• Stricter Wetlands Permitting Regulations Effective October 1, 2001
  • April 30, 2003 | Author: Marina Liacouras Phillips
  • Law Firm: Kaufman & Canoles A Professional Corporation - Norfolk Office
  • The Virginia State Water Quality Control Board gave final approval to the regulations drafted by the Department of Environmental Quality (DEQ) for the wetlands permitting program. Authorized by the Legislature last year, the regulations will become effective on October 1, 2001. After that date, activities in both tidal and non-tidal wetlands cannot be conducted without first getting a permit from the DEQ. Virginia's program is more stringent than the wetlands permitting program implemented by the U.S. Army Corps of Engineers, as Virginia's program requires permits for impacts on isolated wetlands and for excavation in wetlands. Both of those activities are currently exempt from permits under the federal program. Virginia's regulations do not contain an exemption for incidental fallback, also currently not regulated by the Corps of Engineers.

    The new regulations, approved by the Water Quality Control Board at its June 12 meeting, amend Virginia's Water Protection Permit regulations for an individual permit and also create General Permits for projects that will impact less than one-half acre of non-tidal wetlands, for the construction and operation of utility lines and facilities impacting less than one acre of non-tidal wetlands, for linear transportation projects impacting less than two acres of non-tidal wetlands, and for development activities impacting less than two acres of non-tidal wetlands.

    The individual permit will require preparation of a comprehensive application including a wetlands delineation and a detailed mitigation plan demonstrating that impacts to wetlands have been avoided and minimized to the maximum extent possible and providing a plan for compensation for unavoidable impacts. DEQ has the authority to evaluate cumulative and secondary impacts to water quality and to fish and wildlife resources when assessing whether the proposed project will cause significant impacts. As a main purpose of the expanded program is to ensure "no net loss of wetland acreage or function" in Virginia, mitigation will be a major focus of the permit issuance process. A set schedule has been developed for issuance of an individual permit. The DEQ will have fifteen days in which to review any application for completeness. Once complete the application must be reviewed within one hundred twenty days, after which the DEQ must decide to grant or deny the permit, or to hold a public meeting or hearing. If a hearing is necessary, it must be held within sixty days of the decision to hold it, and a final permit decision must be made within ninety days of the hearing. The permit may be issued for a term of up to fifteen years.

    The General Permits apply to small projects in non-tidal waters and have two levels of notification to the DEQ. For impacts greater than one-tenth of an acre, notification to DEQ must include, among other things, a project plan view, a description of the impacts greater than one acre including a description of existing wetland functions and the impact the project will have on them, and a description of proposed compensation for unavoidable impacts. Projects with impacts less than one-tenth of an acre must provide notification and describe efforts to avoid and minimize impacts.

    All the General Permits require compensatory mitigation to be provided for unavoidable impacts. Ratios for the mitigation are set forth in the regulations. The DEQ must approve or deny each registration statement within forty-five days of receipt of a complete statement or the registration is deemed to be approved. These permits authorize activities for up to three years. Although several commentors recommended that a permit applicant be required to post performance bond that can be called if the mitigation for the wetlands impacts is not completed, the final regulations did not adopt this suggestion.

    To eliminate duplication of permitting effort between Virginia and the federal government, the DEQ has agreed to accept most Nationwide or Regional permits issued by the Army Corps of Engineers as satisfaction of Virginia's General Permit requirements. Further, the DEQ is actively negotiating with the Corps of Engineers to obtain a State Programmatic General Permit that will give DEQ primacy for wetlands permitting in Virginia.