Title of Regulation: 1VAC80-10. Disabled Veteran Real Property Tax Exemption (adding 1VAC80-10-10 through 1VAC80-10-100).

Statutory Authority: § 58.1-3219.7 of the Code of Virginia.

Effective Date: September 18, 2017.

Agency Contact: Carrie Ann Alford, Director of Policy and Planning, Department of Veterans Services, 101 North 14th Street, 17th Floor, Richmond, VA 23219, telephone (804) 225-4716, or email carrieann.alford@dvs.virginia.gov.

Summary:

The regulation establishes the requirements of the application process and implementation of the real property tax exemption for 100% disabled veterans and their surviving spouses.

CHAPTER 10
100% DISABLED VETERAN REAL PROPERTY TAX EXEMPTION

1VAC80-10-10. Definitions.

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"Commissioner" means the Commissioner of the Department of Veterans Services.

"Department" means the Virginia Department of Veterans Services.

"Dwelling" means the single structure, including any permanent attachments thereto, that is the principal place of residence of the qualifying veteran or surviving spouse.

"Exemption" means the exemption from real property taxes authorized by subdivision (a) of Section 6-A of Article X of the Constitution of Virginia and § 58.1-3219.5 of the Code of Virginia.

"Qualified veteran" is a veteran who has been rated by the U.S. Department of Veterans Affairs, or any successor agency, to have a 100% service-connected, permanent, and total disability. If a 100% disability rating is not permanent (i.e., has not been finally adjudicated or is scheduled to be reviewed at a future date), the exemption does not apply.

"Real property" is land and anything growing on it, attached to it, or erected on it, excluding anything that may be severed without injury to the land, and the dwelling occupied by the qualified veteran or surviving spouse.

"Surviving spouse" is a spouse of any member of the armed forces of the United States as determined by the U.S. Department of Defense, who has been rated by the U.S. Department of Veterans Affairs, or any successor agency, to have a 100% service-connected, permanent, and total disability.

"VA" means the U.S. Department of Veterans Affairs or any successor agency.

1VAC80-10-20. Real property exempt from taxation.

A. The dwelling that is the principal residence of a qualified veteran, plus up to one acre of land, or more than one acre if a given locality has exempted such larger acreage pursuant to § 58.1-3210 of the Code of Virginia, shall be exempt. The exemption extends to real property improvements other than a dwelling, including the land upon which such improvements are situated, so long as the principal use of the improvement is (i) to house or cover motor vehicles or household goods and other personal effects as classified in subdivision A 14 of § 58.1-3503 of the Code of Virginia and as listed in § 58.1-3504 of the Code of Virginia and (ii) for other than a business purpose.

B. Manufactured homes, as defined in § 46.2-100 of the Code of Virginia, whether or not the wheels and other equipment previously used for mobility have been removed, shall be exempt after the qualifying veteran has titled the home in the Commonwealth and shown proof of ownership. Sections 58.1-3219.5 and 58.1-3219.9 of the Code of Virginia are the only instances when manufactured homes may be classified as real property. If the veteran does not own the land on which the manufactured home is located, then the land is not exempt. The veteran or spouse must meet all other provisions of § 58.1-3219.5.

1VAC80-10-30. Full exemption; joint ownership; trusts.

A. The full exemption is authorized when the dwelling and land are held by a veteran alone or in conjunction with the veteran's spouse as tenant or tenants for life or joint lives. The exemption does not apply if the qualified veteran is not on the deed, except when the real property is held in one of the trusts listed in subsection B of this section.

B. The full exemption is authorized when the real property is held in one of the following trusts: (i) revocable inter vivos trust over which the veteran or the veteran and veteran's spouse hold the power of revocation or (ii) an irrevocable trust under which a veteran alone or in conjunction with veteran's spouse possesses a life estate or an estate for joint lives or enjoys a continuing right of use or support. The exemption does not apply to any other forms of trust or any interest held under a leasehold or term of years.

1VAC80-10-40. Partial exemptions.

A. If the veteran's 100% disability rating occurs after January 1, 2011, and the veteran owns a qualified primary residence on the date of the rating, then the tax exemption begins on the date of such rating.

B. If the qualified veteran acquires the property after January 1, 2011, then the exemption shall begin on the date of acquisition, and the previous owner may be entitled to a refund for a pro rata portion of real property taxes paid pursuant to § 58.1-3360 of the Code of Virginia.

1VAC80-10-50. Surviving spouse exemption.

A. The surviving spouse of a veteran eligible for the exemption shall also qualify for the exemption, so long as:

1. The death of the qualified veteran occurs on or after January 1, 2011;

2. The surviving spouse was married to the qualified veteran at the time of the veteran's death;

3. The surviving spouse does not remarry;

4. The surviving spouse continues to occupy the real property as the surviving spouse's principal place of residence; and

5. The veteran was eligible for the exemption at the time of the veteran's death. This exemption is available even if the qualifying veteran never requested the exemption.

B. The exemption for a surviving spouse includes real property (i) held by the veteran's spouse as tenant for life, (ii) held in a revocable inter vivos trust over which the surviving spouse holds the power of revocation, or (iii) held in an irrevocable trust under which the surviving spouse possesses a life estate or enjoys a continuing right of use or support. The exemption does not apply to any other forms of trust or any interest held under a leasehold or term of years.

1VAC80-10-60. Proration when not all owners qualify for the exemption.

In the event that the primary residence is jointly owned by two or more individuals, not all of whom qualify for the exemption pursuant to subsection A or B of § 58.1-3219.5 of the Code of Virginia, and no person is entitled to the exemption under this section by virtue of holding the property in any of the three ways set forth in subsection D of § 58.1-3219.5 of the Code of Virginia, then the exemption shall be prorated by multiplying the amount of the exemption or deferral by a fraction that has as a numerator the percentage of ownership interest in the dwelling held by all such joint owners who qualify for the exemption pursuant to subsections A and B of § 58.1-3219.5 of the Code of Virginia, and as a denominator, 100%.

1VAC80-10-70. Cooperative associations.

The exemption does not apply to property owned by a cooperative association or any other form of ownership in which the qualified veteran does not actually own the real property other than the trusts detailed in 1VAC80-10-30.

1VAC80-10-80. Qualified veterans and surviving spouses residing in hospitals, nursing homes, convalescent homes, or other care facilities.

If the qualified veteran or surviving spouse is residing in a hospital, nursing home, convalescent home, or other facility for physical or mental care for an extended period of time, the exemption will continue on the property so long as such real estate is not used by or leased to others for consideration.

1VAC80-10-90. Application.

A. A veteran claiming the real property tax exemption shall file with the Commissioner of the Revenue, or other assessing official, in the veteran's respective locality:

1. A summary of benefits letter issued by the VA, or its successor agency, indicating that the veteran has a 100% service-connected, permanent, and total disability;

2. An affidavit or application on a form provided by the locality that:

a. Sets forth the name of the veteran and the name of the spouse, if any, also occupying the real property;

b. Indicates whether the real property is jointly owned by two spouses; and

c. Certifies that the real property is occupied as the veteran's principal place of residence; and

3. Proof of residence occupancy acceptable to the applicable locality, such as a valid Virginia driver's license or other proof of residency acceptable to the locality.

B. A surviving spouse of a veteran claiming the real property tax exemption shall file with the Commissioner of the Revenue, or other assessing official, in the surviving spouse's respective locality:

1. A summary of benefits letter issued by the VA, or its successor agency, indicating that the veteran had a 100% service-connected, permanent, and total disability;

2. An affidavit or application on a form provided by the locality that:

a. Sets forth the name of the deceased veteran and the name of the spouse;

b. Indicates whether the real property is jointly owned by the two spouses; and

c. Certifies that the real property is occupied as the surviving spouse's principal place of residence;

3. Proof of residence occupancy acceptable to the applicable locality, such as a valid Virginia driver's license, or other proof of residency acceptable to the locality;

4. Death certification to confirm veteran's date of death is on or after January 1, 2011; and

5. A certificate of marriage from the appropriate state office of records.

C. The veteran or surviving spouse may complete the local tax exemption application before receipt of the VA Summary of Benefits letter. The Commissioner of Revenue, or other assessing official, shall ensure that the veteran is aware the application is not complete without the required VA letter. When the application is complete, the assessing official shall inform the veteran or surviving spouse by mail whether or not the application is approved, the veteran or surviving spouse is exempt from the real property tax, and if exempted, the amount of the exemption.

D. The veteran or surviving spouse shall be required to re-file the application and notify the previous jurisdiction, required by this section only, if the principal place of residence changes.

E. While there is no deadline to apply for the exemption, the Commissioner of the Revenue, or assessing official, may only correct and refund (without interest) the past assessments of an initially qualified applicant for no more than the current tax year, plus up to three prior tax years after January 1, 2011.

F. No county, city, or town shall be liable for any interest on any refund due to the veteran or surviving spouse for taxes paid prior to the filing of the application required by § 58.1-3219.6 of the Code of Virginia.

G.  In the determination of the exemption, no locality may implement income or asset limitations or a deadline for application.

H. This chapter does not prohibit the locality's ability to require an annual confirmation of continued residence from the qualifying veteran or surviving spouse.

1VAC80-10-100. Informal requests for information; formal appeals process.

A. The commissioner will provide written guidance to and respond to requests for information from Commissioners of the Revenue, other assessing officials, or veterans regarding the exemption, including interpretation of the provisions of subdivision (a) of Section 6-A of Article X of the Constitution of Virginia and the implementing statutes. Such requests may be by telephone or in writing. Request for an appeal must be in writing.

B. The commissioner does not have the authority to answer questions regarding the assessed value of any property. Such questions should be answered solely by the veteran's respective Commissioner of Revenue or other assessing official.

C. A veteran or surviving spouse desiring to appeal a denial of an application for exemption by a Commissioner of the Revenue or other assessing official shall send a written request for appeal and the document from the veteran's respective Commissioner of Revenue or other assessing official denying the veteran's application as follows:

1. By electronic mail to john.newby@dvs.virginia.gov; carrieann.alford@dvs.virginia.gov with a subject line that states "ATTN: Tax Exemption – APPEAL"; or

2. By U.S. mail or delivery to Commissioner, Virginia Department of Veterans Services, "ATTN: Tax Exemption - APPEAL," 101 N. 14th Street, 17th Floor, Richmond VA 23219.

D. The commissioner may conduct hearings telephonically, by video conferencing means, or if the commissioner determines it necessary, in person at the department's headquarters in Richmond. The appeal shall be limited to issues involving the tax exemption eligibility criteria. The commissioner is not authorized to hear or decide appeals regarding a dispute over a property's assessed value.

E. In advance of any hearing, both the veteran, or surviving spouse, and the Commissioner of the Revenue, or other assessing official, shall be provided (i) reasonable notice of the time, date, and location of the hearing; (ii) the right to appear in person or by counsel, or other qualified representative, before the agency or its subordinates for the presentation of factual data, argument, or proof in connection with any case; and (iii) notice of all facts or information in the possession of the department that could be relied upon in making a decision.

F. The commissioner shall render a decision within 90 days from the date of the hearing, or from a later date agreed to by the veteran, or surviving spouse, and the commissioner. If the commissioner does not render a decision within 90 days, the veteran may provide written notice to the commissioner that a decision is due. If no decision is made within 30 days from the commissioner's receipt of the notice, the decision shall be deemed to be in favor of the veteran.

G. The final decision by the commissioner shall be mailed to all named parties.

H. A decision of the commissioner may be appealed by either party to the circuit court in the locality in which the veteran or surviving spouse resides.

I. The burden shall be upon the party complaining of the commissioner's decision to designate and demonstrate an error of law subject to review by the circuit court. Such issues of law include: (i) accordance with constitutional right, power, privilege, or immunity; (ii) compliance with statutory authority, jurisdiction limitations, or right as provided in the basic laws as to subject matter and the factual showing respecting entitlement in connection with case decisions; (iii) observance of required procedure where any failure therein is not mere harmless error; and (iv) the substantiality of the evidentiary support for findings of fact. Any necessary facts in controversy shall be determined by the court upon the basis of the agency file, minutes, and records of its proceedings, augmented, if need be, by the agency pursuant to order of the court or supplemented by any allowable and necessary proofs adduced in court, except that the function of the court shall be to determine only whether the result reached by the agency could reasonably be said, on all such proofs, to be within the scope of the legal authority of the agency. The court shall take due account of the presumption of official regularity, the experience and specialized competence of the agency, and the purposes of the basic law under which the agency has acted.

Title of Regulation: 4VAC15-70. Game: Bobcat (amending 4VAC15-70-60).

Statutory Authority: §§ 29.1-103 and 29.1-501 of the Code of Virginia.

Effective Date: September 1, 2017.

Agency Contact: Jeff Trollinger, Deputy Director, Bureau of Wildlife Resources, Department of Game and Inland Fisheries, 7870 Villa Park Drive, Suite 400, Henrico, VA 23228, telephone (804) 367-1134, or email jeff.trollinger@dgif.virginia.gov.

Summary:

The amendments allow hunting bobcats with the slingbow, which is a type of bow and arrow.

4VAC15-70-60. Archery hunting with bow and arrow or, crossbow, or slingbow.

A. Season. It shall be lawful to hunt bobcats with bow and arrow or, crossbow, or slingbow from the first Saturday in October through October 31, both dates inclusive.

B. Carrying firearms prohibited. It shall be unlawful to carry firearms while hunting with bow and arrow or, crossbow, or slingbow during the special archery seasons.

C. Use of dogs prohibited during the special archery season. It shall be unlawful to use dogs when hunting with bow and arrow or, crossbow, or slingbow during any special archery season.

Title of Regulation: 4VAC15-90. Game: Deer (amending 4VAC15-90-70).

Statutory Authority: §§ 29.1-103 and 29.1-501 of the Code of Virginia.

Effective Date: September 1, 2017.

Agency Contact: Jeff Trollinger, Deputy Director, Bureau of Wildlife Resources, Department of Game and Inland Fisheries, 7870 Villa Park Drive, Suite 400, Henrico, VA 23228, telephone (804) 367-1134, or email jeff.trollinger@dgif.virginia.gov.

Summary:

The amendment allows a county participating in the urban archery deer hunting season to exclude geographic areas from the season when consistent with Department of Game and Inland Fisheries deer management objectives.

4VAC15-90-70. Archery hunting.

A. It shall be lawful to hunt deer during the early special archery season with archery equipment or a slingbow from the first Saturday in October through the Friday prior to the third Monday in November, both dates inclusive.

B. In addition to the season provided in subsection A of this section, it shall be lawful to hunt deer during the late special archery season with archery equipment or a slingbow:

1. From the Sunday following the close of the general firearms season on deer through the first Saturday in January, both dates inclusive, in (i) all cities, towns, and counties west of the Blue Ridge Mountains (except Clarke County and on non-national forest lands in Frederick County); (ii) in the Counties (including the cities and towns within) of Amherst (west of Business U.S. 29 from the James River to its intersection with U.S. 29 just south of the Town of Amherst continuing north on U.S. 29 to the Tye River), Bedford, Franklin, Henry, Nelson (west of Route 151), and Patrick; (iii) on the Chester F. Phelps Wildlife Management Area; and (iv) on national forest lands in Frederick County.

2. From December 1 through the first Saturday in January, both dates inclusive, in the Cities of Chesapeake, Suffolk (east of the Dismal Swamp Line), and Virginia Beach.

C. Deer of either sex may be taken full season during the special archery seasons as provided in subsections A and B of this section (except on PALS (Public Access Lands) in Dickenson County where it shall be unlawful to take antlerless deer during the special archery seasons provided for in subsections A and B of this section).

D. It shall be unlawful to carry firearms while hunting with archery equipment during the special archery seasons, except that a muzzleloading gun, as defined in 4VAC15-90-80, may be in the possession of a properly licensed muzzleloading gun hunter when and where a special archery deer season overlaps a special muzzleloading deer season.

E. It shall be unlawful to use dogs when hunting with archery equipment during any special archery season, except that tracking dogs as described in § 29.1-516.1 of the Code of Virginia may be used.

F. It shall be lawful to hunt antlerless deer during the special urban archery season with archery equipment or a slingbow from the first Saturday in September through the Friday prior to the first Saturday in October, both dates inclusive, and from the Sunday following the first Saturday in January through the last Sunday in March, both dates inclusive, within the incorporated limits of any city or town in the Commonwealth (except on national forest and department-owned lands) and counties with a human population density of 300 persons per square mile or more (except on national forest and department-owned lands), provided that its governing body submits by certified letter to the department prior to April 1, its intent to participate in the special urban archery season. Any city, town, or county no longer participating in this season shall submit by certified letter to the department prior to April 1 notice of its intent not to participate in the special urban archery season. When consistent with the department's deer management objectives and subject to the director's approval, a participating county may exclude from this season a geographic area or areas by submitting a clear description of such area or areas in a certified letter to the department prior to April 1.

G. It shall be lawful to hunt antlerless deer during the special antlerless archery season with archery equipment or a slingbow from the Monday following the last Sunday in March through the last Sunday in April, both dates inclusive, in the Counties of Arlington, Fairfax, Loudoun, and Prince William (including the cities and towns within).

Title of Regulation: 4VAC15-260. Game: Waterfowl and Waterfowl Blinds (adding 4VAC15-260-116).

Statutory Authority: §§ 29.1-103 and 29.1-501 of the Code of Virginia.

Effective Date: February 1, 2018.

Agency Contact: Jeff Trollinger, Deputy Director, Bureau of Wildlife Resources, Department of Game and Inland Fisheries, 7870 Villa Park Drive, Suite 400, Henrico, VA 23228, telephone (804) 367-1134, or email jeff.trollinger@dgif.virginia.gov.

Summary:

The amendments prohibit the licensing of nonriparian blinds in public waters in front of National Park Service land along the north shore of the York River and York River State Park land along the south shore of the York River.

4VAC15-260-116. Blinds adjacent to Werowocomoco National Park and York River State Park.

No licenses shall be issued for stationary waterfowl blinds in front of Werowocomoco National Park in Purtan Bay and on the York River between Purtan Island and Barren Point in Gloucester County, and in front of York River State Park between Taskinas Creek and the eastern boundary of York River State Park in James City County. These prohibitions shall not alter the privileges prescribed in §§ 29.1-344 and 29.1-347 of the Code of Virginia for riparian owners and their lessees and permittees.

Title of Regulation: 4VAC20-720. Pertaining to Restrictions on Oyster Harvest (amending 4VAC20-720-20, 4VAC20-720-40, 4VAC20-720-60, 4VAC20-720-70, 4VAC20-720-75, 4VAC20-720-80, 4VAC20-720-90, 4VAC20-720-100).

Statutory Authority: § 28.2-201 of the Code of Virginia.

Effective Date: October 1, 2017.

Agency Contact: Jennifer Farmer, Regulatory Coordinator, Marine Resources Commission, 2600 Washington Avenue, 3rd Floor, Newport News, VA 23607, telephone (757) 247-2248, or email jennifer.farmer@mrc.virginia.gov.

Summary:

The amendments establish the 2017-2018 areas of public harvest, public oyster harvest seasons, and management measures. Measures include expanding replenishment activities to increase public oyster production, transitioning areas that reach market oyster populations high enough to harvest with less efficient gear to that gear type, expanding areas not currently in a harvest rotation to rotational areas, and restricting public harvest in areas that do not or have not received replenishment.

4VAC20-720-20. Definitions.

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"Aid to navigation" means any public or private day beacon, lighted channel marker, channel buoy, lighted channel buoy, or lighthouse that may be at, or adjacent to, any latitude and longitude used in area descriptions.

"Clean culled oyster" means any oyster taken from natural public beds, rocks, or shoals that is three inches or greater in shell length.

"Coan River Area" means that area of the Coan River inside of Public Grounds 77 and 78 of Northumberland County.

Public Ground 77 of Northumberland County is located near the mouth of the Coan River, beginning at a point approximately 2,300 feet northeast of Honest Point and 1,300 feet southwest of Travis Point, said point being Corner 1, located at Latitude 37° 59.5257207' N., Longitude 76° 27.8810639' W.; thence southwesterly to Corner 2, Latitude 37° 59.3710259' N., Longitude 76° 27.9962148' W.; thence southwesterly to Corner 3, Latitude 37° 59.2953830' N., Longitude 76° 28.0468953' W.; thence northwesterly to Corner 4, Latitude 37° 59.3350863' N., Longitude 76° 28.0968837' W.; thence northeasterly to Corner 5, Latitude 37° 59.3965161' N., Longitude 76° 28.0287342' W.; thence northwesterly to Corner 6, Latitude 37° 59.4758507' N., Longitude 76° 28.1112280' W.; thence north-northwesterly to Corner 7, Latitude 37° 59.5079401' N., Longitude 76° 28.1230058' W.; thence northeasterly to Corner 8, Latitude 37° 59.5579153' N., Longitude 76° 27.9889429' W.; thence southeasterly to Corner 1, said corner being the point of beginning.

