virginia Marine Resources Commission on applications for surface water withdrawals.

A. The Department of Environmental Quality shall coordinate the review of an application for surface water withdrawals that also requires a Virginia Marine Resources Commission (VMRC) permit under Chapter 12 (§ 28.2-1200 et seq.) of Title 28.2 of the Code of Virginia with the VMRC in accordance with § 62.1-44.15:5.01 of the Code of Virginia.

B. The initial application for surface water withdrawals that requires both an individual Virginia Water Protection Permit and a VMRC permit shall be advertised concurrently by DEQ and VMRC. When appropriate, such advertisement may be in the form of a joint public notice of the application, prepared by VMRC with the assistance of DEQ, published once in a newspaper of general circulation in the area affected by the proposed activity in accordance with VMRC regulations and policy. Such advertising shall be paid for by the applicant.

9VAC25-210-340. Application requirements for surface water withdrawals.

A. Persons proposing to initiate a new or expanded surface water withdrawal not excluded from requirements of this chapter by 9VAC25-210-310, proposing to reapply for a current permitted withdrawal, or a FERC license or relicense associated with a surface water withdrawal, shall apply for a VWP permit.

B. In addition to requirements of 9VAC25-210-80, applications for surface water withdrawals or a Federal Energy Regulatory Commission (FERC) license or relicense associated with a surface water withdrawal shall include:

1. As part of identifying the project purpose, a narrative describing the water supply issues that form the basis of the proposed project purpose.

2. The drainage area, the average annual flow and the median monthly flows at the withdrawal point, and historical low flows if available;

3. The average daily withdrawal; the maximum daily, monthly, annual, and instantaneous withdrawals; and information on the variability of the demand by season. If the project has multiple intake structures, provide for each individual intake structure and the cumulative volumes for the entire surface water withdrawal system.

4. The monthly consumptive use volume in million gallons and the average daily return flow in million gallons per day of the proposed project and the location of the return flow, including the latitude and longitude and the drainage area in square miles at the discharge point.

5. Information on flow dependent beneficial uses along the affected stream reach. For projects that propose a transfer of water resources from a major river basin to another major river basin, this analysis should include both the source and receiving basins.

a. Evaluation of the flow dependent instream and offstream beneficial uses. Instream beneficial uses include, but are not limited to, the protection of fish and wildlife habitat, maintenance of waste assimilation, recreation, navigation, and cultural and aesthetic values. Offstream beneficial uses include, but are not limited to, domestic (including public water supply); agricultural; electric power generation; and commercial and industrial uses.

b. The aquatic life, including species and habitat requirements.

c. How the proposed withdrawal will alter flows.

6. Information on the proposed use of and need for the surface water and information on how demand for surface water was determined (e.g., per capita use, population growth rates, new uses, changes to service areas, and, if applicable, acreage irrigated and evapotranspiration effects). If during the water supply planning process, the need for the withdrawal was established, the applicant may submit the planning process information, provided that the submittal address all requirements of 9VAC25-210-360. The board shall deem such a submittal as meeting the requirements of this subsection. For surface water withdrawals for public water supply, see also 9VAC25-780-100 and 9VAC25-780-130.

7. Information describing the intake structure, to include intake screen mesh size, and intake velocity.

8. For withdrawals proposed from an impoundment, the following:

a. Description of the flow or release control structures, including the minimum rate of flow, in cubic feet per second, size and capacity of the structure, and the mechanism to control the release.

b. Surface area in acres, maximum depth in feet, normal pool elevation, total storage capacity, and unusable storage volume in acre-feet.

c. The stage-storage relationship. For example, the volume of water in the impoundment at varying stages of water depth.

9. Whether the proposed surface water withdrawal is addressed in the water supply plan that covers the area in which the withdrawal is proposed to be located. If the proposed withdrawal is included, provide a discussion as to how the proposed withdrawal is addressed in the water supply plan, specifically in terms of projected demand, analysis of alternatives, and water conservation measures. If all or a portion of the withdrawn water will be transferred to an area not covered by the plan, the discussion shall also include the water supply plan for the area of the receiving watershed.

10. An alternatives analysis for the proposed surface water withdrawal, including at a minimum, the criteria in 9VAC25-210-360.

11. For new or expanded surface water withdrawals proposing to withdraw 90 million gallons a month or greater, a summary of the steps taken to seek public input as required by 9VAC25-210-320 and an identification of the issues raised during the course of the public information meeting process.