Public Ground 78 of Northumberland County is located near the mouth of the Coan River, beginning at a point approximately 3,420 feet southeast of Travis Point and 3,260 feet northwest of Great Point, said point being Corner 1, located at Latitude 37° 59.4822275' N., Longitude 76° 27.1878637' W.; thence southeasterly to Corner 2, Latitude 37° 59.3824046' N., Longitude 76° 27.1088650' W.; thence southwesterly to Corner 3, Latitude 37° 59.2283287' N., Longitude 76° 27.8632901' W.; thence northeasterly to Corner 4, Latitude 37° 59.4368502' N., Longitude 76° 27.6868001' W.; thence continuing northeasterly to Corner 5, Latitude 37° 59.5949216' N., Longitude 76° 27.5399436' W.; thence southeasterly to Corner 1, said corner being the point of beginning.

"Deep Rock Area" means all public grounds and unassigned grounds, in that area of the Chesapeake Bay near Gwynn Island, beginning at Cherry Point at the western-most point of the eastern headland of Kibble Pond located at Latitude 37° 30.9802148' N., Longitude 76° 17.6764393' W.; thence northeasterly to the Piankatank River, Flashing Green Channel Light "3", Latitude 37° 32.3671325' N., Longitude 76° 16.7038334' W.; thence east-southeasterly to the Rappahannock River Entrance Lighted Buoy G"1R", Latitude 37° 32.2712833' N., Longitude 76° 11.4813666' W.; thence southwesterly to the southern-most point of Sandy Point, the northern headland of "The Hole in the Wall", Latitude 37° 28.1475258' N., Longitude 76° 15.8185670' W.; thence northwesterly along the Chesapeake Bay mean low water line of the barrier islands of Milford Haven, connecting headland to headland at their eastern-most points, and of Gwynn Island to the western-most point of the eastern headland of Kibble Pond on Cherry Point, said point being the point of beginning.

"Deep Water Shoal State Replenishment Seed Area" or "DWS" means that area in the James River near Mulberry Island, beginning at a point approximately 530 feet west of Deep Water Shoal Light, said point being Corner 1, located at Latitude 37° 08.9433287' N., Longitude 76° 38.3213007' W.; thence southeasterly to Corner 2, Latitude 37° 09.5734380' N., Longitude 76° 37.8300582' W.; thence southwesterly to Corner 3, Latitude 37° 08.9265524' N., Longitude 76° 37.0574269' W.; thence westerly to Corner 4, Latitude 37° 08.4466039 N., Longitude 76° 37.4523346' W.; thence northwesterly to Corner 5, Latitude 37° 08.4491489' N., Longitude 76° 38.0215553' W.; thence northeasterly to Corner 1, said corner being the point of beginning.

"Great Wicomico River Area" means all public grounds and unassigned grounds, in that area of the Great Wicomico River, Ingram Bay, and the Chesapeake Bay, beginning at a point on Sandy Point, Latitude 37° 49.3269652' N., Longitude 76° 18.3821766' W.; thence easterly to the southern-most point of Cockrell Point, Latitude 37° 49.2664838' N., Longitude 76° 17.3454434' W.; thence easterly following the mean low water line of Cockrell Point to a point on the boundary of Public Ground 115 at Cash Point, Latitude 37° 49.2695619' N., Longitude 76° 17.2804046' W.; thence southeasterly to the gazebo on the pierhead at Fleets Point, Latitude 37° 48.7855824' N., Longitude 76° 16.9609311' W.; thence southeasterly to the Great Wicomico Lighthouse; thence due south to a point due east of the southern-most point of Dameron Marsh, Latitude 37° 46.6610003' N., Longitude 76° 16.0570007' W.; thence due west to the southern-most point of Dameron Marsh, Latitude 37° 46.6609070' N., Longitude 76° 17.2670707' W.; thence along the mean low water line of Dameron Marsh, north and west to Garden Point, Latitude 37° 47.2519872' N., Longitude 76° 18.4028142' W.; thence northwesterly to Windmill Point, Latitude 37° 47.5194547' N., Longitude 76° 18.7132194' W.; thence northerly along the mean low water to the western headland of Harveys Creek, Latitude 37° 47.7923573' N., Longitude 76° 18.6881450' W.; thence east-southeasterly to the eastern headland of Harveys Creek, Latitude 37° 47.7826936' N., Longitude 76° 18.5469879' W.; thence northerly along the mean low water line, crossing the entrance to Towels Creek at the offshore ends of the jetties and continuing to Bussel Point, Latitude 37° 48.6879208' N., Longitude 76° 18.4670860' W.; thence northwesterly to the northern headland of Cranes Creek, Latitude 37° 48.8329168' N., Longitude 76° 18.7308073' W.; thence following the mean low water line northerly to a point on Sandy Point, said point being the point of beginning.

"Great Wicomico River Rotation Area 1" means all public grounds and unassigned grounds, in that area of the Great Wicomico River, Ingram Bay, and the Chesapeake Bay, beginning at a point on Sandy Point, Latitude 37° 49.3269652' N., Longitude 76° 18.3821766' W.; thence easterly to the southern-most point of Cockrell Point, Latitude 37° 49.2664838' N., Longitude 76° 17.3454434' W.; thence easterly following the mean low water line of Cockrell Point to a point on the boundary of Public Ground 115 at Cash Point, Latitude 37° 49.2695619' N., Longitude 76° 17.2804046' W.; thence southeasterly to the gazebo on the pier head at Fleeton Point, Latitude 37° 48.7855824' N., Longitude 76° 16.9609311' W.; thence southeasterly to the Great Wicomico River Light; Latitude 37° 48.2078167' N., Longitude 76° 15.9799333' W.; thence westerly to a point on the offshore end of the southern jetty at the entrance to Towles Creek, Latitude 37° 48.3743771' N., Longitude 76° 17.9600320 W.; thence northerly crossing the entrance to Towles Creek at the offshore ends of the jetties and continuing along the mean low water line to Bussel Point, Latitude 37° 48.6879208' N., Longitude 76° 18.4670860' W.; thence northwesterly to the northern headland of Cranes Creek, Latitude 37° 48.8329168' N., Longitude 76° 18.7308073' W.; thence following the mean low water line northerly to a point on Sandy Point, Latitude 37° 49.3269652' N., Longitude 76° 18.3821766' W., said point being the point of beginning.

"Great Wicomico River Rotation Area 2" means all public grounds and unassigned grounds, in that area of the Great Wicomico River, Ingram Bay, and the Chesapeake Bay, beginning at a point on Great Wicomico River Light, Latitude 37° 48.2078167' N., Longitude 76° 15.9799333' W.; thence due south to a point due east of the southern-most point of Dameron Marsh, Latitude 37° 46.6610003' N., Longitude 76° 16.0570007' W.; thence due west to the southern-most point of Dameron Marsh, Latitude 37° 46.6609070' N., Longitude 76° 17.2670707' W.; thence along the mean low water line of Dameron Marsh, north and west to Garden Point, Latitude 37° 47.2519872' N., Longitude 76° 18.4028142' W.; thence northwesterly to Windmill Point, Latitude 37° 47.5194547' N., Longitude 76° 18.7132194' W.; thence northerly along the mean low water line to the western headland of Harveys Creek, Latitude 37° 47.7923573' N., Longitude 76° 18.6881450' W.; thence east-southeasterly to the eastern headland of Harveys Creek, Latitude 37° 47.7826936' N., Longitude 76° 18.5469879' W.; thence northerly along the mean low water line to a point on the offshore end of the southern jetty at the entrance to Towles Creek, Latitude 37° 48.3743771' N., Longitude 76° 17.9600320' W., thence easterly to Great Wicomico River Light, Latitude 37° 48.2078167' N., Longitude 76° 15.9799333' W., said point being the point of beginning.

"Hand scrape" means any device or instrument with a catching bar having an inside measurement of no more than 22 inches, which is used or usable for the purpose of extracting or removing shellfish from a water bottom or the bed of a body of water.

"Hand tong" or "ordinary tong" means any pincers, nippers, tongs, or similar device used in catching oysters, which consist of two shafts or handles attached to opposable and complementary pincers, baskets, or containers operated entirely by hand, from the surface of the water and has no external or internal power source.

"James River Area" means those public grounds of the James River and Nansemond River west of the Monitor Merrimac Memorial Bridge Tunnel (Route I-664), northeast of the Mills E. Godwin, Jr. Bridge (U.S. Route 17) on the Nansemond River, and south of the James River Bridge (U.S. Route 17).

"James River Hand Scrape Area 1" means all public grounds and unassigned grounds, in that area of the James River, beginning at the Flashing Green Channel Light #5, located at Latitude 37° 02.3528833' N., Longitude 76° 32.7785333' W.; thence southeasterly to the Flashing Green Channel Light #3, located at Latitude 37° 01.7124500' N., Longitude 76° 31.8210667' W.; thence southeasterly to the Flashing Green Channel Light #1, located at Latitude 37° 00.7666667' N., Longitude 76° 29.9083333' W.; thence southeasterly to the northeast corner of the western draw span pier of the James River Bridge (U.S. Route 17), Latitude 37° 00.1524824' N., Longitude 76° 28.1581984' W.; thence southwesterly along the upstream side of the James River Bridge to the mean low water line; thence northwesterly along the mean low water line, crossing Kings Creek at the headlands and continuing along the mean low water line to a point on the shore at Rainbow Farm Point in line with VMRC Markers "STH" and "SMT," located at Latitude 37° 00.1965862' N., Longitude 76° 34.0712010' W.; thence north-northeasterly to a VMRC Marker "STH," Latitude 37° 00.9815328 N., Longitude 76° 33.5955842' W.; thence to a VMRC Marker "SMT," at Latitude 37° 01.3228160' N., Longitude 76° 33.3887351' W.; thence to the Flashing Green Channel Light #5, at Latitude 37° 02.3528833' N., Longitude 76° 32.7785333' W., said point being the point of beginning.

"James River Hand Scrape Area 2" means all public grounds and unassigned grounds, in that area of the James River, beginning at the Flashing Green Channel Light #5, located at Latitude 37° 02.3528833' N., Longitude 76° 32.7785333' W.; thence northeasterly to a VMRC Marker "NMT," Latitude 37° 02.7740540' N., Longitude 76° 32.0960864' W.; thence to a VMRC Marker "NTH" located at Latitude 37° 03.2030055' N., Longitude 76° 31.4231211' W.; thence to a point on the north shore of the river at Blunt (Blount) Point, said point being in line with VMRC Markers "NMT" and "NTH" and located at Latitude 37° 03.3805862' N., Longitude 76° 31.1444562' W.; thence southeasterly along the mean low water line to the upstream side of the James River Bridge (U.S. Route 17); thence westerly along the James River Bridge to the northeast corner of the western draw span pier, Latitude 37° 00.1524824' N., Longitude 76° 28.1581984' W.; thence northwesterly to the Flashing Green Channel Light #1, located at Latitude 37° 00.7666667' N., Longitude 76° 29.9083333' W.; thence northwesterly to the Flashing Green Channel Light #3, located at Latitude 37° 01.7124500' N., Longitude 76° 31.8210667' W.; thence northwesterly to the Flashing Green Channel Light #5, located at Latitude 37° 02.3528833' N., Longitude 76° 32.7785333' W., said point being the point of beginning

"James River Hand Scrape Area 3" means those public grounds of Isle of Wight County and Nansemond County (City of Suffolk) located in the James River and Nansemond River west of the Monitor Merrimac Memorial Bridge Tunnel (Route I-664), northeast of the Mills E. Godwin, Jr. Bridge (U.S. Route 17) on the Nansemond River, and south of the James River Bridge (U.S. Route 17).

"James River Seed Area" means all public grounds and unassigned grounds in that area of the James River and its tributaries with a southeastern boundary beginning at a point on the shore on the south side of the river at Rainbow Farm Point in Isle of Wight County located at Latitude 37° 00.1965862' N., Longitude 76° 34.0712010' W.; thence north-northeasterly to a VMRC Marker "STH," Latitude 37° 00.9815328 N., Longitude 76° 33.5955842' W.; thence to a VMRC Marker "SMT," at Latitude 37° 01.3228160' N., Longitude 76° 33.3887351' W.; thence to the Flashing Green Channel Light #5, at Latitude 37° 02.3449949' 02.3528833' N., Longitude 76° 32.7689936' 32.7785333' W.; thence northeasterly to a VMRC Marker "NMT," Latitude 37° 02.7740540' N., Longitude 76° 32.0960864' W.; thence to a VMRC Marker "NTH" located at Latitude 37° 03.2030055' N., Longitude 76° 31.4231211' W.; thence to a point on the north shore of the river at Blunt (Blount) Point, in the City of Newport News, located at Latitude 37° 03.3805862' N., Longitude 76° 31.1444562' W.; the northern boundary, being a straight line, beginning at a point on the shore on the east side of the river in the City of Newport News, at Latitude 37° 08.4458787' N., Longitude 76° 37.2855533' W.; thence westerly to the southeast corner of the Deep Water Shoal State Replenishment Seed Area, Latitude 37° 08.4466039' N., Longitude 76° 37.4523346' W.; thence westerly to the southwest corner of the Deep Water Shoal State Replenishment Seed Area, Latitude 37° 08.4490472' N., Longitude 76° 38.0215554' W.; thence westerly to a point on the shore on the west side of the river at the mouth of Lawnes Creek in Isle of Wight County, Latitude 37° 08.4582990' N., Longitude 76° 40.2816023' W.

"Latitude and longitude" means values that are based upon a geodetic reference system of the North American Datum of 1983 (NAD83). When latitude and longitude are used in any area description, in conjunction with any physical landmark, to include aids to navigation, the latitude and longitude value is the legal point defining the boundary.

"Little Wicomico River" means that area of the Little Wicomico River inside of Public Ground 43 of Northumberland County, located in the Little Wicomico River near Bridge Creek, beginning at a point approximately 150 feet north of Peachtree Point, said point being Corner 1, located at Latitude 37° 53.2910650' N., Longitude 76° 16.7312926' W.; thence southwesterly to Corner 2, Latitude 37° 53.2601877' N., Longitude 76° 16.8662408' W.; thence northwesterly to Corner 3, Latitude 37° 53.2678470' N., Longitude 76°16.8902408' W.; thence northeasterly to Corner 4, Latitude 37° 53.3113148' N., Longitude 76° 16.8211543' W.; thence southeasterly to Corner 1, said corner being the point of beginning.

"Milford Haven" means that area of Milford Haven inside of Public Ground 7 of Mathews County, beginning at a point approximately 1,380 feet east of Point Breeze, said point being Corner 1, located at Latitude 37° 28.3500000' N., Longitude 76° 16.5000000' W.; thence northeasterly to Corner 2, Latitude 37° 28.3700000' N., Longitude 76° 16.4700000' W.; thence southeasterly to Corner 3, Latitude 37° 28.3500000' N., Longitude 76° 16.4200000' W.; thence southwesterly to Corner 4, Latitude 37° 28.3200000' N., Longitude 76° 16.4500000' W.; thence northwesterly to Corner 1, said corner being the point of beginning.

"Mobjack Bay Area" means that area of Mobjack Bay consisting of Public Ground 25 2 of Gloucester Mathews County (Tow Stake) (Pultz Bar) described as:

Public Ground 25 of Gloucester County, known as Tow Stake, is located in Mobjack Bay, near the mouth of the Severn River, beginning at a point approximately 2,880 feet east-northeast of Tow Stake Point, said point being Corner 1, located at Latitude 37° 20.3883888' N., Longitude 76° 23.5883836' W.; thence northeasterly to Corner 2, Latitude 37° 30.5910482' N., Longitude 76° 23.2372184' W.; thence southeasterly to Corner 3, Latitude 37° 20.3786971' N., Longitude 76° 22.7241180' W.; thence southwesterly to Corner 4, Latitude 37° 19.8616759' N., Longitude 76° 23.5914937' W.; thence northwesterly to Corner 5, Latitude 37° 20.0284019' N., Longitude 76° 23.7717423' W.; thence northeasterly to Corner 1, said corner being the point of beginning.

Public Ground 2 of Mathews County, known as Pultz Bar, is located in Mobjack Bay, beginning at a point approximately 5,420 feet south of Minter Point, said point being Corner 1, located at Latitude  37° 21.2500000' N., Longitude 76° 21.3700000' W.; thence easterly to Corner 2, Latitude 37° 21.2700000' N., Longitude 76° 20.9600000' W.; thence southerly to Corner 3, Latitude 37° 21.0200000' N., Longitude 76° 20.9400000' W.; thence westerly to Corner 4, Latitude 37° 21.0500000' N., Longitude 76° 21.3300000' W.; thence northerly to Corner 1, said corner being the point of beginning.

"Nomini Creek Area" means that area of Nomini Creek inside of Public Grounds 26 and 28 of Westmoreland County.

Public Ground 26 of Westmoreland County is located in Nomini Creek, north of Beales Wharf and east of Barnes Point, beginning at a point approximately 1,400 feet north of Barnes Point, said point being Corner 1, located at Latitude 38° 07.2690219' N., Longitude 76° 42.6784210' W.; thence southeasterly to Corner 2, Latitude 38° 07.0924060' N., Longitude 76° 42.4745767' W.; thence southwesterly to Corner 3, Latitude 38° 06.8394053' N., Longitude 76° 42.6704025, W.; thence northwesterly to Corner 4, Latitude 38° 06.8743004' N., Longitude 76° 42.7552151' W.; thence northeasterly to Corner 5, Latitude 38° 07.0569717' N., Longitude 76° 42.5603535' W.; thence northwesterly to Corner 1, said corner being the point of beginning.

Public Ground 28 of Westmoreland County is located at the mouth of Nomini Creek, beginning at a point approximately 50 feet west of White Oak Point, said point being Corner 1, located at Latitude 38° 07.6429987' N., Longitude 76° 43.0337082' W.; thence south-southeasterly to Corner 2, Latitude 38° 07.2987193' N., Longitude 76° 43.1101420' W.; thence northwesterly to Corner 3, Latitude 38° 07.7029267' N., Longitude 76° 43.3337762' W.; thence west to the mean low water line, Latitude 38° 07.7031535' N., Longitude 76° 43.3378345' W.; thence northerly and westerly along the mean low water line of Nomini Creek to a point southwest of Cedar Island, Latitude 38° 07.8986449' N., Longitude 76° 43.6329097' W.; thence northeasterly to a point on the mean low water line at the southern-most point of Cedar Island, Latitude 38° 07.8986449' N., Longitude 76° 43.6329097' W.; thence following the mean low water line of the southern and eastern sides of Cedar Island to a point, Latitude 38° 08.0164430' N., Longitude 76° 43.4773169' W.; thence northeasterly to Corner 4, Latitude 38° 08.0712849' N., Longitude 76° 43.4416606' W.; thence northeasterly to a point on the northern headland of Nomini Creek at the mean low water line, said point being Corner 5, Latitude 38° 08.2729626' N., Longitude 76° 43.3105315' W.; thence following the mean low water line of White Point to a point northwest of Snake Island, Corner 6, Latitude 38° 08.4066960' N., Longitude 76° 42.9105565' W.; thence southeast, crossing the mouth of Buckner Creek, to a point on the mean low water line of Snake Island, Corner 7, Latitude 38° 08.3698254' N., Longitude 76° 42.8939656' W.; thence southeasterly following the mean low water line of Snake Island to Corner 8, Latitude 38° 08.2333798' N., Longitude 76° 42.7778877' W.; thence south-southwesterly, crossing the mouth of Buckner Creek, to Corner 9, Latitude 38° 08.2134371' N., Longitude 76° 42.7886409' W.; thence southeasterly to a point on the mean low water line of the southern headland of Buckner Creek, Corner 10, Latitude 38° 08.1956281' N., Longitude 76° 42.7679625' W.; thence southwesterly following the mean low water line of Nomini Creek, crossing the mouth of an un-named cove at the narrowest point between the headlands and continuing to follow the mean low water line to a point on White Oak Point, Latitude 38° 07.6428228' N., Longitude 76° 43.0233530' W.; thence west to Corner 1, said point being the point of beginning.

"Oyster" means any shellfish of the species Crassostrea virginica.

"Oyster dredge" means any device having a maximum weight of 150 pounds with attachments, maximum width of 50 inches, and maximum tooth length of four inches.

"Oyster patent tong" means any patent tong not exceeding 100 pounds in gross weight, including any attachment other than rope and with the teeth not to exceed four inches in length.

"Oyster resource user fee" means a fee that must be paid each calendar year by anyone who grows, harvests, shucks, packs, or ships oysters for commercial purposes.

"Pocomoke Sound Area" means that area of Pocomoke Sound inside of Public Grounds 9 and 10 of Accomack County.

Public Ground 9 of Accomack County is located in the Pocomoke Sound, beginning at a corner on the Maryland-Virginia state line, located in the Pocomoke Sound approximately 1.06 nautical miles north-northeast of the northern-most point of North End Point, said point being Corner 1, located at Latitude 37° 57.2711566' N., Longitude 75° 42.2870790' W. (NAD83); thence east-northeasterly along the Maryland-Virginia state line to Corner 2, Latitude 37° 57.2896577' N., Longitude 75° 41.9790727' W.; thence southerly to Corner 3, Latitude 37° 57.2574850' N., Longitude 75° 41.9790730' W.; thence southwesterly to Corner 4, Latitude 37° 57.2288700' N., Longitude 75° 42.0077287' W.; thence west-southwesterly to Corner 5, Latitude 37° 57.2034533' N., Longitude 75° 42.1511250' W.; thence south-southwesterly to Corner 6, Latitude 37° 57.0940590' N., Longitude 75° 42.1935214' W.; thence south-southeasterly to Corner 7, Latitude 37° 57.0551726' N., Longitude 75° 42.1814457' W.; thence southwesterly to Corner 8, Latitude 37° 56.9408327' N., Longitude 75° 42.2957912' W.; thence south-southwesterly to Corner 9, Latitude 37° 56.6574947' N., Longitude 75° 42.3790819' W.; thence southwesterly to Corner 10, Latitude 37° 56.5790952' N., Longitude 75° 42.5228752' W.; thence west-southwesterly to Corner 11, Latitude 37° 56.5712564' N., Longitude 75° 42.5915437' W.; thence south-southeasterly to Corner 12, Latitude 37° 56.5441067' N., Longitude 75° 42.5869894' W.; thence southwesterly to Corner 13, Latitude 37° 56.4575045' N., Longitude 75° 42.7458050' W.; thence west-southwesterly to Corner 14, Latitude 37° 56.2575123' N., Longitude 75° 43.3791097' W.; thence southwesterly to Corner 15, Latitude 37° 55.7408688' N., Longitude 75° 43.7957804' W.; thence westerly to Corner 16, Latitude 37° 55.7575327' N., Longitude 75° 43.9458298' W.; thence northwesterly to Corner 17, Latitude 37° 55.8908661' N., Longitude 75° 44.1291309' W.; thence north-northeasterly to Corner 18, Latitude 37° 55.9908639' N., Longitude 75° 44.0791266' W.; thence northeasterly to Corner 19, Latitude 37° 56.1241858' N., Longitude 75° 43.8791328' W.; thence north-northeasterly to Corner 20, Latitude 37° 56.4075136' N., Longitude 75° 43.7291361' W.; thence northeasterly to Corner 21, Latitude 37° 56.8241664' N., Longitude 75° 43.2624601' W.; thence north-northeasterly to Corner 22, Latitude 37° 57.0706006' N., Longitude 75° 43.1480402' W.; thence east-northeasterly along the Maryland-Virginia state line to Corner 1, said corner being the point of beginning.

Public Ground 10 of Accomack County is located in the Pocomoke Sound, beginning at a corner on the Maryland-Virginia state line, located in the Pocomoke Sound approximately 2.3 nautical miles westerly of the northern-most point of North End Point, said point being Corner 1, located at Latitude 37° 56.4741881' N., Longitude 75° 45.7051676' W. (NAD83); thence east-northeasterly along the Maryland-Virginia state line to Corner 2, Latitude 37° 56.9261140' N., Longitude 75° 43.7679786' W.; thence south-southwesterly to Corner 3, Latitude 37° 56.1241948' N., Longitude 75° 44.3624962' W.; thence west-southwesterly to Corner 4, Latitude 37° 56.0820561' N., Longitude 75° 44.5826292' W.; thence northerly to Corner 5, Latitude 37° 56.1377309' N., Longitude 75° 44.5817745' W.; thence west-southwesterly to Corner 6, Latitude 37° 56.1259751' N., Longitude 75° 44.6226859' W.; thence southwesterly to Corner 7, Latitude 37° 56.1039335' N., Longitude 75° 44.6692334' W.; thence southerly to Corner 8, Latitude 37° 56.0643616' N., Longitude 75° 44.6750106' W.; thence west-southwesterly to Corner 9, Latitude 37° 55.9742005' N., Longitude 75° 45.1458109' W.; thence west-northwesterly to Corner 10, Latitude 37° 56.0741973' N., Longitude 75° 45.8958329' W.; thence north-northwesterly to Corner 11, Latitude 37° 56.2565760' N., Longitude 75° 46.0000557' W.; thence northeasterly along the Maryland-Virginia state line to Corner 1, said corner being the point of beginning.

"Pocomoke and Tangier Sounds Management Area" or "PTSMA" means the area as defined in § 28.2-524 of the Code of Virginia.

"Pocomoke and Tangier Sounds Rotation Area 1" means all public grounds and unassigned grounds, within an area of the PTSMA, in Pocomoke and Tangier Sounds, bounded by a line beginning at a point on the Maryland-Virginia state line, located at Latitude 37° 54.6136000' N., Longitude 75° 53.9739600' W.; thence south to the house on Great Fox Island, Latitude 37° 53.6946500' N., Longitude 75° 53.8898800' W.; thence westerly to a point, Latitude 37° 53.3633500' N., Longitude 75° 56.5589600' W.; thence south to a point, Latitude 37° 48.4429100' N., Longitude 75° 56.4883600' W.; thence easterly to the north end of Watts Island, Latitude 37° 48.7757800' N., Longitude 75° 53.5994100' W.; thence northerly to the house on Great Fox Island, Latitude 37° 53.6946500' N., Longitude 75° 53.8898800' W.; thence southeasterly to Pocomoke Sound Shoal Flashing Light Red "8", Latitude 37° 52.4583300' N., Longitude 75° 49.4000000' W.; thence southeasterly to Messongo Creek Entrance Buoy Green Can "1", Latitude 37° 52.1000000' N., Longitude 75° 47.8083300' W.; thence southeast to Guilford Flats Junction Light Flashing 2+1 Red "GF", Latitude 37° 50.9533300' N., Longitude 75° 46.6416700' W.; thence southerly to a point on a line from Guilford Flats Junction Light to the northern-most point of Russell Island, where said line intersects the PTSMA boundary, Latitude 37° 48.4715943' N., Longitude 75° 46.9955932' W.; thence clockwise following the PTSMA boundary to a point on the Maryland-Virginia state line, said point being the point of beginning.

"Pocomoke and Tangier Sounds Rotation Area 2" means all public grounds and unassigned grounds, within an area of the PTSMA, in Pocomoke and Tangier Sounds, bounded by a line beginning at the house on Great Fox Island, located at Latitude 37° 53.6946500' N., Longitude 75° 53.8898800' W.; thence southerly to the north end of Watts Island, Latitude 37° 48.7757800' N., Longitude 75° 53.5994100' W.; thence westerly to a point, Latitude 37° 48.4429100' N., Longitude 75° 56.4883600' W.; thence northerly to a point, Latitude 37° 53.3633500' N., Longitude 75° 56.5589600' W.; thence easterly to the house on Great Fox Island, said house being the point of beginning. Also, Pocomoke and Tangier Sounds Rotation Area 2 shall include all public grounds and unassigned grounds in the PTSMA in Pocomoke Sound bounded by a line beginning at a point on the Maryland-Virginia state line, Latitude 37° 54.6136000' N., Longitude 75° 53.9739600' W.; thence following the PTSMA boundary clockwise to a point on the line from the northern-most point of Russell Island to Guilford Flats Junction Light Flashing 2+1 Red "GF", where said line intersects the PTSMA boundary, Latitude 37° 48.4715943' N., Longitude 75° 46.9955932' W.; thence northerly to Guilford Flats Junction Light Flashing 2+1 Red "GF", Latitude 37° 50.9533300' N., Longitude 75° 46.6416700' W.; thence northwesterly to Messongo Creek Entrance Buoy Green Can "1", Latitude 37° 52.1000000' N., Longitude 75° 47.8083300' W.; thence northwesterly to Pocomoke Sound Shoal Flashing Light Red "8", Latitude 37° 52.4583300' N., Longitude 75° 49.4000000' W.; thence northwesterly to the house on Great Fox Island, Latitude 37° 53.6946500' N., Longitude 75° 53.8898800' W.; thence northerly to a point on the Maryland-Virginia state line, said point being the point of beginning.

"Public oyster ground" means all those grounds defined in § 28.2-551 of the Code of Virginia or by any other acts of the General Assembly pertaining to those grounds, all those grounds set aside by court order, and all those grounds set aside by order of the Marine Resources Commission, and may be redefined by any of these legal authorities.

"Rappahannock River Area 7" means all public grounds, in that area of the Rappahannock River, bounded downstream by a line from Rogue Point, located at Latitude 37° 40.0400000' N., Longitude 76° 32.2530000' W.; thence west-northwesterly to Flashing Red Buoy "8", Latitude 37° 40.1580000' N., Longitude 76° 32.9390000' W.; thence southwesterly to Balls Point, Latitude 37° 39.3550000' N., Longitude 76° 34.4440000' W.; and bounded upstream by a line from Punchbowl Point, Latitude 37° 44.6750000' N., Longitude 76° 37.3250000' W.; thence southeasterly to Monaskon Point, Latitude 37° 44.0630000' N., Longitude 76° 34.1080000' W.

"Rappahannock River Area 8" means all public grounds, in that area of the Rappahannock River, bounded downstream by a line from Monaskon Point, located at Latitude 37° 44.0630000' N., Longitude 76° 34.1080000' W.; thence northwesterly to Punchbowl Point, Latitude 37° 44.6750000' N., Longitude 76° 37.3250000' W.; and bounded upstream by a line from Jones Point, Latitude 37° 46.7860000' N., Longitude 76° 40.8350000' W.; thence north-northwesterly to Sharps Point, Latitude 37° 49.3640000' N., Longitude 76° 42.0870000' W.

"Rappahannock River Area 9" means all public grounds, in that area of the Rappahannock River, bounded downstream by a line from Sharps Point, located at Latitude 37° 49.3640000' N., Longitude 76° 42.0870000' W.; thence south-southeasterly to Jones Point, Latitude 37° 46.7860000' N., Longitude 76° 40.8350000' W.; and bounded upstream by the Thomas J. Downing Bridge (U.S. Route 360).

"Rappahannock River Rotation Area 1" means all public grounds, in that area of the Rappahannock River and Chesapeake Bay, bounded by a line offshore and across the mouth of the Rappahannock River from a point on the mean low water line of Windmill Point, located at Latitude 37° 36.8200000' N., Longitude 76° 16.9460000' W.; thence southeast to Windmill Point Light, Latitude 37° 35.7930000' N., Longitude 76° 14.1800000' W.; thence southwesterly to Stingray Point Light, Latitude 37° 33.6730000' N., Longitude 76° 16.3620000' W.; thence westerly to a point on the mean low water line of Stingray Point, Latitude 37° 33.6920000' N., Longitude 76° 17.9860000' W.; and bounded upstream by a line from the mean low water line west of Broad Creek, Latitude 37° 33.9520000' N., Longitude 76° 19.3090000' W.; thence northeasterly to a VMRC Buoy on the Baylor line, Latitude 37° 34.5310000' N., Longitude 76° 19.1430000' W.; thence northeasterly to a VMRC Buoy, Latitude 37° 34.6830000' N., Longitude 76° 19.1000000' W.; thence northwesterly to a VMRC Buoy, Latitude 37° 35.0170000' N., Longitude 76° 19.4500000' W.; thence northwesterly to Sturgeon Bar Light "7R", Latitude 37° 35.1500000' N., Longitude 76° 19.7330000' W.; thence continuing northwesterly to Mosquito Point Light "8R", Latitude 37° 36.1000000' N., Longitude 76° 21.3000000' W.; thence northwesterly to the southern-most corner of the house on Mosquito Point, Latitude 37° 36.5230000' N., Longitude 76° 21.5950000' W.

"Rappahannock River Rotation Area 2" means all public grounds, in that area of the Rappahannock River, bounded downstream by a line from the southern-most corner of the house on Mosquito Point, located at Latitude 37° 36.5230000' N., Longitude 76° 21.5950000' W.; thence southeast to Mosquito Point Light "8R", Latitude 37° 36.1000000' N., Longitude 76° 21.3000000' W.; thence continuing southeasterly to Sturgeon Bar Beacon "7R", Latitude 37° 35.1500000' N., Longitude 76° 19.7330000' W.; thence west-southwesterly to a VMRC Buoy, Latitude 37° 34.9330000' N., Longitude 76° 21.0500000' W.; thence southwesterly to a VMRC Buoy, Latitude 37° 34.8830000' N., Longitude 76° 21.1000000' W.; thence southwesterly to a pier west of Hunting Creek at Grinels, Latitude 37° 34.4360000' N., Longitude 76° 26.2880000' W.; and bounded on the upstream by a line from Mill Creek Channel Marker "4", Latitude 37° 35.0830000' N., Longitude 76° 26.9500000' W.; thence northeasterly to Mill Creek Channel Marker "2", Latitude 37° 35.4830000' N., Longitude 76° 24.5670000' W.; thence northeasterly to the southern-most corner of the house on Mosquito Point, Latitude 37° 36.5230000' N., Longitude 76° 21.5950000'0 W.

"Rappahannock River Rotation Area 3" means all public grounds, in that area of the Rappahannock River, beginning from the north channel fender at the Robert O. Norris, Jr. Bridge, located at Latitude 37° 37.4830000' N., Longitude 76° 25.3450000' W.; thence southeast to the southern-most corner of the house on Mosquito Point, Latitude 37° 36.5230000' N., Longitude 76° 21.5950000' W.; thence southwest to Mill Creek Channel Marker "2", Latitude 37° 35.4830000' N., Longitude 76° 24.5670000' W.; thence southwesterly to Mill Creek Channel Marker "4", Latitude 37° 35.0830000' N., Longitude 76° 24.9500000' W.; thence northeasterly to Parrotts Creek Channel Marker "1", Latitude 37° 36.0330000' N., Longitude 76° 25.4170000' W.; thence northerly to VMRC Buoy, Latitude 37° 36.3330000' N., Longitude 76° 25.2000000' W.; thence northerly to the north channel fender of the Robert O. Norris, Jr. Bridge, said point being the point of beginning.

"Rappahannock River Rotation Area 4" means all public grounds, in that area of the Rappahannock River, Corrotoman River and Carter Creek, beginning at the White Stone end of the Robert O. Norris, Jr. Bridge (State Route 3), located at Latitude 37° 38.1290000' N., Longitude 76° 24.7220000' W.; thence along said bridge to the north channel fender, Latitude 37° 37.4830000' N., Longitude 76° 25.3450000' W.; thence westerly to the VMRC Buoy "5-4", Latitude 37° 38.0050000' N., Longitude 76° 30.0280000' W.; thence northerly to Old House Point, Latitude 37° 39.1390000' N., Longitude 76° 29.6850000' W.; thence northeasterly to Ball Point, Latitude 37° 41.6600000' N., Longitude 76° 28.6320000' W.; thence southeasterly to VMRC reef marker "Ferry Bar – North", Latitude 37° 40.3000000' N., Longitude 76° 28.5000000' W.; thence southwesterly to VMRC reef marker "Ferry Bar – South", Latitude 37° 40.1670000' N., Longitude 76° 28.5830000' W.; thence southeasterly to a duck blind west of Corrotoman Point, Latitude 37° 39.8760000' N., Longitude 76° 28.4200000' W.; thence southerly to VMRC Buoy "543", Latitude 37° 39.2670000' N., Longitude 76° 27.8500000' W.; thence southerly to VMRC Buoy "Drumming-West", Latitude 37° 38.8830000' N., Longitude 76° 27.6830000' W.; thence southerly to VMRC Buoy "Drumming-East", Latitude 37° 38.8330000' N., Longitude 76° 27.5670000' W.; thence northeasterly to Orchard Point, Latitude 37° 38.9240000' N., Longitude 76° 27.1260000' W.

"Rappahannock River Rotation Area 5" means all public grounds, in that area of the Rappahannock River, beginning at the Greys Point end of the Robert O. Norris, Jr. Bridge (State Route 3), located at Latitude 37° 36.8330000' N., Longitude 76° 25.9990000' W.; thence northeasterly along the bridge to the north channel fender, Latitude 37° 37.4830000' N., Longitude 76° 25.3450000' W.; thence west-northwesterly to VMRC Buoy "5-4", Latitude 37° 38.0050000' N., Longitude 76° 30.0280000' W.; thence westerly to Buoy "R6", Latitude 37° 38.0330000' N., Longitude 76° 30.2830000' W.; thence south to the eastern headland of Whiting Creek, Latitude 37° 36.6580000' N., Longitude 76° 30.3120000' W.

"Rappahannock River Rotation Area 6" means all public grounds, in that area of the Rappahannock River, beginning on the eastern headland of Whiting Creek, located at Latitude 37° 36.6580000' N., Longitude 76° 30.3120000' W.; thence north to Buoy "R6", Latitude 37° 38.0330000' N., Longitude 76° 30.2830000' W.; thence northwesterly to VMRC White House Sanctuary Buoy, Latitude 37° 38.1500000' N., Longitude 76° 30.5330000' W.; thence northwesterly to VMRC Towles Point Area Buoy, Latitude 37° 38.8330000' N., Longitude 76° 31.5360000' W.; thence northwesterly to Flashing Red Buoy "8" off Rogue Point, Latitude 37° 40.1580000' N., Longitude 76° 32.9390000' W.; thence southwesterly to Balls Point, Latitude 37° 39.3550000' N., Longitude 76° 34.4440000' W.

"Seed oyster" means any oyster taken by any person from natural beds, rocks, or shoals that is more than 30 days from harvest for human consumption.

"Thomas Rock Area" means all public grounds and unassigned grounds, in that area of the James River, with an eastern boundary being the upstream side of the James River Bridge (U.S. Route 17), and a western boundary being a line drawn from the south side of the river at Rainbow Farm Point, a point on the shore, in line with VMRC Markers "STH" and "SMT", located at Latitude 37° 00.1965862' N., Longitude 76° 34.0712010' W.; thence north-northeasterly to a VMRC Marker "STH", Latitude 37° 00.9815328 N., Longitude 76° 33.5955842' W.; thence to a VMRC Marker "SMT", at Latitude 37° 01.3228160' N., Longitude 76° 33.3887351' W.; thence to the Flashing Green Channel Light #5, at Latitude 37° 02.3449949' N., Longitude 76° 32.7689936' W.; thence northeasterly to a VMRC Marker "NMT", Latitude 37° 02.7740540' N., Longitude 76° 32.0960864' W.; thence to a VMRC Marker "NTH" located at Latitude 37° 03.2030055' N., Longitude 76° 31.4231211' W.; thence to a point on the north shore of the river at Blunt (Blount) Point, said point being in line with VMRC Markers "NMT" and "NTH" and located at Latitude 37° 03.3805862' N., Longitude 76° 31.1444562' W.

"Unassigned ground" means all grounds not assigned pursuant to §§ 28.2-600 through 28.2-633 of the Code of Virginia, established pursuant to § 28.2-551 of the Code of Virginia, or set aside by court order, or those grounds set aside by declarations or regulation by the Marine Resources Commission, and may be redefined by any of these legal authorities.

"Upper Chesapeake Bay - Blackberry Hangs Area" means all public grounds and unassigned grounds, in that area of the Chesapeake Bay, bounded by a line, beginning at a point approximately 300 feet east of the mean low water line of the Chesapeake Bay and approximately 1,230 feet southwest of the end of the southern-most stone jetty at the mouth of the Little Wicomico River, said point being Corner 1, Latitude 37° 53.1811193' N., Longitude 76° 14.1740146' W.; thence east-southeasterly to Corner 2, Latitude 37° 52.9050025' N., Longitude 76° 11.9357257' W.; thence easterly to Corner 3, Latitude 37° 52.9076552' N., Longitude 76° 11.6098145' W.; thence southwesterly to Corner 4, Latitude 37° 52.8684955' N., Longitude 76° 11.6402444' W.; thence east-southeasterly to Corner 5, Latitude 37° 52.7924853' N., Longitude 76° 11.0253352' W.; thence southwesterly to Corner 6, Latitude 37° 49.4327736' N., Longitude 76° 13.2409959' W.; thence northwesterly to Corner 7, Latitude 37° 50.0560555' N., Longitude 76° 15.0023234' W.; thence north-northeasterly to Corner 8, Latitude 37° 50.5581183' N., Longitude 76° 14.8772805' W.; thence north-northeasterly to Corner 9, Latitude 37° 52.0260950' N., Longitude 76° 14.5768550' W.; thence northeasterly to Corner 1, said corner being the point of beginning.

"Yeocomico River Area" means that area of the North West Yeocomico River, inside Public Ground 8 of Westmoreland County and those areas of the South Yeocomico River inside Public Grounds 102, 104, 106, and 107 of Northumberland County.