12. For new or expanded surface water withdrawals that involve a transfer of water between major river basins that may impact a river basin in another state, a plan describing procedures to notify potentially affected persons, both in and outside of Virginia, of the proposed project.

13. For surface water withdrawals, other than for public water supply, information to demonstrate that alternate sources of water supply are available to support the operation of the facility during times of reduced instream flow.

C. Applications for an Emergency Virginia Water Protection Permit.

1. Applications for an Emergency Virginia Water Protection Permit to address a public water supply emergency shall include the information noted in subdivisions 1 a through 1 o of this subsection. The JPA may be used for emergency applications purposes, provided that all of the information in subdivisions a through o of this subdivision C 1 is included:

a. Name, mailing address, telephone number, and if applicable, fax number and electronic mail address of applicant;

b. If different from applicant, name, mailing address, telephone number, and if applicable, fax number and electronic mail address of property owner;

c. If applicable, authorized agent's name, mailing address, telephone number, and, if applicable, fax number and electronic mail address;

d. Name of water body or water bodies, or receiving waters, as applicable;

e. Name of the city or county where the project occurs;

f. Signed and dated signature page (electronic submittals containing the original signature page, such as that contained in a scanned document file are acceptable);

g. Permit application fee in accordance with 9VAC25-20;

h. The drainage area, the average annual flow and the median monthly flows at the withdrawal point, and historical low flows if available;

i. Information on the aquatic life along the affected stream reach, including species and habitat requirements;

j. Recent and current water use including monthly water use in the previous calendar year and weekly water use in the previous six months prior to the application. The application shall identify the sources of such water and also identify any water purchased from other water suppliers;

k. A description of the severity of the public water supply emergency, including (i) for reservoirs, an estimate of days of remaining supply at current rates of use and replenishment; (ii) for wells, current production; and (iii) for intakes, current streamflow;

l. A description of mandatory water conservation measures taken or imposed by the applicant and the dates when the measures were implemented; for the purposes of obtaining an Emergency Virginia Water Protection Permit, mandatory water conservation measures shall include, but not be limited to, the prohibition of lawn and landscape watering, vehicle washing, watering of recreation fields, refilling of swimming pools, and washing of paved surfaces;

m. An estimate of water savings realized by implementing mandatory water conservation measures;

n. Documentation that the applicant has exhausted all management actions that would minimize the threat to public welfare, safety, and health and will avoid the need to obtain an emergency permit, and that are consistent with existing permit limitations; and

o. Any other information that demonstrates that the condition is a substantial threat to public health or safety.

2. Within 14 days after the issuance of an Emergency Virginia Water Protection Permit, the permit holder shall apply for a VWP permit under the other provisions of this chapter.

9VAC25-210-350. Duty to reapply for a permit for a continuation of a surface water withdrawal.

A. Any permittee with an effective permit for a surface water withdrawal shall submit a new permit application at least 270 days before the expiration date of an effective permit unless permission for a later date has been granted by the board. The Department of Environmental Quality may administratively continue an expiring permit in accordance with 9VAC25-210-65.

B. The applicant shall provide all information described in 9VAC25-210-340 and applicable portions of 9VAC25-210-80 for any reapplication. The information may be provided by referencing information previously submitted to the department that remains accurate and relevant to the permit application. The board may waive any requirement of 9VAC25-210-340 and the applicable portions of 9VAC25-210-80 B, if it has access to substantially identical information.

9VAC25-210-360. Evaluation of project alternatives for surface water withdrawals.

The applicant shall demonstrate to the satisfaction of the board that the project meets an established local water supply need. In establishing local need, the applicant shall provide the following information:

1. Existing supply sources, yields, and demands, including:

a. Peak day and average daily withdrawal;

b. The safe yield and lowest daily flow of record;

c. Types of water uses; and

d. Existing water conservation measures and drought response plan, including what conditions trigger their implementation.

2. Projected demands over a minimum 30-year planning period, including the following:

a. Projected demand contained in the local or regional water supply plan developed in accordance with 9VAC25-780 or for the project service area, if such area is smaller than the planning area; or

b. Statistical population (growth) trends; projected demands by use type; projected demand without water conservation measures; and projected demands with long-term water conservation measures.