Public Ground 8 of Westmoreland County is located in the North West Yeocomico River, beginning at a point approximately 1,455 feet northeast of Crow Bar and 1,850 feet northwest of White Point, said point being Corner 1, located at Latitude 38° 02.7468214' N., Longitude 76° 33.0775726' W.; thence southeasterly to Corner 2, Latitude 38° 02.7397202' N., Longitude 76° 33.0186286' W.; thence southerly to Corner 3, Latitude 38° 02.6021644' N., Longitude 76° 33.0234175' W.; thence westerly to Corner 4, Latitude 38° 02.6006669' N., Longitude 76° 33.0824799' W.; thence northerly to Corner 1, said corner being the point of beginning.

Public Ground 102 of Northumberland County is located in the South Yeocomico River, beginning at a point approximately 630 feet south of Mundy Point and 1,745 feet southwest of Tom Jones Point, said point being Corner 1, located at Latitude 38° 01.2138059' N., Longitude 76° 32.5577201' W.; thence east-northeasterly to Corner 2, Latitude 38° 01.2268644' N., Longitude 76° 32.4497849' W.; thence southwesterly to Corner 3, Latitude 38° 01.1091209' N., Longitude 76° 32.5591101' W.; thence northerly to Corner 1, said corner being the point of beginning.

Public Ground 104 of Northumberland County is located in the South Yeocomico River, beginning at a point approximately 670 feet north of Walker Point and 1,900 feet northwest of Palmer Point, said point being Corner 1, located at Latitude 38° 00.8841841' N., Longitude 76° 32.6106215' W.; thence southeasterly to Corner 2, Latitude 38° 00.8609163' N., Longitude 76° 32.5296302' W.; thence southeasterly to Corner 3, Latitude 38° 00.6693092' N., Longitude 76° 32.4161866' W.; thence southwesterly to Corner 4, Latitude 38° 00.6418466' N., Longitude 76° 32.5394849' W.; thence northwesterly to Corner 1, said corner being the point of beginning.

Public Ground 106 of Northumberland County is located in Palmer Cove of the South Yeocomico River, beginning at a point, on the mean low water line approximately 2,000 feet east of northern headland of Palmer Cove, said point being Corner 1, located at Latitude 38° 00.6914018' N., Longitude 76° 31.8629027' W.; thence southwesterly to Corner 2, Latitude 38° 00.6685187' N., Longitude 76° 31.8798151' W.; thence westerly to Corner 3, Latitude 38° 00.6614246' N., Longitude 76° 32.1278647' W.; thence northerly to Corner 4, Latitude 38° 00.7079228' N., Longitude 76° 32.1338276' W., said point being a point on the mean low water line; thence following the mean low water line in a clockwise direction to Corner 1, said corner being the point of beginning.

Public Ground 107 of Northumberland County is located in the South Yeocomico River, beginning at a point approximately 1,000 feet southwest of Barn Point and 1,300 feet northwest of Tom Jones Point, said point being Corner 1, located at Longitude 38° 01.1389367' N., Latitude 76° 32.3425617' W.; thence east-southeasterly to Corner 2, Latitude 38° 01.4106421' N., Longitude 76° 32.1077962' W.; thence southwesterly to Corner 3, Latitude 38° 01.2717197' N., Longitude 76° 32.2917989' W.; thence north-northwesterly to Corner 1, said corner being the point of beginning.

"York River Rotation Area 1" means all public grounds in the York River, within Gloucester County, between a line from Upper York River Flashing Red Channel Marker "8", Latitude 37° 17.8863666' N., Longitude 76° 34.6534166' W.; thence northeasterly to Red Day Marker "2" at the mouth of Cedar Bush Creek, Latitude 37° 18.6422166' N., Longitude 76° 33.8216000' W.; upstream to a line from the Flashing Yellow VIMS Data Buoy "CB", Latitude 37° 20.4670000' N., Longitude 76° 37.4830000' W.; thence northeasterly to the inshore end of the wharf at Clay Bank.

"York River Rotation Area 2" means all public grounds in the York River, within Gloucester County, from the George P. Coleman Memorial Bridge (U.S. Route 17), upstream to a line from Upper York River Flashing Red Channel Marker "8", Latitude 37° 17.8863666' N., Longitude 76° 34.6534166' W.; thence northeasterly to Red Day Marker "2" at the mouth of Cedar Bush Creek, Latitude 37° 18.6422166' N., Longitude 76° 33.8216000' W.

4VAC20-720-40. Open oyster harvest season and areas.

A. It shall be unlawful for any person to harvest oysters from public and unassigned grounds outside of the seasons and areas set forth in this section.

B. It shall be unlawful to harvest clean cull oysters from the public oyster grounds and unassigned grounds except during the lawful seasons and from the lawful areas as described in the following subdivisions of this subsection.

1. James River Seed Area, including the Deep Water Shoal State Replenishment Seed Area: October 1, 2016 2017, through April 30, 2017 2018.

2. Milford Haven: December 1, 2016 2017, through February 28, 2017 2018.

3. Rappahannock River Area 9: November 1, 2016 2017, through December 31, 2016 2017.

4. Little Wicomico River: October 1, 2016 2017, through December 31, 2016 2017.

5. Coan River Area: October 1, 2016 2017, through December 31, 2016 2017.

6. Yeocomico River Area: October 1, 2016 2017, through December 31, 2016 2017. Except for Public Ground 106 that will be open December 1, 2016, through December 31, 2016.

7. Nomini Creek Area: October 1, 2016 2017, through December 31, 2016 2017.

8. Mobjack Bay Area: October 1, 2017, through October 31, 2017 (hand tong only) and February 1, 2018, through February 28, 2018 (hand scrape only).

8. 9. York River Rotation Area 2 1: January 1, 2017 2018, through January 31, 2017 2018.

9. Rappahannock River Rotation Area 4: October 1, 2016, through October 31, 2016, and December 1, 2016, through December 31, 2016.

10. Rappahannock River Rotation Area 2 1: November 1, 2016 October 1, 2017, through December 31, 2016 November 30, 2017.

11. Rappahannock River Rotation Area 6:  November 1, 2017, through November 30, 2017 (patent tong only) and December 1, 2017, through January 31, 2018 (hand scrape only).

12. Rappahannock River Area 7:  December 1, 2017, through January 31, 2018.

11. 13. Great Wicomico River Rotation Area 1: December 1, 2016 2017, through January 31, 2017 2018.

12. 14. Upper Chesapeake Bay - Blackberry Hangs Area: December 1, 2016 2017, through January 31, 2017 2018.

13. 15. James River Area and the Thomas Rock Area (James River) Hand Scrape Areas 1 and 3: November 1, 2016 December 1, 2017, through January 31, 2017 February 28, 2018.

16.  James River Hand Scrape Area 2:  October 1, 2017, through December 31, 2017.

14. 17. Pocomoke and Tangier Sounds Rotation Area 2 1: December 1, 2016 2017, through February 28, 2017 2018.

15. 18. Deep Rock Area: December 1, 2016 2017, through February 28, 2017 2018.

16. 19. Seaside of the Eastern Shore (for clean cull oysters only): November 1, 2016 2017, through March 31, 2017 2018.

C. It shall be unlawful to harvest seed oysters from the public oyster grounds or unassigned grounds, except during the lawful seasons. The harvest of seed oysters from the lawful areas is described in the following subdivisions of this subsection.

1. James River Seed Area: October 1, 2016 2017, through May 31, 2017 2018.

2. Deep Water Shoal State Replenishment Seed Area: October 1, 2016 2017, through May 31, 2017 2018.

4VAC20-720-60. Day and time limit.

A. It shall be unlawful to take, catch, or possess oysters on Saturday and Sunday from the public oyster grounds or unassigned grounds in the waters of the Commonwealth of Virginia, for commercial purposes, except that this provision shall not apply to any person harvesting no more than one bushel per day by hand or ordinary tong for household use only during the season when the public oyster grounds or unassigned grounds are legally open for harvest.

B. From October 1, 2016, through December 31, 2016, it shall be unlawful to take, catch, or possess oysters on any Friday from the public oyster grounds or unassigned grounds described in 4VAC20-720-40 B 9 through B 14.

C. B. It shall be unlawful for any person to harvest or attempt to harvest oysters prior to sunrise or after 2 p.m. from the areas described in 4VAC20-720-40 B 1 through B 15 18 and 4VAC20-720-40 C. In addition, it shall be unlawful for any boat with an oyster dredge or hand scrape aboard to leave the dock until one hour before sunrise or return to the dock after sunset, and it shall be unlawful for any boat with a hand scrape aboard to leave the dock until one-half hour before sunrise or return to the dock after sunset.

4VAC20-720-70. Gear restrictions.

A. It shall be unlawful for any person to harvest oysters in the James River Seed Area, including the Deep Water Shoal State Replenishment Seed Area, the Rappahannock River Area 9, Milford Haven, Little Wicomico River, Coan River Area, Nomini Creek Area and Yeocomico River Area, except by hand tong. It shall be unlawful for any person to have a hand scrape on board a boat that is harvesting or attempting to harvest oysters from public grounds by hand tong.

B. It shall be unlawful to harvest oysters by any gear from the seaside of the Eastern Shore area except by any gear, except by hand or hand tong. It shall be unlawful to harvest oysters that are not submerged at mean low water by any gear other than by hand.

C. It shall be unlawful to harvest oysters in the Rappahannock River Rotation Areas 2 and 4 Area 1, Rappahannock River Area 7, James River Area Hand Scrape Areas, Thomas Rock Area, Upper Chesapeake Bay - Blackberry Hangs Area, York River Area, and Great Wicomico River Area Areas by any gear except by hand scrape.

D. It shall be unlawful to harvest oysters in the Rappahannock River Rotation Area 6 by any gear except an oyster patent tong from November 1, 2017, through November 30, 2017. It shall be unlawful to harvest oysters in the Rappahannock River Rotation Area 6 by any gear except hand scrape from December 1, 2017, through January 31, 2018.

E. It shall be unlawful to harvest oysters in the Mobjack Bay Area by any gear except by hand tong from October 1, 2017, through October 31, 2017. It shall be unlawful to harvest oysters in the Mobjack Bay Area by any gear except by hand scrape from February 1, 2018, through February 28, 2018.

D. F. It shall be unlawful for any person to have more than one hand scrape on board any boat that is harvesting oysters or attempting to harvest oysters from public grounds. It shall be unlawful for any person to have a hand tong on board a boat that is harvesting or attempting to harvest oysters from public grounds by hand scrape.

E. G. It shall be unlawful to harvest oysters from the Pocomoke and Tangier Sounds Rotation Area 2 1, except by an oyster dredge.

F. H. It shall be unlawful to harvest oysters from the Deep Rock Area, except by an oyster patent tong.

4VAC20-720-75. Gear license.

A. It shall be unlawful for any person to harvest shellfish from the hand scrape areas in the Rappahannock River, James River, Upper Chesapeake Bay, York River Area, Mobjack Bay, and Great Wicomico River unless that person has first obtained a valid hand scrape license.

B. It shall be unlawful for any person to harvest shellfish with an oyster dredge from the public oyster grounds in the Pocomoke and Tangier Sounds Rotation Area 2 1, unless that person has first obtained a valid oyster dredge license.

C. It shall be unlawful for any person to harvest shellfish with a patent tong from the public oyster grounds in the Deep Rock Area or Rappahannock River Rotation Area 6 when open to patent tong use, unless that person has first obtained a valid oyster patent tong license.

D. It shall be unlawful for any person to harvest shellfish with a hand tong from the public oyster grounds, as described in 4VAC20-720-70 A, unless that person has first obtained a valid hand tong license.

E. It shall be unlawful for any person to harvest shellfish by hand from the public oyster grounds on the seaside of the Eastern Shore, as described in 4VAC20-720-70 B, unless that person has first obtained a valid oyster by hand license. It shall be unlawful for any person to harvest shellfish from the public oyster grounds on the seaside of the Eastern Shore by hand tong, as described in 4VAC20-720-70 B, unless that person has first obtained a valid oyster hand tong license.

4VAC20-720-80. Quotas and harvest limits.

A. It shall be unlawful for any person who does not possess a valid commercial fisherman's registration license and a valid gear license required by harvest area, as described in 4VAC20-720-75, and has not paid the current year's oyster resource user fee to harvest or possess any oysters for commercial purposes. Any individual who possesses the valid licenses and has paid the oyster resource user fee as described in this subsection shall be limited to a maximum harvest of eight bushels per day. It shall be unlawful for any vessel to exceed a daily vessel limit of 24 16 bushels clean cull oysters harvested from the areas described in 4VAC20-720-40 B 8 through 15 18.

B. It shall be unlawful for any person who does not possess a valid commercial fisherman's registration license and a valid gear license required by harvest area, as described in 4VAC20-720-75, and has not paid the current year's oyster resource user fee to harvest or possess any oysters for commercial purposes. Any individual who possesses the valid licenses and has paid the oyster resource user fee as described in this subsection shall be limited to a maximum harvest of eight bushels per day. It shall be unlawful for any vessel to exceed a daily vessel limit for clean cull oysters harvested from the areas described in 4VAC20-720-40 B 2 through 7 and 16 19, whereby that vessel limit shall equal the number of registered commercial fisherman licensees on board the vessel who hold a valid gear license and who have paid the oyster resource user fee multiplied by eight.

C. It shall be unlawful for any vessel to exceed a daily vessel limit for clean cull oysters harvested from the areas described in 4VAC20-720-40 B 1, whereby that vessel limit shall equal the number of registered commercial fisherman licensees on board the vessel who hold a valid gear license and who have paid the oyster resource user fee multiplied by 12. It shall be unlawful for any person who does not possess a valid commercial fisherman's registration license and hold a valid gear license required by harvest area, as described in 4VAC20-720-75, and has not paid the current year's oyster resource user fee to harvest or possess any oysters for commercial purposes. Any individual who possesses the valid licenses and has paid the oyster resource user fee as described in this subsection shall be limited to a maximum harvest of 12 bushels per day.

D. In the Pocomoke and Tangier Sounds Rotation Area 2 1, no blue crab bycatch is allowed. It shall be unlawful to possess on board any vessel more than 250 hard clams.

4VAC20-720-90. Harvest permit required for the James River Area and Thomas Rock Area Hand Scrape Areas.

A permit is required for the James River Area and the Thomas Rock Area Hand Scrape Areas 1, 2, and 3. It shall be unlawful for any person to harvest, or attempt to harvest, oysters from the James River Area and the Thomas Rock Area Hand Scrape Areas without first obtaining a harvest permit from the Marine Resources Commission as required by § 28.2-518 of the Code of Virginia.

4VAC20-720-100. Seed oyster planting procedures.

A. The marine police officer at the point of seed harvest may require that a marine police officer be present during the seed planting. When this is required, it will be specified on the seed transfer permit. If a marine police officer is required to be present at planting, the planter shall notify the marine police officer in the area prior to planting. It shall be unlawful for the permittee or planter to plant the oysters without a marine police officer being present.

B. The planting of seed oysters shall consist of spreading the oysters loosely on the bottom of the planting area. It shall be unlawful to plant seed oysters in any manner except by spreading the oysters loosely on the bottom.

C. Seed oysters shall be placed on a designated and marked area of the private ground from which said oysters are not to be removed until after May 31. It shall be unlawful to reharvest these seed oysters prior to June 1 December 31 if placed prior to December 31. Any seed oysters placed January 1 through May 31 are not to be removed until after May 31. It shall be unlawful to remove these seed oysters within 30 days of being placed on private ground.

Title of Regulation: 8VAC20-740. Regulations Governing Nutritional Guidelines for Competitive Foods Sold in the Public Schools (adding 8VAC20-740-10 through 8VAC20-740-40).

Statutory Authority: § 22.1-207.4 of the Code of Virginia.

Effective Date: October 18, 2017.

Agency Contact: Lynne A. Fellin, Associate Director, Office of School Nutrition Programs, Department of Education, 101 North 14th Street, P.O. Box 2120, Richmond, VA 23228, telephone (804) 225-2717, or email lynne.fellin@doe.virginia.gov.

Summary:

The amendments (i) establish nutritional standards for competitive foods available for sale to students on the school campus of any public school and other public school food authorities, such as residential child care institutions, during the school day; (ii) require all local school boards to adopt the nutritional standards as part of existing wellness policies; (iii) establish recordkeeping requirements; and (iv) require the Department of Education to ensure compliance with the standards.

The amendments are based on the Institute of Medicine's Recommended Standards for Competitive Foods in Schools, align the regulation with the U.S. Department of Agriculture interim final rule governing competitive foods in schools issued in June 2013, and incorporate the fundraiser exemptions required by Chapter 568 of the 2015 Acts of Assembly.

Summary of Public Comments and Agency's Response: A summary of comments made by the public and the agency's response may be obtained from the promulgating agency or viewed at the office of the Registrar of Regulations.

CHAPTER 740
REGULATIONS GOVERNING NUTRITIONAL GUIDELINES STANDARDS FOR COMPETITIVE FOODS SOLD AVAILABLE FOR SALE IN THE PUBLIC SCHOOLS

8VAC20-740-10. Definitions.

 [ The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise: ]

"A la carte item" means an individually priced food item served by the local school nutrition department that may or may not be part of the reimbursable meal under the federal Child Nutrition Programs.

"After school activities" means activities that occur on the school grounds campus after regular school hours the school day.

"Beverage" means a drinkable liquid.

"Calorie" means the amount of heat required to change the temperature of one gram of water from 14.5 degrees Celsius to 15.5 degrees Celsius. Calorie is used synonymously with kilocalorie as a unit of measure for energy obtained from food and beverages.

"Child nutrition programs" means school meal programs funded and regulated by the U.S. Department of Agriculture (USDA) and includes the National School Lunch Program (NSLP), School Breakfast Program (SBP), Afterschool Snack Programs (ASP), Child and Adult Care Food Program (CACFP), Summer Food Service Program (SFSP), and Special Milk Program (SMP).

"Combination foods" means products that contain two or more components representing two or more of the recommended food groups: fruit, vegetable, dairy, protein, or grains.

"Competitive food" means any all food, excluding beverages, sold available for sale to students on the school grounds campus during regular the school hours that is not part of the reimbursable meals served through the National School Lunch Program (NSLP), School Breakfast Program (SBP), or Afterschool Snack Program (ASP) day other than meals reimbursed under programs authorized by the Richard B. Russell National School Lunch Act (42 USC § 1751 et seq.) and the Child Nutrition Act of 1966 (42 USC § 1771 et seq.).

"Competitive food" includes all foods sold available for sale to students:

1. In school cafeterias as a la carte items not offered as a component of the planned reimbursable menu.

2. In vending machines located on school grounds during regular school hours the school campus during the school day.

3. As fundraisers held on school grounds during regular school hours the school campus during the school day.

4. In school snack bars on school grounds during regular school hours the school campus during the school day.

5. In school stores operated on school grounds during regular school hours the school campus during the school day by the school, a student association, or other school-sponsored organization.

6. At school activities such as special fundraisers, achievement rewards, classroom parties, school celebrations, classroom snacks, or school meetings held on school grounds during regular school hours the school campus during the school day.

7. In culinary education programs where food prepared as part of the educational curriculum is sold to students; however, this provision does not apply if food is sold to adults only.

This term does not apply to food a student brings from home for consumption at school or items available for sale to adults only in areas not accessible to students (e.g., teachers lounges).

"Dietary Guidelines for Americans" means guidelines jointly issued by the U.S. Department of Health and Human Services and U.S. Department of Agriculture and revised every five years and that provide authoritative advice based on current scientific evidence and medical knowledge for people two years of age and older about how good dietary habits can promote health and reduce risk for major chronic diseases.

"Food of minimal nutritional value" or "FMNV" means foods and beverages that are restricted by the U.S. Department of Agriculture (7 CFR 210.11(a)(2) and subsection (a) of Appendix B to 7 CFR Part 210 Definition) unless specifically exempted by USDA. The federal FMNV definition is limited to the following four specific categories of foods and beverages:

1. Soda water (any carbonated or aerated beverages, i.e., beverages that are labeled as "aerated" or that bubble and fizz for several minutes after opening).

2. Water ices (any frozen, sweetened water such as "…sicles" and flavored ice with the exception of products that contain fruit, fruit juice, milk, milk ingredients, or egg ingredients other than egg whites).

3. Chewing gum (regular and sugarless).

4. Certain candies (regular and sugarless), including:

a. Hard candy (e.g., sour balls, candy sticks, lollipops, starlight mints, after-dinner mints, sugar wafers, rock candy, cinnamon candy).

b. Jellies and gums (e.g., gum drops, jelly beans, and jellied and fruit-flavored slices and shapes).

c. Marshmallow candies, fondant, such as candy corn and soft mints, licorice, spun candy, and candy coated popcorn.

"Entree item" means an item that is either (i) a combination food of meat or meat alternate and whole grain rich food; (ii) a combination food of vegetable or fruit and meat or meat alternate; or (iii) a meat or meat alternate alone with the exception of yogurt; low-fat or reduced fat cheese; nuts, seeds, and nut or seed butters; and meat snacks (e.g., dried beef jerky).

[ "Fundraiser" means a school-sponsored activity where food or nonfood items are sold on the school campus during regular school hours by the school-sponsored organization to raise money for a school-related program or activity. One fundraiser is defined as one or more fundraising activities by one or more school-sponsored organizations that last one school day.