3. Any alternatives analysis conducted specifically for withdrawals for public water supply shall include:

a. The range of alternatives to be analyzed by the applicant as follows:

(1) All applicable alternatives contained in the local or regional water supply plan developed in accordance with 9VAC25-780;

(2) Alternatives that are practicable or feasible from both a technical and economic standpoint that had not been identified in the local or regional water supply plan developed in accordance with 9VAC25-780;

(3) Alternatives that are available to the applicant but not necessarily under the current jurisdiction of the applicant; and

(4) Water conservation measures that could be considered as a means to reduce demand for each alternative considered by the applicant.

b. The applicant shall provide a narrative description that outlines the opportunities and status of regionalization efforts undertaken by the applicant.

c. The criteria used to evaluate each alternative for the purpose of establishing the least environmentally damaging practicable alternative, which includes but is not limited to:

(1) Demonstration that the proposed alternative meets the project purpose and project demonstrated need as documented pursuant to this section;

(2) Availability of the alternative to the applicant;

(3) Evaluation of interconnectivity of water supply systems, both existing and proposed;

(4) Evaluation of the cost of the alternative on an equivalent basis;

(5) Evaluation of alternative safe yields;

(6) Presence and potential impact of alternative on state and federally listed threatened and endangered species;

(7) Presence and potential impact of alternative on wetlands and streams (based on maps and aerial photos for all alternatives, field delineation required for preferred alternative);

(8) Evaluation of effects on instream flow; and

(9) Water quality considerations, including:

(a) Land use within a watershed where the type of land use may impact the water quality of the source;

(b) The presence of impaired streams and the type of impairment;

(c) The location of point source discharges; and

(d) Potential threats to water quality other than those listed in this subdivision 3 (c) (9).

4. Any alternatives analysis conducted for surface water withdrawals other than for public water supply shall include all applicable items included in this subdivision 3 of this section.

9VAC25-210-370. VWP permit conditions applicable to surface water withdrawal permits.

A. In addition to the conditions established in 9VAC25-210-90 and 9VAC25-210-100, each VWP permit shall include conditions meeting the requirements established in this section, where applicable.

B. Instream flow conditions. Subject to the provisions of Chapter 24 (§ 62.1-242 et seq.) of Title 62.1 of the Code of Virginia, and subject to the authority of the State Corporation Commission over hydroelectric facilities contained in Chapter 7 (§ 62.1-80 et seq.) of Title 62.1 of the Code of Virginia, instream flow conditions may include, but are not limited to, conditions that limit the volume and rate at which surface water may be withdrawn at certain times, the public water supply safe yield, and conditions that require water conservation and reductions in water use.

1. In the development of conditions that limit the volume and rate at which surface water may be withdrawn, consideration shall be given to the seasonal needs of water users and the seasonal availability of surface water flow.

2. Consideration shall also be given to the affected stream reach and the amount of water that is put to a consumptive use in the process.

3. In the development of instream flow conditions for new withdrawals, the board shall take into consideration the combined effect on the hydrologic regime of the surface water within an affected stream reach due to consumptive water uses associated with:

a. All existing permitted withdrawals;

b. The total amount of withdrawals excluded from VWP permit requirements; and

c. Any other existing lawful withdrawals.

4. VWP permits for surface water withdrawals, other than for public water supply, shall identify how alternate sources of water supply will be made available to support the operation of the permitted facility during times when surface water withdrawals will be curtailed due to instream flow requirements or shall provide for modification of the operation of the facility to ensure compliance with permit conditions. Such modifications may include, but are not limited to, termination or reduction of activities at the facility that are dependent on the permitted withdrawal, increase capacity to capture, and store higher flows or implementation of other potential management options.

C. VWP permits issued for surface water withdrawals from the Potomac River between the Shenandoah River confluence and Little Falls shall contain a condition that requires the permittee to reduce withdrawals when the restriction or emergency stage is declared in the Washington Metropolitan Area under the provisions of the Potomac River Low Flow Allocation Agreement or when the operating rules outlined by the Drought-Related Operations Manual for the Washington Metropolitan Area Water Suppliers, an attachment to the Water Supply Coordination Agreement, are in effect. The department, after consultation with the Section for Cooperative Water Supply Operations on the Potomac (CO-OP), shall direct the permittee as to when, by what quantity, and for what duration withdrawals shall be reduced.