"Fundraising exemption" means an exception that allows a school-sponsored organization to sell on the school campus during regular school hours (i) food or beverages that do not meet the nutrition standards established in this chapter and (ii) items that do not meet the U.S. Department of Agriculture's Smart Snacks in Schools regulation. Fundraisers that sell nonfood items or that sell foods or beverages that meet the nutrition standards are not subject to this chapter or the U.S. Department of Agriculture's Smart Snacks in Schools regulation. ]

"Kcal" means kilocalorie, commonly known as calorie, which is a unit of measure in the United States for energy obtained from food and beverages. A kilocalorie is equal to 1,000 calories.

"Obesity" means obesity in children and adolescents referring to the age-specific and sex-specific body mass index (BMI) that is equal to or greater than the 95th percentile of the BMI charts of the Centers for Disease Control and Prevention (CDC).

"Regular school hours" means the same as the standard school day, as defined in 8VAC20-131-5, a calendar day that averages at least five and one-half instructional hours for students in grades 1 through 12, excluding breaks for meals and recess, and a minimum of three instructional hours for students in kindergarten. Regular school hours does not include school-related activities or events that occur either before or after the standard school day, such as clubs, yearbook, band and choir practice, student government, drama, childcare programs, interscholastic sporting events, school plays, band concerts, or other school-related programs.

[ "Regular school hours" means the standard school day, as defined in 8VAC20-131-5, except for the purpose of fundraiser exemptions, breaks for meals and recess are included in the regular school hours. ]

"School campus" means, for the purpose of competitive food standards implementation, all areas of the property under the jurisdiction of the school that are accessible to students during the school day.

"School day" means, for the purpose of competitive food standards implementation, the period from the midnight before to 30 minutes after the end of the official school day.

"School food authority" or "SFA" means, under the federal child nutrition laws, the entity that is legally responsible for the operations and administration of the local school nutrition programs (i.e., school division).

"School Health Advisory Board" or "SHAB" means an entity formed according to the provisions of § 22.1-275.1 of the Code of Virginia that assists in the development of wellness policies as required by § 204 of Public Law 108-265 (42 USC § 1751 et seq.) and develops an annual report of activities that is required to be submitted to the Department of Education as amended.

"Trans fat" means food items containing vegetable shortening, margarine, or any partially hydrogenated vegetable oil unless the label required on the food, pursuant to applicable federal and state law, lists the trans fat content as less than 0.5 zero grams per serving.

"Wellness policy" means a policy required for public schools participating in a nutrition program authorized by the Richard B. Russell National School Lunch Act (42 USC § 1751 et seq.) or the Child Nutrition Act of 1966 (42 USC § 1771 et seq.) that meets minimum standards designed to support school environments that promote student wellness.

"Whole grains" means grains that are made with enriched and whole grain meal or flour in accordance with the most recent grains guidance from the U.S. Department of Agriculture Food and Nutrition Service.

"Whole-grain rich" means products that contain at least 50% whole grains and the remaining grains in the product must be enriched.

8VAC20-740-20. Applicability.

A. This regulation chapter shall apply to all public school divisions, public schools, and public school food authorities (SFAs) in the Commonwealth of Virginia.

B. [ This ] regulation [ chapter Unless otherwise provided in this chapter, its provisions ] shall not apply to beverages.

C. This regulation chapter shall apply to the nutritional content of food items , excluding beverages, sold available for sale to students on the school grounds campus of any public school during regular school hours, and other public SFAs such as residential child care institutions, during the school day. It shall include apply to:

1. Foods sold available for sale to students in vending machines.

2. Foods sold available for sale to students as a la carte items in the school cafeteria.

3. Foods sold available for sale to students at snack bars and stores operated by the school, a student association, or other school-sponsored organization.

4. Foods sold available for sale to students at school activities such as fundraisers.

5. Foods available for sale to students by culinary or other educational programs.

D. This regulation chapter shall not apply to the nutritional content of foods and beverages:

1. Provided through the National School Lunch, School Breakfast, and Afterschool Snack programs, as regulated by 7 CFR Part 210 and 7 CFR Part 220 as meals reimbursed under programs authorized by the Richard B. Russell National School Lunch Act (42 USC § 1751 et seq.) and the Child Nutrition Act of 1966 (42 USC § 1771 et seq.).

2. Sold Available for sale at snack bars, concession stands, or athletic events after regular school hours the school day.

3. Sold Available for sale either during intermission or immediately before or after athletics events scheduled after the school day.

4. Sold Available for sale for school-related fundraising activities that take place off the school grounds campus [ or for exempt fundraisers as outlined in 8VAC20-740-35 ].

5. Sold Available for sale during activities that take place after regular school hours the school day, such as clubs, yearbook, band and choir practice, student government, drama, sports practices, interscholastic sporting events, school plays, and band concerts.

6. Available for sale to adults only in areas not accessible to students.

E. The requirements of this chapter supplement 8VAC20-290 and 8VAC20-580, which remain in effect.

8VAC20-740-30. Nutrition standards.

Competitive foods sold to students shall support the Dietary Guidelines for Americans by complying with the following nutritional standards:

A. The nutrition standards apply to all foods available for sale to students (i) outside the school meal programs; (ii) on the school campus; and (iii) at any time during the school day. The nutrition standards shall be consistent with the most recent Dietary Guidelines for Americans.

B. To be allowable, a competitive food must (i) meet all of the competitive food nutrient standards and (ii) must either:

1. Be a grain product that contains 50% or more whole grains by weight or have as the first ingredient a whole grain (i.e., whole-grain rich);

2. Have as the first ingredient one of the nongrain major food groups: fruits, vegetables, dairy, or protein foods (e.g., meat, beans, poultry, seafood, eggs, nuts, seeds, etc.); [ or ]

3. Be a combination food that contains 1/4 cup of fruit or vegetable [ .; or

4. Contain 10% of the Daily Value of a nutrient of public health concern based on the most recent Dietary Guidelines for Americans (i.e., calcium, potassium, vitamin D, or dietary fiber) for the period through June 30, 2016. Effective July 1, 2016, this criterion is obsolete and may not be used to qualify as a competitive food. ]  

If water is the first ingredient, the second ingredient must be one of the food items listed in this subsection.

C. General exemptions:

1. Fresh, canned, and frozen fruits or vegetables with no added ingredients except water or, in the case of fruit, packed in 100% juice, extra light, or light syrup are exempt from the nutrient standards.

2. Canned vegetables that contain a small amount of sugar for processing purposes are also exempt from the nutrient standards.

3. An entree item offered as part of the national school lunch program under 7 CFR Part 210 or the school breakfast program under 7 CFR Part 220 is exempt from all competitive food standards if it is offered as a competitive food on the day of, or the school day after, it is offered in the lunch or breakfast program. Exempt entree items offered as a competitive food must be offered in the same or smaller portion sizes as in the lunch or breakfast program.

Side dishes offered as part of the lunch or breakfast program and served a la carte must meet the nutrition standards in this section.

D. The accompaniments to a competitive food item must be included in the nutrient profile as a part of the food item served in determining if an item meets the nutrition standards for competitive food. The contribution of the accompaniments may be based on the average serving size of the accompaniment used per item.

E. Nutrient standards:

1. Standard 1: Calories.

a. Snack items and side dishes sold a la carte (i) shall be no more than 200 calories or less per portion item as served or as packaged, including the calorie content in any accompaniments, such as butter, cream cheese, and salad dressing, and (ii) must meet all other nutrient standards.

b. A la carte entree items shall not exceed calorie limits on comparable National School Lunch Program (NSLP) entrees. A la carte entree items shall not provide more calories or larger portion sizes than the comparable NSLP entree items. In accordance with 8VAC20-290-10, a la carte entree items for sale to students shall be limited to those entree items recognized as being components of the school breakfast program or school lunch program meal patterns. Entree items sold a la carte, unless the entree item meets the exemption for NSLP/SBP entree items in subdivision C 3 of this section, shall (i) contain no more than 350 calories, including the calorie content of any accompaniments, per item as served or as packaged, and (ii) meet all of the other nutrient standards in this section.

c. The calories contained in any accompaniments must be included in the nutrient profile as a part of the item served.

2. Standard 2: Fat.

a. Snacks and food items shall meet the following criteria for dietary fat per portion or as packaged:

(1) No more than 35% of total calories from fat.

(2) Less than 10% of total calories from saturated fats.

(3) Zero grams of trans fat.

b. Exceptions: Nuts and seeds (allowed as combination products as long as other nutrient standards are met; the fat content will not count against the total fat content of the product).

Total fat. Competitive foods shall contain no more than 35% of total calories from fat per item as packaged or served. Exemptions to the total fat standard are granted for:

(1) Reduced fat cheese and part-skim mozzarella cheese. This exemption does not apply to combination foods.

(2) Nuts, seeds, and nut or seed butters. This exemption does not apply to combination foods that contain nuts, seeds, or nut or seed butters, such as peanut butter and crackers and trail mix.

(3) Products consisting of only dried fruit with nuts or seeds with no added nutritive sweeteners or fat.

(4) Seafood with no added fat.

b. Saturated fat. Competitive foods shall have less than 10% of total calories from saturated fat per item as packaged or served. Exemptions to the saturated fat standard are granted for:

(1) Reduced fat cheese and part-skim mozzarella cheese. This exemption does not apply to combination foods.

(2) Nuts, seeds, and nut or seed butters. This exemption does not apply to combination foods that contain nuts, seeds, or nut or seed butters, such as peanut butter and crackers and trail mix.

(3) Products consisting of only dried fruit with nuts or seeds with no added nutritive sweeteners or fat.

c. Trans fat. Competitive foods must have zero grams of trans fat per item as packaged or served.

3. Standard 3: Sugar. a. Snacks and food items shall provide no more than 35% of calories from total sugars per portion or as packaged b. Exceptions Total sugar shall be no more than 35% of weight per item as packaged or served. Exemptions to the sugar standard are provided for:

(1) 100% fruits and fruit juices in all forms without added sugars.

(2) 100% vegetables and vegetable juices without added sugars.

(3) Unflavored nonfat and low-fat (1.0%) milk and yogurt.

(4) Flavored nonfat and low-fat (1.0%) milk with no more than 22 grams of total sugars per 8-ounce serving.

(5) Flavored nonfat and low-fat yogurt with no more than 30 grams of total sugars per 8-ounce serving.

a. Dried whole fruits or vegetables.

b. Dried whole fruit or vegetable pieces.

c. Dehydrated fruits or vegetables with no added nutritive sweeteners.

d. Dried fruits with nutritive sweeteners that are required for processing or palatability purposes.

4. Standard 4: Sodium.

a. Snack items shall meet a sodium content limit of 200 milligrams or less per portion or as packaged.

b. A la carte entree items recognized as being components of the school breakfast program or school lunch program meal patterns that are not part of the planned reimbursable menu shall meet a sodium content of 480 milligrams or less per portion. Portion sizes for a la carte entree items shall not be larger than the comparable portion size for NSLP entree items

a. Sodium content in snacks (i) shall be no more than [ 230 200 ] mg per item as packaged or served, including the sodium content in any accompaniments, such as butter, cream cheese, and salad dressing; and (ii) must meet all other nutrient standards. [ Effective July 1, 2016, the sodium standard shall be no more than 200 mg per item as packaged or served, including the sodium content in any accompaniments. ]

b. Entree items sold a la carte, unless the entre item meets the exemption for NSLP/SBP entree items in subdivision C 3 of this section (i) shall have no more than 480 mg of sodium per item as packaged or served, including the sodium content in any accompaniments, such as butter, cream cheese, and salad dressing; and (ii) must meet all other nutrient standards in this section.

5. Standard 5: Foods of minimal nutritional value. In accordance with 8VAC20-290-10 and 7 CFR Part 210, all foods of minimal nutritional value (FMNV) as defined in 8VAC20-740-10 shall be prohibited from being sold to students on school grounds during regular school hours.

 [ 8VAC20-740-35. Exemption to the nutrition standards for school-sponsored fundraisers. 

A. Each public school shall be permitted to conduct, on the school campus during regular school hours, no more than 30 school-sponsored fundraisers per school year during which food or beverages that do not meet the nutrition standards in this chapter or in the U.S. Department of Agriculture's regulations may be sold to students. School divisions are not required to allow exemptions to the nutrition standards in this chapter for school-sponsored fundraisers and may implement more restrictive guidelines as part of the local wellness policy requirements outlined in 8VAC20-740-40 A.

B. One fundraiser is defined as one or more fundraising activities that last one school day. If multiple school-sponsored organizations conduct fundraisers on the same day, the combined activities shall be counted as one fundraiser. If a fundraising activity lasts more than one school day, each subsequent day's activity shall be considered as one fundraiser and shall count toward the 30 exempt fundraisers total per year.

C. Any fundraiser that sells food or beverages, whether the items meet the nutrition standards or are exempt from the nutrition standards in this chapter, may not be conducted during school meal service times. Pursuant to the Regulations Governing School Lunch Sale of Food Items (8VAC20-290) and the Regulations for the School Breakfast Program (8VAC20-580), any food or beverage item cannot be sold in competition with the National School Lunch Program and School Breakfast Program from 6 a.m. until after the close of the last breakfast period and from the beginning of the first lunch period to the end of the last lunch period. Pursuant to 8VAC20-290 and 8VAC20-580, the income from any food or beverage sold to students during these times shall accrue to the nonprofit School Nutrition Program account.

D. An exemption is not required for nonfood fundraisers or for fundraisers that sell food or beverage items that meet the nutrition standards in this chapter. ]

8VAC20-740-40. Implementation and compliance.

A. Each local school board shall incorporate and adopt these the nutrition guidelines as part of its existing local wellness policy standards in this chapter as a compulsory component of the divisionwide local wellness policy mandated by federal regulation for all local education agencies that participate in the national school lunch program. In addition to incorporating the nutrition standards for competitive foods, the local wellness policy shall (i) establish and identify school division leadership with the authority to enforce the local wellness policy throughout the school campus; (ii) establish specific goals for nutrition promotion, nutrition education, physical activities, and other school-based activities that promote wellness; and (iii) establish policies that address marketing and advertising of only foods that meet the nutrition standards for competitive foods, serve to promote student health, prevent childhood obesity, and combat problems associated with poor nutrition and physical inactivity.

B. Each local school board shall submit annually to the Department of Education the School Health Advisory Board (SHAB) Progress Report as required by § 22.1-275.1 of the Code of Virginia. This report shall include a status report on the development and implementation of the local wellness policy. This report shall be used by the Department of Education to monitor compliance with this chapter. Local educational agencies and school food authorities must retain the records used to document compliance with this chapter; that is, the documentation used to assess the nutritional profile of the food item and determine whether a food item is an allowable competitive food (e.g., the nutrition labels, recipes, or product specifications).

1. Local educational agencies:

a. Shall be responsible for maintaining records documenting compliance with the competitive food nutrition standards for food available for sale in areas that are outside of the control of the school nutrition programs operation.

b. Shall be responsible for ensuring any organization or school activity designated as responsible for food service at the various venues in the school (other than the school nutrition programs) maintains records documenting compliance with the competitive food nutrition standards.

c. [ Shall be responsible for maintaining records each school year documenting the number of exempt fundraisers conducted at each school within the local education agency.

d. ] Shall designate an individual at the division or school level to monitor and ensure compliance with this chapter in all areas that are outside the control of the school nutrition programs operation. This designee shall not be school nutrition personnel.

2. The school food authority shall be responsible for maintaining records for foods served under the auspices of the nonprofit school nutrition programs account.

3. The Department of Education shall ensure that the local education agencies and school food authorities comply with these nutrition standards [ and shall provide guidance to schools on alternative school-sponsored fundraisers that do not involve the sale of foods or beverages to students and guidance on how to determine if foods and beverages sold at school-sponsored fundraisers meet these standards ]. Noncompliance determined by the local education agency, school food authority, or Department of Education shall require corrective action.

Title of Regulation: 8VAC105-11. Parking and Traffic (amending 8VAC105-11-10).

Statutory Authority: § 23.1-1301 of the Code of Virginia.

Effective Date: September 18, 2017.

Agency Contact: Lori Buchanan, Business Services Specialist, Office of the Vice President for Policy and Government, 319 Burruss Hall, Blacksburg, VA 24061, telephone (540) 231-9512, or email lorib90@vt.edu.

Summary:

The amendment updates the university's parking regulation to reflect revised parking procedures.

8VAC105-11-10. Definitions.

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"Parking and Traffic Procedures" means the Parking and Traffic Procedures, Virginia Tech Parking Services, effective July 1, 2014 August 1, 2017.

"Virginia Tech" means Virginia Polytechnic Institute and State University.

"University owned or leased property" means any property owned, leased, or controlled by Virginia Tech.

DOCUMENTS INCORPORATED BY REFERENCE (8VAC105-11)

Parking and Traffic Procedures, Virginia Tech Parking Services (rev. 7/14)

Parking and Traffic Operational Manual, Volume 25, 2017-2018 Academic Year, Virginia Tech Division of Operations, Parking and Transportation (rev. 8/2017)

Title of Regulation: 9VAC15-11. Public Participation Guidelines (amending 9VAC15-11-50).

Statutory Authority: §§ 2.2-4007.02, 58.1-3661, and 62.1-195.1 of the Code of Virginia.

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: October 18, 2017.

Effective Date: November 2, 2017.

Agency Contact: Melissa Porterfield, Department of Environmental Quality, 629 East Main Street, P.O. Box 1105, Richmond, VA 23218, telephone (804) 698-4238, FAX (804) 698-4019, or email melissa.porterfield@deq.virginia.gov.

Basis: Section 2.2-4007.02 of the Administrative Process Act requires agencies to develop and adopt public participation guidelines to solicit input from interested parties during the development of regulations. The Department of Environmental Quality (DEQ) previously adopted regulations concerning public participation guidelines.

Purpose: State law requires DEQ to adopt public participation guidelines to solicit input during the development of regulations. Chapter 795 of the 2012 Acts of Assembly revised § 2.2-4007.02 B of the Code of Virginia to allow interested parties the right to be accompanied by or represented by counsel during the formulation of a regulation. Participation by the public in the regulatory process is essential to assist DEQ in the promulgation of regulations that will protect the public health and safety.

Rationale for Using Fast-Track Rulemaking Process: The proposed amendments are expected to be noncontroversial and appropriate for using the fast-track rulemaking process. The amendments to this regulation make the regulation consistent with the Code of Virginia and the model public participation guidelines developed by the Department of Planning and Budget.

Substance: The Code of Virginia allows interested parties the right to be accompanied by or represented by counsel during the formulation of a regulation. This language has been added to the regulation.

Issues: This regulatory change will benefit the public and the agency. The regulatory change amends the regulation to be consistent with the Code of Virginia. The regulatory change does not place any additional requirements on the public or the agency; therefore, there are no disadvantages to the public or the agency.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. Pursuant to Chapter 795 of the 2012 Acts of Assembly,¹ the Department of Environmental Quality (Department) proposes to specify in this regulation that interested persons shall be afforded an opportunity to be accompanied by and represented by counsel or other representative when submitting data, views, and arguments, either orally or in writing, to the agency.

Result of Analysis. The benefits likely exceed the costs for all proposed changes.

Estimated Economic Impact. The current Public Participation Guidelines state that: "In considering any nonemergency, nonexempt regulatory action, the agency shall afford interested persons an opportunity to submit data, views, and arguments, either orally or in writing, to the agency." The department proposes to append "and (ii) be accompanied by and represented by counsel or other representative."

Chapter 795 of the 2012 Acts of Assembly added to § 2.2-4007.02 of the Code of Virginia, "Public participation guidelines," that interested persons also be afforded an opportunity to be accompanied by and represented by counsel or other representative. Since the Code of Virginia already specifies that interested persons shall be afforded an opportunity to be accompanied by and represented by counsel or other representative, the Department's proposal to add this language to the regulation will not change the law in effect, but will be beneficial in that it will inform interested parties who read this regulation but not the statute of their legal rights concerning representation.

Businesses and Entities Affected. The proposed amendment potentially affects all individuals who comment on pending regulatory changes.

Localities Particularly Affected. The proposed amendment does not disproportionately affect particular localities.

Projected Impact on Employment. The proposed amendment does not significantly affect employment.

Effects on the Use and Value of Private Property. The proposed amendment does not affect the use and value of private property.

Real Estate Development Costs. The proposed amendment does not affect real estate development costs.

Small Businesses:

Definition. Pursuant to § 2.2-4007.04 of the Code of Virginia, small business is defined as "a business entity, including its affiliates, that (i) is independently owned and operated and (ii) employs fewer than 500 full-time employees or has gross annual sales of less than $6 million."

Costs and Other Effects. The proposed amendment does not affect costs for small businesses.

Alternative Method that Minimizes Adverse Impact. The proposed amendment does not adversely affect small businesses.

Adverse Impacts:

Businesses. The proposed amendment does not adversely affect businesses.

Localities. The proposed amendment does not adversely affect localities.

Other Entities. The proposed amendment does not adversely affect other entities.

________________________________

¹ See http://leg1.state.va.us/cgi-bin/legp504.exe?121+ful+CHAP0795+hil

Agency's Response to Economic Impact Analysis: The Department of Environmental Quality has no comment on the economic impact analysis.

Summary:

Pursuant to § 2.2-4007.02 of the Code of Virginia, the amendment provides that interested persons submitting data, views, and arguments on a regulatory action may be accompanied by and represented by counsel or another representative.

Part III
Public Participation Procedures

9VAC15-11-50. Public comment.

A. In considering any nonemergency, nonexempt regulatory action, the agency shall afford interested persons an opportunity to (i) submit data, views, and arguments, either orally or in writing, to the agency; and (ii) be accompanied by and represented by counsel or other representative. Such opportunity to comment shall include an online public comment forum on the Town Hall.

1. To any requesting person, the agency shall provide copies of the statement of basis, purpose, substance, and issues; the economic impact analysis of the proposed or fast-track regulatory action; and the agency's response to public comments received.

2. The agency may begin crafting a regulatory action prior to or during any opportunities it provides to the public to submit comments.

B. The agency shall accept public comments in writing after the publication of a regulatory action in the Virginia Register as follows:

1. For a minimum of 30 calendar days following the publication of the notice of intended regulatory action (NOIRA).

2. For a minimum of 60 calendar days following the publication of a proposed regulation.

3. For a minimum of 30 calendar days following the publication of a reproposed regulation.

4. For a minimum of 30 calendar days following the publication of a final adopted regulation.

5. For a minimum of 30 calendar days following the publication of a fast-track regulation.

6. For a minimum of 21 calendar days following the publication of a notice of periodic review.

7. Not later than 21 calendar days following the publication of a petition for rulemaking.

C. The agency may determine if any of the comment periods listed in subsection B of this section shall be extended.

D. If the Governor finds that one or more changes with substantial impact have been made to a proposed regulation, he may require the agency to provide an additional 30 calendar days to solicit additional public comment on the changes in accordance with § 2.2-4013 C of the Code of Virginia.

E. The agency shall send a draft of the agency's summary description of public comment to all public commenters on the proposed regulation at least five days before final adoption of the regulation pursuant to § 2.2-4012 E of the Code of Virginia.

Title of Regulation: 9VAC25-11. Public Participation Guidelines (amending 9VAC25-11-50).

Statutory Authority: §§ 2.2-4007.02 and 62.1-44.15 of the Code of Virginia.

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: October 18, 2017.

Effective Date: November 2, 2017.

Agency Contact: Melissa Porterfield, Department of Environmental Quality, 629 East Main Street, P.O. Box 1105, Richmond, VA 23218, telephone (804) 698-4238, FAX (804) 698-4019, or email melissa.porterfield@deq.virginia.gov.

Basis: Section 2.2-4007.02 of the Administrative Process Act requires agencies to develop and adopt public participation guidelines to solicit input from interested parties during the development of regulations. The State Water Control Board previously adopted regulations concerning public participation guidelines using the regulatory development process.

Purpose: State law requires the State Water Control Board to adopt public participation guidelines to solicit input during the development of regulations. Chapter 795 of the 2012 Acts of Assembly revised § 2.2-4007.02 B of the Code of Virginia to allow interested parties the right to be accompanied by or represented by counsel during the formulation of a regulation. Participation by the public in the regulatory process is essential to assist the State Water Control Board in the promulgation of regulations that will protect the public health and safety.

Rationale for Using Fast-Track Rulemaking Process: The proposed amendments are expected to be noncontroversial and appropriate for using the fast-track rulemaking process. The amendments to this regulation make the regulations consistent with the Code of Virginia and the model public participation guidelines developed by the Department of Planning and Budget.

Substance: The Code of Virginia allows interested parties the right to be accompanied by or represented by counsel during the formulation of a regulation. This language has been added to the regulation.

Issues: This regulatory change will benefit the public and the agency. The regulatory change amends the regulation to be consistent with the Code of Virginia. The regulatory change does not place any additional requirements on the public or the agency; therefore, there are no disadvantages to the public or the agency.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. Pursuant to Chapter 795 of the 2012 Acts of Assembly,¹ the State Water Control Board (Board) proposes to specify in this regulation that interested persons shall be afforded an opportunity to be accompanied by and represented by counsel or other representative when submitting data, views, and arguments, either orally or in writing, to the agency.

Result of Analysis. The benefits likely exceed the costs for all proposed changes.

Estimated Economic Impact. The current Public Participation Guidelines state that: "In considering any nonemergency, nonexempt regulatory action, the agency shall afford interested persons an opportunity to submit data, views, and arguments, either orally or in writing, to the agency." The Board proposes to append "and (ii) be accompanied by and represented by counsel or other representative."

Chapter 795 of the 2012 Acts of Assembly added to § 2.2-4007.02 of the Code of Virginia "Public participation guidelines" that interested persons also be afforded an opportunity to be accompanied by and represented by counsel or other representative. Since the Code of Virginia already specifies that interested persons shall be afforded an opportunity to be accompanied by and represented by counsel or other representative, the Board's proposal to add this language to the regulation will not change the law in effect, but will be beneficial in that it will inform interested parties who read this regulation but not the statute of their legal rights concerning representation.

Businesses and Entities Affected. The proposed amendment potentially affects all individuals who comment on pending regulatory changes.

Localities Particularly Affected. The proposed amendment does not disproportionately affect particular localities.

Projected Impact on Employment. The proposed amendment does not significantly affect employment.

Effects on the Use and Value of Private Property. The proposed amendment does not affect the use and value of private property.

Real Estate Development Costs. The proposed amendment does not affect real estate development costs.

Small Businesses:

Definition. Pursuant to § 2.2-4007.04 of the Code of Virginia, small business is defined as "a business entity, including its affiliates, that (i) is independently owned and operated and (ii) employs fewer than 500 full-time employees or has gross annual sales of less than $6 million."

Costs and Other Effects. The proposed amendment does not affect costs for small businesses.

Alternative Method that Minimizes Adverse Impact. The proposed amendment does not adversely affect small businesses.

Adverse Impacts:

Businesses. The proposed amendment does not adversely affect businesses.

Localities. The proposed amendment does not adversely affect localities.

Other Entities. The proposed amendment does not adversely affect other entities.

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¹ See http://leg1.state.va.us/cgi-bin/legp504.exe?121+ful+CHAP0795+hil

Agency's Response to Economic Impact Analysis: The State Water Control board has no comment on the economic impact analysis.

Summary:

Pursuant to § 2.2-4007.02 of the Code of Virginia, the amendment provides that interested persons submitting data, views, and arguments on a regulatory action may be accompanied by and represented by counsel or another representative.

Part III
Public Participation Procedures

9VAC25-11-50. Public comment.

A. In considering any nonemergency, nonexempt regulatory action, the agency shall afford interested persons an opportunity to (i) submit data, views, and arguments, either orally or in writing, to the agency; and (ii) be accompanied by and represented by counsel or other representative. Such opportunity to comment shall include an online public comment forum on the Town Hall.

1. To any requesting person, the agency shall provide copies of the statement of basis, purpose, substance, and issues; the economic impact analysis of the proposed or fast-track regulatory action; and the agency's response to public comments received.

2. The agency may begin crafting a regulatory action prior to or during any opportunities it provides to the public to submit comments.

B. The agency shall accept public comments in writing after the publication of a regulatory action in the Virginia Register as follows:

1. For a minimum of 30 calendar days following the publication of the notice of intended regulatory action (NOIRA).

2. For a minimum of 60 calendar days following the publication of a proposed regulation.

3. For a minimum of 30 calendar days following the publication of a reproposed regulation.

4. For a minimum of 30 calendar days following the publication of a final adopted regulation.

5. For a minimum of 30 calendar days following the publication of a fast-track regulation.

6. For a minimum of 21 calendar days following the publication of a notice of periodic review.

7. Not later than 21 calendar days following the publication of a petition for rulemaking.

C. The agency may determine if any of the comment periods listed in subsection B of this section shall be extended.

D. If the Governor finds that one or more changes with substantial impact have been made to a proposed regulation, he may require the agency to provide an additional 30 calendar days to solicit additional public comment on the changes in accordance with § 2.2-4013 C of the Code of Virginia.

E. The agency shall send a draft of the agency's summary description of public comment to all public commenters on the proposed regulation at least five days before final adoption of the regulation pursuant to § 2.2-4012 E of the Code of Virginia.

Title of Regulation: 9VAC25-260. Water Quality Standards (amending 9VAC25-260-140, 9VAC25-260-155, 9VAC25-260-170).

Statutory Authority: § 62.1-44.15 of the Code of Virginia; Clean Water Act (33 USC § 1251 et seq.); 40 CFR Part 131.

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: November 17, 2017.

Agency Contact: David Whitehurst, Department of Environmental Quality, 629 East Main Street, P.O. Box 1105, Richmond, VA 23218, telephone (804) 698-4121, FAX (804) 698-4032, or email david.whitehurst@deq.virginia.gov.

Basis: Subdivision 3 a of § 62.1-44.15 of the Code of Virginia mandates and authorizes the State Water Control Board to (i) establish water quality standards and policies for any state waters consistent with the purpose and general policy of the State Water Control Law and (ii) modify, amend, or cancel any such standards or policies established. This provision requires the board to hold public hearings from time to time for the purpose of reviewing the water quality standards, and, as appropriate, adopting, modifying or canceling such standards.

The federal Clean Water Act (33 USC § 1251 et seq.) at § 303(c) mandates the State Water Control Board to review and, as appropriate, modify and adopt water quality standards. The corresponding federal water quality standards regulation at 40 CFR 131.6 describes the minimum requirements for water quality standards, which are use designations, water quality criteria to protect the designated uses, and an antidegradation policy. All of the citations mentioned describe mandates for water quality standards.

The State Water Control Law (Title 62.1 of the Code of Virginia – Waters of the State, Ports and Harbors) authorizes the protection and restoration of the quality of state waters, the safeguarding the clean waters from pollution, prevention, and reduction of pollution, and the promotion of water conservation.

The authority to adopt standards as provided by the provisions in the previously referenced citations is mandated, although the specific standards to be adopted or modified are discretionary to the Environmental Protection Agency (EPA) and the Commonwealth.

Purpose: The rulemaking is essential to the protection of health, safety, or welfare of the citizens of the Commonwealth because proper water quality standards protect water quality and living resources of Virginia's waters for consumption of fish and shellfish, recreational uses, and conservation in general.

These standards will be used in setting Virginia Pollutant Discharge Elimination System Permit limits and for evaluating the waters of the Commonwealth for inclusion in the Clean Water Act § 305(b) water quality characterization report and on the § 303(d) list of impaired waters. Waters not meeting standards will require development of a total maximum daily load (TMDL) under the Clean Water Act at § 303(e). The Water Quality Standards are the cornerstone for all these other programs. The goal is to provide the citizens of the Commonwealth with a technical regulation that is protective of water quality in surface waters, reflects recent scientific information, reflects agency procedures, and is reasonable and practical.

The environment will benefit because implementation of these amendments will result in better water quality in the Commonwealth for recreation, consumption of fish and shellfish, and protection of aquatic life.

Substance:

Table of Parameters (Toxics) - 9VAC25-260-140. An amendment to the cadmium criteria for the protection of freshwater and saltwater aquatic life is based on more recent EPA guidance issued in 2016. The proposed cadmium criteria reflect toxicity data for 75 new species and 49 new genera, which result in modest changes to criteria.

Amendments are proposed to update 94 human health criteria parameters. EPA issued revised recommendations for 94 chemical pollutants in June 2015. Updated recommendations for human health parameters reflect the latest scientific information and EPA policies, including updated exposure factors (body weight, drinking water consumption rates, fish consumption rate, relative source contribution), bioaccumulation factors, and toxicity factors (reference dose, cancer slope factor). Each of these 94 chemical pollutants has two criteria – one for waters designated as public water supplies and one for all other state waters – for a total of 188 criteria concentrations. Inclusion of new data by EPA results in varying changes to these criteria; 127 are decreased (become more stringent), 57 are increased (become less stringent), two are unchanged, and two are new additions to the regulation.

Ammonia Criteria - 9VAC25-260-155. Included is a proposal to amend the section to include new nationally recommended aquatic life criteria, issued by EPA 2013, for ammonia in freshwater. Like the current criteria, the proposed criteria are calculated as a function of temperature and pH and account for the presence or absence of trout and early life stages of fish. The recalculated ammonia criteria now incorporate toxicity data for freshwater mussels in the family Unionidae, which are the most sensitive organisms in the recalculation data base. The new criteria are about twice as stringent as the existing criteria primarily because more recent toxicity data show that mussels and snails (including endangered species) are very sensitive to ammonia and the current ammonia criteria do not provide sufficient protection for these species. Site specific options to calculate criteria omitting mussel toxicity data are proposed to be used in waters where a demonstration has been made that mussels are absent; however, consultation with U.S. Fish and Wildlife Service and the Virginia Department of Game and Inland Fisheries indicate freshwater mussels should be considered ubiquitous in Virginia and likely to be present in any perennial waterbody.

Bacteria Criteria - 9VAC25-260-170. In October 2012, EPA finalized its updated recommended national water quality criteria for bacteria designed for the protection of recreational uses (swimming). Amendments are proposed to incorporate those updates into the Virginia water quality standards and are intended to replace the current bacteria criteria for the protection of the primary contact recreation use. The revised EPA recommendations include a geometric mean (GM) value as well as a statistical threshold value (STV). The GM is a never-to-be-exceeded value; the STV should not be exceeded by more than 10% of the samples taken.

Issues: The primary advantage to the public is that the updated numerical toxics criteria are based on better scientific information to protect water quality and human health. The disadvantage is that criteria that become more stringent may result in increased costs to the regulated community. However, the goal is to set realistic, protective goals in water quality management and to maintain the most scientifically defensible criteria in the water quality standards regulation. EPA has also provided guidance that these criteria are "approvable" under the Clean Water Act.

The advantage to the agency or the Commonwealth that will result from the adoption of these amendments will be more accurate and scientifically defensible permit limits, assessments; and clean-up plans (TMDLs). These are discussed under the "Purpose" section where the goals of the proposal, the environmental benefits, and the problems the proposal is intended to solve are discussed.

The regulated community will find the amendments pertinent to its operations, particularly where the numerical criteria are more stringent since that may require additional capital or operating costs for control in its discharge.

There is no disadvantage to the agency or the Commonwealth that will result from the adoption of these amendments.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The State Water Control Board (Board) proposes to adopt the most recent water quality standards recommended by the United States Environmental Protection Agency (EPA) for ammonia and cadmium criteria for protection of aquatic life, 94 chemical pollutant criteria, and the bacteria criteria and assessment methodology for protection of human health.

Result of Analysis. The proposed regulation may introduce substantial costs (possibly over one-half billion dollars) on affected point sources and will likely benefit aquatic life and human health. The costs that potentially impacted dischargers might have to spend on treatment upgrades to meet more stringent criteria depend on individual permit requirements that are site-specific and variable. As a result, there is insufficient data to accurately compare the magnitude of the benefits versus the costs. Detailed analysis of the benefits and costs are in the next section.

Estimated Economic Impact. This regulation establishes water quality standards for surface waters of the Commonwealth. Criteria are based on the maximum acceptable amount of pollutants that directly affect aquatic life and/or human health and that can be discharged into receiving waters and not exceed criteria protective of designated uses. Federal and state mandates in the Clean Water Act at § 303(c), 40 CFR 131 and the Code of Virginia in § 62.1-44.15(3a) require that these water quality standards be evaluated every three years. In addition, § 303(a) of the Clean Water Act requires the EPA to develop and publish water quality criteria that reflect the latest scientific knowledge. EPA recommendations are purely based on protection of aquatic life and human health and do not reflect consideration of economic impacts or the technological feasibility of meeting pollutant concentrations in ambient water. These criteria are not rules, nor do they automatically become part of a state's water quality standards. States may adopt the criteria that the EPA publishes, modify the EPA's criteria to reflect site-specific conditions, or adopt different criteria based on other scientifically defensible methods. The EPA must approve any new water quality standards adopted by a state before they can be used for Clean Water Act purposes. Should a state fail to update its standards, the EPA may adopt and enforce water quality criteria on behalf of the state. In this action, the Board proposes to adopt the most recent water quality standards recommended by the EPA. Once adopted, these criteria become the basis of establishing permit limits and Total Maximum Daily Loads (TMDLs).

Freshwater Ammonia Criteria for Protection of Aquatic Life.

In 2013, the EPA updated its 1999 recommendations for ambient freshwater ammonia criteria to reflect the newly discovered sensitive nature of freshwater mussels and snails to ammonia toxicity. According to the EPA¹ "Freshwater mussels are highly sensitive to ammonia toxicity and represent the most sensitive species in the dataset for the criteria recommendations. New science has demonstrated that freshwater snails are also sensitive to ammonia toxicity. Both mussels and snails are important to the environment because they serve as food sources for other organisms in the food web and provide vital services in improving and maintaining water quality. Specifically, mussels are filter feeders and can filter nutrients, toxics, and other pollutants out of the water, thereby helping to control the levels of these pollutants and reduce exposure to humans and other aquatic organisms. Snails feed on organic debris including algae, which helps to reduce the effects of eutrophication and keeps bottom substrates clean for other benthic organisms."

The allowable total ammonia nitrogen level depends on several factors (i.e., whether it is for acute or chronic levels, whether trout are absent or present, various combinations of pH and temperature levels, whether mussels and early life stages of fish are absent or present). Thus, the proposed regulation contains hundreds of ammonia criteria in tables for various combinations of the relevant factors. The proposed ammonia criteria are more stringent than the current limits by a factor of between 2.2 times and 5.9 times for all possible combinations of pH and temperature. However, the proposed criteria are about twice as stringent as the current criteria based on an assumed pH of 7 and temperature of 20 degrees Celsius. Criteria that are more stringent can result in more stringent effluent limits for Virginia Pollutant Discharge Elimination System (VPDES) permitted dischargers. Those sources with monitoring requirements in their permit may also be affected if their discharges have the potential to exceed the proposed ammonia criteria. According to DEQ, the estimated number of potentially affected facilities due to the proposed amendments to the ammonia criteria is 370 and includes those facilities with effluent limitations and those with monitoring requirements but no limits.

The primary and most widespread potential cost increase associated with all of the proposed amendments in this action would be from meeting more stringent ammonia limits for municipal dischargers to comply with the revised ammonia criteria. A permit holder may reduce the ammonia discharge through nitrification, which would convert ammonia into nitrate-nitrogen and then discharge nitrate into the water. If nitrate cannot be discharged into the water because of permit limits, then the facility may install a nitrification/denitrification system, convert nitrate-nitrogen from the first step into the harmless gas form of nitrogen, and discharge into the air instead of water.

The facilities most likely to be affected are those in the Chesapeake Bay watershed with design flows less than 0.1 million gallons/day (MGD) located east of Interstate 95 and those with design flows less than 0.5 MGD west of I-95. Permittees with discharges outside of the Bay watershed, particularly those facilities that are large in volume compared to the receiving stream, may also have similar potential financial impacts.

According to DEQ, there are approximately 220 discharge permits issued in the Chesapeake Bay watershed with either ammonia limits or ammonia monitoring requirements. Although ammonia limits or monitoring requirements are part of the permits, it may be assumed those facilities with ammonia limits east of Interstate 95 with a design flow equal to or greater than 0.1 MGD and those with ammonia limits west of I-95 with a design flow equal to or greater than 0.5 MGD either currently have ammonia control requirements or will be required to nitrify/denitrify to comply with the total nitrogen waste load allocations of the Water Quality Planning Management Regulation (9VAC25-720 et seq.) and the Chesapeake Bay Watershed General Permit Regulation for Total Nitrogen and Total Phosphorus Discharges and Nutrient Trading (9VAC25-820). DEQ believes that those facilities utilizing a nitrification/denitrification wastewater treatment process to meet total nitrogen concentration limits greatly reduce the ammonia concentrations in effluent to very low levels and consequently will most likely meet the more stringent ammonia criteria without additional effort.

There are approximately 20 facilities east of Interstate 95 with flows less than 0.1 MGD. It is anticipated that these facilities have the greatest likelihood to incur impacts due to more stringent ammonia criteria. Of these, 17 now have numeric ammonia limits and it is likely they have nitrification capability to meet current limits. However, an upgrade and/or operational procedure modification may be necessary to comply with newer, more stringent ammonia limits.

There are approximately 119 facilities west of I-95 with design flows less than 0.5 MGD. It is anticipated that these facilities have the greatest likelihood to incur impacts due to more stringent ammonia criteria. All but 2 have numeric ammonia limits now and it is likely that the facilities with numeric limits have nitrification capability to meet current limits; however, an upgrade and/or operational procedure modification may be necessary to comply with newer, more stringent ammonia limits. It is unknown how many of these would install a simple nitrification system or an advanced nitrification/denitrification system.