D. The board may issue permits for new or expanded surface water withdrawals that are not excluded from the requirements of this chapter by 9VAC25-210-310 based on the following criteria:

1. The amount of the surface water withdrawal is limited to the amount of water that can be put to beneficial use.

2. Based on the size and location of the surface water withdrawal, the withdrawal is not likely to have a detrimental impact on existing instream or offstream uses.

3. Based on an assessment by the board, this withdrawal, whether individually or in combination with other existing or proposed projects, does not cause or contribute to, or may not reasonably be expected to cause or contribute to:

a. A significant impairment of the state waters or fish and wildlife resources;

b. Adverse impacts on other existing beneficial uses; or

c. A violation of water quality standards.

4. In cases where the board's assessment indicates that criteria contained in subdivisions 2 and 3 of this subsection are not met, the board may issue a permit with special conditions necessary to assure these criteria are met.

9VAC25-210-380. Modifications to surface water withdrawal permits.

A. In addition to the requirements of 9VAC25-210-180 B, VWP permits for surface water withdrawals may be modified when any of the following developments occur:

1. When the board determines that minimum instream flow levels resulting directly from the permittee's withdrawal of surface water are detrimental to the instream beneficial use, existing at the time of permit issuance, and the withdrawal of surface water should be subject to further net limitations or when an area is declared a surface water management area pursuant to §§ 62.1-242 through 62.1-253 of the Code of Virginia, during the term of the VWP permit.

2. Significant changes to the location of the surface water withdrawal system are proposed such that the Department of Environmental Quality determines a new review is warranted due to the potential effect of the surface water withdrawal to existing beneficial uses of the new location.

3. Changes to the permitted project or the surface water withdrawal, including increasing the storage capacity for the surface water withdrawal, that propose an increase in the maximum permitted withdrawal volumes or rate of withdrawal or that cause more than a minimal change to the instream flow requirements with potential to result in a detrimental effect to existing beneficial uses.

4. A revision to the purpose of the surface water withdrawal that proposes to include a new use or uses that were not identified in the permit application or a modification of the existing authorized use or uses such that the use description in the permit application and permit is no longer applicable.

B. Minor modifications may be made in the VWP permit for surface water withdrawals without following the public involvement requirements of 9VAC 25-210-140, 9VAC 25-210-160, or 9VAC 25-210-170. Any request for a minor modification shall be in writing and shall contain the facts or reasons supporting the request. The board may request additional information as necessary to review a request for a minor modification. Minor modifications may only occur in accordance with 9VAC25-210-180 E and the following items specific to surface water withdrawals:

1. Minor changes to the location of the surface water withdrawal system, as determined by DEQ, and thus not warranting a new review of the effect of the surface water withdrawal to existing beneficial uses.

2. Allow for temporary changes to instream flow requirements or operational permit requirements to address situations such as surface water withdrawal system improvements, environmental studies, or as otherwise determined appropriate by DEQ.

3. Changes to the permitted project that do not cause more than a minimal change to the instream flow requirements and do not have the potential to result in a detrimental effect to existing beneficial uses.

4. Changes to the monitoring methods or locations of monitoring sites for instream flow requirements or surface water withdrawal requirements.

9VAC25-210-390. Variance from surface water withdrawal permit conditions.

A. For public water supplies. The board may grant a temporary variance to any condition of a VWP permit for a surface water withdrawal for a public water supply to address a public water supply emergency during a drought. A permittee requesting such variance must provide all information required in the application for an Emergency Virginia Water Protection Permit identified in 9VAC25-210-340 C.

B. For all other water supplies. The board may grant a temporary variance to any condition of a VWP permit for a surface water withdrawal during a drought. A permittee requesting such variance must affirmatively demonstrate:

1. Public health and safety interests are served by the issuance of such variance; and

2. All management actions consistent with existing permits have been exhausted.

C. As a condition of any variance granted, the permittee shall:

1. Modify operations or facilities to comply with existing VWP permit conditions as soon as practicable; or

2. Provide new information to the board that alternate permit conditions are appropriate and either apply for a new VWP permit or a modification to its existing VWP permit. The board shall review any such application consistent with other sections of this chapter.

D. In addition, the board may require the permittee to take any other appropriate action to minimize adverse impacts to other beneficial uses.

E. Any variances issued by the board shall be of the shortest duration necessary for the permittee to gain compliance with existing permit conditions, apply for a new VWP permit, or request modification of existing permit conditions.