There are approximately 150 discharge permits issued outside of the Chesapeake Bay watershed with either ammonia limits or ammonia monitoring requirements. It is possible that those with only monitoring requirements will incur costs should more stringent effluent limits be necessary. All but 8 have numeric ammonia limits now, and it is likely these facilities have nitrification capability to meet current limits; however, an upgrade and/or operational procedure modification may be necessary to comply with newer, more stringent ammonia limits.

DEQ estimates that a simple nitrification system costs about $372,000 for a 0.10 MGD sewage treatment plant. The cost of an advanced treatment system capable of both nitrification and denitrification can range from $750,000 to $8,195,000 depending on the current level of treatment and volume of discharge. These costs are one-time capital expenditures and are unlikely to recur during the useful life of the equipment; however, operations and maintenance costs would be ongoing. Operations and maintenance costs for nitrification/denitrification could be $23,000/a year for a 0.10-MGD plant to $195,000/a year for a 0.60-MGD plant.

As an example, for a totally new 0.7 MGD plant, roughly 50% of the cost of the new oxidation ditch, and 100% of the submerged diffused outfall, etc., is attributed to the cost for ammonia removal. In this case, roughly 9% of the total cost can be attributed to ammonia removal or roughly $500,000 of the $5,655,000 construction bid price.

In another example, a facility design flow upgrade from 4.0 to 6.5 MGD, the cost attributable to ammonia removal, is more complicated because the oxidation ditch volume is set, with no expansion of the aerator volume, but there is a hydraulic increase of the overall facility. Roughly 30% of the aeration system, filter, and digester upgrade costs and 100% of the integrated fixed-film activated sludge costs are attributable to ammonia removal. This adds up to about $1,720,700 or approximately 13% of the overall bid price of $13,278,600. It is estimated the cost per gallon of ammonia removal in the examples given above for the new construction is $0.71/gallon and cost per gallon for the upgrade is $0.26/gallon.

The Virginia Association of Municipal Wastewater Agencies (VAMWA) has prepared an estimate of economic impact of the proposed ammonia criteria on its members and other sewage treatment facilities. Utilizing the capital and operating and maintenance costs estimated by the EPA for various design ranges, the VAMWA's study estimates that capital costs will reach $512.3 million and ongoing operating and maintenance costs will be $33.6 million per year for 490 affected facilities in 2014 dollars. These costs are expected to be distributed over a 10-year period as VPDES permits are reissued with compliance schedules. The study projects much higher relative costs for smaller facilities such as schools and public rest stops compared to larger facilities. The VAMWA estimate does not address upgrades and costs for commercial or industrial facilities with direct discharge permits, upgrades and costs for pretreatment that public treatment facilities may require of commercial and industrial facilities that discharge into public collection systems, and development and implementation costs of TMDLs for additional waters that may be listed for aquatic life impairment as a result of more stringent criteria.

A TMDL is a plan to improve the quality of an impaired water body. Development of TMDLs requires significant amounts of labor to collect data, to determine land uses, animal densities, crop densities, the number of septic systems, contributions from point and nonpoint sources, and construction of a simulation model. DEQ usually incurs the development costs, but some funding is provided from the federal government. Implementation of a TMDL may represent significant costs to pollution sources as well. For example, fencing may be required to prevent direct deposition into water from cattle, a buffer area may be needed to function as a filter for agricultural runoff, and failing septic systems may have to be fixed. In addition to these, the implementation involves public participation, and staff travel, which add to the overall costs. There are various cost share and incentive programs for TMDL implementation. The magnitude of TMDL costs varies from project to project and is pollutant specific. For example, the cost of a bacteria TMDL project costs range from $41,000 to $145,000.

According to DEQ, there is currently one outstanding aquatic life use impairment attributed to ammonia that has yet to be prioritized. There are no ammonia related TMDLs at this time. However given the more stringent values proposed by this regulation, that situation could change. DEQ does not know the potential impact of this change on development and implementation costs of TMDLs because a TMDL determination is site specific.

There appears to be general consensus that the proposed ammonia criteria may have a substantial economic impact particularly on smaller facilities. In addition, there appears to be a general agreement on the unit cost estimates provided above for various facility design sizes. However, there appears to be a difference of opinion on how many facilities will be able to meet the proposed criteria without having to build a new facility or upgrade. For example, the VAMWA study presumes that a substantial number of major Chesapeake Bay watershed facilities that currently nitrify will not be able to meet permit limits while DEQ believes that they will.

The EPA allows certain flexibilities in adopting water quality criteria. For example, states are allowed to adopt site-specific criteria to take into account absence or presence of sensitive species. After consultation with the Virginia Department of Game and Inland Fisheries, Virginia Department of Conservation and Recreation, and United States Fish and Wildlife Service, the Board concluded that it would assume the presence of freshwater mussels in any perennial freshwater stream in Virginia but does propose to allow point sources to demonstrate an absence of sensitive species on a site-by-site basis. Thus, some sources may be able to avoid compliance costs if they can demonstrate lack of sensitive species in their locations. However, such a demonstration would likely cost some money.

The Board also proposes to allow compliance schedules longer than 5 years under certain conditions for reissuance of existing permits. These flexibilities would help sources comply with the new criteria to some degree.

Freshwater & Saltwater Cadmium Criteria for Protection of Aquatic Life.

In 2016, the EPA updated its 2001 recommended cadmium aquatic life ambient water quality criteria in order to reflect the newest toxicity data for 75 new species and 49 new genera. The Board proposes to adopt the EPA's recommended standard for cadmium. There are four aquatic life criteria (i.e., acute and chronic limits for freshwater and saltwater). The proposed cadmium criteria are more stringent than the current limits by a factor between 1.1 times and 2.2 times. Criteria that are more stringent may mean additional treatment is needed to remove more cadmium before discharging effluent into surface waters. Those permitted treatment plants with monitoring requirements in their permit may also be affected if their discharges have the potential to exceed the proposed criteria.

According to DEQ, there are 24 active discharge permits with either numeric cadmium limits or monitoring requirements. Of these, 10 have effluent limits and 14 have monitoring requirements but no limits. Monitoring requirements without discharge limits typically result from a permit review using a "Reasonable Potential Analysis" that indicates the facility may have a particular parameter in its effluent, ergo the monitoring requirement. The monitoring data is used in subsequent permit reissuances to determine if discharge limits should be included. Given that the cadmium freshwater criteria are becoming more stringent it is assumed facilities with only monitoring requirements may be the most likely to be affected.

Furthermore, the most likely impact expected is for industrial dischargers. However, DEQ has no cost information on retrofits for these types of facilities, and each would be unique due to the type of industry, wastewater characteristics and treatment technology used. Thus, there are no available estimates for the potential costs at this time. As far as TMDL costs, there is one aquatic life use impairment near Lake Anna with cadmium listed as the impairment cause, but it has yet to be put on the priority list and as such an active TMDL has yet to be developed. A more stringent cadmium standard may add additional waters to the impaired waters list but DEQ does not know if that is the case at this time because such determinations are site specific. On the other hand, more stringent cadmium criteria based on latest scientific information will likely provide better protection for aquatic life.

Water Quality Criteria for Protection of Human Health.

In 2015, the EPA published water quality criteria for the protection of human health for 94 chemical pollutants. The revisions stemmed from the latest scientific information and the EPA policies, including updated body weight, drinking water consumption rate, fish consumption rate, bioaccumulation factors, health toxicity values, and relative source contributions. Each pollutant has two criteria (i.e., one for public water supply and one for all other waters) for a total of 188 individual criteria concentrations. 57 of these criteria would become less stringent, 127 would become more stringent, 2 would be unchanged, and 2 are new additions and do not have criteria in the current regulation.

Though 127 criteria that are more stringent have the potential to increase compliance costs, according to DEQ, the majority of the human heath criteria pollutants tend to be rather exotic compounds and discharger specific. Thus, the potential compliance cost to dischargers is unknown at this time. In addition, it is noted that many of the human health criteria toxins are not monitored routinely unless there is a known or suspected problem. DEQ does not believe there will be additional TMDL designations because of this change but that expectation is uncertain.

Due to anti-backsliding rules, existing permit limits cannot be made less stringent. Thus, 57 less stringent criteria are unlikely to have an effect on current permit limits. However, potential new sources discharging one of these pollutants will be subject to less stringent limits and may avoid installing treatment systems. Thus, new sources may realize some cost savings in potential treatment costs.

127 more stringent and 2 new human health criteria have the potential to help reduce many types of illnesses including cancer. However, some of these rather exotic pollutants may not be present in the Commonwealth's surface waters. If this is the case, no immediate significant impact is likely to be realized, but if any discharge containing these chemicals is discovered, health risks originating from the drinking water and fish consumption may be reduced and the source may have to incur some additional compliance costs.

In short, very few limits are based on human health criteria so no significant impact from the amendments is expected. However, given the large number of human health criteria amendments, it is difficult to determine with certainty at this time what the cost savings or expenses may be.

Bacteria Criteria for Protection of Human Health.

The Board proposes to revise the bacteria criteria and assessment methodology for protection of human health. E. coli and Enterococci concentrations are used as bacteria indicators for the presence of illness inducing pathogens in freshwater and saltwater respectively.

The aim of the proposed changes is to align Virginia's methodology and criteria with those recommended by EPA, which are expressed in terms of a statistical threshold value (replacing the single sample maximum) and a geometric mean. The current assessment methodology for the single sample maximum allows no more than 10% of the total samples to exceed the criteria over the assessment period that is typically a six-year monitoring database. The proposed statistical threshold value is a similar measure utilized by EPA. Under the proposed regulation, no more than 10% of the total samples may exceed the statistical threshold value using all monitoring data collected up to a 90-day period. Bacteria criteria are also expressed in terms of a geometric mean, which can only be calculated under the current water quality standards using at least 4 observations taken within a 30-day period. The geometric mean standard is a "never-to-be-exceeded" value. Its exceedance puts the water body on the impaired waters list. The intent of the amendment is to switch to a 90-day assessment period to enable the use of more monitoring data, which will maximize the number of monitoring stations that are assessed against both geometric mean and statistical threshold value criteria. The proposed amendment will adopt 2012 EPA recommended statistical threshold values for E. coli and Enterococci concentrations and are higher than the current values used for the single sample maximum. The geometric mean concentrations remain unchanged.

The rationale behind the amendment is the proposed bacteria criteria represent the most recent scientific basis for criteria designed to protect primary contact recreational uses. Also, the Federal BEACH Act of 2000 requires that, not later than 36 months after the date of publication by the EPA of new or revised water quality criteria for pathogens or pathogen indicators, each state having coastal recreation waters shall adopt and submit to the EPA new or revised water quality standards for the coastal recreation waters of the state for all pathogens and pathogen indicators to which the new or revised water quality criteria are applicable. In this case, the most recent EPA criteria were published in 2012.

One of the consequences resulting from these changes is that more waters may be assessed as impaired for the recreational use. Exceedances of the bacteria criteria are the leading cause of TMDL designations; about 80% of existing impairments are due to high bacteria concentrations. There are currently 441 bacteria impairments that are waiting for a development of a TMDL. It is not expected amendments to bacteria criteria will affect dischargers as end-of-pipe limits for bacteria are set at the criterion. However, the number of TMDLs that must be developed may increase.

Businesses and Entities Affected. The proposed amendments particularly affect municipal wastewater treatment facilities and industrial plants that discharge to surface waters of the Commonwealth.

The estimated number of potentially affected facilities due to proposed amendments to the ammonia criteria is 370 (approximately 220 discharge permits issued in the Chesapeake Bay watershed and 150 discharge permits issued outside of the Chesapeake Bay watershed).

According to DEQ, there are 24 active discharge permits with either numeric cadmium limits or monitoring requirements.

The number of potentially effected facilities due to the amended human health criteria and bacteria criteria is not known.

The proposed changes may also affect new and expanded point sources as well as nonpoint sources in the future.

Localities Particularly Affected. The proposed changes apply statewide. Localities with permits that may have to upgrade or install new equipment will be particularly effected.

Projected Impact on Employment. The net impact on employment is not known. A facility requiring an upgrade or monitoring under the proposed regulations will have to hire labor to accomplish those goals.

However, increased costs may also discourage expansion or the building of new plants reducing demand for labor.

Effects on the Use and Value of Private Property. Facilities likely to be affected the most are municipal wastewater treatment facilities. To the extent the proposed more stringent requirements introduce additional compliance costs on privately owned facilities, their asset values should decrease.

The proposed changes also have the potential to affect private property prices through improvements in environmental quality. However, such effects are usually contingent upon noticeable improvements. Since the magnitude of likely effects on environment is not known, no conclusive statements can be made about the effect on the value of private property.

Real Estate Development Costs. The proposed amendments do not directly affect real estate development costs.

Small Businesses:

Definition. Pursuant to § 2.2-4007.04 of the Code of Virginia, small business is defined as "a business entity, including its affiliates, that (i) is independently owned and operated and (ii) employs fewer than 500 full-time employees or has gross annual sales of less than $6 million."

Costs and Other Effects. Some of the industrial plants that discharge to surface waters of the Commonwealth will be associated with small businesses. The costs and other effects on them are the same as discussed above.

Alternative Method that Minimizes Adverse Impact. There are no clear alternative methods that would both comply with the Clean Water Act and cost less.

Adverse Impacts:

Businesses. The adverse impact on businesses is the additional compliance costs discussed above.

Localities. The adverse impact on localities is the additional compliance costs discussed above.

Other Entities. The proposed amendments will not adversely affect other entities.

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¹ https://www.epa.gov/sites/production/files/2015-08/documents/flexibilities-for-states-applying-epa-s-ammonia-criteria-recommendations.pdf

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 amendments update the ammonia criteria for the protection of freshwater aquatic life as well as implementation issues and impacts to regulated dischargers, revise the bacteria criteria for human health protection in recreation waters, revise the cadmium criteria for the protection of freshwater and saltwater aquatic life, and update 94 human health criteria parameters.

9VAC25-260-140. Criteria for surface water.

A. Instream water quality conditions shall not be acutely¹ or chronically² toxic except as allowed in 9VAC25-260-20 B (mixing zones). The following are definitions of acute and chronic toxicity conditions:

"Acute toxicity" means an adverse effect that usually occurs shortly after exposure to a pollutant. Lethality to an organism is the usual measure of acute toxicity. Where death is not easily detected, immobilization is considered equivalent to death.

"Chronic toxicity" means an adverse effect that is irreversible or progressive or occurs because the rate of injury is greater than the rate of repair during prolonged exposure to a pollutant. This includes low level, long-term effects such as reduction in growth or reproduction.

B. The following table is a list of numerical water quality criteria for specific parameters.

C. Application of freshwater and saltwater numericalcriteria. The numerical water quality criteria listed in subsection B of thissection (excluding dissolved oxygen, pH, temperature) shall be appliedaccording to the following classes of waters (see 9VAC25-260-50) and boundarydesignations:

The following describes the boundary designations for Class II, (estuarine, transition zone and tidal freshwater waters) by river basin:

1. Rappahannock Basin. Tidal freshwater is from the fall line of the Rappahannock River to the upstream boundary of the transition zone including all tidal tributaries that enter the tidal freshwater Rappahannock River.

Transition zone upstream boundary – N38° 4' 56.59"/W76° 58' 47.93" (430 feet east of Hutchinson Swamp) to N38° 5' 23.33"/W76° 58' 24.39" (0.7 miles upstream of Peedee Creek).

Transition zone downstream boundary – N37° 58' 45.80"/W76° 55' 28.75" (1,000 feet downstream of Jenkins Landing) to N37° 59' 20.07/W76° 53' 45.09" (0.33 miles upstream of Mulberry Point). All tidal waters that enter the transition zone are themselves transition zone waters.

Estuarine waters are from the downstream boundary of the transition zone to the mouth of the Rappahannock River (Buoy 6), including all tidal tributaries that enter the estuarine waters of the Rappahannock River.

2. York Basin. Tidal freshwater is from the fall line of the Mattaponi River at N37° 47' 20.03"/W77° 6' 15.16" (800 feet upstream of the Route 360 bridge in Aylett) to the upstream boundary of the Mattaponi River transition zone, and from the fall line of the Pamunkey River at N37° 41' 22.64"/W77° 12' 50.83" (2,000 feet upstream of Totopotomy Creek) to the upstream boundary of the Pamunkey River transition zone, including all tidal tributaries that enter the tidal freshwaters of the Mattaponi and Pamunkey Rivers.

Mattaponi River transition zone upstream boundary – N37° 39' 29.65"/W76° 52' 53.29" (1,000 feet upstream of Mitchell Hill Creek) to N37° 39' 24.20"/W76° 52' 55.87" (across from Courthouse Landing).

Mattaponi River transition zone downstream boundary – N37° 32' 19.76"/W76° 47' 29.41" (old Lord Delaware Bridge, west side) to N37° 32' 13.25"/W76° 47' 10.30" (old Lord Delaware Bridge, east side).

Pamunkey River transition zone upstream boundary – N37° 32' 36.63"/W76° 58' 29.88" (Cohoke Marsh, 0.9 miles upstream of Turkey Creek) to N37° 32' 36.51"/W76° 58' 36.48" (0.75 miles upstream of creek at Cook Landing).

Pamunkey River transition zone downstream boundary – N37° 31' 57.90"/W76° 48' 38.22" (old Eltham Bridge, west side) to N37° 32' 6.25"/W76° 48' 18.82" (old Eltham Bridge, east side).

All tidal tributaries that enter the transition zones of the Mattaponi and Pamunkey Rivers are themselves in the transition zone.

Estuarine waters are from the downstream boundary of the transition zones of the Mattaponi and Pamunkey Rivers to the mouth of the York River (Tue Marsh Light) including all tidal tributaries that enter the estuarine waters of the York River.

3. James Basin. Tidal freshwater is from the fall line of the James River in the City of Richmond upstream of Mayo Bridge to the upstream boundary of the transition zone, including all tidal tributaries that enter the tidal freshwater James River.

James River transition zone upstream boundary – N37° 14' 28.25"/W76° 56' 44.47" (at Tettington) to N37° 13' 38.56"/W76° 56' 47.13" (0.3 miles downstream of Sloop Point).

Chickahominy River transition zone upstream boundary – N37° 25' 44.79"/W77° 1' 41.76" (Holly Landing).

Transition zone downstream boundary – N37° 12' 7.23"/W76° 37' 34.70" (near Carters Grove Home, 1.25 miles downstream of Grove Creek) to N37° 9' 17.23"/W76° 40' 13.45" (0.7 miles upstream of Hunnicutt Creek). All tidal waters that enter the transition zone are themselves transition zone waters.

Estuarine waters are from the downstream transition zone boundary to the mouth of the James River (Buoy 25) including all tidal tributaries that enter the estuarine waters of the James River.

4. Potomac Basin. Tidal freshwater includes all tidal tributaries that enter the Potomac River from its fall line at the Chain Bridge (N38° 55' 46.28"/W77° 6' 59.23") to the upstream transition zone boundary near Quantico, Virginia.

Transition zone includes all tidal tributaries that enter the Potomac River from N38° 31' 27.05"/W77° 17' 7.06" (midway between Shipping Point and Quantico Pier) to N38° 23' 22.78"/W77° 1' 45.50" (one mile southeast of Mathias Point).

Estuarine waters includes all tidal tributaries that enter the Potomac River from the downstream transition zone boundary to the mouth of the Potomac River (Buoy 44B).

5. Chesapeake Bay, Atlantic Ocean, and small coastal basins. Estuarine waters include the Atlantic Ocean tidal tributaries, and the Chesapeake Bay and its small coastal basins from the Virginia state line to the mouth of the bay (a line from Cape Henry drawn through Buoys 3 and 8 to Fishermans Island), and its tidal tributaries, excluding the Potomac tributaries and those tributaries listed in subdivisions 1 through 4 of this subsection.

6. Chowan River Basin. Tidal freshwater includes the Northwest River and its tidal tributaries from the Virginia-North Carolina state line to the free flowing portion, the Blackwater River and its tidal tributaries from the Virginia-North Carolina state line to the end of tidal waters at approximately state route 611 at river mile 20.90, the Nottoway River and its tidal tributaries from the Virginia-North Carolina state line to the end of tidal waters at approximately Route 674, and the North Landing River and its tidal tributaries from the Virginia-North Carolina state line to the Great Bridge Lock.

Transition zone includes Back Bay and its tributaries in the City of Virginia Beach to the Virginia-North Carolina state line.

D. Site-specific modifications to numerical water quality criteria.

1. The board may consider site-specific modifications to numerical water quality criteria in subsection B of this section where the applicant or permittee demonstrates that the alternate numerical water quality criteria are sufficient to protect all designated uses (see 9VAC25-260-10) of that particular surface water segment or body.