F. Public notice of any variance issued by the board shall be given as required for draft permits in 9VAC25-210-140 A, B, and C. Such notice shall be given concurrently with the issuance of any variance and the board may modify such variances based on public comment. Publication costs of all public notices shall be the responsibility of the permittee.

Part VI
Enforcement

9VAC25-210-500. Enforcement.

The board may enforce the provisions of this chapter utilizing all applicable procedures under the law and § 10.1-1186 of the Code of Virginia.

Part VII
Miscellaneous

9VAC25-210-600. Delegation of authority.

The director, or a designee acting for him, may perform any act of the board provided under this chapter, except as limited by § 62.1-44.14 of the Code of Virginia.

9VAC25-210-610. Transition.

A. All applications received on or after (insert effective date of regulation), will be processed in accordance with these new procedures.

B. VWP individual permits issued prior to (insert effective date of regulation), will remain in full force and effect until such permits expire, are revoked, or are terminated and during any period of administrative continuance in accordance with 9VAC25-210-65.

C. Section 401 Water Quality Certificates issued prior to December 31, 1989, have the same effect as a VWP permit. Water Quality Certificates issued after this date will remain in effect until reissued as Virginia Water Protection Permits.

FORMS (9VAC25-210)

Department of Environmental Quality Water Division Permit Application Fee Form (rev. 10/14)

Standard Joint Permit Application for Activities in Waters and Wetlands of the Commonwealth of Virginia (eff. 7/08)

Joint Permit Application for Projects in Tidewater Virginia (eff. 10/04)

Standard Joint Permit Application for Activities in Waters and Wetlands of the Commonwealth of Virginia (eff. 3/2014)

Tidewater Joint Permit Application for Projects Involving Tidal Waters, Tidal Wetlands and/or Dunes and Beaches in Virginia (eff. 3/2014)

Virginia Department of Transportation, Inter-Agency Coordination Meeting Joint Permit Application, IACM Coordination Form (eff. 6/08)

Monthly Reporting of Impacts Less than or Equal to One-Tenth Acre Statewide (eff. 8/07)

DEQ Application for New or Expanded Minor Surface Water Withdrawals Initiated on or after July 25, 2007

DOCUMENTS INCORPORATED BY REFERENCE (9VAC25-210)

Virginia Stormwater Management Handbook, First Edition, 1999, Volume I, Chapter 3, Department of Conservation and Recreation.

Classification of Wetlands and Deepwater Habitats of the United States, Cowardin, Lewis M. II, et al., United States Fish and Wildlife Service, December 1979, Reprinted 1992.

Corps of Engineers Regional Supplement to the Corps of Engineers Wetland Delineation Manual: Eastern Mountains and Piedmont Region (Version 2.0), April 2012.

Corps of Engineers Regional Supplement to the Corps of Engineers Wetland Delineation Manual: Atlantic and Gulf Coastal Plain Region (Version 2.0), November 2010.

Corps of Engineers Wetlands Delineation Manual, Technical Report Y-87-1, January 1987, Final Report.

Forestry Best Management Practices for Water Quality in Virginia Technical Guide, Fourth Edition, 2002, Department of Forestry.

Guidelines for Specification of Disposal Sites for Dredged or Fill Material, 40 CFR Part 230.

Hydric Soils of the United States, updated annually, United States Department of Agriculture, Natural Resources Conservation Service.

Potomac River Low Flow Allocation Agreement, January 11, 1978, § 181 of the Water Resources Development Act of 1976, Public Law 94-587, as modified on April 22, 1986.

Virginia Agricultural Best Management Practices (BMP) Manual, Revised June 2000, Department of Conservation and Recreation.

Virginia Drought Assessment and Response Plan, March 28, 2003, Drought Response Technical Advisory Committee.

Virginia Erosion and Sediment Control Handbook, Third Edition, 1992, Department of Conservation and Recreation.

Virginia Stormwater Management Handbook, First Edition, 1999, Volume I, Chapter 3, Department of Conservation and Recreation.

Guideline for Specification of Disposal Sites for Dredged of Fill Material, 40 CFR Part 230 (Federal Register December 24, 1980).

Potomac River Low Flow Allocation Agreement, January 11, 1978, § 181 of the Water Resources Development Act of 1976, Public Law 94-587, as modified on April 22, 1986.

Water Supply Coordination Agreement, July 22, 1982, an attachment to the Drought-Related Operations Manual for the Washington Metropolitan Area Water Suppliers.