2. Any demonstration for site-specific human health criteria shall be restricted to a reevaluation of the bioconcentration or bioaccumulation properties of the pollutant. The exceptions to this restriction are for site-specific criteria for taste, odor, and aesthetic compounds noted by double asterisks in subsection B of this section and nitrates.

3. Procedures for promulgation and review of site-specific modifications to numerical water quality criteria resulting from subdivisions 1 and 2 of this subsection.

a. Proposals describing the details of the site-specific study shall be submitted to the board's staff for approval prior to commencing the study.

b. Any site-specific modification shall be promulgated as a regulation in accordance with the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia). All site-specific modifications shall be listed in 9VAC25-260-310 (Special standards and requirements).

E. Variances to water quality standards.

1. A variance from numeric criteria may be granted to a discharger if it can be demonstrated that one or more of the conditions in 9VAC25-260-10 H limit the attainment of one or more specific designated uses.

a. Variances shall apply only to the discharger to whom they are granted and shall be reevaluated and either continued, modified or revoked at the time of permit issuance. At that time the permittee shall make a showing that the conditions for granting the variance still apply.

b. Variances shall be described in the public notice published for the permit. The decision to approve a variance shall be subject to the public participation requirements of the Virginia Pollutant Discharge Elimination System (VPDES) Permit Regulation, 9VAC25-31 (Permit Regulation).

c. Variances shall not prevent the maintenance and protection of existing uses or exempt the discharger or regulated activity from compliance with other appropriate technology or water quality-based limits or best management practices.

d. Variances granted under this section shall not apply to new discharges.

e. Variances shall be submitted by the department's Division of Scientific Research or its successors to the U.S. Environmental Protection Agency for review and approval or disapproval.

f. A list of variances granted shall be maintained by the department's Division of Scientific Research or its successors.

2. None of the variances in this subsection shall apply to the halogen ban section (9VAC25-260-110) or temperature criteria in 9VAC25-260-50 if superseded by § 316(a) of the Clean Water Act requirements. No variances in this subsection shall apply to the criteria that are designed to protect human health from carcinogenic and noncarcinogenic toxic effects (subsection B of this section) with the exception of the metals, and the taste, odor, and aesthetic compounds noted by double asterisks and nitrates, listed in subsection B of this section.

F. Water effect ratio.

1. A water effects ratio (WER) shall be determined by measuring the effect of receiving water (as it is or will be affected by any discharges) on the bioavailability or toxicity of a metal by using standard test organisms and a metal to conduct toxicity tests simultaneously in receiving water and laboratory water. The ratio of toxicities of the metal(s) in the two waters is the WER (toxicity in receiving water divided by toxicity in laboratory water equals WER). Once an acceptable WER for a metal is established, the numerical value for the metal in subsection B of this section is multiplied by the WER to produce an instream concentration that will protect designated uses. This instream concentration shall be utilized in permitting decisions.

2. The WER shall be assigned a value of 1.0 unless the applicant or permittee demonstrates to the department's satisfaction in a permit proceeding that another value is appropriate, or unless available data allow the department to compute a WER for the receiving waters. The applicant or permittee is responsible for proposing and conducting the study to develop a WER. The study may require multiple testing over several seasons. The applicant or permittee shall obtain the department's Division of Scientific Research or its successor approval of the study protocol and the final WER.

3. The Permit Regulation at 9VAC25-31-230 C requires that permit limits for metals be expressed as total recoverable measurements. To that end, the study used to establish the WER may be based on total recoverable measurements of the metals.

4. The WER is established in a permit proceeding, shall be described in the public notice associated with the permit proceeding, and applies only to the applicant or permittee in that proceeding. The department's action to approve or disapprove a WER is a case decision, not an amendment to the present regulation.

The decision to approve or disapprove a WER shall be subject to the public participation requirements of the Permit Regulation, Part IV (9VAC25-31-260 et seq.). A list of final WERs will be maintained by the department's Division of Scientific Research or its successor.

5. A WER shall not be used for the freshwater and saltwater chronic mercury criteria or the freshwater acute and chronic selenium criteria.

G. Biotic Ligand Model for copper. On a case-by-case basis, EPA's 2007 copper criteria (EPA-822-F-07-001) biotic ligand model (BLM) for copper may be used to determine alternate copper criteria for freshwater sites. The BLM is a bioavailability model that uses receiving water characteristics to develop site-specific criteria. Site-specific data for 10 parameters are needed to use the BLM. These parameters are temperature, pH, dissolved organic carbon, calcium, magnesium, sodium, potassium, sulfate, chloride, and alkalinity. If sufficient data for these parameters are available, the BLM can be used to calculate alternate criteria values for the copper criteria. The BLM would be used instead of the hardness-based criteria and takes the place of the hardness adjustment and the WER. A WER will not be applicable with the BLM.

9VAC25-260-155. Ammonia surface water quality criteria.

A. The Department of Environmental Quality, after consultation with the Virginia Department of Game and Inland Fisheries and the U.S. Fish and Wildlife Service, has determined that the majority of Virginia freshwaters are likely to contain, or have contained in the past, freshwater mussel species in the family Unionidae and contain early life stages of fish during most times of the year. Therefore, the ammonia criteria presented in subsections B and C of this section are designed to provide protection to these species and life stages. In an instance where it can be adequately demonstrated that either freshwater mussels or early life stages of fish are not present in a specific waterbody, potential options for alternate, site-specific criteria are presented in subsection D of this section. Acute criteria are a one-hour average concentration not to be exceeded more than once every three years¹ on the average, and chronic criteria are 30-day average concentrations not to be exceeded more than once every three years on the average.²

B. The one-hour average concentration of total ammonia nitrogen (in mg N/L) in freshwater shall not exceed, more than once every three years on the average¹, the acute criteria for total ammonia (in mg N/L) for freshwaters with trout absent or present are below:

The acute criteria for trout present shall apply to all Class V-Stockable Trout Waters and Class VI-Natural Trout Waters as listed in 9VAC25-260-390 through 9VAC25-260-540. The acute criteria for trout absent apply to all other fresh waters.

To calculate total ammonia nitrogen acute criteria values in freshwater at different pH values than those listed in this subsection, use the following formulas equations and round the result to two significant digits:

Where trout are present absent:

Acute Criterion Concentration (mg N/L) =

Where MIN = 51.93 or 23.12 X 10^{0.036 X (20 – T)}, whichever is less

T = Temperature in ^oC

Or where trout are absent present, whichever of the below calculation results is less:

Acute Criterion Concentration (mg N/L) =

¹The default design flow for calculating steady state wasteload allocations for the acute ammonia criterion is the 1Q10 (see 9VAC25-260-140 B footnote 10) unless statistically valid methods are employed which demonstrate compliance with the duration and return frequency of the water quality criteria.

or

T = Temperature in ^oC

B. C. The 30-day average concentration of chronic criteria for total ammonia nitrogen (in mg N/L) where freshwater mussels and early life stages of fish are present in freshwater shall not exceed, more than once every three years on the average², the chronic criteria are below:

To calculate total ammonia nitrogen chronic criteria values in freshwater when fish freshwater mussels and early life stages of fish are present at different pH and temperature values than those listed in this subsection, use the following formulas equation and round the result to two significant digits:

Chronic Criteria Concentration =

Where MIN = 2.85 or 1.45 x 10^0.028(25-T), whichever is less.

Where MAX = 7 or temperature in degrees Celsius, whichever is greater

T = temperature in °C

²The default design flow for calculating steady state waste load allocations for the chronic ammonia criterion where early life stages of fish are present is the 30Q10 (see 9VAC25-260-140 B footnote 10) unless statistically valid methods are employed which demonstrate compliance with the duration and return frequency of the water quality criteria.

D. Site-specific considerations and alternate criteria. If it can be adequately demonstrated that freshwater mussels or early life stages of fish are not present at a site, then alternate site-specific criteria can be considered using the information provided in this subsection. Recalculated site-specific criteria shall provide for the attainment and maintenance of the water quality standards of downstream waters.

1. Site-specific modifications to the ambient water quality criteria for ammonia to account for the absence of freshwater mussels or early life stages of fish shall be conducted in accordance with the procedures contained in this subdivision. Because the department presumes that most state waterbodies have freshwater mussels and early life stages of fish present during most times of the year, the criteria shall be calculated assuming freshwater mussels and early life stages of fish are present using subsections B and C of this section unless the following demonstration that freshwater mussels or early life stages of fish are absent is successfully completed. Determination of the absence of freshwater mussels requires special field survey methods. This determination must be made after an adequate survey of the waterbody is conducted by an individual certified by the Virginia Department of Game and Inland Fisheries (DGIF) for freshwater mussel identification and surveys. Determination of absence of freshwater mussels will be done in consultation with the DGIF. Early life stages of fish are defined in subdivision 2 of this subsection. Modifications to the ambient water quality criteria for ammonia based on the presence or absence of early life stages of fish shall only apply at temperatures below 15°C.

a. During the review of any new or existing activity that has a potential to discharge ammonia in amounts that may cause or contribute to a violation of the ammonia criteria contained in subsection B of this section, the department may examine data from the following approved sources in subdivisions 1 a (1) through (5) of this subsection or may require the gathering of data in accordance with subdivisions 1 a (1) through (5) on the presence or absence of early life stages of fish in the affected waterbody.

(1) Species and distribution data contained in the Virginia Department of Game and Inland Fisheries Wildlife Information System database.

(2) Species and distribution data contained in Freshwater Fishes of Virginia, 1994.

(3) Data and fish species distribution maps contained in Handbook for Fishery Biology, Volume 3, 1997.

(4) Field data collected in accordance with U.S. EPA's Rapid Bioassessment Protocols for Use in Streams and Wadeable Rivers, Second Edition, EPA 841-B-99-002. Field data must comply with all quality assurance and quality control criteria.

(5) The American Society for Testing and Materials (ASTM) Standard E-1241-88, Standard Guide for Conducting Early Life-Stage Toxicity Tests with Fishes.

b. If data or information from sources other than subdivisions 1 a (1) through (5) of this subsection are considered, then any resulting site-specific criteria modifications shall be reviewed and adopted in accordance with the site-specific criteria provisions in 9VAC25-260-140 D and submitted to EPA for review and approval.

c. If the department determines that the data and information obtained from subdivisions 1 a (1) through (5) of this subsection demonstrate that there are periods of each year when no early life stages are expected to be present for any species of fish that occur at the site, the department shall issue a notice to the public and make available for public comment the supporting data and analysis along with the department's preliminary decision to authorize the site-specific modification to the ammonia criteria. Such information shall include, at a minimum:

(1) Sources of data and information.

(2) List of fish species that occur at the site as defined in subdivision 3 of this subsection.

(3) Definition of the site. Definition of a "site" can vary in geographic size from a stream segment to a watershed to an entire eco-region.

(4) Duration of early life stage for each species in subdivision 1 c (2) of this subsection.

(5) Dates when early life stages of fish are expected to be present for each species in subdivision 1 c (2) of this subsection.

(6) Based on subdivision 1 c (5) of this subsection, identify the dates (beginning date, ending date), if any, where no early life stages are expected to be present for any of the species identified in subdivision 1 c (2) of this subsection.

d. If, after reviewing the public comments received in subdivision 1 c of this subsection and supporting data and information, the department determines that there are times of the year when no early life stages are expected to be present for any fish species that occur at the site, then the applicable ambient water quality criteria for ammonia for those time periods shall be calculated using the table in this subsection, or the formula for calculating the chronic criterion concentration for ammonia when early life stages of fish are absent.

e. The department shall maintain a comprehensive list of all sites where the department has determined that early life stages of fish are absent. For each site the list will identify the waterbodies affected and the corresponding times of the year that early life stages of fish are absent. This list is available either upon request from the Office of Water Quality Programs at 629 East Main Street, Richmond, VA 23219, or from the department website at http://www.deq.virginia.gov/programs/water/waterqualityinformationtmdls/waterqualitystandards.aspx.

2. The duration of the "early life stages" extends from the beginning of spawning through the end of the early life stages. The early life stages include the prehatch embryonic period, the post-hatch free embryo or yolk-sac fry, and the larval period, during which the organism feeds. Juvenile fish, which are anatomically similar to adults, are not considered an early life stage. The duration of early life stages can vary according to fish species. The department considers the sources of information in subdivisions 1 a (1) through (5) of this subsection to be the only acceptable sources of information for determining the duration of early life stages of fish under this procedure.

3. "Occur at the site" includes the species, genera, families, orders, classes, and phyla that are usually present at the site; are present at the site only seasonally due to migration; are present intermittently because they periodically return to or extend their ranges into the site; or were present at the site in the past or are present in nearby bodies of water, but are not currently present at the site due to degraded conditions, and are expected to return to the site when conditions improve. "Occur at the site" does not include taxa that were once present at the site but cannot exist at the site now due to permanent physical alteration of the habitat at the site.

4. Any modifications to ambient water quality criteria for ammonia in subdivision 1 of this subsection shall not likely jeopardize the continued existence of any federal or state listed, threatened, or endangered species or result in the destruction or adverse modification of such species' critical habitats.

5. Site-specific modifications to the ambient water quality criteria for ammonia to account for the absence of freshwater mussels shall be conducted in accordance with the procedures contained in this subsection. Because the department presumes that most state waterbodies have freshwater mussel species, the criteria shall be calculated assuming mussels are present using subsections B and C of this section unless the demonstration that freshwater mussels are absent is successfully completed and accepted by DEQ and DGIF.

6. Equations for calculating ammonia criteria for four different site-specific scenarios are provided in subdivisions a through d of this subdivision 6 as follows: (i) acute criteria when mussels are absent but trout are present, (ii) acute criteria when mussels and trout are absent, (iii) chronic criteria when mussels are absent and early life stages of fish are present, and (iv) chronic criteria when mussels and early life stages of fish are absent. Additional information regarding site-specific criteria can be reviewed in appendix N (pages 225-242) of the EPA Aquatic Life Ambient Water Quality Criteria to Ammonia--Freshwater 2013 (EPA 822-R-13-001).

a. Acute criteria: freshwater mussels absent and trout present. To calculate total ammonia nitrogen acute criteria values (in mg N/L) in freshwater with freshwater mussels absent (procedures for making this determination are in subdivisions 1 through 5 of this subsection) and trout present, use the following equations. The acute criterion is the lesser of the calculation results below. Round the result to two significant digits.

or

b. Acute criteria: freshwater mussels absent and trout absent. To calculate total ammonia nitrogen acute criteria values (in mg N/L) in freshwater where freshwater mussels are absent and trout are absent, use the following equation. Round the result to two significant digits.

Where MIN = 51.93 or 62.15 X 10^{0.036 X (20 – T)}, whichever is less

T = Temperature in ^oC

C. The 30-day average concentration of c. Chronic criteria: freshwater mussels absent and early life stages of fish present. The chronic criteria for total ammonia nitrogen (in mg N/L) where early life stages of fish freshwater mussels are absent (procedures for making this determination are in subdivisions 1 through 4 5 of this subsection) in freshwater shall not exceed, more than once every three years on the average³, the chronic criteria below: concentration values calculated using the following equation. Round the result to two significant digits.

At 15°C and above, the criterion for fish early life stages absent is the same as the criterion for fish early life stages present.

To calculate total ammonia nitrogen chronic criteria values in freshwater when fish early life stages are absent at different pH and temperature values than those listed in this subsection, use the following formulas:

Chronic Criteria Concentration =

MAX = temperature in °C or 7, whichever is greater.

³The default design flow for calculating steady state waste load allocations for the chronic ammonia criterion where early life stages of fish are absent is the 30Q10 (see 9VAC25-260-140 B footnote 10) unless statistically valid methods are employed that demonstrate compliance with the duration and return frequency of the water quality criteria.

1. Site-specific modifications to the ambient water quality criteria for ammonia to account for the absence of early life stages of fish shall be conducted in accordance with the procedures contained in this subdivision. Because the department presumes that most state waterbodies have early life stages of fish present during most times of the year, the criteria shall be calculated assuming early life stages of fish are present using subsection B of this section unless the following demonstration that early life stages are absent is successfully completed. Early life stages of fish are defined in subdivision 2 of this subsection. Modifications to the ambient water quality criteria for ammonia based on the presence or absence of early life stages of fish shall only apply at temperatures below 15°C.

a. During the review of any new or existing activity that has a potential to discharge ammonia in amounts that may cause or contribute to a violation of the ammonia criteria contained in subsection B of this section, the department may examine data from the following approved sources in subdivisions 1 a (1) through (5) of this subsection or may require the gathering of data in accordance with subdivisions 1 a (1) through (5) on the presence or absence of early life stages of fish in the affected waterbody.

(1) Species and distribution data contained in the Virginia Department of Game and Inland Fisheries Wildlife Information System database.

(2) Species and distribution data contained in Freshwater Fishes of Virginia, 1994.

(3) Data and fish species distribution maps contained in Handbook for Fishery Biology, Volume 3, 1997.

(4) Field data collected in accordance with U.S. EPA's Rapid Bioassessment Protocols for Use in Streams and Wadeable Rivers, Second Edition, EPA 841-B-99-002. Field data must comply with all quality assurance/quality control criteria.

(5) The American Society for Testing and Materials (ASTM) Standard E-1241-88, Standard Guide for Conducting Early Life-Stage Toxicity Tests with Fishes.

b. If data or information from sources other than subdivisions 1 a (1) through (5) of this subsection are considered, then any resulting site-specific criteria modifications shall be reviewed and adopted in accordance with the site-specific criteria provisions in 9VAC25-260-140 D, and submitted to EPA for review and approval.

c. If the department determines that the data and information obtained from subdivisions 1 a (1) through (5) of this subsection demonstrate that there are periods of each year when no early life stages are expected to be present for any species of fish that occur at the site, the department shall issue a notice to the public and make available for public comment the supporting data and analysis along with the department's preliminary decision to authorize the site-specific modification to the ammonia criteria. Such information shall include, at a minimum:

(1) Sources of data and information.

(2) List of fish species that occur at the site as defined by subdivision 3 of this subsection.

(3) Definition of the site. Definition of a "site" can vary in geographic size from a stream segment to a watershed to an entire eco-region.

(4) Duration of early life stage for each species in subdivision 1 c (2) of this subsection.

(5) Dates when early life stages of fish are expected to be present for each species in subdivision 1 c (2) of this subsection.

(6) Based on subdivision 1 c (5) of this subsection, identify the dates (beginning date, ending date), if any, where no early life stages are expected to be present for any of the species identified in subdivision 1 c (2) of this subsection.

d. If, after reviewing the public comments received in subdivision 1 c of this subsection and supporting data and information, the department determines that there are times of the year where no early life stages are expected to be present for any fish species that occur at the site, then the applicable ambient water quality criteria for ammonia for those time periods shall be calculated using the table in this subsection, or the formula for calculating the chronic criterion concentration for ammonia when fish early life stages are absent.

e. The department shall maintain a comprehensive list of all sites where the department has determined that early life stages of fish are absent. For each site the list will identify the waterbodies affected and the corresponding times of the year that early life stages are absent. This list is available either upon request from the Office of Water Quality Programs at P.O. Box 1105, Richmond, Virginia 23218 or from the department website http://www.deq.virginia.gov/wqs.

2. The duration of the "early life stages" extends from the beginning of spawning through the end of the early life stages. The early life stages include the prehatch embryonic period, the post-hatch free embryo or yolk-sac fry, and the larval period, during which the organism feeds. Juvenile fish, which are anatomically similar to adults, are not considered an early life stage. The duration of early life stages can vary according to fish species. The department considers the sources of information in subdivisions 1 a (1) through (5) of this subsection to be the only acceptable sources of information for determining the duration of early life stages of fish under this procedure.

3. "Occur at the site" includes the species, genera, families, orders, classes, and phyla that: are usually present at the site; are present at the site only seasonally due to migration; are present intermittently because they periodically return to or extend their ranges into the site; were present at the site in the past or are present in nearby bodies of water, but are not currently present at the site due to degraded conditions, and are expected to return to the site when conditions improve. "Occur at the site" does not include taxa that were once present at the site but cannot exist at the site now due to permanent physical alteration of the habitat at the site.

4. Any modifications to ambient water quality criteria for ammonia in subdivision 1 of this subsection shall not likely jeopardize the continued existence of any federal or state listed, threatened or endangered species or result in the destruction or adverse modification of such species' critical habitat.

Where MIN = 6.920 or 7.547 X 10^{0.028 x (20 – T)} whichever is less

T = temperature in °C

d. Chronic criteria: freshwater mussels absent and early life stages of fish absent. The chronic criteria for total ammonia nitrogen (in mg N/L) where freshwater mussels are absent and early life stages of fish are absent (procedures for making this determination are in subdivisions 1 through 5 of this subsection) in freshwater shall not exceed concentration values calculated using the following equation. Round the result to two significant digits.

Where MAX = 7 or temperature in degrees Celsius, whichever is greater

T = temperature in °C

D. E. The one-hour average concentration of total ammonia nitrogen (in mg N/L) in saltwater shall not exceed, more than once every three years on the average, the acute criteria below: