VOL. 37 ISS. 5 PUBLISHED EVERY OTHER WEEK BY THE VIRGINIA CODE COMMISSION OCTOBER 26, 2020

TABLE OF CONTENTS Register Information Page ...... 693 Publication Schedule and Deadlines ...... 694 Petitions for Rulemaking ...... 695 Periodic Reviews and Small Business Impact Reviews ...... 696 Regulations ...... 699 4VAC15-20. Definitions and Miscellaneous: In General (Final) ...... 699 4VAC15-30. Definitions and Miscellaneous: Importation, Possession, Sale, etc., of Animals (Final) ...... 699 4VAC15-40. Game: In General (Final) ...... 699 4VAC15-90. Game: Deer (Final) ...... 699 4VAC15-270. Game: Firearms (Final) ...... 699 4VAC15-275. Game: Hunter Education (Final) ...... 699 4VAC15-290. Game: Permits (Final) ...... 699 4VAC15-340. Fish: Seines and Nets (Final) ...... 699 4VAC15-410. Watercraft: Boating Safety Education (Final) ...... 699 9VAC25-260. Water Quality Standards (Notice of Effective Date) ...... 710 9VAC25-210. Virginia Water Protection Permit Program Regulation (Final) ...... 710 9VAC25-660. Virginia Water Protection General Permit for Impacts Less Than One-Half Acre (Final) ...... 710 9VAC25-670. Virginia Water Protection General Permit for Facilities and Activities of Utility and Public Service Companies Regulated by the Federal Energy Regulatory Commission or the State Corporation Commission and Other Utility Line Activities (Final) ...... 710 9VAC25-680. Virginia Water Protection General Permit for Linear Transportation Projects (Final) ...... 710 9VAC25-690. Virginia Water Protection General Permit for Impacts from Development and Certain Mining Activities (Final) ...... 710 9VAC25-870. Virginia Stormwater Management Program (VSMP) Regulation (Final) ...... 774 9VAC25-880. General VPDES Permit for Discharges of Stormwater from Construction Activities (Final) ...... 787 18VAC110-20. Regulations Governing the Practice of Pharmacy (Final) ...... 789 18VAC110-40. Regulations Governing Collaborative Practice Agreements (Final) ...... 792 20VAC5-350. Rules Governing Exemptions for Large General Service Customers (Proposed) ...... 792 Guidance Documents ...... 797 General Notices/Errata ...... 798

Virginia Code Commission http://register.dls.virginia.gov

THE VIRGINIA REGISTER OF REGULATIONS (USPS 001-831) is published biweekly for $263.00 per year by Matthew Bender & Company, Inc., 3 Lear Jet Lane, Suite 102, P.O. Box 1710, Latham, NY 12110. Periodical postage is paid at Easton, MD and at additional mailing offices. POSTMASTER: Send address changes to The Virginia Register of Regulations, 4810 Williamsburg Road, Unit 2, Hurlock, MD 21643. VIRGINIA REGISTER INFORMATION PAGE

REGISTER INFORMATION PAGE THE VIRGINIA REGISTER OF REGULATIONS is an official state agency, unless (i) a legislative objection has been filed, in which event publication issued every other week throughout the year. Indexes are the regulation, unless withdrawn, becomes effective on the date published quarterly, and are cumulative for the year. The Virginia specified, which shall be after the expiration of the 21-day objection Register has several functions. The new and amended sections of period; (ii) the Governor exercises his authority to require the agency to regulations, both as proposed and as finally adopted, are required by law provide for additional public comment, in which event the regulation, to be published in the Virginia Register. In addition, the Virginia unless withdrawn, becomes effective on the date specified, which shall Register is a source of other information about state government, be after the expiration of the period for which the Governor has provided including petitions for rulemaking, emergency regulations, executive for additional public comment; (iii) the Governor and the General orders issued by the Governor, and notices of public hearings on Assembly exercise their authority to suspend the effective date of a regulations. regulation until the end of the next regular legislative session; or (iv) the ADOPTION, AMENDMENT, AND REPEAL OF REGULATIONS agency suspends the regulatory process, in which event the regulation, Unless exempted by law, an agency wishing to adopt, amend, or repeal unless withdrawn, becomes effective on the date specified, which shall regulations must follow the procedures in the Administrative Process be after the expiration of the 30-day public comment period and no Act (§ 2.2-4000 et seq. of the Code of Virginia). Typically, this includes earlier than 15 days from publication of the readopted action. first publishing in the Virginia Register a notice of intended regulatory A regulatory action may be withdrawn by the promulgating agency at action; a basis, purpose, substance and issues statement; an economic any time before the regulation becomes final. impact analysis prepared by the Department of Planning and Budget; the FAST-TRACK RULEMAKING PROCESS agency’s response to the economic impact analysis; a summary; a notice Section 2.2-4012.1 of the Code of Virginia provides an alternative to the giving the public an opportunity to comment on the proposal; and the standard process set forth in the Administrative Process Act for text of the proposed regulation. regulations deemed by the Governor to be noncontroversial. To use this Following publication of the proposed regulation in the Virginia process, the Governor's concurrence is required and advance notice must Register, the promulgating agency receives public comments for a be provided to certain legislative committees. Fast-track regulations minimum of 60 days. The Governor reviews the proposed regulation to become effective on the date noted in the regulatory action if fewer than determine if it is necessary to protect the public health, safety, and 10 persons object to using the process in accordance with § 2.2-4012.1. welfare, and if it is clearly written and easily understandable. If the EMERGENCY REGULATIONS Governor chooses to comment on the proposed regulation, his comments Pursuant to § 2.2-4011 of the Code of Virginia, an agency may adopt must be transmitted to the agency and the Registrar of Regulations no emergency regulations if necessitated by an emergency situation or when later than 15 days following the completion of the 60-day public Virginia statutory law or the appropriation act or federal law or federal comment period. The Governor’s comments, if any, will be published in regulation requires that a regulation be effective in 280 days or fewer the Virginia Register. Not less than 15 days following the completion of from its enactment. In either situation, approval of the Governor is the 60-day public comment period, the agency may adopt the proposed required. The emergency regulation is effective upon its filing with the regulation. Registrar of Regulations, unless a later date is specified per § 2.2-4012 The Joint Commission on Administrative Rules or the appropriate of the Code of Virginia. Emergency regulations are limited to no more standing committee of each house of the General Assembly may meet than 18 months in duration; however, may be extended for six months during the promulgation or final adoption process and file an objection under the circumstances noted in § 2.2-4011 D. Emergency regulations with the Registrar and the promulgating agency. The objection will be are published as soon as possible in the Virginia Register and are on the published in the Virginia Register. Within 21 days after receipt by the Register of Regulations website at register.dls.virgina.gov. agency of a legislative objection, the agency shall file a response with During the time the emergency regulation is in effect, the agency may the Registrar, the objecting legislative body, and the Governor. proceed with the adoption of permanent regulations in accordance with When final action is taken, the agency again publishes the text of the the Administrative Process Act. If the agency chooses not to adopt the regulation as adopted, highlighting all changes made to the proposed regulations, the emergency status ends when the prescribed time limit regulation and explaining any substantial changes made since expires. publication of the proposal. A 30-day final adoption period begins upon STATEMENT final publication in the Virginia Register. The foregoing constitutes a generalized statement of the procedures to be The Governor may review the final regulation during this time and, if he followed. For specific statutory language, it is suggested that Article 2 objects, forward his objection to the Registrar and the agency. In (§ 2.2-4006 et seq.) of Chapter 40 of Title 2.2 of the Code of Virginia be addition to or in lieu of filing a formal objection, the Governor may examined carefully. suspend the effective date of a portion or all of a regulation until the end CITATION TO THE VIRGINIA REGISTER of the next regular General Assembly session by issuing a directive The Virginia Register is cited by volume, issue, page number, and date. signed by a majority of the members of the appropriate legislative body 34:8 VA.R. 763-832 December 11, 2017, refers to Volume 34, Issue 8, and the Governor. The Governor’s objection or suspension of the pages 763 through 832 of the Virginia Register issued on regulation, or both, will be published in the Virginia Register. December 11, 2017. If the Governor finds that the final regulation contains changes made The Virginia Register of Regulations is published pursuant to Article 6 after publication of the proposed regulation that have substantial impact, (§ 2.2-4031 et seq.) of Chapter 40 of Title 2.2 of the Code of Virginia. he may require the agency to provide an additional 30-day public Members of the Virginia Code Commission: John S. Edwards, Chair; comment period on the changes. Notice of the additional public Jennifer L. McClellan; Ward L. Armstrong; Nicole Cheuk; comment period required by the Governor will be published in the Rita Davis; Leslie L. Lilley; Christopher R. Nolen; Don L. Scott, Jr.; Virginia Register. Pursuant to § 2.2-4007.06 of the Code of Virginia, any Charles S. Sharp; Marcus B. Simon; Samuel T. Towell; Malfourd person may request that the agency solicit additional public comment on W. Trumbo. certain changes made after publication of the proposed regulation. The agency shall suspend the regulatory process for 30 days upon such Staff of the Virginia Register: Karen Perrine, Registrar of Regulations; request from 25 or more individuals, unless the agency determines that Anne Bloomsburg, Assistant Registrar; Nikki Clemons, Regulations the changes have minor or inconsequential impact. Analyst; Rhonda Dyer, Publications Assistant; Terri Edwards, Senior A regulation becomes effective at the conclusion of the 30-day final Operations Staff Assistant. adoption period, or at any other later date specified by the promulgating

Volume 37, Issue 5 Virginia Register of Regulations October 26, 2020 693 PUBLICATION SCHEDULE AND DEADLINES This schedule is available on the Virginia Register of Regulations website (http://register.dls.virginia.gov).

PUBLICATION SCHEDULE AND DEADLINES November 2020 through December 2021

Volume: Issue Material Submitted By Noon* Will Be Published On

37:7 November 4, 2020 November 23, 2020 37:8 November 16, 2020 (Monday) December 7, 2020 37:9 December 2, 2020 December 21, 2020 37:10 December 14, 2020 (Monday) January 4, 2021 37:11 December 28, 2020 (Monday) January 18, 2021 37:12 January 13, 2021 February 1, 2021 37:13 January 27, 2021 February 15, 2021 37:14 February 10, 2021 March 1, 2021 37:15 February 24, 2021 March 15, 2021 37:16 March 10, 2021 March 29, 2021 37:17 March 24, 2021 April 12, 2021 37:18 April 7, 2021 April 26, 2021 37:19 April 21, 2021 May 10, 2021 37:20 May 5, 2021 May 24, 2021 37:21 May 19, 2021 June 7, 2021 37:22 June 2, 2021 June 21, 2021 37:23 June 16, 2021 July 5, 2021 37:24 June 30, 2021 July 19, 2021 37:25 July 14, 2021 August 2, 2021 37:26 July 28, 2021 August 16, 2021 38:1 August 11, 2021 August 30, 2021 38:2 August 25, 2021 September 13, 2021 38:3 September 8, 2021 September 27, 2021 38:4 September 22, 2021 October 11, 2021 38:5 October 6, 2021 October 25, 2021 38:6 October 20, 2021 November 8, 2021 38:7 November 3, 2021 November 22, 2021 38:8 November 15, 2021 (Monday) December 6, 2021 38:9 December 1, 2021 December 20, 2021 *Filing deadlines are Wednesdays unless otherwise specified.

Volume 37, Issue 5 Virginia Register of Regulations October 26, 2020 694 PETITIONS FOR RULEMAKING

PETITIONS FOR RULEMAKING TITLE 24. TRANSPORTATION AND MOTOR rise to .07 BrAC, then are back to zero in 24 minutes, the machine is not measuring ethanol. 7 of the 9 times I was VEHICLES accused, I actually started the car at .000 BAC, had high readings, then was back to .000 BAC in scientifically COMMISSION ON THE VIRGINIA ALCOHOL SAFETY impossible spans of time. Each of these 9 days' worth of ACTION PROGRAM readings are published on the FaceBook page entitled Initial Agency Notice Virginia Ignition Interlock Forum. Since a warning indicator is now not required between .000 and .02, the client will get a Title of Regulation: 24VAC35-30. VASAP Case green light and assume they're at zero. In this case only the Management Policy and Procedure Manual. data logs, and nothing else, can prove innocence by showing Statutory Authority: §§ 18.2-271.1 and 18.2-271.2 of the the readings were passing below .02. This is fraud and since Code of Virginia. the breath tests are unsupervised, the only evidence that can exonerate the client is the data shown in the full IID logs. I Name of Petitioner: Cynthia Hites. propose the following language be added to amend this Nature of Petitioner's Request: "I, Cynthia Hites, as a citizen statute: 'All clients shall be presented with full interlock log of the Commonwealth of Virginia, pursuant to § 2.2-4007 of information, to include all data within 24 hours prior to and the Code of Virginia, do humbly submit this petition for the after the alleged violation.' Section 150, Paragraph A: following amendment, in the form of addition, to Virginia 'Noncompliance reporting. When the offender has been Administrative Code 24VAC35-30-150 (VASAP Policy and deemed noncompliant by the case manager, that case Procedures Manual). The Virginia regulations state the manager, within five working days, shall notify in writing the following: Section 150, Paragraph A: 'Noncompliance referring court or agency and the offender. All clients shall be reporting. When the offender has been deemed noncompliant presented with full interlock log information, to include all by the case manager, that case manager, within five working data within 24 hours prior to and after the alleged violation.' days, shall notify in writing the referring court or agency and Every reading during the 24 hour period must be included the offender.' A major problem facing innocent citizens because many times data recorded hours prior to and accused of interlock violations is simply the lack of subsequent can disprove ethanol use, as opposed to only information presented to them by ASAP. Currently, the showing readings immediately around the high BrAC. This offender is given an accusation sheet from an ASAP that system should never have been adopted for use on sober generally includes the time of the high reading, along with an individuals. The fuel cell does not solely measure ethanol, accusation of not reaching zero, or "clearing out" within an and most high readings are not liquor. Due process is denied allotted time. But the only way clients can obtain data-log every single time someone is 'restarted' without going to readings from the machine is to proactively request them, or court. False confession is ignored, and the entire IID system have an attorney obtain them, and most people don't know is, for lack of a better term, absolutely 'rigged' against the enough to do this. VASAP consistently fails to understand offender. If you're going to totally abuse and misconstrue that the vast majority of high IID readings are not due to science, you must provide clients the exculpatory evidence to consumed ethanol. You're just measuring biomarkers for protect themselves. Please amend the law to begin to protect disease and routine metabolic byproducts. This is also a Virginians from the unethical use of non-alcohol specific HIPAA violation, as the only, the ONLY substance the electrochemical fuel cell technology." government should be analyzing someone's waste for is Agency Plan for Disposition of Request: The Commission on C2H6O. To invasively examine personal medical waste, and the Virginia Alcohol Safety Action Program will consider this misconstrue ALL hydroxyl compounds as 'ethanol' is petition at its December 11, 2020, meeting. criminal. This is why the offender must be presented with the facts of the accusation and the opportunity to review the Public Comment Deadline: December 4, 2020. entire data-log from each alleged violation event is necessary. Agency Contact: Richard L. Foy, Field Services Specialist, If a non-ethanol specific device is now an acceptable standard Commission on the Virginia Alcohol Safety Action Program, in VA, and a warning indicator is not mandated between the 1111 East Main Street, Suite 801, Richmond, VA 23219, .000 and .02 window, the potential for fraud is omnipresent. telephone (804) 786-5895, or email [email protected]. Only when one is armed with their complete interlock data- logs can a person begin to understand what occurred. In many VA.R. Doc. No. R21-05; Filed October 1, 2020, 1:16 p.m. cases, ketogenesis, and other metabolic processes create internal hydroxyl compounds detectable on sober breath. The 'fail' point then becomes a 'pass' point, as people must wait for their bodies to cease alcohol production. Several of my events took over 45 minutes to 'clear out,' but when presented with the full data logs, it's clear to see that if you start a car at zero,

Volume 37, Issue 5 Virginia Register of Regulations October 26, 2020 695 PERIODIC REVIEWS AND SMALL BUSINESS IMPACT REVIEWS

PERIODIC REVIEWS AND SMALL BUSINESS IMPACT REVIEWS TITLE 9. ENVIRONMENT entities affected. It is written to permit only one reasonable interpretation, is written to adequately identify the affected entity, and, insofar as possible, is written in nontechnical STATE AIR POLLUTION CONTROL BOARD language. Report of Findings This regulation satisfies the provisions of the law and legally Pursuant to §§ 2.2-4007.1 and 2.2-4017 of the Code of binding state and federal requirements and is effective in Virginia, the State Air Pollution Control Board conducted a meeting its goals; therefore, the regulation is being retained periodic review and a small business impact review of without amendment. 9VAC5-85, Permits for Stationary Sources of Pollutants This regulation continues to be needed. This regulation Subject to Regulation, and determined that this regulation should be retained in its current form. The department is enables the permitting of greenhouse gasses for appropriate publishing its report of findings dated September 25, 2020, to sources. support this decision. No comments were received that indicate a need to repeal or This regulation enhances the department's ability to ensure revise the regulation. The regulation's level of complexity is compliance with all applicable federal requirements under the appropriate to ensure that the regulated entities are able to Clean Air Act and specific requirements under the state code meet their legal mandates as efficiently and cost-effectively through the issuance and enforcement of federal and state as possible. operating permits to construct and operate a new or modified This regulation does not overlap, duplicate, or conflict with facility. The regulation has been effective in achieving its any state law or other state regulation. specific and measurable goals, which are as follows: This chapter was last amended in 2014. 1. To protect public health, safety, and welfare with the least possible cost and intrusiveness to the citizens and Over time, it generally becomes less expensive to businesses of the Commonwealth. characterize, measure, and mitigate the regulated pollutants that contribute to poor air quality. This regulation continues 2. To prevent the construction, modification, or operation to enable the permitting of greenhouse gasses for appropriate of major facilities that will prevent or interfere with the sources. attainment or maintenance of any ambient air quality standard. The department, through examination of the regulation, has determined that the regulatory requirements currently 3. To ensure that major new facilities or major expansions minimize the economic impact of emission control to existing facilities will be designed, built, and equipped to regulations on small businesses and thereby minimize the operate without causing or exacerbating a violation of any impact on existing and potential Virginia employers and their ambient air quality standard. ability to maintain and increase the number of jobs in the 4. To ensure that major new facilities or major expansions Commonwealth. to existing facilities will be designed, built, and equipped to Contact Information: Gary E. Graham, 1111 East Main comply with case-by-case control technology Street, Suite 1400, P.O. Box 1105, Richmond, VA 23218, determinations and other requirements. telephone (804) 689-4103, FAX (804) 698-4178, or email [email protected]. 5. To ensure that there is no significant deterioration of air quality in Virginia's national parks and throughout the Commonwealth. STATE WATER CONTROL BOARD 6. To provide an administrative mechanism to impose Report of Findings source-specific regulatory requirements with the flexibility Pursuant to §§ 2.2-4007.1 and 2.2-4017 of the Code of to address the individual needs of sources. Virginia, the State Water Control Board conducted a periodic 7. To provide a mechanism to administer certain air quality review and a small business impact review of 9VAC25-32, control program requirements without the need for federal Virginia Pollution Abatement (VPA) Permit Regulation, oversight. and determined that this regulation should be retained in its current form. The department is publishing its report of 8. To identify and clarify for the department and source findings dated September 22, 2020, to support this decision. owner exactly which air quality program requirements are applicable to the permitted source. This regulation is necessary for the protection of public health, safety, and welfare since it regulates the discharge of The department has determined that the regulation is clearly sewage, industrial wastes, and other wastes that may occur written and easily understandable by the individuals and adjacent to state waters. Examples of activities covered by

Volume 37, Issue 5 Virginia Register of Regulations October 26, 2020 696 Periodic Reviews and Small Business Impact Reviews this regulation include land application of biosolids and P.O. Box 1105, Richmond, VA 23218, telephone (804) 698- industrial sludge or spray irrigation of industrial and 4238, FAX (804) 698-4019, or email municipal wastewater. This regulation defines the procedures [email protected]. and requirements to be followed in connection with VPA permits issued by the board. Commenters indicated some Report of Findings areas of the regulation could be amended to be further Pursuant to §§ 2.2-4007.1 and 2.2-4017 of the Code of clarified; however, the agency believes the regulation is Virginia, the State Water Control Board conducted a periodic clearly written and easily understandable. The agency will review and a small business impact review of 9VAC25-860, continue to utilize guidance documents to assist the regulated Virginia Pollutant Discharge Elimination System General community with understanding situational specific regulatory Permit for Potable Water Treatment Plants, and requirements. determined that this regulation should be retained in its current form. The department is publishing its report of The regulation is effective and continues to be needed and is findings dated September 22, 2020, to support this decision. being retained. This regulation is necessary for the protection of public The regulation continues to be needed. Without this health, safety, and welfare. The regulation is clearly written regulation, there would not be a mechanism to permit and and easily understandable. regulate individual permits related to the application of biosolids and industrial sludge or spray irrigation of industrial The regulation is effective and continues to be needed and and municipal wastewater to the land in the Commonwealth. will be retained. The general permit covers point source This regulation ensures that these activities are conducted in a discharges of wastewater from potable water treatment plants. manner that is protective of human health and the Repealing this regulation would require these dischargers to environment. obtain individual permits to conduct these activities. Comments were received from the regulated community and Comments were received during the periodic review from the environmental organizations during the public comment Southern Environmental Law Center and the Potomac period. In general, the regulated community suggested Riverkeeper Network requesting the regulation be amended to clarifications to be made to the regulation and also requested include requirements related to polyfluoroalkyl substances the board develop and adopt a general permit for the (PFAS). Commenters requested PFAS monitoring to be management of exceptional quality cake biosolids. conducted and disclosed. Commenters also requested potable Environmental organizations requested the board to water treatment plant discharges containing PFAS to not be strengthen the regulation to include monitoring requirements permitted under the general permit but be issued individual related to polyfluoroalkyl substances (PFAS). The comments permits with PFAS effluent limitations for each plant. received, and the responses to those comments, are further This regulation establishes procedures for obtaining coverage detailed in the public comment section of the Town Hall reporting form for the periodic review. under this general permit and the applicable limitations and monitoring requirements for point source discharges of The regulation is complex in nature to the general reader wastewaters from potable water treatment plants. This since it contains many scientific terms and standards; regulation is clearly written and easily understandable. however, the complexity of the regulation is appropriate for the user of the regulation. The regulation does not overlap, duplicate, or conflict with federal or state law or regulation as the State Water Control The corresponding federal authority for the criteria for land Board is the delegated authority to regulate point source application of biosolids is found at 40 CFR Part 503. discharges to surface water. This regulation was last amended in 2018 to update the date The State Water Control Board last reissued this regulation in of the federal CFR incorporated by reference and to 2018. This regulation is evaluated and necessary changes are incorporate EPA's Methods Update Rule amendments to made to the regulation when the permit is reissued. 40 CFR Part 136. The general VPDES permit accomplishes the objectives of This regulation contains the requirements for individual applicable law, minimizes the costs to a small business permits. The requirements found in this regulation are owner, and simplifies the application process. Without the necessary to protect human health and the environment. It general permit, a small business owner would be required to would not be protective of human health and the environment obtain an individual permit, which would increase the to allow small businesses to comply with less stringent complexity of a permit application and the costs to obtain standards. permit coverage. Contact Information: Melissa Porterfield, Department of Contact Information: Melissa Porterfield, Department of Environmental Quality, 1111 East Main Street, Suite 1400, Environmental Quality, 1111 East Main Street, Suite 1400,

Volume 37, Issue 5 Virginia Register of Regulations October 26, 2020 697 Periodic Reviews and Small Business Impact Reviews

P.O. Box 1105, Richmond, VA 23218, telephone (804) 698- TITLE 24. TRANSPORTATION AND MOTOR 4238, FAX (804) 698-4019, or email VEHICLES [email protected].   DEPARTMENT OF MOTOR VEHICLES –––––––––––––––––– Report of Findings TITLE 18. PROFESSIONAL AND Pursuant to §§ 2.2-4007.1 and 2.2-4017 of the Code of Virginia, the Department of Motor Vehicles (DMV) OCCUPATIONAL LICENSING conducted a periodic review and a small business impact review of 24VAC20-40, Rules and Regulations on BOARD FOR WATERWORKS AND WASTEWATER Accident Prevention Courses for Older Drivers, and WORKS OPERATORS AND ONSITE SEWAGE determined that this regulation should be retained in its SYSTEM PROFESSIONALS current form. The department is publishing its report of Agency Notice findings dated December 9, 2019, to support this decision. Pursuant to Executive Order 14 (as amended July 16, 2018) The regulation is necessary for the protection of the public and §§ 2.2-4007.1 and 2.2-4017 of the Code of Virginia, the welfare. The regulation is intended to ensure that accident following regulations are undergoing a periodic review and a prevention courses for older drivers in Virginia provide small business impact review: 18VAC160-30, Waterworks adequate training for drivers and the regulation oversees the and Wastewater Works Operators Licensing Regulations, accident prevention courses curriculum requirements, and 18VAC160-40, Onsite Sewage System Professionals obligations to participants, qualifications and other Licensing Regulations. The review will be guided by the requirements for instructors, duration of curriculum, and other principles in Executive Order 14 (as amended July 16, 2018). requirements. The purpose of this review is to determine whether each Comments received centered around the length of the mature regulation should be repealed, amended, or retained in its current driver course. To maintain comparability between the driver form. Public comment is sought on the review of any issue improvement clinic and the mature driver motor vehicle crash relating to each regulation, including whether the regulation (i) is prevention course that courts may order defendants to attend, necessary for the protection of public health, safety, and welfare both courses are required to provide eight hours of or for the economical performance of important governmental instruction. DMV will retain the regulation as is without functions; (ii) minimizes the economic impact on small making changes to the regulation. businesses in a manner consistent with the stated objectives of applicable law; and (iii) is clearly written and easily DMV received comments during the public comment period understandable. indicating a need to amend the regulation. DMV has determined to retain the regulation as is at this time in order Public comment period begins October 26, 2020, and ends to maintain comparability between the driver improvement November 16, 2020. clinic and the mature driver motor vehicle crash prevention Comments must include the commenter's name and address course. DMV has determined that the regulation is not overly (physical or email) information in order to receive a response to complex and conforms to the Code of Virginia. DMV has the comment from the agency. also determined that the regulation does not overlap, Following the close of the public comment period, a report of duplicate, or conflict with federal or state law or regulation. both reviews will be posted on the Virginia Regulatory Town DMV considered the degree to which technology, economic Hall and published in the Virginia Register of Regulations. conditions, or other factors have changed in the area affected by the regulation and has determined that an amendment to Contact Information: Trisha Henshaw, Executive Director, the regulation is not necessary at this time. Board for Waterworks and Wastewater Works Operators and Onsite Sewage System Professionals, 9960 Mayland Drive, Contact Information: Melissa Velazquez, Legislative Services Suite 400, Richmond, VA 23233, telephone (804) 367-8595, Manager, Department of Motor Vehicles, P.O. Box 27412, FAX (866) 350-5354, or email Richmond, VA 23269-0001, telephone (804) 367-1844, FAX [email protected]. (804) 367-6631, TDD (800) 272-9268, or email [email protected].  –––––––––––––––––– 

Volume 37, Issue 5 Virginia Register of Regulations October 26, 2020 698 REGULATIONS For information concerning the different types of regulations, see the Information Page.

Symbol Key Roman type indicates existing text of regulations. Underscored language indicates proposed new text. Language that has been stricken indicates proposed text for deletion. Brackets are used in final regulations to indicate changes from the proposed regulation.

REGULATIONS TITLE 4. CONSERVATION AND NATURAL 4VAC15-20-10. Definitions; generally. RESOURCES Words and phrases used in any regulations made by the board shall have the same meaning, unless the context clearly BOARD OF WILDLIFE RESOURCES indicates otherwise, as is given for such words and phrases in the Virginia Game and Inland Fisheries laws contained in Final Regulation Title 29.1 (§ 29.1-100 et seq.) of the Code of Virginia. REGISTRAR'S NOTICE: The Board of Wildlife Resources is claiming an exemption from Article 2 of the Administrative 4VAC15-20-75. Wildlife Violator Compact. Process Act in accordance with § 2.2-4006 A 4 a of the Code of A. This section is adopted pursuant to authority granted to the Virginia, which excludes regulations that are necessary to Board of Game and Inland Fisheries Wildlife Resources under conform to changes in Virginia statutory law or the appropriation §§ 29.1-103 and 29.1-530.5 of the Code of Virginia. act where no agency discretion is involved. The State Board of Social Services will receive, consider, and respond to petitions B. Definitions used herein in this section, unless the contrary is by any interested person at any time with respect to clearly indicated are those used in § 29.1-530.5 of the Code of reconsideration or revision. Virginia, the Wildlife Violator Compact, herein referred to as the compact (compact). Titles of Regulations: 4VAC15-20. Definitions and C. In accordance with Article VII of the compact, the board Miscellaneous: In General (amending 4VAC15-20-10, hereby authorizes the Director of the Department of Game and 4VAC15-20-75). Inland Fisheries Wildlife Resources to appoint the 4VAC15-30. Definitions and Miscellaneous: Importation, Commonwealth's representative to the Board of Compact Possession, Sale, etc., of Animals (amending 4VAC15-30-40). Administrators. Such appointment shall be consistent with and subject to the aforesaid provisions of the compact and such 4VAC15-40. Game: In General (amending 4VAC15-40-60, representative shall serve at the pleasure of the director. 4VAC15-40-281, 4VAC15-40-287). D. In accordance with Article IV of the compact, upon receipt 4VAC15-90. Game: Deer (amending 4VAC15-90-290). from a participating state of a report of the conviction in that 4VAC15-270. Game: Firearms (amending 4VAC15-270-60, state of a resident of the Commonwealth, the department shall 4VAC15-270-95). enter such conviction in its records and such conviction shall be treated as though it had occurred in the Commonwealth and 4VAC15-275. Game: Hunter Education (amending 4VAC15- therefore as a violation of the board's applicable regulations for 275-10, 4VAC15-275-20, 4VAC15-275-80). purposes of suspension of license privileges. 4VAC15-290. Game: Permits (amending 4VAC15-290-130). E. In accordance with Article IV of the compact, upon receipt 4VAC15-340. Fish: Seines and Nets (amending 4VAC15-340- from a participating state of a report of the failure of a resident of 80). the Commonwealth to comply with the terms of a citation issued by that state, the department shall notify such person of that 4VAC15-410. Watercraft: Boating Safety Education report in accordance with the procedures set forth in subsections (amending 4VAC15-410-20). G through J of this section and shall initiate a proceeding to Statutory Authority: §§ 29.1-103, 29.1-501, and 29.1-502 of the suspend any applicable licenses issued to such person by the Code of Virginia. board until the department has received satisfactory evidence of compliance with the terms of such citation. Effective Date: January 1, 2021. Agency Contact: Aaron Proctor, Regulations Coordinator, F. In accordance with Article V of the compact, upon receipt Department of Wildlife Resources, 7870 Villa Park Drive, Suite from a participating state of a report of the suspension of license 400, Henrico, VA 23228, telephone (804) 367-8341, or email privileges of a resident of the Commonwealth issued by that state [email protected]. that is in accordance with suspension of license pursuant to the Code of Virginia, the department shall notify such person of that Summary: report in accordance with the procedures set forth in subsections The amendments align regulations with Chapter 958 of the G through J of this section and shall initiate a proceeding to 2020 Acts of Assembly, which changes the name of the suspend any applicable licenses issued to such person by the department to Department of Wildlife Resources and of the board until the department has received satisfactory evidence that board to Board of Wildlife Resources. such suspension has been terminated.

Volume 37, Issue 5 Virginia Register of Regulations October 26, 2020 699 Regulations

G. Upon receipt of a report pursuant to subsections person designated by the director to make such decision. The subsection D, E, or F of this section, the director or his the decision maker shall promptly issue a written decision to the director's designee shall provide notice thereof to the resident person who requested the proceeding. If the affected party is of the Commonwealth who is the subject of such report. Such not satisfied by this decision it may be appealed to a three notice shall advise such person of the contents of the notice member panel as appointed by the agency director. and of any action that the department proposes to take in J. Any decision upholding the suspension of licensing response thereto. privileges as a result of the process described in subsections H. The person who is the subject of such notice shall be D through I of this section shall be entered by the department provided an opportunity to request within 30 days from the on its records and shall be treated as though it had occurred in date of such notice an opportunity to contest the department's the Commonwealth and therefore as a violation of the board's proposed action by requesting an informal fact-finding applicable regulations. conference to be conducted by a representative of the K. The director shall establish procedures for reporting to department designated by the director. Although such participating states convictions or failures to comply with proceedings are exempt from the requirements of the citations in the Commonwealth by residents of those Administrative Process Act (§ 2.2-4000 et seq. of the Code of respective states. Such procedures shall comply with the Virginia) as provided by § 2.2-4002 A 3 thereof of the Code reporting requirements established by and pursuant to the of Virginia, the department shall to the extent practicable provisions of the compact. afford such persons seeking an informal fact-finding conference the rights provided under § 2.2-4019 of the Code 4VAC15-30-40. Importation requirements, possession, of Virginia. Those include but are not limited to the right to and sale of nonnative (exotic) animals. receive reasonable notice as described in subsection G of this section and the right to appear in person or by counsel before A. Permit required. A special permit is required and may be the designated representative of the department. However, no issued by the department, if consistent with the department's fish and wildlife management program, to import, possess, or discovery shall be conducted and no subpoenas shall be sell those nonnative (exotic) animals listed below in the issued as part of any such proceeding. following table and in 4VAC15-20-210 that the board finds I. An informal fact-finding proceeding shall be completed and declares to be predatory or undesirable within the within 60 days of receipt by the department of the request meaning and intent of § 29.1-542 of the Code of Virginia, in described in subsection H of this section. Upon such that their introduction into the Commonwealth will be completion the designated representative of the department detrimental to the native fish and wildlife resources of shall make a recommended decision to the director or to such Virginia. AMPHIBIANS Order Family Genus/Species Common Name Anura Bufonidae Rhinella marina Cane toad* Pipidae Hymenochirus spp. African dwarf frog Pseudohymenochiris merlini Xenopus spp. Tongueless or African clawed frog Caudata Ambystomatidae All species All mole salamanders BIRDS Order Family Genus/Species Common Name Psittaciformes Psittacidae Myiopsitta monachus Monk parakeet* Anseriformes Anatidae Cygnus olor Mute swan FISH Order Family Genus/Species Common Name Cypriniformes Catostomidae Catostomus microps Modoc sucker Catostomus santaanae Santa Ana sucker Catostomus warnerensis Warner sucker

Volume 37, Issue 5 Virginia Register of Regulations October 26, 2020 700 Regulations

Ictiobus bubalus Smallmouth* buffalo I. cyprinellus Bigmouth* buffalo I. niger Black buffalo* Characidae Pygopristis spp. Piranhas Pygocentrus spp. Rooseveltiella spp. Serrasalmo spp. Serrasalmus spp. Taddyella spp. Cobitidae Misgurnus anguillicaudatus Oriental weatherfish Cyprinidae Aristichyhys nobilis Bighead carp* Chrosomus saylori Laurel dace Ctenopharyngodon idella Grass carp or white amur Cyprinella caerulea Blue shiner Cyprinella formosa Beautiful shiner Cyprinella lutrensis Red shiner Hypophthalmichthys molitrix Silver carp* Mylopharyngodom piceus Black carp* Notropis albizonatus Palezone shiner Notropis cahabae Cahaba shiner Notropis girardi Arkansas River shiner Notropis mekistocholas Cape Fear shiner Notropis simus pecosensis Pecos bluntnose shiner Notropis topeka (= tristis) Topeka shiner Phoxinus cumberlandensis Blackside dace Rhinichthys osculus lethoporus Independence Valley speckled dace Rhinichthys osculus nevadensis Ash Meadows speckled dace Rhinichthys osculus oligoporus Clover Valley speckled dace Rhinichthys osculus ssp. Foskett speckled dace Rhinichthys osculus thermalis Kendall Warm Springs dace Scardinius erythrophthalmus Rudd Tinca tinca Tench* Cyprinodontiformes Poeciliidae Gambusia gaigei Big Bend gambusia Gambusia georgei San Marcos gambusia Gambusia heterochir Clear Creek gambusia Gambusia nobilis Pecos gambusia Peociliopsis occidentalis Gila topminnow

Volume 37, Issue 5 Virginia Register of Regulations October 26, 2020 701 Regulations

Gasterosteiformes Gasterosteidae Gasterosteus aculeatus Unarmored threespine stickleback williamsoni Gobiesociformes Gobiidae Proterorhinus marmoratus Tubenose goby Neogobius melanostomus Round goby Perciformes Channidae Channa spp. Snakeheads Parachanna spp. Cichlidae Tilapia spp. Tilapia Gymnocephalus cernuum Ruffe* Elassomatidae Elassoma alabamae Spring pygmy sunfish Percidae Crystallaria cincotta Diamond darter Etheostoma chermocki Vermilion darter Etheostoma boschungi Slackwater darter Etheostoma chienense Relict darter Etheostoma etowahae Etowah darter Etheostoma fonticola Fountain darter Etheostoma moorei Yellowcheek darter Etheostoma nianguae Niangua darter Etheostoma nuchale Watercress darter Etheostoma okaloosae Okaloosa darter Etheostoma phytophilum Rush darter Etheostoma rubrum Bayou darter Etheostoma scotti Cherokee darter Etheostoma sp. Bluemask (= jewel) darter Etheostoma susanae Cumberland darter Etheostoma wapiti Boulder darter Percina antesella Amber darter Percina aurolineata Goldline darter Percina jenkinsi Conasauga logperch Percina pantherina Leopard darter Percina tanasi Snail darter Scorpaeniformes Cottidae Cottus sp. Grotto sculpin Cottus paulus (= pygmaeus) Pygmy sculpin Siluriformes Clariidae All species Air-breathing catfish Ictaluridae Noturus baileyi Smoky madtom Noturus crypticus Chucky madtom Noturus placidus Neosho madtom

Volume 37, Issue 5 Virginia Register of Regulations October 26, 2020 702 Regulations

Noturus stanauli Pygmy madtom Noturus trautmani Scioto madtom Synbranchiformes Synbranchidae Monopterus albus Swamp eel MAMMALS Order Family Genus/Species Common Name Artiodactyla Suidae All Species Pigs or Hogs* Cervidae All Species Deer* Carnivora Canidae All Species Wild Dogs,* Wolves, Coyotes or Coyote hybrids, Jackals and Foxes Ursidae All Species Bears* Procyonidae All Species Raccoons and* Relatives Mustelidae All Species Weasels, Badgers,* Skunks and Otters (except Mustela putorius furo) Ferret Viverridae All Species Civets, Genets,* Lingsangs, Mongooses, and Fossas Herpestidae All Species Mongooses* Hyaenidae All Species Hyenas and Aardwolves* Felidae All Species Cats* Chiroptera All Species Bats* Lagomorpha Lepridae Brachylagus idahoensis Pygmy rabbit Lepus europeaeous European hare Oryctolagus cuniculus European rabbit Sylvilagus bachmani riparius Riparian brush rabbit Sylvilagus palustris hefneri Lower Keys marsh rabbit Rodentia All species native to Africa All species native to Africa Dipodidae Zapus hudsonius preblei Preble's meadow jumping mouse Muridae Microtus californicus Amargosa vole scirpensis Microtus mexicanus Hualapai Mexican vole hualpaiensis Microtus pennsylvanicus Florida salt marsh vole dukecampbelli Neotoma floridana smalli Key Largo woodrat Neotoma fuscipes riparia Riparian (= San Joaquin Valley) woodrat Oryzomys palustris natator Rice rat Peromyscus gossypinus Key Largo cotton mouse allapaticola

Volume 37, Issue 5 Virginia Register of Regulations October 26, 2020 703 Regulations

Peromyscus polionotus Choctawhatchee beach mouse allophrys Peromyscus polionotus Alabama beach mouse ammobates Peromyscus polionotus Southeastern beach mouse niveiventris Peromyscus polionotus St. Andrew beach mouse peninsularis Peromyscus polionotus phasma Anastasia Island beach mouse Peromyscus polionotus Perdido Key beach mouse trissyllepsis Reithrodontomys raviventris Salt marsh harvest mouse Heteromyidae Dipodomys heermanni Morro Bay kangaroo rat morroensis Dipodomys ingens Giant kangaroo rat Dipodomys merriami parvus San Bernadino Merriam's kangaroo rat Dipodomys nitratoides exilis Fresno kangaroo rat Dipodomys nitratoides Tipton kangaroo rat nitratoides Dipodomys stephensi (including Stephens' kangaroo rat D. cascus) Perognathus longimembris Pacific pocket mouse pacificus Sciuridae Cynomys spp. Prairie dogs Spermophilus brunneus Northern Idaho ground squirrel brunneus Tamiasciurus hudsonicus Mount Graham red squirrel grahamensis Soricomorpha Soricidae Sorex ornatus relictus Buena Vista Lake ornate shrew MOLLUSKS Order Family Genus/Species Common Name Neotaenioglossa Hydrobiidae Potamopyrgus antipodarum New Zealand mudsnail Veneroida Dreissenidae Dreissena bugensis Quagga mussel Dreissena polymorpha Zebra mussel REPTILES Order Family Genus/Species Common Name Crocodilia Alligatoridae All species Alligators, caimans* Crocodylidae All species Crocodiles* Gavialidae All species Gavials* Squamata Colubridae Boiga irregularis Brown tree snake*

Volume 37, Issue 5 Virginia Register of Regulations October 26, 2020 704 Regulations

CRUSTACEANS Order Family Genus/Species Common Name Decapoda Cambaridae Cambarus aculabrum Cave crayfish Cambarus zophonastes Cave crayfish Orconectes rusticus Rusty crayfish Orconectes shoupi Nashville crayfish Pacifastacus fortis Shasta crayfish Procambarus sp. Marbled crayfish Parastacidae Cherax spp. Australian crayfish Varunidea Eriocheir sinensis Chinese mitten crab B. Temporary possession permit for certain animals. January 1, 1998. Prairie dogs possessed in captivity in Notwithstanding the permitting requirements of subsection A Virginia on December 31, 1997, may be maintained in of this section, a person, company, or corporation possessing captivity until the animals' deaths, but they may not be sold any nonnative (exotic) animal, designated with an asterisk (*) on or after January 1, 1998, without a permit. in subsection A of this section, prior to July 1, 1992, must F. Exception for snakehead fish. Anglers may legally declare such possession in writing to the department by harvest snakehead fish of the family Channidae, provided that January 1, 1993. This written declaration shall serve as a they immediately kill such fish and that they notify the permit for possession only, is not transferable, and must be department, as soon as practicable, of such actions. renewed every five years. This written declaration must include species name, common name, number of individuals, G. Exception for feral hogs. Anyone may legally trap feral date or dates acquired, sex (if possible), estimated age, height hogs with written permission of the landowner, provided that or length, and other characteristics such as bands and band any trapped hogs are not removed from the trap site alive and numbers, tattoos, registration numbers, coloration, and are killed immediately. specific markings. Possession transfer will require a new H. Exception for grass carp. Anglers may legally harvest permit according to the requirements of this subsection. grass carp of the family Cyprinidae from public waters of the C. Exception for certain monk parakeets. A permit is not Commonwealth, except from department-owned or required for monk parakeets (quakers) that have been captive department-controlled lakes, provided that anglers ensure that bred and are closed-banded with a seamless band. harvested grass carp are dead. D. Exception for parts or products. A permit is not required I. All other nonnative (exotic) animals. All other nonnative for parts or products of those nonnative (exotic) animals (exotic) animals not listed in subsection A of this section may listed in subsection A of this section that may be used for be possessed, purchased, and sold; provided, that such personal use, in the manufacture of products, or used in animals shall be subject to all applicable local, state, and scientific research, provided that such parts or products be federal laws and regulations, including those that apply to packaged outside the Commonwealth by any person, threatened/endangered species, and further provided, that company, or corporation duly licensed by the state in which such animals shall not be liberated within the the parts originate. Such packages may be transported into the Commonwealth. Commonwealth, consistent with other state laws and 4VAC15-40-60. Hunting with dogs or possession of regulations, so long as the original package remains weapons in certain locations during closed season. unbroken, unopened and intact until its point of destination is reached. Documentation concerning the type and cost of the A. Department-owned and national forest lands statewide. It animal parts ordered, the purpose and date of the order, point shall be unlawful to have in possession a firearm or any and date of shipping, and date of receiving shall be kept by hunting weapon that is not unloaded and cased or dismantled the person, business, or institution ordering such nonnative on all national forest lands statewide and on department- (exotic) animal parts. Such documentation shall be open to owned lands and on other lands managed by the department inspection by a representative of the Department of Game and under cooperative agreement except during the period when it Inland Fisheries Wildlife Resources. is lawful to take bear, deer, grouse, pheasant, quail, rabbit, raccoon, squirrel, turkey, waterfowl, or migratory gamebirds E. Exception for prairie dogs. The effective date of listing of on these lands. prairie dogs under subsection A of this section shall be

Volume 37, Issue 5 Virginia Register of Regulations October 26, 2020 705 Regulations

B. Certain counties. Except as otherwise provided in cocked and has either a bolt or arrow engaged or partially 4VAC15-40-70, it shall be unlawful to have either a shotgun engaged on the shooting rail or track of the crossbow, or with or a rifle in one's possession when accompanied by a dog in a "trackless crossbow" when the crossbow is cocked and a the daytime in the fields, forests or waters of the Counties of bolt or arrow is nocked. "Loaded arrowgun" means an Augusta, Clarke, Frederick, Page, Shenandoah, and Warren, arrowgun that has an arrow or bolt inserted on the arrow rest and in the counties east of the Blue Ridge Mountains, except or in the barrel. "Hunting weapon" means any weapon Patrick, at any time except the periods prescribed by law to allowable for hunting as defined in § 29.1-519 of the Code of hunt game birds and animals. Virginia. C. Shooting ranges and authorized activities. The provisions 4VAC15-40-281. Unauthorized feeding of bear, deer, or of this section shall not prohibit the conduct of any activities turkey on national forest lands and department-owned authorized by the board or the establishment and operation of lands. archery and shooting ranges on the lands described in It shall be unlawful to place or direct the placement of, subsections A and B of this section. The use of firearms or deposit, distribute, or scatter food or salt capable of attracting any hunting weapon in such ranges during the closed season or being eaten by bear, deer, or turkey on national forest lands period will be restricted to the area within the established or on department-owned lands without the written range boundaries. Such weapons shall be required to be authorization of the Director of the Department of Game and unloaded and cased or dismantled in all areas other than the Inland Fisheries Wildlife Resources or his the director's range boundaries. The use of firearms or any hunting weapon designee. The provisions of this section shall not prohibit the during the closed hunting period in such ranges shall be disposal of food in trash receptacles provided by the U.S. restricted to target shooting only, and no birds or animals Forest Service on national forest lands or by the department shall be molested. on department-owned lands. D. It shall be unlawful to chase with a dog or train dogs on 4VAC15-40-287. Model ordinances related to feeding of national forest lands or department-owned lands except deer in cities and towns. during authorized hunting, chase, or training seasons that specifically permit these activities on these lands or during Per the provisions of § 29.1-527.2 of the Code of Virginia, raccoon hound field trials on these lands between September the following model ordinance related to the feeding of deer 1 and March 31, both dates inclusive, that are sanctioned by may be adopted by a city or town. Any city or town must bona fide national kennel clubs and authorized by permits notify the director of the Department of Game and Inland issued by the department or the U.S. Forest Service. Fisheries Wildlife Resources of the adoption of such an ordinance by registered mail. E. It shall be unlawful to possess or transport any loaded firearm or loaded hunting weapon in or on any vehicle at any Model ordinance: time on national forest lands or department-owned lands. A. Pursuant to § 29.1-527.2 of the Code of Virginia, it shall F. The provisions of this section shall not prohibit the be unlawful for any person to place, distribute, or allow the possession, transport, and use of loaded firearms by placement of food, salt, minerals, or similar substances to employees of the Department of Game and Inland Fisheries feed or attract deer at any time. Wildlife Resources while engaged in the performance of their authorized and official duties, nor shall it prohibit possession B. No person shall continue to place, distribute, or allow the placement of food, salt, minerals, or similar substances for and transport of loaded concealed handguns where the individual possesses a concealed handgun permit as defined any purpose if the placement of these materials results in the in § 18.2-308 of the Code of Virginia. presence of deer. C. No part of this ordinance shall be construed to restrict G. Meaning of "possession" of any hunting weapon and definition of "loaded crossbow," "loaded arrowgun," "loaded agricultural, commercial, noncommercial, or residential muzzleloader," and "loaded firearm." For the purpose of this plantings (including wildlife food plots); bona fide distribution of food to livestock; or wildlife management section, the word "possession" shall include having any firearm or weapon used for hunting in or on one's person, activities conducted or authorized by the Department of vehicle, or conveyance. For the purpose of this section, a Game and Inland Fisheries Wildlife Resources. "loaded firearm" means a firearm in which ammunition is 4VAC15-90-290. Special quality deer management areas. chambered or loaded in the magazine or clip when such magazine or clip is engaged or partially engaged in a firearm. A. The board hereby designates the following areas posted The definition of a "loaded muzzleloader" will include a by the Department of Game and Inland Fisheries Wildlife muzzleloading rifle, pistol, or shotgun that is capped, has a Resources as special quality deer management areas with charged pan, or has a primer or battery installed in the special antlered buck harvest. muzzleloader. A "loaded crossbow" means a crossbow that is

Volume 37, Issue 5 Virginia Register of Regulations October 26, 2020 706 Regulations

B. Special Fairystone quality deer management area. It shall Model Ordinance 4: be unlawful to kill an antlered deer on the special Fairystone It shall be unlawful to discharge a bow and arrow in a quality deer management area unless the deer has at least four manner that can be reasonably expected to result in the antler points, each greater than one inch in length, on either impact of the arrow upon the property of another without the right or left antler. permission from the owner or tenant of such property. Any 4VAC15-270-60. Use of firearms loaded with slugs and person who violates the provisions of this ordinance shall discharge of firearms near boardwalk or nature trail on be guilty of a Class 3 misdemeanor. Ragged Island Wildlife Management Area. 4VAC15-275-10. Application. A. It shall be unlawful to possess outside of a vehicle, or This chapter applies to any person who has never obtained a shoot or hunt with a rifle, muzzleloader, pistol, or shotgun license to hunt in any state or country or any person who is loaded with slugs, or to possess shotgun slugs, on Ragged under the age of younger than 16 years of age, unless such a Island Wildlife Management Area in Isle of Wight County. In person presents to the Department of Game and Inland addition, it shall be unlawful to discharge any firearm within Fisheries Wildlife Resources or one of its authorized license 100 yards of the boardwalk or nature trail on Ragged Island vendors a certificate of completion in hunter education issued Wildlife Management Area. or authorized by the director or his the director's B. The provisions of this section shall not prohibit the representative under the hunter education program or proof possession, transport, and use of loaded firearms by that he holds the equivalent certificate obtained from an employees of the Department of Game and Inland Fisheries authorized agency or association of another state or country. Wildlife Resources while engaged in the performance of their 4VAC15-275-20. Definitions. duties, nor shall it prohibit the possession and transport of loaded concealed handguns where the individual possesses a The following words and terms when used in this chapter concealed handgun permit as defined in § 18.2-308 of the shall have the following meanings unless the context clearly Code of Virginia. requires a different meaning: 4VAC15-270-95. Model ordinances related to archery "Accompanied and directly supervised" means, in the case deer hunting. of an apprentice hunter, that a licensed person over older than 18 years of age maintains a close visual and verbal contact Pursuant to § 29.1-528.1 A of the Code of Virginia, the with, provides adequate direction to, and can immediately following model ordinances related to hunting deer with bow assume control of the firearm from the apprentice hunter. In and arrow (including crossbows) may be adopted by those the case of a hunter age 12 years of age or under younger, the counties and cities where there is an overabundance of the term means that the licensed adult is within sight of the deer population, which is creating conflicts between humans person under the age of younger than 12 years of age. and deer, including safety hazards to motorists. In accordance with § 29.1-528.1 B of the Code of Virginia, no such "Adult" means the parent or legal guardian of the person ordinance shall be enforceable unless the governing body of under age younger than 12 years of age, or such person over the locality notifies the director by registered mail prior to the age of older than 18 years of age designated by the parent May 1 of the year in which the ordinance is to take effect. or legal guardian. Model Ordinance 1: "Approved course provider" is any individual, business, or organization that makes available to the hunting public a The times at which hunting shall commence and end each hunter education course that is approved by the International day shall be in accordance with the provisions of § 29.1- Hunter Education Association – United States (IHEA-USA) 520 of the Code of Virginia. and is accepted by the department. An approved course Model Ordinance 2: provider shall have executed and have on file a valid cooperative agreement with the department. The department The number of deer that can be taken shall be in will make information regarding such approved courses and accordance with bag limits established by the Board of providers readily available for public access. Game and Inland Fisheries Wildlife Resources pursuant to §§ 29.1-501 and 29.1-502 of the Code of Virginia. "Board" means the Board of Game and Inland Fisheries Wildlife Resources. Model Ordinance 3: "Department" means the Department of Game and Inland No person shall discharge a bow and arrow from, over, or Fisheries Wildlife Resources. across any street, sidewalk, alley, roadway, or toward any building or dwelling in such a manner that an arrow may "Hunter education course" means a course offered in the strike it. Any person who violates the provisions of this classroom, through the Internet, or through an electronic ordinance shall be guilty of a Class 3 misdemeanor. format that provides course content and test questions that at

Volume 37, Issue 5 Virginia Register of Regulations October 26, 2020 707 Regulations a minimum meet the International Hunter Education Fisheries Wildlife Resources pursuant to Title 29.1 of the Association-USA Education Standards, May 2, 2014, set Code of Virginia and the regulations of the board pertaining forth by the International Hunter Education Association-USA to hunting, fishing, trapping, taking, attempting to take, (IHEA-USA) and are accepted by the department. A hunter possession, sale, offering for sale, transporting or causing to education course shall include no less than 50 test questions, be transported, importing or exporting, propagating, which shall include at least eight test questions specific to exhibiting, and rehabilitating of any wild bird, wild animal, or Virginia hunting laws. fish. The penalty for violation of this section is prescribed by § 29.1-505 of the Code of Virginia. "IHEA-USA" means the International Hunter Education Association-USA. 4VAC15-340-80. Eel pots for taking American eels for sale. "Virginia Hunter Education Card" means a card authorized for issuance by the department to a person who has met the A. The director may issue, deny, modify, suspend, or revoke minimum standard of hunter education course competency. annual eel pot permits designated for the sale of American This card may be issued as an original or a replacement eels. Such permits shall authorize the taking of American eels hunter education course card. for sale, as specified, with eel pots from waters designated in this section. Such permits shall be valid so long as the harvest 4VAC15-275-80. Instructor certification. of American eels in the Commonwealth is not prohibited by A. The department may designate as a hunter instructor any other state or federal law or regulation. To be eligible, person found by it to be competent to give instruction in the applicants must document harvest of at least one pound of courses required. American eels from Back Bay or North Landing River or their tributaries via reports submitted through the Virginia B. Volunteer instructors are designated to work on a Marine Resources Commission Mandatory Harvest Reporting voluntary basis and at the pleasure of the Department of Program during the period January 1, 2007, to December 31, Game and Inland Fisheries Wildlife Resources. 2012, both dates inclusive. Applicants must document the C. To be certified as a hunter education course instructor for reported harvest occurred while the applicant held a valid the department's hunter education program, a person shall (i) commercial fish pot or eel pot license issued by the Virginia have successfully completed a hunter education course and Marine Resources Commission. (ii) be certified as an instructor by the department or by a B. It shall be unlawful for permit holders to possess any certification program accepted by the department. American eel less than nine inches in total length. D. Applicants for certified instructor shall submit an C. It shall be unlawful for permit holders fishing eel pots to application to the department on a form and in a manner take any species other than American eels. determined by the hunter education program manager. At a minimum, the application shall include: D. It shall be unlawful to place, set, or fish any eel pot that has a mesh less than 1/2-inch by 1/2-inch and does not 1. The applicant's name; contain at least one unrestricted 4-inch by 4-inch escape panel 2. The applicant's street address; consisting of 1/2-inch by 1-inch mesh. 3. The applicant's telephone number; E. The permit holder's last name and Virginia Department of Game and Inland Fisheries Wildlife Resources American eel 4. The applicant's email address, if any; pot number must be permanently attached to buoys of all eel 5. Information describing the applicant's experience and pots set. The maximum number of pots authorized per permit training in hunter and hunting and proof of completion of a holder under this permit shall be 300. hunter education course that is accepted by the department; F. American eels may be taken with eel pots in Back Bay and and its natural tributaries (not including Lake Tecumseh and 6. Any other information deemed necessary after review of Red Wing Lake) and in North Landing River and its natural the initial application. tributaries from the North Carolina line to the Great Bridge locks. E. Applicants may be required to submit written consent for a criminal history background check in a manner determined G. It shall be unlawful for any person to ship or otherwise by the department or an interview in a manner determined by transport any package, box, or other receptacle containing the department and in accordance with state policy. fish taken under an eel pot permit unless the same bears the permit holder's name and address. 4VAC15-290-130. Duty to comply with permit conditions. H. Failure to comply with the daily harvest and sales A permit holder shall comply with all terms and conditions reporting requirements as detailed in conditions of the permit of any permit issued by the Department of Game and Inland shall be unlawful and may result in immediate permit

Volume 37, Issue 5 Virginia Register of Regulations October 26, 2020 708 Regulations revocation. It shall be the permit holder's responsibility to include no less than 25 questions specific about Virginia report "No Activity" when no activity occurs during a boating laws, shall be proctored by an individual(s) individual monthly reporting period. specifically designated by the department, and shall be completed without the use of any reference material. A 4VAC15-410-20. Definitions. minimum score of at least 80% shall be considered passing. As used in this chapter, unless the context clearly requires a "Motorboat" means any vessel propelled by machinery different meaning, the following words and terms shall have whether or not the machinery is the principal source of the following meanings: propulsion and for this chapter shall mean with a motor of 10 "Approved course provider" is any individual, business, or horsepower or greater. organization that makes available to the boating public a "NASBLA" means the National Association of State boating safety education course approved by the National Boating Law Administrators. Association of State Boating Law Administrators and accepted by the department. An approved course provider "NASBLA-approved course" means a boating safety shall have executed and have on file a valid cooperative education course that has been reviewed and approved by agreement with the department. Persons who simply provide NASBLA. classroom instruction for an approved course provider shall "Onboard direct supervision" as referenced in § 29.1-735.2 not be considered an approved course provider. The B 6 and B 9 of the Code of Virginia occurs when a person department will make information regarding such approved maintains close visual and verbal contact with, provides courses and providers readily available for public access. adequate direction to, and can immediately assume control of "Board" means the Board of Game and Inland Fisheries a motorboat from the operator of a motorboat. A person who Wildlife Resources. is water skiing, or is in the cabin of a motorboat and not at the helm/wheel is not considered to be in a position capable of "Boating safety education course" means a course offered in providing direct supervision. the classroom, through the Internet, or through an electronic format such as CD-ROM that provides a course content and "Operate" means to navigate or otherwise control the test questions that have been reviewed and approved by the movement of a motorboat or vessel. National Association of State Boating Law Administrators in "Optional Virginia Boater Education Card" means a card accordance with the National Boating Education Standards, authorized for issuance by the department to persons who (i) updated January 1, 2008, and accepted by the department. A can show they have met the minimum standard of boating boating safety education course shall include no less than 50 safety education course competency, (ii) possess a valid test questions, which shall include at least 10 test questions license to operate a vessel issued to maritime personnel by the specific about Virginia boating laws. United States Coast Guard or a marine certificate issued by "Department" means the Department of Game and Inland the Canadian government, (iii) possess a Canadian Pleasure Fisheries Wildlife Resources. Craft Operator's Card, or (iv) possess a valid commercial fisherman registration pursuant to § 28.2-241 of the Code of "Dockside safety checklist" means a document provided by Virginia. For the purpose of this subsection a license is the department that consists of selected facts about Virginia considered valid regardless of whether the license is current. boating laws and safe boat operation that a rental or livery This card may be issued as a replacement boating safety agent or motorboat leasing business is required to present to course card. those who rent or lease a motorboat or personal watercraft. The dockside safety checklist must be reviewed and initialed "Personal watercraft" means a motorboat less than 16 feet in by the person operating the motorboat before the boat can be length that uses an inboard motor powering a jet pump as its rented/leased rented or leased and operated. primary motive power and that is designed to be operated by a person sitting, standing, or kneeling on, rather than in the "Equivalency exam" means a written examination that is conventional manner of sitting or standing inside the vessel. developed by the department to test the knowledge of information included in the curriculum of a boating safety "Proctored" means that the written equivalency exam has education course (may also be referred to as a challenge been administered under the direct supervision of (i) a exam). The equivalency exam is intended to provide designated member of the United States Coast Guard experienced and knowledgeable boaters with the opportunity Auxiliary or the United States Power Squadrons®, (ii) a to meet the boating safety education compliance requirement designated department employee or a department volunteer set forth in § 29.1-735.2 of the Code of Virginia without boating safety instructor, or (iii) an individual who has been having to take and successfully complete a boating safety approved for such purpose by the department. education course. The equivalency exam shall be comprised "Temporary operator's certificate" means a nonrenewable of no less than 75 or more than 100 test questions, shall document issued with the certificate of number for the

Volume 37, Issue 5 Virginia Register of Regulations October 26, 2020 709 Regulations motorboat or personal watercraft, if the boat is new or was 4121, FAX (804) 698-4032, or email sold with a transfer of ownership. A temporary operator's [email protected]. certificate shall be issued only by the department, by any VA.R. Doc. No. R20-5530; Filed October 13, 2020, 5:00 p.m. person authorized by the director to act as an agent to issue a certificate of number pursuant to § 29.1-706 of the Code of Final Regulation Virginia, or by a license agent of the department authorized to REGISTRAR'S NOTICE: The State Water Control Board is issue a temporary registration certificate for a motorboat or claiming an exemption from Article 2 of the Administrative personal watercraft. A temporary operator's certificate shall Process Act in accordance with § 2.2-4006 A 4 a of the Code allow the owner(s) owner to operate a motorboat with a motor of Virginia, which excludes regulations that are necessary to of 10 horsepower or greater or personal watercraft in Virginia conform to changes in Virginia statutory law or the for 90 days. appropriation act where no agency discretion is involved. The "Vessel" means every description of watercraft, other than a State Water Control Board will receive, consider, and respond seaplane on the water, used or capable of being used as a to petitions by any interested person at any time with respect means of transportation on water. to reconsideration or revision. "Waters of the Commonwealth" means any public waters Titles of Regulations: 9VAC25-210. Virginia Water within the territorial limits of the Commonwealth. Protection Permit Program Regulation (amending VA.R. Doc. No. R21-5904; Filed September 29, 2020, 11:23 a.m. 9VAC25-210-10, 9VAC25-210-80, 9VAC25-210-230, 9VAC25-210-320).  ––––––––––––––––––  9VAC25-660. Virginia Water Protection General Permit for Impacts Less Than One-Half Acre (amending TITLE 9. ENVIRONMENT 9VAC25-660-50, 9VAC25-660-60, 9VAC25-660-100). 9VAC25-670. Virginia Water Protection General Permit STATE WATER CONTROL BOARD for Facilities and Activities of Utility and Public Service Notice of Effective Date Companies Regulated by the Federal Energy Regulatory Commission or the State Corporation Commission and Title of Regulation: 9VAC25-260. Water Quality Other Utility Line Activities (amending 9VAC25-670-50, Standards (amending 9VAC25-260-155). 9VAC25-670-60, 9VAC25-670-100). Statutory Authority: § 62.1-44.15 of the Code of Virginia; 9VAC25-680. Virginia Water Protection General Permit Clean Water Act (33 USC § 1251 et seq.); 40 CFR 131. for Linear Transportation Projects (amending 9VAC25- Effective Date: October 13, 2020. 680-50, 9VAC25-680-60, 9VAC25-680-100). On December 13, 2018, the State Water Control Board 9VAC25-690. Virginia Water Protection General Permit adopted revisions to the water quality standards in 9VAC25- for Impacts from Development and Certain Mining 260-155. These revisions relate to water quality criteria and Activities (amending 9VAC25-690-50, 9VAC25-690-60, other policies related to water quality. The amendments were 9VAC25-690-100). published in final form on June 22, 2020, in Volume 36, Issue Statutory Authority: § 62.1-44.15 of the Code of Virginia; 22 of the Virginia Register of Regulations (VA.R. 36:22 § 401 of the Clean Water Act (33 USC § 1251 et seq.). 2341-2358) to be effective upon filing notice of U.S. Environmental Protection Agency (EPA) approval with the Effective Date: November 25, 2020. Registrar of Regulations. The State Water Control Board Agency Contact: Dave Davis, Department of Environmental received EPA approval by letter dated October 6, 2020, and Quality, 1111 East Main Street, Suite 1400, P.O. Box 1105, filed notice with the Registrar. Richmond, VA 23218, telephone (804) 698-4105, or email Copies are available online at [email protected]. http://www.deq.state.va.us/wqs; by contacting David Summary: Whitehurst telephone toll free at 1-800-592-5482, ext. 4121 or local at 804-698-4121; by written request to P.O. Box The amendments conform the regulations to legislation 1105, Richmond, VA 23218; or by email request to adopted during the 2020 Session of the General Assembly. [email protected]. Pursuant to Chapter 622, amendments clarify that when an application for a general permit under the Virginia Water Agency Contact: David Whitehurst, Department of Protection Permit Program is administratively withdrawn Environmental Quality, 1111 East Main Street, Suite 1400, for being incomplete, the department shall provide (i) P.O. Box 1105, Richmond, VA 23218, telephone (804) 698- notice to the applicant and (ii) an opportunity for an informal fact-finding proceeding. Pursuant to Chapter

Volume 37, Issue 5 Virginia Register of Regulations October 26, 2020 710 Regulations

958, amendments change the name of the Virginia "Compensation" or "compensatory mitigation" means (i) the Department of Game and Inland Fisheries to the Virginia restoration (reestablishment or rehabilitation), establishment Department of Wildlife Resources. (creation), enhancement, or in certain circumstances preservation of aquatic resources or (ii) in certain Part I circumstances an out-of-kind measure having a water quality, VWP Permit Program Definitions, Exclusions, Prohibitions habitat, or other desirable benefit for the purposes of and Requirements offsetting unavoidable adverse impacts to aquatic resources 9VAC25-210-10. Definitions. that remain after all appropriate and practicable avoidance and minimization has been achieved. A. Definitions specific to surface water withdrawals are in 9VAC25-210-300. "Construction site" means any site where land-disturbing activity is conducted or physically located for the purpose of B. Unless a different meaning is required by the context, the erecting buildings, roads, or other discrete structures, following terms as used in this chapter shall have the including on-site or off-site areas used for dependent, support following meanings: facilities, such as quarries, mines, or temporary stormwater "Adjacent" means bordering, contiguous, or neighboring management or erosion control structures. wetlands separated from other surface water by man-made "Conversion" means those impacts to surface waters that dikes or barriers, natural river berms, sand dunes, and the permanently change an existing wetland or aquatic resource like. type to a different wetland or aquatic resource type. "Administratively withdrawn" means a decision by the "Coverage" means authorization to conduct a project in board that permanently discontinues the review or processing accordance with a VWP general permit. of a VWP permit application or request to modify a VWP permit. "Cowardin classification" or "Cowardin classification method," unless otherwise specified in this chapter, means the "Applicant" means a person applying for a VWP individual waters classification system in Classification of Wetlands and permit or for coverage under a VWP general permit. Deepwater Habitats of the United States (Cowardin, Lewis "Aquatic environment" means surface waters and the habitat M. II, et al., U.S. Fish and Wildlife Service, December 1979, they provide, including both plant and animal communities. Reprinted 1992). "Avoidance" means not taking or modifying a proposed "Creation" means the establishment of a wetland or other action or parts of an action so that there is no adverse impact aquatic resource where one did not formerly exist. to the aquatic environment. "Cross-sectional drawing" means a scaled graph or plot that "Beneficial use" means both instream and offstream uses. represents the plane made by cutting across an object at right Instream beneficial uses include the protection of fish and angles to its length. Objects may include a surface water body wildlife resources and habitat, maintenance of waste or a portion of it, a man-made channel, an above-ground assimilation, recreation, navigation, and cultural and aesthetic structure, a below-ground structure, a geographical feature, or values. The preservation of instream flows for purposes of the the ground surface itself. protection of navigation, maintenance of waste assimilation "Department" or "DEQ" means the Department of capacity, the protection of fish and wildlife resources and Environmental Quality. habitat, recreation, and cultural and aesthetic values is an instream beneficial use of Virginia's waters. Offstream "Director" means the Director of the Department of beneficial uses include domestic uses (including public water Environmental Quality (DEQ) or an authorized supply), agricultural uses, electric power generation, representative. commercial uses, and industrial uses. "Discharge" means, when used without qualification, a "Best management practices" or "BMPs" means a schedule discharge of a pollutant, or any addition of any pollutant or of activities, prohibition of practices, maintenance combination of pollutants, to state waters. procedures, and other management practices that prevent or "Draft VWP permit" means a document indicating the reduce the pollution of surface waters. board's tentative decision relative to a VWP permit action. "Board" means the State Water Control Board. "Draining" means human-induced activities such as "Channelization" means the alteration of a stream channel ditching, excavation, installation of tile drains, hydrologic by widening, deepening, straightening, cleaning, or paving modification by surface water runoff diversion, pumping certain areas. water from wells, or similar activities such that the activities have the effect of artificially dewatering the wetland or altering its hydroperiod.

Volume 37, Issue 5 Virginia Register of Regulations October 26, 2020 711 Regulations

"Dredged material" means material that is excavated or project area. Portions of a phased development project that dredged from surface waters. depend upon other phases of the project do not have independent utility. Portions of a phased development project "Dredging" means a form of excavation in which material is that would be constructed even if the other phases are not removed or relocated from beneath surface waters. built can be considered as separate single complete projects "Ecologically and environmentally preferable" means with independent public and economic utility. capable of providing a higher likelihood than alternative "In-lieu fee program" means a program operated by a proposals of replacing existing wetland acreage and nonprofit organization or governmental agency that receives functions, stream functions, water quality, and fish and moneys from persons impacting wetlands or streams pursuant wildlife resources. to an authorized, permitted activity and that expends the "Emergent wetland" means a class of wetlands dominated moneys received to provide consolidated compensatory by erect, rooted, herbaceous plants growing in water or on a mitigation for permitted wetland or stream impacts. substrate, excluding mosses and lichens. This vegetation is "Isolated wetlands of minimal ecological value" means those present for most of the growing season in most years and is wetlands that (i) do not have a surface water connection to usually dominated by perennial plants. other state waters, (ii) are less than one-tenth of an acre (0.10 "Enhancement" means activities conducted in existing acre or 4,356 square feet) in size, (iii) are not located in a wetlands or other portions of the aquatic environment that Federal Emergency Management Agency designated 100- increase one or more aquatic functions. year floodplain, (iv) are not identified by the Virginia Natural Heritage Program as a rare or state significant natural "Excavate" or "excavation" means ditching, dredging, or community, (v) are not forested, and (vi) do not contain listed mechanized removal of earth, soil, or rock. federal or state threatened or endangered species. "Fill" means replacing portions of surface water with "Joint Permit Application" or "JPA" means an application upland, or raising the bottom elevation of a surface water for form that is used to apply for permits from the Norfolk any purpose, by placement of any pollutant or material District Army Corps of Engineers, the Virginia Marine including rock, sand, earth, and man-made materials and Resources Commission, the Virginia Department of debris. Environmental Quality, and local wetland boards for work in "Fill material" means any pollutant that replaces portions of waters of the United States and in surface waters of Virginia. surface water with dry land or that raises the bottom elevation "Law" means the State Water Control Law of Virginia. of a surface water for any purpose. "Legal name" means the full legal name of an individual, "Forested wetland" means a class of wetlands dominated by business, or other organization. For an individual, legal name woody vegetation that is approximately 20 feet (six meters) means the first name, middle initial, last name, and suffix. For tall or taller and three inches (7.6 centimeters) or larger in an entity authorized to do business in Virginia, the legal name diameter at breast height (DBH). These areas typically means the exact name set forth in the entity's articles of possess an overstory of trees, an understory of trees or shrubs, incorporation, organization or trust, or formation agreement, and an herbaceous layer. as applicable. "Hydrologic regime" means the entire state of water "Minimization" means lessening impacts by reducing the movement in a given area. It is a function of the climate and degree or magnitude of the proposed action and its includes the phenomena by which water first occurs as implementation. atmospheric water vapor, passes into a liquid or solid form, falls as precipitation, moves along or into the ground surface, "Mitigation" means sequentially avoiding and minimizing and returns to the atmosphere as vapor by means of impacts to the maximum extent practicable, and then evaporation and transpiration. compensating for remaining unavoidable impacts of a proposed action. "Impacts" means results caused by those activities specified in § 62.1-44.15:20 A of the Code of Virginia. "Mitigation bank" means a site providing off-site, consolidated compensatory mitigation that is developed and "Impairment" means the damage, loss, or degradation of the approved in accordance with all applicable federal and state acreage or functions of wetlands or the functions of state laws or regulations for the establishment, use, and operation waters. of mitigation banks and is operating under a signed banking "Independent utility" means a test to determine what agreement. constitutes a single and complete project. A project is "Mitigation banking" means compensating for unavoidable considered to have independent utility if it would be wetland or stream losses in advance of development actions constructed absent the construction of other projects in the

Volume 37, Issue 5 Virginia Register of Regulations October 26, 2020 712 Regulations through the sale or purchase of credits from a mitigation character of soil; destruction of terrestrial vegetation; the bank. presence of litter and debris; or other appropriate means that consider the characteristics of the surrounding areas. "Nationwide permit" means a general permit issued by the U.S. Army Corps of Engineers (USACE) under 33 CFR Part "Out-of-kind compensatory mitigation" or "out-of-kind 330 and, except where suspended by individual USACE mitigation" means a measure that does not replace the same Corps Districts, applicable nationwide. type of wetland or surface water as was impacted but does replace lost wetland or surface water functions or provide a "Nontidal wetland" means those wetlands other than tidal water quality, habitat, or other desirable benefit. wetlands that are inundated or saturated by surface water or groundwater at a frequency and duration sufficient to support, "Perennial stream" means a well-defined channel that and that under normal circumstances do support, a prevalence contains water year round during a year of normal rainfall. of vegetation typically adapted for life in saturated soil Generally, the water table is located above the stream bed for conditions, as defined by the U.S. Environmental Protection most of the year and groundwater is the primary source for Agency pursuant to § 404 of the federal Clean Water Act in stream flow. A perennial stream exhibits the typical 40 CFR 230.3(t). Wetlands generally include swamps, biological, hydrological, and physical characteristics marshes, bogs, and similar areas. commonly associated with the continuous conveyance of water. "Normal agricultural activities" means those activities defined as an agricultural operation in § 3.2-300 of the Code "Permanent flooding or impounding" means a permanent of Virginia and any activity that is conducted as part of or in increase in the duration or depth of standing water on a land furtherance of such agricultural operation but shall not surface, such as from a dam. Permanent increases in duration include any activity for which a permit would have been or depth of standing water that result from extended-detention required as of January 1, 1997, under 33 USC § 1344 or any basins and enhanced extended-detention basins, when regulations promulgated pursuant thereto. designed, constructed, and maintained to function in accordance with Virginia Department of Conservation and "Normal residential gardening and lawn and landscape Recreation (DCR) standards for such facilities (Virginia maintenance" means ongoing noncommercial residential Stormwater Management Handbook, First Edition, 1999, activities conducted by or on behalf of an individual Volume 1, Chapter 3), or when designed in accordance with occupant, including mowing; planting; fertilizing; mulching; local standards that, at a minimum, meet the DCR standards, tilling; vegetation removal by hand or by hand tools; and are not considered to be permanent flooding and impounding. placement of decorative stone, fencing, and play equipment. Other appurtenant noncommercial activities, provided that "Permanent impacts" means those impacts to surface waters, they do not result in the conversion of a wetland to upland or including wetlands, that cause a permanent alteration of the to a different wetland type, may also be included. physical, chemical, or biological properties of the surface waters or of the acreage or functions of a wetland. "Normal silvicultural activities" means any silvicultural activity as defined in § 10.1-1181.1 of the Code of Virginia, "Permittee" means the person who holds a VWP individual and any activity that is conducted as part of or in furtherance or general permit. of such silvicultural activity but shall not include any activity "Permittee-responsible compensatory mitigation" or for which a permit would have been required as of January 1, "permittee-responsible mitigation" means compensation or 1997, under 33 USC § 1344 or any regulations promulgated compensatory mitigation, as defined in this section, that is pursuant thereto. undertaken by the permittee, or an authorized agent or "Notice of project completion" means a statement submitted contractor, for which the permittee retains full responsibility. by the permittee or authorized agent that the authorized "Person" means individual, corporation, partnership, activities and any required compensatory mitigation have association, governmental body, municipal corporation, or been completed. any other legal entity. "Open water" means an area that, during a year with normal "Phased development" means more than one project patterns of precipitation, has standing water for sufficient proposed for a single piece of property or an assemblage of duration to establish an ordinary high water mark. The term contiguous properties under consideration for development by "open water" includes lakes and ponds but does not include the same person, or by related persons, that will begin and be ephemeral waters, stream beds, or wetlands. completed at different times. Depending on the relationship "Ordinary high water" or "ordinary high water mark" means between the projects, a phased development may be that line on the shore established by the fluctuations of water considered a single and complete project or each project may and indicated by physical characteristics such as a clear, be considered a single and complete project if each project natural line impressed on the bank; shelving; changes in the has independent utility, as defined in this section.

Volume 37, Issue 5 Virginia Register of Regulations October 26, 2020 713 Regulations

"Plan view drawing" means a scaled graph or plot that including adjacent areas and floodplains, to its natural represents the view of an object as projected onto orthogonal conditions. planes. Objects may include structures, contours, or "Riprap" means a layer of nonerodible material such as boundaries. stone or chunks of concrete. "Pollutant" means any substance, radioactive material, or "Section 401" means § 401 of the Clean Water Act, or heat that causes or contributes to or may cause or contribute 33 USC § 1341, as amended in 1987. to pollution. "Scrub-shrub wetland" means a class of wetlands dominated "Pollution" means such alteration of the physical, chemical, by woody vegetation, excluding woody vines, approximately or biological properties of any state waters as will or is likely three to 20 feet (one to six meters) tall. The species include to create a nuisance or render such waters (i) harmful or true shrubs, young trees, and trees or shrubs that are small or detrimental or injurious to the public health, safety, or welfare stunted because of environmental conditions. or to the health of animals, fish, or aquatic life; (ii) unsuitable with reasonable treatment for use as present or possible future "Significant alteration or degradation of existing wetland sources of public water supply; or (iii) unsuitable for acreage or function" means human-induced activities that recreational, commercial, industrial, agricultural, or other cause either a diminution of the areal extent of the existing reasonable uses; provided that (a) an alteration of the wetland or cause a change in wetland community type physical, chemical, or biological property of state waters, or a resulting in the loss or more than minimal degradation of its discharge or deposit of sewage, industrial wastes or other existing ecological functions. wastes to state waters by any owner which by itself is not sufficient to cause pollution, but which, in combination with "Single and complete project" means the total project such alteration of or discharge or deposit to state waters by proposed or accomplished by a person, which also has other owners is sufficient to cause pollution; (b) the discharge independent utility as defined in this section. For linear of untreated sewage by any owner into state waters; and (c) projects, the single and complete project (e.g., a single and contributing to the contravention of standards of water quality complete crossing) will apply to each crossing of a separate duly established by the board, are "pollution" for the terms surface water (e.g., a single water body) and to multiple and purposes of this chapter. crossings of the same water body at separate and distinct locations. Phases of a project that have independent utility "Practicable" means available and capable of being done may each be considered single and complete. after taking into consideration cost, existing technology, and logistics in light of overall project purposes. "State waters" means all water, on the surface and under the ground, wholly or partially within or bordering the "Preservation" means the protection of resources in Commonwealth or within its jurisdiction, including wetlands. perpetuity through the implementation of appropriate legal and physical mechanisms. "Stream bed" or "stream channel" means the substrate of a stream, as measured between the ordinary high water mark "Profile drawing" means a scaled graph or plot that along each side of a stream. The substrate may consist of represents the side view of an object. Objects may include a organic matter, bedrock, or inorganic particles that range in surface water body or a portion of it, a man-made channel, an size from clay to boulders, or a combination of both. Areas above-ground structure, a below-ground structure, a contiguous to the stream bed, but outside of the ordinary high geographical feature, or the ground surface itself. water mark along each side of a stream, are not considered part of the stream bed. "Public hearing" means a fact finding proceeding held to afford interested persons an opportunity to submit factual "Surface water" means all state waters that are not data, views, and comments to the board pursuant to § 62.1- groundwater as groundwater is defined in § 62.1-255 of the 44.15:02 of the Code of Virginia. Code of Virginia. "Regional permit" means a general permit issued by the U.S. "Suspend" or "suspension" means a decision by the board Army Corps of Engineers under 33 CFR Part 330 and that stops the review or processing of a permit application or applicable within a specified geographic area. request to modify a permit or permit coverage until such time that information requested by the board is provided, "Restoration" means the reestablishment of a wetland or reviewed, and deemed adequate. other aquatic resource in an area where it previously existed. Wetland restoration means the reestablishment of wetland "Temporal loss" means the time lag between the loss of hydrology and vegetation in an area where a wetland aquatic resource functions caused by the impacts and the previously existed. Stream restoration means the process of replacement of aquatic resource functions by compensatory converting an unstable, altered, or degraded stream corridor, mitigation.

Volume 37, Issue 5 Virginia Register of Regulations October 26, 2020 714 Regulations

"Temporary impacts" means impacts to wetlands or other watershed and that ensures authorized impacts and mitigation surface waters that do not cause a permanent alteration of the have been considered on a watershed scale. physical, chemical, or biological properties of surface waters "Wetlands" means those areas that are inundated or or the permanent alteration or degradation of existing wetland saturated by surface water or groundwater at a frequency and acreage or functions. Temporary impacts include activities in duration sufficient to support, and that under normal which the impact area is restored to its preconstruction circumstances do support, a prevalence of vegetation elevations and contours with topsoil from the impact area typically adapted for life in saturated soil conditions. where practicable, such that previous wetland acreage and Wetlands generally include swamps, marshes, bogs, and functions or surface water functions are restored. similar areas. "Tidal wetland" means vegetated and nonvegetated wetlands as defined in § 28.2-1300 of the Code of Virginia. 9VAC25-210-80. Application for a VWP permit. A. Application for a VWP Permit. Any person who is "Toxic pollutant" means any agent or material including required to obtain a VWP permit, except those persons those listed under § 307(a) of the Water Pollution Prevention applying for an emergency VWP permit for a public water and Control Act (33 USC § 1317(a)), which after discharge supply emergency, shall submit a complete VWP permit will, on the basis of available information, cause toxicity. application to the Department of Environmental Quality Toxicity means the inherent potential or capacity of a material through the most current Joint Permit Application procedures to cause adverse effects in a living organism, including acute established within each type of Joint Permit Application. The or chronic effects to aquatic life, detrimental effects on Virginia Department of Transportation (VDOT) may use its human health, or other adverse environmental effects. Interagency Coordination Meeting (IACM) process for "Undesirable plant species" means any species that invades, submitting JPAs. There shall be no commencement of any naturally colonizes, or otherwise dominates a compensatory activity subject to this chapter prior to the issuance of a VWP mitigation site or mitigation bank, such that it causes or permit or granting VWP general permit coverage. contributes to the failure of the vegetative success criteria for B. Informational requirements for all VWP individual a particular compensatory mitigation site, mitigation bank, or permit applications are identified in this subsection with the in-lieu fee program project, or it otherwise prohibits the exception of applications for emergency VWP permits to restoration of the same vegetation cover type that was address a public water supply emergency, for which the originally present. information required in 9VAC25-210-340 C shall be "VWP general permit" means the general permit text, terms, submitted. In addition to the information in this subsection, requirements, and conditions set forth in a regulation that applications involving a surface water withdrawal or a constitutes a VWP permit authorizing a specified category of Federal Energy Regulatory Commission (FERC) license or activities. relicense associated with a surface water withdrawal shall also submit the information required in 9VAC25-210-340 B. "VWP permit" means an individual or general permit issued by the board under § 62.1-44.15:20 of the Code of Virginia 1. A complete application for a VWP individual permit, at that authorizes activities otherwise unlawful under § 62.1- a minimum, consists of the following information, if 44.5 of the Code of Virginia or otherwise serves as the applicable to the project: Commonwealth of Virginia's § 401 certification. For any a. The applicant's legal name, mailing address, telephone applicant to the Federal Energy Regulatory Commission for a number, and if applicable, electronic mail address and certificate of public convenience and necessity pursuant to fax number. § 7c of the federal Natural Gas Act (15 USC § 717f(c)) to construct any natural gas transmission pipeline greater than b. If different from applicant, legal name, mailing 36 inches inside diameter, issuance of an individual VWP address, telephone number, and if applicable, electronic permit pursuant to this chapter and a certification issued mail address and fax number of property owner. pursuant to Article 2.6 (§ 62.1-44.15:80 et seq.) of the State Water Control Law shall together constitute the certification c. If applicable, the authorized agent's name, mailing required under § 401 of the federal Clean Water Act. address, telephone number, and if applicable, fax number and electronic mail address. "Water quality standards" means water quality standards adopted by the board and approved by the administrator of d. Project name and proposed project schedule. This the U.S. Environmental Protection Agency under § 303 of the schedule will be used to determine the VWP permit term. Clean Water Act as defined in 9VAC25-260-5. e. The following information for the project site location, "Watershed approach" means an analytical process for and any related permittee-responsible compensatory making compensatory mitigation decisions that support the mitigation site: sustainability or improvement of aquatic resources in a

Volume 37, Issue 5 Virginia Register of Regulations October 26, 2020 715 Regulations

(1) The physical street address, nearest street, or nearest places using commonly accepted arithmetic principles of route number; city or county; zip code; and if applicable, rounding. parcel number of the site or sites. (2) Individual stream impacts (i) quantified by length in (2) Name of the impacted water body or water bodies, or linear feet to the nearest whole number and by average receiving waters, as applicable, at the site or sites. width in feet to the nearest whole number; (ii) quantified in square feet to the nearest whole number; and (iii) when (3) The latitude and longitude to the nearest second at the compensatory mitigation is required, the impacts center of the site or sites. identified according to the assessed type using the (4) The fourth order subbasin, as defined by the Unified Stream Methodology. hydrologic unit boundaries of the National Watershed (3) Open water impacts identified according to type; and Boundary Dataset, for the site or sites. for each type, the individual impacts quantified in square (5) A detailed map depicting the location of the site or feet to the nearest whole number, cumulatively summed sites, including the project boundary and existing in square feet, and then the sum converted to acres and preservation areas on the site or sites. The map (e.g., a rounded to two decimal places using commonly accepted U.S. Geologic Survey topographic quadrangle map) arithmetic principles of rounding. should be of sufficient detail to easily locate the site or (4) A copy of the approved jurisdictional determination sites for inspection. when available, or when unavailable, (i) the preliminary f. A narrative description of the project, including project jurisdictional determination from the U.S. Army Corps of purpose and need. Engineers (USACE), U.S. Department of Agriculture Natural Resources Conservation Service (NRCS), or g. An alternatives analysis for the proposed project DEQ or (ii) other correspondence from the USACE, detailing the specific on-site and off-site measures taken NRCS, or DEQ indicating approval of the boundary of during project design and development to first avoid and applicable jurisdictional surface waters, including then minimize impacts to surface waters to the maximum wetlands data sheets if applicable. extent practicable in accordance with the Guidelines for Specification of Disposal Sites for Dredged or Fill (5) A delineation map that (i) depicts the geographic area Material, 40 CFR Part 230. Avoidance and minimization or areas of all surface water boundaries delineated in includes, but is not limited to, the specific on-site and accordance with 9VAC25-210-45 and confirmed in off-site measures taken to reduce the size, scope, accordance with the jurisdictional determination process; configuration, or density of the proposed project, (ii) identifies such areas in accordance with subdivisions including review of alternative sites where required for 1 h (1), 1 h (2), and 1 h (3) of this subsection; and (iii) the project, which would avoid or result in less adverse quantifies and identifies any other surface waters impact to surface waters, and documentation according to their Cowardin classification (i.e., emergent, demonstrating the reason the applicant determined less scrub-shrub, or forested) or similar terminology. damaging alternatives are not practicable. The analysis i. Plan view drawing or drawings of the project site shall demonstrate to the satisfaction of the board that sufficient to assess the project, including at a minimum avoidance and minimization opportunities have been the following: identified and measures have been applied to the proposed activity such that the proposed activity in terms (1) North arrow, graphic scale, and existing and proposed of impacts to state waters and fish and wildlife resources topographic or bathymetric contours. is the least environmentally damaging practicable (2) Limits of proposed impacts to surface waters. alternative. (3) Location of all existing and proposed structures. h. A narrative description of all impacts proposed to surface waters, including the type of activity to be (4) All delineated wetlands and all jurisdictional surface conducted in surface waters and any physical alteration waters on the site, including the Cowardin classification to surface waters. Surface water impacts shall be (i.e., emergent, scrub-shrub, or forested) for those surface identified as follows: waters and waterway name, if designated; ebb and flood or direction of flow; ordinary high water mark in nontidal (1) Wetland impacts identified according to their areas; tidal wetlands boundary; and mean low water and Cowardin classification (i.e., emergent, scrub-shrub, or mean high water lines in tidal areas. forested); and for each classification, the individual impacts quantified in square feet to the nearest whole (5) The limits of Chesapeake Bay Resource Protection number, cumulatively summed in square feet, and then Areas (RPAs) as field-verified by the applicant, and if the sum converted to acres and rounded to two decimal available, the limits as approved by the locality in which

Volume 37, Issue 5 Virginia Register of Regulations October 26, 2020 716 Regulations

the project site is located, unless the proposed use is Watershed Boundary Dataset, at the center of the site; exempt from the Chesapeake Bay Preservation Area (iii) a description of the surrounding land use; (iv) a Designation and Management Regulations (9VAC25- hydrologic analysis including a draft water budget for 830). nontidal areas based on expected monthly inputs and outputs that will project water level elevations for a (6) The limits of any areas that are under a deed typical year, a dry year, and a wet year; (v) groundwater restriction, conservation easement, restrictive covenant, elevation data, if available, or the proposed location of or other land use protective instrument (i.e., protected groundwater monitoring wells to collect these data; (vi) areas). wetland delineation confirmation, data sheets, and maps j. Cross-sectional and profile drawing or drawings. for existing surface water areas on the proposed site or Cross-sectional drawing or drawings of each proposed sites; (vii) a conceptual grading plan; (viii) a conceptual impact area includes at a minimum a graphic scale, planting scheme including suggested plant species and existing structures, existing and proposed elevations, zonation of each vegetation type proposed; (ix) a limits of surface water areas, ebb and flood or direction description of existing soils including general of flow (if applicable), ordinary high water mark in information on both topsoil and subsoil conditions, nontidal areas, tidal wetland boundary, mean low water permeability, and the need for soil amendments; (x) a and mean high water lines in tidal areas, impact limits, draft design of water control structures; (xi) inclusion of and location of all existing and proposed structures. buffer areas; (xii) a description of any structures and Profile drawing or drawings with this information may be features necessary for the success of the site; (xiii) the required on a case-by-case basis to demonstrate schedule for compensatory mitigation site construction; minimization of impacts. Any application that proposes and (xiv) measures for the control of undesirable species. piping or culverting stream flows shall provide a (2) If permittee-responsible compensation is proposed for longitudinal profile of the pipe or culvert position and stream impacts, a conceptual stream compensatory stream bed thalweg, or shall provide spot elevations of mitigation plan shall be submitted in order for an the stream thalweg at the beginning and end of the pipe application to be deemed complete and shall include at a or culvert, extending to a minimum of 10 feet beyond the minimum (i) the goals and objectives in terms of water limits of the proposed impact. quality benefits and replacement of stream functions; (ii) k. Materials assessment. Upon request by the board, the a detailed location map including the latitude and applicant shall provide evidence or certification that the longitude to the nearest second and the fourth order material is free from toxic contaminants prior to disposal subbasin, as defined by the hydrologic unit boundaries of or that the dredging activity will not cause or contribute the National Watershed Boundary Dataset, at the center to a violation of water quality standards during dredging. of the site; (iii) a description of the surrounding land use; The applicant may be required to conduct grain size and (iv) the proposed stream segment restoration locations composition analyses, tests for specific parameters or including plan view and cross-section drawings; (v) the chemical constituents, or elutriate tests on the dredge stream deficiencies that need to be addressed; (vi) data material. obtained from a DEQ-approved, stream impact assessment methodology such as the Unified Stream l. An assessment of potential impacts to federal and state Methodology; (vii) the proposed restoration measures to listed threatened or endangered species, including any be employed including channel measurements, proposed correspondence or documentation from federal or state design flows, types of instream structures, and resource agencies addressing potential impacts to listed conceptual planting scheme; (viii) reference stream data, species. if available; (ix) inclusion of buffer areas; (x) schedule m. A compensatory mitigation plan to achieve no net loss for restoration activities; and (xi) measures for the of wetland acreage and functions or stream functions and control of undesirable species. water quality benefits. (3) For any permittee-responsible compensatory (1) If permittee-responsible compensation is proposed for mitigation, the conceptual compensatory mitigation plan wetland impacts, a conceptual wetland compensatory shall also include a draft of the intended protective mitigation plan shall be submitted in order for an mechanism or mechanisms, in accordance with 9VAC25- application to be deemed complete and shall include at a 210-116 B 2, such as, but not limited to, a conservation minimum (i) the goals and objectives in terms of easement held by a third party in accordance with the replacement of wetland acreage and functions; (ii) a Virginia Conservation Easement Act (§ 10.1-1009 et seq. detailed location map including latitude and longitude to of the Code of Virginia) or the Virginia Open-Space the nearest second and the fourth order subbasin, as Land Act (§ 10.1-1700 et seq. of the Code of Virginia), a defined by the hydrologic unit boundaries of the National duly recorded declaration of restrictive covenants, or

Volume 37, Issue 5 Virginia Register of Regulations October 26, 2020 717 Regulations

other protective instrument. The draft intended protective o. Signature page that has been signed, dated, and mechanism shall contain the information in subdivisions certified by the applicant in accordance with 9VAC25- (a), (b), and (c) of this subdivision B 1 m (3) or in lieu 210-100. If the applicant is a business or other thereof shall describe the intended protective mechanism organization, the signature must be made by an or mechanisms that contain or contains the information individual with the authority to bind the business or required as follows: organization, and the title of the signatory must be provided. The application signature page, either on the (a) A provision for access to the site; copy submitted to the Virginia Marine Resources (b) The following minimum restrictions: no ditching, Commission or to DEQ, must have an original signature. land clearing, or discharge of dredge or fill material, and Electronic submittals containing the original signature no activity in the area designated as compensatory page, such as that contained in a scanned document file, mitigation area with the exception of maintenance; are acceptable. corrective action measures; or DEQ-approved activities p. Permit application fee. The applicant will be notified described in the approved final compensatory mitigation by the board as to the appropriate fee for the project in plan or long-term management plan; and accordance with 9VAC25-20. The board will continue to (c) A long-term management plan that identifies a long- process the application, but the fee must be received prior term steward and adequate financial assurances for long- to release of a draft VWP permit. term management in accordance with the current 2. Reserved. standard for mitigation banks and in-lieu fee program sites, except that financial assurances will not be C. An analysis of the functions of wetlands proposed to be necessary for permittee-responsible compensation impacted may be required by DEQ. When required, the provided by government agencies on government method selected for the analysis shall assess water quality or property. If approved by DEQ, permittee-responsible habitat metrics and shall be coordinated with DEQ in advance compensation on government property and long-term of conducting the analysis. protection may be provided through federal facility 1. No analysis shall be required when: management plans, integrated natural resources management plans, or other alternate management plans a. Wetland impacts per each single and complete project submitted by a government agency or public authority. total 1.00 acre or less; or (4) Any compensatory mitigation plan proposing the b. The proposed compensatory mitigation consists of purchase of mitigation bank or in-lieu fee program purchasing mitigation bank or in-lieu fee program credits credits shall include the number and type of credits at standard mitigation ratios of 2:1 for forest, 1.5:1 for proposed to be purchased and documentation from the scrub-shrub, and 1:1 for emergent, or higher. approved bank or in-lieu fee program sponsor of the availability of credits at the time of application. 2. Analysis shall be required when wetland impacts per each single and complete project total 1.01 acres or more, n. A written description and a graphical depiction and when any of the following applies: identifying all upland areas including buffers, wetlands, open water, other surface waters, and compensatory a. The proposed compensatory mitigation consists of mitigation areas located within the proposed project permittee-responsible compensatory mitigation, boundary or permittee-responsible compensatory including water quality enhancements as replacement for mitigation areas, that are under a deed restriction, wetlands; or conservation easement, restrictive covenant, or other land b. The proposed compensatory mitigation consists of use protective instrument (i.e., protected areas). Such purchasing mitigation bank or in-lieu fee program credits description and a graphical depiction shall include the at less than the standard mitigation ratios of 2:1 for nature of the prohibited activities within the protected forest, 1.5:1 for scrub-shrub, and 1:1 for emergent. areas and the limits of Chesapeake Bay Resource Protection Areas (RPAs) as field-verified by the D. Incomplete application. applicant, and if available, the limits as approved by the 1. Where an application for an individual permit or general locality in which the project site is located, unless the permit coverage is not accepted as complete by the board proposed use is exempt from the Chesapeake Bay within 15 days of receipt, the board shall require the Preservation Area Designation and Management submission of additional information from the applicant Regulations (9VAC25-830), as additional state or local and may suspend processing of any application until such requirements may apply if the project is located within an time as the applicant has supplied the requested RPA. information and the board considers the application complete. Where the applicant becomes aware that he

Volume 37, Issue 5 Virginia Register of Regulations October 26, 2020 718 Regulations

omitted one or more relevant facts from a VWP permit 6. The proposed activity is prohibited by 9VAC25-210-50. application or submitted incorrect information in a VWP 7. The effect of project impacts, together with other permit application or in any report to the board, the existing or proposed impacts to wetlands, will cause or applicant shall immediately submit such facts or the correct contribute to a significant impairment of state waters or information. A revised application with new information fish and wildlife resources. shall be deemed a new application for purpose of review but shall not require an additional notice or an additional 8. Failure to submit the required permit fee in accordance permit application fee. with 9VAC25-210-80 B 1 g or 9VAC25-210-340 C 1 g. 2. An incomplete permit application for an individual 9. The board determines that the applicant for an permit or general permit coverage may be administratively Emergency Virginia Water Protection Permit has not withdrawn from processing by the board for failure to demonstrated that there is a substantial threat to public provide the required information after 60 days from the health and safety, and that normal Virginia Water date of the latest written information request made by the Protection Permit procedures, including public comment board. The board shall provide (i) notice to the applicant provisions, should be followed. and (ii) an opportunity for an informal fact-finding proceeding when administratively withdrawing an B. The applicant shall be notified by letter of the board's incomplete application. Resubmittal of an application for preliminary decision to tentatively deny the VWP permit the same or similar project, after such time that the original requested. permit application was administratively withdrawn, shall C. Should the applicant withdraw his application, no VWP require submittal of an additional permit application fee permit or variance will be issued. and may be subject to additional noticing requirements. D. Should the applicant elect to proceed as originally 3. An applicant may request a suspension of application proposed, the board may deny the application and advise the review by the board. A submission by the applicant making applicant pursuant to § 62.1-44.15:02 of the Code of Virginia such a request shall not preclude the board from of his right to a public hearing to consider the denial. administratively withdrawing an incomplete application. Resubmittal of a permit application for the same or similar 9VAC25-210-320. Preapplication procedures for new or project, after such time that the original permit application expanded surface water withdrawals. was administratively withdrawn, shall require submittal of A. Preapplication review panel. At the request of a potential an additional permit application fee and may be subject to applicant for a surface water withdrawal proposing to the additional noticing requirements. Department of Environmental Quality to withdraw 90 million 9VAC25-210-230. Denial of the VWP permit or variance gallons a month or greater, a preapplication review panel request. shall be convened prior to submission of a VWP application. The preapplication review panel shall assist potential A. The board shall make a decision to tentatively deny the applicants that are proposing surface water withdrawals with VWP permit or variance request if the requirements of this the early identification of issues related to the protection of chapter are not met. Basis for denial include, but are not beneficial instream and offstream uses of state waters and the limited to, the following: identification of the affected stream reach. DEQ shall notify 1. The project will result in violations of water quality the Virginia Marine Resources Commission, the Virginia Institute of Marine Science, the Virginia Department of Game standards or will impair the beneficial uses of state waters. and Inland Fisheries Wildlife Resources, the Virginia 2. As a result of project implementation, shellfish waters Department of Conservation and Recreation, the Virginia would be condemned in accordance with 9VAC25-260. Department of Health, the U.S. Army Corps of Engineers, the U.S. Fish and Wildlife Service, the U.S. Environmental 3. The project that the applicant proposed fails to Protection Agency, and other appropriate local, state, and adequately avoid and minimize impacts to state waters to federal agencies of the preapplication review panel request. the maximum extent practicable. These agencies shall participate to the extent practicable in 4. The proposed compensatory mitigation plan is the preapplication review panel by providing information and insufficient or unsatisfactory for the proposed impacts and guidance on the potential natural resource impacts and fails to achieve no net loss of existing wetland acreage and regulatory implications of the options being considered by the function and no net loss of functions in all surface waters. applicant and shall provide comments within 60 days of the initial meeting of the preapplication panel. 5. The Department of Game and Inland Fisheries Wildlife Resources indicates that natural or stockable trout waters B. Preapplication public notice. For new or expanded would be permanently and negatively impacted by the surface water withdrawals requiring an individual VWP proposed activity. permit and proposing to withdraw 90 million gallons a month

Volume 37, Issue 5 Virginia Register of Regulations October 26, 2020 719 Regulations or greater, a potential applicant shall provide information on tenth acre or for proposed, permanent nontidal stream bed the project, shall provide an opportunity for public comment impacts greater than 300 linear feet shall include all on the proposed project, and shall assist in identifying public information pursuant to 9VAC25-660-60 B. Compensatory concerns or issues prior to filing a VWP individual permit mitigation may be required for all permanent impacts. application. 2. An application for coverage for proposed, permanent 1. Except as provided in this subsection, the potential nontidal wetland or open water impacts up to one-tenth applicant shall provide for publication of notice once a acre or for proposed, permanent nontidal stream bed week for two consecutive weeks in a newspaper of general impacts up to 300 linear feet shall be submitted in circulation serving the locality where the surface water accordance with either subdivision 2 a or 2 b of this withdrawal is proposed to be located. subsection: 2. If requested by any person, the potential applicant shall a. For any proposed project in wetlands, open water, hold at least one public information meeting. Notice of any streams, or compensatory mitigation sites that are under a public information meeting held pursuant to this subsection deed restriction, conservation easement, declaration of shall be provided at least 14 days prior to the public restrictive covenant, or other land use protective information meeting date and shall be published in the instrument (hereafter "protected areas"), when such same manner as required in subdivision 1 of this restriction, easement, covenant, or instrument is the result subsection. A potential applicant shall submit the notice to of a federal or state permit action and is specific to DEQ for posting on the DEQ website. At a minimum, any activities in wetlands and compensatory mitigation sites, notice required by this subsection shall include: the application shall include all of the information required by 9VAC25-660-60 B. Compensatory a. A statement of the potential applicant's intent to apply mitigation may be required for all permanent impacts. for a VWP permit for a surface water withdrawal; b. For all other projects, the application shall include the b. The proposed location of the surface water information required by subdivisions 1 through 7, 10, 11, withdrawal; 15, and 16 of 9VAC25-660-60 B and documentation that c. Information on how the public may request a public verifies the quantity and type of impacts. Compensatory information meeting or, in the alternative, the date, time, mitigation may be required for all permanent impacts and location of the public information meeting; once the notification limits of one-tenth acre wetlands or open water, or 300 linear feet of stream bed, are d. The name, address, and telephone number of the exceeded, and if required, the application shall include potential applicant, or an authorized representative who the information in 9VAC25-660-60 B 12. can answer questions or receive comments on the proposed surface water withdrawal; and B. The Department of Environmental Quality-approved application forms shall serve as an application for a VWP e. A statement of how oral or written public comments permit or VWP general permit coverage. will be used. C. The board will determine whether the proposed activity 3. In accordance with the provisions of 9VAC25-780-50 C requires coordination with the U.S. Fish and Wildlife Service, 11 and 9VAC25-780-150, a potential applicant shall not be the Virginia Department of Conservation and Recreation, the required to publish public notice or provide an opportunity Virginia Department of Agriculture and Consumer Services, for a public information meeting if a public meeting has and the Virginia Department of Game and Inland Fisheries been held within two years prior to the submittal of an Wildlife Resources regarding the presence of federal or state application for a VWP permit on a local or regional water listed threatened and endangered species or designated critical supply plan, which includes the proposed project. habitat. Based upon consultation with these agencies, the 4. The potential applicant shall maintain a list of persons board may deny application for coverage under this general making comment and their addresses and shall make a permit. The applicant may also consult with these agencies good faith effort to notify commenters at the address prior to submitting an application. Species or habitat provided by the commenter when the public notice for the information that the applicant provides will assist the draft VWP individual permit is available. Department of Environmental Quality in reviewing and processing the application. 9VAC25-660-50. Notification. 9VAC25-660-60. Application. A. Notification to the board will be required prior to commencing construction, as follows: A. The applicant shall file a complete application in accordance with 9VAC25-660-50 and this section for 1. An application for coverage for proposed, permanent coverage under thisVWP general permit for impacts to nontidal wetland or open water impacts greater than one-

Volume 37, Issue 5 Virginia Register of Regulations October 26, 2020 720 Regulations nontidal wetlands or open water of less than one-half acre and waters and waterway name, if designated; ebb and flood up to 300 linear feet of nontidal stream bed. or direction of flow; and ordinary high water mark in nontidal areas. B. A complete application for VWP general permit coverage, at a minimum, consists of the following e. The limits of Chesapeake Bay Resource Protection information, if applicable to the project: Areas (RPAs) as field-verified by the applicant, and if available, the limits as approved by the locality in which 1. The applicant's legal name, mailing address, telephone the project site is located, unless the proposed use is number, and if applicable, electronic mail address and fax exempt from the Chesapeake Bay Preservation Area number. Designation and Management Regulations (9VAC25- 2. If different from the applicant, legal name, mailing 830). address, telephone number, and if applicable, electronic f. The limits of areas that are under a deed restriction, mail address and fax number of property owner. conservation easement, restrictive covenant, or other land 3. If applicable, the authorized agent's name, mailing use protective instrument (i.e., protected areas). address, telephone number, and if applicable, fax number 9. Cross-sectional and profile drawing or drawings. Cross- and electronic mail address. sectional drawing or drawings of each proposed impact 4. The existing VWP general permit tracking number, if area shall include at a minimum a graphic scale, existing applicable. structures, existing and proposed elevations, limits of surface water areas, ebb and flood or direction of flow (if 5. Project name and proposed project schedule. applicable), ordinary high water mark in nontidal areas, 6. The following information for the project site location: impact limits, and location of all existing and proposed structures. Profile drawing or drawings with this a. The physical street address, nearest street, or nearest information may be required on a case-by-case basis to route number; city or county; zip code; and if applicable, demonstrate minimization of impacts. Any application that parcel number of the site or sites. proposes piping or culverting stream flows shall provide a b. Name of the impacted water body or water bodies, or longitudinal profile of the pipe or culvert position and receiving waters, as applicable, at the site or sites. stream bed thalweg, or shall provide spot elevations of the stream thalweg at the beginning and end of the pipe or c. The latitude and longitude to the nearest second at the culvert, extending to a minimum of 10 feet beyond the center of the site or sites. limits of proposed impact. d. The fourth order subbasin, as defined by the 10. A narrative description of all impacts proposed to hydrologic unit boundaries of the National Watershed surface waters, including the type of activity to be Boundary Dataset, for the site or sites. conducted in surface waters and any physical alteration to e. A detailed map depicting the location of the site or surface waters. Surface water impacts shall be identified as sites, including the project boundary and all existing follows: preservation areas on the site or sites. The map (e.g., a a. Wetland impacts identified according to their U.S. Geologic Survey topographic quadrangle map) Cowardin classification (i.e., emergent, scrub-shrub, or should be of sufficient detail to easily locate the site or forested); and for each classification, the individual sites for inspection. impacts quantified in square feet to the nearest whole 7. A narrative description of the project, including project number, cumulatively summed in square feet, and then purpose and need. the sum converted to acres and rounded to two decimal places using commonly accepted arithmetic principles of 8. Plan-view drawing or drawings of the project site rounding. sufficient to assess the project, including at a minimum the following: b. Individual stream impacts (i) quantified by length in linear feet to the nearest whole number and by average a. North arrow, graphic scale, and existing and proposed width in feet to the nearest whole number; (ii) quantified topographic or bathymetric contours. in square feet to the nearest whole number; and (iii) when b. Limits of proposed impacts to surface waters. compensatory mitigation is required, the impacts identified according to the assessed type using the c. Location of all existing and proposed structures. Unified Stream Methodology. d. All delineated wetlands and all jurisdictional surface c. Open water impacts identified according to their waters on the site, including the Cowardin classification Cowardin classification, and for each type, the individual (i.e., emergent, scrub-shrub, or forested) for those surface impacts quantified in square feet to the nearest whole

Volume 37, Issue 5 Virginia Register of Regulations October 26, 2020 721 Regulations

number, cumulatively summed in square feet, and then 14. Permit application fee. The applicant will be notified the sum converted to acres and rounded to two decimal by the board as to the appropriate fee for the project in places using commonly accepted arithmetic principles of accordance with 9VAC25-20. rounding. 15. A written description and a graphical depiction d. A copy of the approved jurisdictional determination identifying all upland areas including buffers, wetlands, when available, or when unavailable, (i) the preliminary open water, other surface waters, and compensatory jurisdictional determination from the U.S. Army Corps of mitigation areas located within the proposed project Engineers (USACE), U.S. Department of Agriculture boundary that are under a deed restriction, conservation Natural Resources Conservation Service (NRCS), or easement, restrictive covenant, or other land use protective DEQ or (ii) other correspondence from the USACE, instrument (i.e., protected areas). Such description and a NRCS, or DEQ indicating approval of the boundary of graphical depiction shall include the nature of the applicable jurisdictional surface waters, including prohibited activities within the protected areas and the wetlands data sheets if applicable. limits of Chesapeake Bay Resource Protection Areas (RPAs) as field-verified by the applicant, and if available, e. A delineation map that (i) depicts the geographic area the limits as approved by the locality in which the project or areas of all surface water boundaries delineated in site is located, unless the proposed use is exempt from the accordance with 9VAC25-210-45 and confirmed in Chesapeake Bay Preservation Area Designation and accordance with the jurisdictional determination process; Management Regulations (9VAC25-830), as additional (ii) identifies such areas in accordance with subdivisions state or local requirements may apply if the project is 10 a, 10 b, and 10 c of this subsection; and (iii) quantifies located within an RPA. and identifies any other surface waters according to their Cowardin classification (i.e., emergent, scrub-shrub, or 16. Signature page that has been signed, dated, and forested) or similar terminology. certified by the applicant in accordance with 9VAC25-210- 100. If the applicant is a business or other organization, the 11. An alternatives analysis for the proposed project signature must be made by an individual with the authority detailing the specific on-site measures taken during project to bind the business or organization, and the title of the design and development to first avoid and then minimize signatory must be provided. The application signature impacts to surface waters to the maximum extent page, either on the copy submitted to the Virginia Marine practicable in accordance with the Guidelines for Resources Commission or to DEQ, must have an original Specification of Disposal Sites for Dredged or Fill signature. Electronic submittals containing the original Material, 40 CFR Part 230. Avoidance and minimization signature page, such as that contained in a scanned includes, but is not limited to, the specific on-site measures document file, are acceptable. taken to reduce the size, scope, configuration, or density of the proposed project, including review of alternative sites C. Upon receipt of an application from the Department of where required for the project, which would avoid or result Transportation for a road or highway construction project by in less adverse impact to surface waters, and the appropriate DEQ office, the board has 10 business days, documentation demonstrating the reason the applicant pursuant to § 33.2-258 of the Code of Virginia, to review the determined less damaging alternatives are not practicable. application and either determine the information requested in The analysis shall demonstrate to the satisfaction of the subsection B of this section is complete or inform the board that avoidance and minimization opportunities have Department of Transportation that additional information is been identified and measures have been applied to the required to make the application complete. Upon receipt of an proposed activity such that the proposed activity in terms application from other applicants for any type of project, the of impacts to state waters and fish and wildlife resources is board has 15 days to review the application and either the least environmentally damaging practicable alternative. determine that the information requested in subsection B of this section is complete or inform the applicant that additional 12. A compensatory mitigation plan to achieve no net loss information is required to make the application complete. of wetland acreage and functions or stream functions and Pursuant to § 33.2-258 of the Code of Virginia, coverage water quality benefits. Any compensatory mitigation plan under this VWP general permit for Department of proposing the purchase of mitigation bank or in-lieu fee Transportation road or highway construction projects shall be program credits shall include the number and type of approved or approved with conditions, or the application shall credits proposed to be purchased and documentation from be denied, within 30 business days of receipt of a complete the approved bank or in-lieu fee program sponsor of the application. For all other projects, coverage under this VWP availability of credits at the time of application. general permit shall be approved or approved with conditions, 13. A copy of the FEMA flood insurance rate map or or the application shall be denied, within 45 days of receipt of FEMA-approved local floodplain map depicting any 100- a complete application. If the board fails to act within the year floodplains.

Volume 37, Issue 5 Virginia Register of Regulations October 26, 2020 722 Regulations applicable 30 or 45 days on a complete application, coverage 9VAC25-660-100. VWP general permit. under this VWP general permit shall be deemed granted. VWP GENERAL PERMIT NO. WP1 FOR IMPACTS LESS 1. In evaluating the application, the board shall make an THAN ONE-HALF ACRE UNDER THE VIRGINIA assessment of the impacts associated with the project in WATER PROTECTION PERMIT AND THE VIRGINIA combination with other existing or proposed impacts. STATE WATER CONTROL LAW Application for coverage under this VWP general permit Effective date: August 2, 2016 shall be denied if the cumulative impacts will cause or Expiration date: August 1, 2026 contribute to a significant impairment of state waters or fish and wildlife resources. In compliance with § 401 of the Clean Water Act, as amended (33 USC § 1341) and the State Water Control Law 2. The board may place additional requirements on a and regulations adopted pursuant thereto, the board has project in order to grant coverage under this VWP general determined that there is a reasonable assurance that this VWP permit. However, the requirements must be consistent with general permit, if complied with, will protect instream this chapter. beneficial uses, will not violate applicable water quality D. Incomplete application. standards, and will not cause or contribute to a significant impairment of state waters or fish and wildlife resources. In 1. Where an application for general permit coverage is not issuing this VWP general permit, the board has not taken into accepted as complete by the board within the applicable 10 consideration the structural stability of any proposed or 15 days of receipt, the board shall require the activities. submission of additional information from the applicant and may suspend processing of any application until such The permanent or temporary impact of less than one-half time as the applicant has supplied the requested acre of nontidal wetlands or open water and up to 300 linear information and the application is complete. Where the feet of nontidal stream bed shall be subject to the provisions applicant becomes aware that he omitted one or more of the VWP general permit set forth herein; any requirements relevant facts from an application, or submitted incorrect in coverage granted under this VWP general permit; the information in an application or in any report to the board, Clean Water Act, as amended; and the State Water Control the applicant shall immediately submit such facts or the Law and regulations adopted pursuant to it. correct information. A revised application with new Part I. Special Conditions. information shall be deemed a new application for the purposes of review but shall not require an additional A. Authorized activities. permit application fee. 1. The activities authorized by this chapter shall not cause 2. An incomplete permit application for general permit more than the permanent or temporary impacts to less than coverage may be administratively withdrawn from one-half acre of nontidal wetlands or open water and up to processing by the board for failure to provide the required 300 linear feet of nontidal stream bed. Additional permit information after 60 days from the date of the latest written requirements as stipulated by the board in the coverage information request made by the board. The board shall letter, if any, shall be enforceable conditions of this permit. provide (i) notice to the applicant and (ii) an opportunity for an informal fact-finding proceeding when 2. Any changes to the authorized permanent impacts to administratively withdrawing an incomplete application. surface waters shall require a notice of planned change in Resubmittal of an application for the same or similar accordance with 9VAC25-660-80. An application or project, after such time that the original permit application request for modification to coverage or another VWP was administratively withdrawn, shall require submittal of permit application may be required. an additional permit application fee. 3. Any changes to the authorized temporary impacts to 3. An applicant may request a suspension of application surface waters shall require written notification to and review by the board, but requesting a suspension shall not approval from the Department of Environmental Quality in preclude the board from administratively withdrawing an accordance with 9VAC25-660-80 prior to initiating the incomplete application. Resubmittal of a permit application impacts and restoration to preexisting conditions in for the same or similar project, after such time that the accordance with the conditions of this permit. original permit application was administratively 4. Modification to compensation requirements may be withdrawn, shall require submittal of an additional permit approved at the request of the permittee when a decrease in application fee. the amount of authorized surface waters impacts occurs, provided that the adjusted compensation meets the initial compensation goals.

Volume 37, Issue 5 Virginia Register of Regulations October 26, 2020 723 Regulations

B. Overall conditions. in accordance with the Virginia Erosion and Sediment Control Handbook, Third Edition, 1992. 1. The activities authorized by this VWP general permit shall be executed in a manner so as to minimize adverse 7. All construction, construction access (e.g., cofferdams, impacts on instream beneficial uses as defined in § 62.1-10 sheetpiling, and causeways) and demolition activities (b) of the Code of Virginia. associated with the project shall be accomplished in a manner that minimizes construction or waste materials 2. No activity may substantially disrupt the movement of from entering surface waters to the maximum extent aquatic life indigenous to the water body, including those practicable, unless authorized by this VWP general permit. species that normally migrate through the area, unless the primary purpose of the activity is to impound water. Pipes 8. No machinery may enter flowing waters, unless and culverts placed in streams must be installed to authorized by this VWP general permit or approved prior maintain low flow conditions and shall be countersunk at to entry by the Department of Environmental Quality. both inlet and outlet ends of the pipe or culvert, unless 9. Heavy equipment in temporarily impacted wetland areas otherwise specifically approved by the Department of shall be placed on mats, geotextile fabric, or other suitable Environmental Quality on a case-by-case basis, and as material to minimize soil disturbance to the maximum follows: The requirement to countersink does not apply to extent practicable. Equipment and materials shall be extensions or maintenance of existing pipes and culverts removed immediately upon completion of work. that are not countersunk, floodplain pipes and culverts being placed above ordinary high water, pipes and culverts 10. All nonimpacted surface waters and compensatory being placed on bedrock, or pipes and culverts required to mitigation areas within 50 feet of authorized activities and be placed on slopes 5.0% or greater. Bedrock encountered within the project or right-of-way limits shall be clearly during construction must be identified and approved in flagged or marked for the life of the construction activity at advance of a design change where the countersunk that location to preclude unauthorized disturbances to these condition cannot be met. Pipes and culverts 24 inches or surface waters and compensatory mitigation areas during less in diameter shall be countersunk three inches below construction. The permittee shall notify contractors that no the natural stream bed elevations, and pipes and culverts activities are to occur in these marked surface waters. greater than 24 inches shall be countersunk at least six inches below the natural stream bed elevations. Hydraulic 11. Temporary disturbances to surface waters during capacity shall be determined based on the reduced capacity construction shall be avoided and minimized to the due to the countersunk position. In all stream crossings maximum extent practicable. All temporarily disturbed appropriate measures shall be implemented to minimize wetland areas shall be restored to preexisting conditions any disruption of aquatic life movement. within 30 days of completing work at each respective temporary impact area, which shall include reestablishing 3. Wet or uncured concrete shall be prohibited from entry preconstruction elevations and contours with topsoil from into flowing surface waters, unless the area is contained the impact area where practicable and planting or seeding within a cofferdam and the work is performed in the dry or with appropriate wetland vegetation according to cover unless otherwise approved by the Department of type (i.e., emergent, scrub-shrub, or forested). The Environmental Quality. Excess or waste concrete shall not permittee shall take all appropriate measures to promote be disposed of in flowing surface waters or washed into and maintain revegetation of temporarily disturbed wetland flowing surface waters. areas with wetland vegetation through the second year post-disturbance. All temporarily impacted streams and 4. All fill material shall be clean and free of contaminants streambanks shall be restored to their preconstruction in toxic concentrations or amounts in accordance with all elevations and contours with topsoil from the impact area applicable laws and regulations. where practicable within 30 days following the 5. Erosion and sedimentation controls shall be designed in construction at that stream segment. Streambanks shall be accordance with the Virginia Erosion and Sediment seeded or planted with the same vegetation cover type Control Handbook, Third Edition, 1992. These controls originally present, including any necessary, supplemental shall be placed prior to clearing and grading and erosion control grasses. Invasive species identified on the maintained in good working order to minimize impacts to Department of Conservation and Recreation's Virginia state waters. These controls shall remain in place until the Invasive Plant Species List shall not be used to the area is stabilized and shall then be removed. maximum extent practicable or without prior approval from the Department of Environmental Quality. 6. Exposed slopes and streambanks shall be stabilized immediately upon completion of work in each permitted 12. Materials (including fill, construction debris, and impact area. All denuded areas shall be properly stabilized excavated and woody materials) temporarily stockpiled in wetlands shall be placed on mats or geotextile fabric,

Volume 37, Issue 5 Virginia Register of Regulations October 26, 2020 724 Regulations

immediately stabilized to prevent entry into state waters, 2. Installation of road crossings shall occur in the dry via managed such that leachate does not enter state waters, and the implementation of cofferdams, sheetpiling, stream completely removed within 30 days following completion diversions, or other similar structures. of that construction activity. Disturbed areas shall be D. Utility lines. returned to preconstruction elevations and contours with topsoil from the impact area where practicable; restored 1. All utility line work in surface waters shall be performed within 30 days following removal of the stockpile; and in a manner that minimizes disturbance, and the area must restored with the same vegetation cover type originally be returned to its preconstruction elevations and contours present, including any necessary, supplemental erosion with topsoil from the impact area where practicable and control grasses. Invasive species identified on the restored within 30 days of completing work in the area, Department of Conservation and Recreation's Virginia unless otherwise authorized by the Department of Invasive Plant Species List shall not be used to the Environmental Quality. Restoration shall be the seeding or maximum extent practicable or without prior approval planting of the same vegetation cover type originally from the Department of Environmental Quality. present, including any necessary, supplemental erosion control grasses. Invasive species identified on the 13. Continuous flow of perennial springs shall be Department of Conservation and Recreation's Virginia maintained by the installation of spring boxes, french Invasive Plant Species List shall not be used to the drains, or other similar structures. maximum extent practicable or without prior approval 14. The permittee shall employ measures to prevent spills from the Department of Environmental Quality. of fuels or lubricants into state waters. 2. Material resulting from trench excavation may be 15. The permittee shall conduct his activities in accordance temporarily sidecast into wetlands not to exceed a total of with the time-of-year restrictions recommended by the 90 days, provided the material is not placed in a manner Virginia Department of Game and Inland Fisheries such that it is dispersed by currents or other forces. Wildlife Resources, the Virginia Marine Resources 3. The trench for a utility line cannot be constructed in a Commission, or other interested and affected agencies, as manner that drains wetlands (e.g., backfilling with contained, when applicable, in a Department of extensive gravel layers creating a french drain effect). For Environmental Quality VWP general permit coverage example, utility lines may be backfilled with clay blocks to letter, and shall ensure that all contractors are aware of the ensure that the trench does not drain surface waters time-of-year restrictions imposed. through which the utility line is installed. 16. Water quality standards shall not be violated as a result E. Stream modification and stream bank protection. of the construction activities. 1. Riprap bank stabilization shall be of an appropriate size 17. If stream channelization or relocation is required, all and design in accordance with the Virginia Erosion and work in surface waters shall be done in the dry, unless Sediment Control Handbook, Third Edition, 1992. otherwise authorized by the Department of Environmental Quality, and all flows shall be diverted around the 2. Riprap apron for all outfalls shall be designed in channelization or relocation area until the new channel is accordance with the Virginia Erosion and Sediment stabilized. This work shall be accomplished by leaving a Control Handbook, Third Edition, 1992. plug at the inlet and outlet ends of the new channel during excavation. Once the new channel has been stabilized, flow 3. For stream bank protection activities, the structure and shall be routed into the new channel by first removing the backfill shall be placed as close to the stream bank as downstream plug and then the upstream plug. The rerouted practicable. No material shall be placed in excess of the stream flow must be fully established before construction minimum necessary for erosion protection. activities in the old stream channel can begin. 4. All stream bank protection control structures shall be C. Road crossings. located to eliminate or minimize impacts to vegetated wetlands to the maximum extent practicable. 1. Access roads and associated bridges, pipes, and culverts shall be constructed to minimize the adverse effects on 5. Asphalt and materials containing asphalt or other toxic surface waters to the maximum extent practicable. Access substances shall not be used in the construction of roads constructed above preconstruction elevations and submerged sills or breakwaters. contours in surface waters must be bridged, piped, or 6. Redistribution of existing stream substrate for the culverted to maintain surface flows. purpose of erosion control is prohibited.

Volume 37, Issue 5 Virginia Register of Regulations October 26, 2020 725 Regulations

7. No material removed from the stream bottom shall be a. Preconstruction photographs taken at each impact area disposed of in surface waters, unless otherwise authorized prior to initiation of activities within impact areas. by this VWP general permit. Photographs remain on the project site and shall depict the impact area and the nonimpacted surface waters F. Stormwater management facilities. immediately adjacent to and downgradient of each 1. Stormwater management facilities shall be installed in impact area. Each photograph shall be labeled to include accordance with best management practices and watershed the following information: permit number, impact area protection techniques (e.g., vegetated buffers, siting number, date and time of the photograph, name of the considerations to minimize adverse effects to aquatic person taking the photograph, photograph orientation, resources, bioengineering methods incorporated into the and photograph subject description. facility design to benefit water quality and minimize b. Site inspections shall be conducted by the permittee or adverse effects to aquatic resources) that provide for long- the permittee's qualified designee once every calendar term aquatic resources protection and enhancement, to the month during activities within impact areas. Monthly maximum extent practicable. inspections shall be conducted in the following areas: all 2. Compensation for unavoidable impacts shall not be authorized permanent and temporary impact areas; all allowed within maintenance areas of stormwater avoided surface waters, including wetlands, stream management facilities. channels, and open water; surface water areas within 50 feet of any land disturbing activity and within the project 3. Maintenance activities within stormwater management or right-of-way limits; and all on-site permanent facilities shall not require additional permit coverage or preservation areas required under this permit. compensation, provided that the maintenance activities do Observations shall be recorded on the inspection form not exceed the original contours of the facility, as approved provided by the Department of Environmental Quality. and constructed, and are accomplished in designated The form shall be completed in its entirety for each maintenance areas as indicated in the facility maintenance monthly inspection and shall be kept on site and made or design plan or when unavailable, an alternative plan available for review by the Department of Environmental approved by the Department of Environmental Quality. Quality staff upon request during normal business hours. Part II. Construction and Compensation Requirements, Inspections are not required during periods of no activity Monitoring, and Reporting. within impact areas. A. Minimum compensation requirements. 2. Monitoring of water quality parameters shall be conducted during permanent relocation of perennial 1. The permittee shall provide any required compensation streams through new channels in the manner noted below. for impacts in accordance with the conditions in this VWP The permittee shall report violations of water quality general permit, the coverage letter, and the chapter standards to the Department of Environmental Quality in promulgating the general permit. accordance with the procedures in 9VAC25-660-100 Part 2. The types of compensation options that may be II C. Corrective measures and additional monitoring may considered for activities covered under this VWP general be required if water quality standards are not met. permit include the purchase of mitigation bank credits or Reporting shall not be required if water quality standards the purchase of in-lieu fee program credits in accordance are not violated. with 9VAC25-660-70 and the associated provisions of a. A sampling station shall be located upstream and 9VAC25-210-116. immediately downstream of the relocated channel. 3. The final compensation plan shall be submitted to and b. Temperature, pH, and dissolved oxygen (D.O.) approved by the board prior to a construction activity in measurements shall be taken every 30 minutes for at least permitted impacts areas. The board shall review and two hours at each station prior to opening the new provide written comments on the final plan within 30 days channels and immediately before opening new channels. of receipt or it shall be deemed approved. The final plan as approved by the board shall be an enforceable requirement c. Temperature, pH, and D.O. readings shall be taken of any coverage under this VWP general permit. after opening the channels and every 30 minutes for at Deviations from the approved final plan shall be submitted least three hours at each station. and approved in advance by the board. C. Reporting. B. Impact site construction monitoring. 1. Written communications required by this VWP general 1. Construction activities authorized by this permit that are permit shall be submitted to the appropriate Department of within impact areas shall be monitored and documented. Environmental Quality office. The VWP general permit The monitoring shall consist of: tracking number shall be included on all correspondence.

Volume 37, Issue 5 Virginia Register of Regulations October 26, 2020 726 Regulations

2. The Department of Environmental Quality shall be 9. Submittals required by this VWP general permit shall notified in writing prior to the start of construction contain the following signed certification statement: activities at the first authorized impact area. "I certify under penalty of law that this document and all 3. A construction status update form provided by the attachments were prepared under my direction or Department of Environmental Quality shall be completed supervision in accordance with a system designed to assure and submitted to the Department of Environmental Quality that qualified personnel properly gather and evaluate the twice per year for the duration of coverage under a VWP information submitted. Based on my inquiry of the person general permit. Forms completed in June shall be or persons who manage the system, or those persons submitted by or on July 10, and forms completed in directly responsible for gathering the information, the December shall be submitted by or on January 10. The information submitted is, to the best of my knowledge and form shall include reference to the VWP permit tracking belief, true, accurate, and complete. I am aware that there number and one of the following statements for each are significant penalties for submitting false information, authorized surface water impact location: including the possibility of fine and imprisonment for knowing violation." a. Construction activities have not yet started; Part III. Conditions Applicable to All VWP General Permits. b. Construction activities have started; A. Duty to comply. The permittee shall comply with all c. Construction activities have started but are currently conditions, limitations, and other requirements of the VWP inactive; or general permit; any requirements in coverage granted under d. Construction activities are complete. this VWP general permit; the Clean Water Act, as amended; and the State Water Control Law and regulations adopted 4. The Department of Environmental Quality shall be pursuant to it. Any VWP general permit violation or notified in writing within 30 days following the completion noncompliance is a violation of the Clean Water Act and of all activities in all authorized impact areas. State Water Control Law and is grounds for (i) enforcement 5. The permittee shall notify the Department of action, (ii) VWP general permit coverage termination for Environmental Quality in writing when unusual or cause, (iii) VWP general permit coverage revocation, (iv) potentially complex conditions are encountered that require denial of application for coverage, or (v) denial of an debris removal or involve a potentially toxic substance. application for a modification to VWP general permit Measures to remove the obstruction, material, or toxic coverage. Nothing in this VWP general permit shall be substance or to change the location of a structure are construed to relieve the permittee of the duty to comply with prohibited until approved by the Department of all applicable federal and state statutes, regulations, and toxic Environmental Quality. standards and prohibitions. 6. The permittee shall report fish kills or spills of oil or fuel B. Duty to mitigate. The permittee shall take all reasonable immediately upon discovery. If spills or fish kills occur steps to minimize or prevent impacts in violation of the VWP between the hours of 8:15 a.m. to 5 p.m., Monday through general permit which may have a reasonable likelihood of Friday, the appropriate Department of Environmental adversely affecting human health or the environment. Quality regional office shall be notified; otherwise, the C. Reopener. This VWP general permit may be reopened to Department of Emergency Management shall be notified at modify its conditions when the circumstances on which the 1-800-468-8892. previous VWP general permit was based have materially and 7. Violations of state water quality standards shall be substantially changed, or special studies conducted by the reported to the appropriate Department of Environmental board or the permittee show material and substantial change Quality office no later than the end of the business day since the time the VWP general permit was issued and following discovery. thereby constitute cause for revoking and reissuing the VWP general permit. 8. The permittee shall notify the Department of Environmental Quality no later than the end of the third D. Compliance with state and federal law. Compliance with business day following the discovery of additional impacts this VWP general permit constitutes compliance with the to surface waters including wetlands, stream channels, and VWP permit requirements of the State Water Control Law. open water that are not authorized by the Department of Nothing in this VWP general permit shall be construed to Environmental Quality or to any required preservation preclude the institution of any legal action under or relieve areas. The notification shall include photographs, estimated the permittee from any responsibilities, liabilities, or other acreage or linear footage of impacts, and a description of penalties established pursuant to any other state law or the impacts. regulation or under the authority preserved by § 510 of the Clean Water Act.

Volume 37, Issue 5 Virginia Register of Regulations October 26, 2020 727 Regulations

E. Property rights. Coverage under this VWP general permit 1. Noncompliance by the permittee with any provision of does not convey property rights in either real or personal this chapter, any condition of the VWP general permit, or property or any exclusive privileges, nor does it authorize any requirement in general permit coverage; injury to private property, any invasion of personal property 2. The permittee's failure in the application or during the rights, or any infringement of federal, state, or local laws or process of granting VWP general permit coverage to regulations. disclose fully all relevant facts or the permittee's F. Severability. The provisions of this VWP general permit misrepresentation of any relevant facts at any time; are severable. 3. The permittee's violation of a special or judicial order; G. Inspection and entry. Upon presentation of credentials, 4. A determination by the board that the authorized activity the permittee shall allow the board or any duly authorized endangers human health or the environment and can be agent of the board, at reasonable times and under reasonable regulated to acceptable levels by a modification to the circumstances, to enter upon the permittee's property, public VWP general permit coverage or a termination; or private, and have access to inspect and copy any records that must be kept as part of the VWP general permit 5. A change in any condition that requires either a conditions; to inspect any facilities, operations, or practices temporary or permanent reduction or elimination of any (including monitoring and control equipment) regulated or activity controlled by the VWP general permit; or required under the VWP general permit; and to sample or monitor any substance, parameter, or activity for the purpose 6. A determination that the authorized activity has ceased of assuring compliance with the conditions of the VWP and that the compensation for unavoidable adverse impacts general permit or as otherwise authorized by law. For the has been successfully completed. purpose of this section, the time for inspection shall be K. The board may terminate VWP general permit coverage deemed reasonable during regular business hours. Nothing without cause when the permittee is no longer a legal entity contained herein shall make an inspection time unreasonable due to death or dissolution or when a company is no longer during an emergency. authorized to conduct business in the Commonwealth. The H. Transferability of VWP general permit coverage. VWP termination shall be effective 30 days after notice of the general permit coverage may be transferred to another proposed termination is sent to the last known address of the permittee when all of the criteria listed in this subsection are permittee or registered agent, unless the permittee objects met. On the date of the VWP general permit coverage within that time. If the permittee does object during that transfer, the transferred VWP general permit coverage shall period, the board shall follow the applicable procedures for be as fully effective as if it had been granted directly to the termination under §§ 62.1-44.15:02 and 62.1-44.15:25 of the new permittee. Code of Virginia. 1. The current permittee notifies the board of the proposed L. VWP general permit coverage termination by consent. transfer of the general permit coverage and provides a The permittee shall submit a request for termination by written agreement between the current and new permittees consent within 30 days of completing or canceling all containing a specific date of transfer of VWP general authorized activities requiring notification under 9VAC25- permit responsibility, coverage, and liability to the new 660-50 A and all compensatory mitigation requirements. permittee, or that the current permittee will retain such When submitted for project completion, the request for responsibility, coverage, or liability, including liability for termination by consent shall constitute a notice of project compliance with the requirements of enforcement activities completion in accordance with 9VAC25-210-130 F. The related to the authorized activity. director may accept this termination of coverage on behalf of the board. The permittee shall submit the following 2. The board does not within 15 days notify the current and information: new permittees of its intent to modify or revoke and reissue the VWP general permit. 1. Name, mailing address, and telephone number; I. Notice of planned change. VWP general permit coverage 2. Name and location of the activity; may be modified subsequent to issuance in accordance with 3. The VWP general permit tracking number; and 9VAC25-660-80. 4. One of the following certifications: J. VWP general permit coverage termination for cause. VWP general permit coverage is subject to termination for a. For project completion: cause by the board after public notice and opportunity for a "I certify under penalty of law that all activities and any hearing pursuant to § 62.1-44.15:02 of the Code of Virginia. required compensatory mitigation authorized by the Reasons for termination for cause are as follows: VWP general permit and general permit coverage have been completed. I understand that by submitting this

Volume 37, Issue 5 Virginia Register of Regulations October 26, 2020 728 Regulations

notice of termination I am no longer authorized to is or may be subject under § 311 of the Clean Water Act or perform activities in surface waters in accordance with §§ 62.1-44.34:14 through 62.1-44.34:23 of the State Water the VWP general permit and general permit coverage, Control Law. and that performing activities in surface waters is O. Duty to cease or confine activity. It shall not be a defense unlawful where the activity is not authorized by the VWP for a permittee in an enforcement action that it would have permit or coverage, unless otherwise excluded from been necessary to halt or reduce the activity for which VWP obtaining coverage. I also understand that the submittal general permit coverage has been granted in order to maintain of this notice does not release me from liability for any compliance with the conditions of the VWP general permit or violations of the VWP general permit or coverage." coverage. b. For project cancellation: P. Duty to provide information. "I certify under penalty of law that the activities and any 1. The permittee shall furnish to the board information that required compensatory mitigation authorized by the the board may request to determine whether cause exists VWP general permit and general permit coverage will for modifying, revoking, or terminating VWP permit not occur. I understand that by submitting this notice of coverage or to determine compliance with the VWP termination I am no longer authorized to perform general permit or general permit coverage. The permittee activities in surface waters in accordance with the VWP shall also furnish to the board, upon request, copies of general permit and general permit coverage, and that records required to be kept by the permittee. performing activities in surface waters is unlawful where the activity is not authorized by the VWP permit or 2. Plans, maps, conceptual reports, and other relevant coverage, unless otherwise excluded from obtaining information shall be submitted as required by the board coverage. I also understand that the submittal of this prior to commencing construction. notice does not release me from liability for any violations of the VWP general permit or coverage, nor Q. Monitoring and records requirements. does it allow me to resume the authorized activities 1. Monitoring of parameters, other than pollutants, shall be without reapplication and coverage." conducted according to approved analytical methods as c. For events beyond permittee control, the permittee specified in the VWP general permit. Analysis of shall provide a detailed explanation of the events, to be pollutants will be conducted according to 40 CFR Part 136 approved by the Department of Environmental Quality, (2000), Guidelines Establishing Test Procedures for the and the following certification statement: Analysis of Pollutants. "I certify under penalty of law that the activities or the 2. Samples and measurements taken for the purpose of required compensatory mitigation authorized by the monitoring shall be representative of the monitored VWP general permit and general permit coverage have activity. changed as the result of events beyond my control (see 3. The permittee shall retain records of all monitoring attached). I understand that by submitting this notice of information, including all calibration and maintenance termination I am no longer authorized to perform records and all original strip chart or electronic recordings activities in surface waters in accordance with the VWP for continuous monitoring instrumentation, copies of all general permit and general permit coverage, and that reports required by the VWP general permit, and records of performing activities in surface waters is unlawful where all data used to complete the application for coverage the activity is not authorized by the VWP permit or under the VWP general permit, for a period of at least three coverage, unless otherwise excluded from obtaining years from the date of general permit expiration. This coverage. I also understand that the submittal of this period may be extended by request of the board at any notice does not release me from liability for any time. violations of the VWP general permit or coverage, nor does it allow me to resume the authorized activities 4. Records of monitoring information shall include, as without reapplication and coverage." appropriate: M. Civil and criminal liability. Nothing in this VWP general a. The date, exact place, and time of sampling or permit shall be construed to relieve the permittee from civil measurements; and criminal penalties for noncompliance. b. The name of the individuals who performed the N. Oil and hazardous substance liability. Nothing in this sampling or measurements; VWP general permit shall be construed to preclude the c. The date and time the analyses were performed; institution of legal action or relieve the permittee from any responsibilities, liabilities, or penalties to which the permittee d. The name of the individuals who performed the analyses;

Volume 37, Issue 5 Virginia Register of Regulations October 26, 2020 729 Regulations

e. The analytical techniques or methods supporting the instrument (hereafter "protected areas"), when such information such as observations, readings, calculations, restriction, easement, covenant, or instrument is the result and bench data used; of a federal or state permit action and is specific to activities in wetlands and compensatory mitigation sites, f. The results of such analyses; and the application shall include all of the information g. Chain of custody documentation. required by 9VAC25-670-60 B. Compensatory mitigation may be required for all permanent impacts. R. Unauthorized discharge of pollutants. Except in compliance with this VWP general permit, it shall be b. For all other projects, the application shall include the unlawful for the permittee to: information required by subdivisions 1 through 7, 10, 11, 14, and 15 of 9VAC25-670-60 B and documentation that 1. Discharge into state waters sewage, industrial wastes, verifies the quantity and type of impacts. Compensatory other wastes, or any noxious or deleterious substances; mitigation may be required for all permanent impacts 2. Excavate in a wetland; once the notification limits of one-tenth acre wetlands or open water, or 300 linear feet of stream bed, are 3. Otherwise alter the physical, chemical, or biological exceeded, and if required, the application shall include properties of state waters and make them detrimental to the the information in 9VAC25-670-60 B 12. public health, to animal or aquatic life, or to the uses of such waters for domestic or industrial consumption, for B. The Department of Environmental Quality-approved recreation, or for other uses; or application forms shall serve as an application for a VWP permit or VWP general permit coverage. 4. On and after October 1, 2001, conduct the following activities in a wetland: C. The board will determine whether the proposed activity requires coordination with the U.S. Fish and Wildlife Service, a. New activities to cause draining that significantly alter the Virginia Department of Conservation and Recreation, the or degrade existing wetland acreage or functions; Virginia Department of Agriculture and Consumer Services b. Filling or dumping; and the Virginia Department of Game and Inland Fisheries Wildlife Resources regarding the presence of federal or state c. Permanent flooding or impounding; or listed threatened and endangered species or designated critical d. New activities that cause significant alteration or habitat. Based upon consultation with these agencies, the degradation of existing wetland acreage or functions. board may deny application for coverage under this general permit. The applicant may also consult with these agencies S. Duty to reapply. Any permittee desiring to continue a prior to submitting an application. Species or habitat previously authorized activity after the expiration date of the information that the applicant provides will assist the VWP general permit shall comply with the provisions in Department of Environmental Quality in reviewing and 9VAC25-660-27. processing the application. 9VAC25-670-50. Notification. 9VAC25-670-60. Application. A. Notification to the board will be required prior to A. The applicant shall file a complete application in commencing construction, as follows: accordance with 9VAC25-670-50 and this section for 1. An application for coverage for proposed, permanent coverage under this VWP general permit for impacts to nontidal wetland or open water impacts greater than one- surface waters from utility activities. tenth acre or for proposed permanent nontidal stream bed B. A complete application for VWP general permit impacts greater than 300 linear feet shall include all coverage, at a minimum, consists of the following information pursuant to 9VAC25-670-60 B. Compensatory information, if applicable to the project: mitigation may be required for all permanent impacts. 1. The applicant's legal name, mailing address, telephone 2. An application for the coverage for proposed, permanent number, and if applicable, electronic mail address and fax nontidal wetland or open water impacts up to one-tenth number. acre or for proposed, permanent nontidal stream bed impacts up to 300 linear feet shall be submitted in 2. If different from the applicant, legal name, mailing accordance with either subdivision 2 a or 2 b of this address, telephone number, and if applicable, electronic subsection: mail address and fax number of property owner. a. For any proposed project in wetlands, open water, 3. If applicable, the authorized agent's name, mailing streams, or compensatory mitigation sites that are under a address, telephone number, and if applicable, fax number deed restriction, conservation easement, declaration of and electronic mail address. restrictive covenant, or other land use protective

Volume 37, Issue 5 Virginia Register of Regulations October 26, 2020 730 Regulations

4. The existing VWP general permit tracking number, if 9. Cross-sectional and profile drawing or drawings. Cross- applicable. sectional drawing or drawings of each proposed impact area shall include at a minimum a graphic scale, existing 5. Project name and proposed project schedule. structures, existing and proposed elevations, limits of 6. The following information for the project site location surface water areas, ebb and flood or direction of flow (if and any related permittee-responsible compensatory applicable), ordinary high water mark in nontidal areas, mitigation site: impact limits, and location of all existing and proposed structures. Profile drawing or drawings with this a. The physical street address, nearest street, or nearest information may be required on a case-by-case basis to route number; city or county; zip code; and if applicable, demonstrate minimization of impacts. Any application that parcel number of the site or sites. proposes piping or culverting stream flows shall provide a b. Name of the impacted water body or water bodies, or longitudinal profile of the pipe or culvert position and receiving waters, as applicable, at the site or sites. stream bed thalweg, or shall provide spot elevations of the stream thalweg at the beginning and end of the pipe or c. The latitude and longitude to the nearest second at the culvert, extending to a minimum of 10 feet beyond the center of the site or sites. limits of proposed impact. d. The fourth order subbasin, as defined by the 10. A narrative description of all impacts proposed to hydrologic unit boundaries of the National Watershed surface waters, including the type of activity to be Boundary Dataset, for the site or sites. conducted in surface waters and any physical alteration to e. A detailed map depicting the location of the site or surface waters. Surface water impacts shall be identified as sites, including the project boundary and all existing follows: preservation areas on the site or sites. The map (e.g., a a. Wetland impacts identified according to their U.S. Geologic Survey topographic quadrangle map) Cowardin classification (i.e., emergent, scrub-shrub, or should be of sufficient detail to easily locate the site or forested); and for each classification, the individual sites for inspection. impacts quantified in square feet to the nearest whole 7. A narrative description of the project, including project number, cumulatively summed in square feet, and then purpose and need. the sum converted to acres and rounded to two decimal places using commonly accepted arithmetic principles of 8. Plan-view drawing or drawings of the project site rounding. sufficient to assess the project, including at a minimum the following: b. Individual stream impacts (i) quantified by length in linear feet to the nearest whole number and by average a. North arrow, graphic scale, and existing and proposed width in feet to the nearest whole number; (ii) quantified topographic or bathymetric contours. in square feet to the nearest whole number; and (iii) when b. Limits of proposed impacts to surface waters. compensatory mitigation is required, the impacts identified according to the assessed type using the c. Location of all existing and proposed structures. Unified Stream Methodology. d. All delineated wetlands and all jurisdictional surface c. Open water impacts identified according to their waters on the site, including the Cowardin classification Cowardin classification, and for each type, the individual (i.e., emergent, scrub-shrub, or forested) for those surface impacts quantified in square feet to the nearest whole waters and waterway name, if designated; ebb and flood number, cumulatively summed in square feet, and then or direction of flow; and ordinary high water mark in the sum converted to acres and rounded to two decimal nontidal areas. places using commonly accepted arithmetic principles of e. The limits of Chesapeake Bay Resource Protection rounding. Areas (RPAs) as field-verified by the applicant, and if d. A copy of the approved jurisdictional determination, available, the limits as approved by the locality in which when available, or when unavailable, (i) the preliminary the project site is located, unless the proposed use is jurisdictional determination from the U.S. Army Corps of exempt from the Chesapeake Bay reservation Area Engineers (USACE), U.S. Department of Agriculture Designation and Management Regulations (9VAC25- Natural Resources Conservation Service (NRCS), or 830). DEQ or (ii) other correspondence from the USACE, f. The limits of any areas that are under a deed NRCS, or DEQ indicating approval of the boundary of restriction, conservation easement, restrictive covenant, applicable jurisdictional surface waters, including or other land use protective instrument (i.e., protected wetlands data sheets if applicable. areas).

Volume 37, Issue 5 Virginia Register of Regulations October 26, 2020 731 Regulations

e. A delineation map that (i) depicts the geographic area description of existing soils including general or areas of all surface water boundaries delineated in information on both topsoil and subsoil conditions, accordance with 9VAC25-210-45 and confirmed in permeability, and the need for soil amendments; (x) a accordance with the jurisdictional determination process; draft design of any water control structures; (xi) inclusion (ii) identifies such areas in accordance with subdivisions of buffer areas; (xii) a description of any structures and 10 a, 10 b, and 10 c of this subsection; and (iii) quantifies features necessary for the success of the site; (xiii) the and identifies any other surface waters according to their schedule for compensatory mitigation site construction; Cowardin classification (i.e., emergent, scrub-shrub, or and (xiv) measures for the control of undesirable species. forested) or similar terminology. b. If permittee-responsible compensation is proposed for 11. An alternatives analysis for the proposed project stream impacts, a conceptual stream compensatory detailing the specific on-site measures taken during project mitigation plan must be submitted in order for an design and development to first avoid and then minimize application to be deemed complete and shall include at a impacts to surface waters to the maximum extent minimum (i) the goals and objectives in terms of water practicable in accordance with the Guidelines for quality benefits and replacement of stream functions; (ii) Specification of Disposal Sites for Dredged or Fill a detailed location map including the latitude and Material, 40 CFR Part 230. Avoidance and minimization longitude to the nearest second and the fourth order includes, but is not limited to, the specific on-site measures subbasin, as defined by the hydrologic unit boundaries of taken to reduce the size, scope, configuration, or density of the National Watershed Boundary Dataset, at the center the proposed project, including review of alternative sites of the site; (iii) a description of the surrounding land use; where required for the project, which would avoid or result (iv) the proposed stream segment restoration locations in less adverse impact to surface waters, and including plan view and cross-sectional drawings; (v) the documentation demonstrating the reason the applicant stream deficiencies that need to be addressed; (vi) data determined less damaging alternatives are not practicable. obtained from a DEQ-approved, stream impact The analysis shall demonstrate to the satisfaction of the assessment methodology such as the Unified Stream board that avoidance and minimization opportunities have Methodology; (vii) the proposed restoration measures to been identified and measures have been applied to the be employed including channel measurements, proposed proposed activity such that the proposed activity in terms design flows, types of instream structures, and of impacts to state waters and fish and wildlife resources is conceptual planting scheme; (viii) reference stream data, the least environmentally damaging practicable alternative. if available; (ix) inclusion of buffer areas; (x) schedule for restoration activities; and (xi) measures for the 12. A compensatory mitigation plan to achieve no net loss control of undesirable species. of wetland acreage and functions or stream functions and water quality benefits. c. For any permittee-responsible compensatory mitigation, the conceptual compensatory mitigation plan a. If permittee-responsible compensation is proposed for shall also include a draft of the intended protective wetland impacts, a conceptual wetland compensatory mechanism or mechanisms, in accordance with 9VAC25- mitigation plan must be submitted in order for an 210-116 B 2, such as, but not limited to, a conservation application to be deemed complete and shall include at a easement held by a third party in accordance with the minimum (i) the goals and objectives in terms of Virginia Conservation Easement Act (§ 10.1-1009 et seq. replacement of wetland acreage and functions; (ii) a of the Code of Virginia) or the Virginia Open-Space detailed location map including latitude and longitude to Land Act (§ 10.1-1700 et seq. of the Code of Virginia), a the nearest second and the fourth order subbasin, as duly recorded declaration of restrictive covenants, or defined by the hydrologic unit boundaries of the National other protective instrument. The draft intended protective Watershed Boundary Dataset, at the center of the site; mechanism shall contain the information in subdivisions (iii) a description of the surrounding land use; (iv) a c (1), c (2), and c (3) of this subdivision 12 or in lieu hydrologic analysis including a draft water budget for thereof shall describe the intended protective mechanism nontidal areas based on expected monthly inputs and or mechanisms that contains the information required outputs that will project water level elevations for a below: typical year, a dry year, and a wet year; (v) groundwater elevation data, if available, or the proposed location of (1) A provision for access to the site; groundwater monitoring wells to collect these data; (vi) (2) The following minimum restrictions: no ditching, wetland delineation confirmation, data sheets, and maps land clearing, or discharge of dredge or fill material, and for existing surface water areas on the proposed site or no activity in the area designated as compensatory sites; (vii) a conceptual grading plan; (viii) a conceptual mitigation area with the exception of maintenance; planting scheme including suggested plant species and corrective action measures; or DEQ-approved activities zonation of each vegetation type proposed; (ix) a

Volume 37, Issue 5 Virginia Register of Regulations October 26, 2020 732 Regulations

described in the approved final compensatory mitigation C. An analysis of the functions of wetlands proposed to be plan or long-term management plan; and impacted may be required by DEQ. When required, the method selected for the analysis shall assess water quality or (3) A long-term management plan that identifies a long- habitat metrics and shall be coordinated with DEQ in advance term steward and adequate financial assurances for long- of conducting the analysis. term management in accordance with the current standard for mitigation banks and in-lieu fee program 1. No analysis shall be required when: sites, except that financial assurances will not be a. Wetland impacts per each single and complete project necessary for permittee-responsible compensation total 1.00 acre or less; or provided by government agencies on government property. If approved by DEQ, permittee-responsible b. The proposed compensatory mitigation consists of compensation on government property and long-term purchasing mitigation bank or in-lieu fee program credits protection may be provided through federal facility at standard mitigation ratios of 2:1 for forest, 1.5:1 for management plans, integrated natural resources scrub-shrub, and 1:1 for emergent, or higher. management plans, or other alternate management plans submitted by a government agency or public authority. 2. Analysis shall be required when wetland impacts per each single and complete project total 1.01 acres or more d. Any compensatory mitigation plan proposing the and when any of the following applies: purchase of mitigation bank or in-lieu fee program credits shall include the number and type of credits a. The proposed compensatory mitigation consists of proposed to be purchased and documentation from the permittee-responsible compensation, including water approved mitigation bank or in-lieu fee program sponsor quality enhancements as replacement for wetlands; or of the availability of credits at the time of application. b. The proposed compensatory mitigation consists of 13. Permit application fee. The applicant will be notified purchasing mitigation bank or in-lieu fee program credits by the board as to the appropriate fee for the project in at less than the standard mitigation ratios of 2:1 for accordance with 9VAC25-20. forest, 1.5:1 for scrub-shrub, and 1:1 for emergent. 14. A written description and a graphical depiction D. Upon receipt of an application by the appropriate DEQ identifying all upland areas including buffers, wetlands, office, the board has 15 days to review the application and open water, other surface waters, and compensatory either determine the information requested in subsection B of mitigation areas located within the proposed project this section is complete or inform the applicant that additional boundary or permittee-responsible compensatory information is required to make the application complete. mitigation areas that are under a deed restriction, Coverage under the VWP general permit shall be approved or conservation easement, restrictive covenant, or other land approved with conditions, or the application shall be denied, use protective instrument (i.e., protected areas). Such within 45 days of receipt of a complete application. If the description and a graphical depiction shall include the board fails to act within 45 days on a complete application, nature of the prohibited activities within the protected areas coverage under the VWP general permit shall be deemed and the limits of Chesapeake Bay Resource Protection granted. Areas (RPAs) as field-verified by the applicant, and if 1. In evaluating the application, the board shall make an available, the limits as approved by the locality in which assessment of the impacts associated with the project in the project site is located, unless the proposed use is combination with other existing or proposed impacts. exempt from the Chesapeake Bay Preservation Area Application for coverage under the VWP general permit Designation and Management Regulations (9VAC25-830), shall be denied if the cumulative impacts will cause or as additional state or local requirements may apply if the contribute to a significant impairment of surface waters or project is located within an RPA. fish and wildlife resources. 15. Signature page that has been signed, dated, and 2. The board may place additional requirements on a certified by the applicant in accordance with 9VAC25-210- project in order to grant coverage under this VWP general 100. If the applicant is a business or other organization, the permit. However, the requirements must be consistent with signature must be made by an individual with the authority this chapter. to bind the business or organization, and the title of the signatory must be provided. The application signature E. Incomplete application. page, either on the copy submitted to the Virginia Marine 1. Where an application for general permit coverage is not Resources Commission or to DEQ, must have an original accepted as complete by the board within 15 days of signature. Electronic submittals containing the original receipt, the board shall require the submission of additional signature page, such as that contained in a scanned information from the applicant and may suspend document file, are acceptable. processing of any application until such time as the

Volume 37, Issue 5 Virginia Register of Regulations October 26, 2020 733 Regulations

applicant has supplied the requested information and the The permanent or temporary impact of up to one acre of application is complete. Where the applicant becomes nontidal wetlands or open water and up to 1,500 linear feet of aware that he omitted one or more relevant facts from an nontidal stream bed shall be subject to the provisions of the application, or submitted incorrect information in an VWP general permit set forth herein; any requirements in application or any report to the board, the applicant shall coverage granted under this VWP general permit; the Clean immediately submit such facts or the correct information. Water Act, as amended; and the State Water Control Law and A revised application with new information shall be regulations adopted pursuant to it. deemed a new application for the purposes of review but Part I. Special Conditions. shall not require an additional permit application fee. A. Authorized activities. 2. An incomplete permit application for general permit coverage may be administratively withdrawn from 1. The activities authorized by this chapter shall not cause processing by the board for failure to provide the required more than the permanent or temporary impacts of up to one information after 60 days from the date of the latest written acre of nontidal wetlands or open water and up to 1,500 information request made by the board. The board shall linear feet of nontidal stream bed. Additional permit provide (i) notice to the applicant and (ii) an opportunity requirements as stipulated by the board in the coverage for an informal fact-finding proceeding when letter, if any, shall be enforceable conditions of this permit. administratively withdrawing an incomplete application. Resubmittal of an application for the same or similar 2. Any changes to the authorized permanent impacts to project, after such time that the original permit application surface waters shall require a notice of planned change in was administratively withdrawn, shall require submittal of accordance with 9VAC25-670-80. An application or an additional permit application fee. request for modification to coverage or another VWP permit application may be required. 3. An applicant may request a suspension of application review by the board, but requesting a suspension shall not 3. Any changes to the authorized temporary impacts to preclude the board from administratively withdrawing an surface waters shall require written notification to and incomplete application. Resubmittal of a permit application approval from the Department of Environmental Quality in for the same or similar project, after such time that the accordance with 9VAC25-670-80 prior to initiating the original permit application was administratively impacts and restoration to preexisting conditions in withdrawn, shall require submittal of an additional permit accordance with the conditions of this permit. application fee. 4. Modification to compensation requirements may be approved at the request of the permittee when a decrease in 9VAC25-670-100. VWP general permit. the amount of authorized surface waters impacts occurs, VWP GENERAL PERMIT NO. WP2 FOR FACILITIES provided that the adjusted compensation meets the initial AND ACTIVITIES OF UTILITIES AND PUBLIC compensation goals. SERVICE COMPANIES REGULATED BY THE FEDERAL ENERGY REGULATORY COMMISSION OR B. Overall conditions. THE STATE CORPORATION COMMISSION AND 1. The activities authorized by this VWP general permit OTHER UTILITY LINE ACTIVITIES UNDER THE shall be executed in a manner so as to minimize adverse VIRGINIA WATER PROTECTION PERMIT AND THE impacts on instream beneficial uses as defined in § 62.1-10 VIRGINIA STATE WATER CONTROL LAW (b) of the Code of Virginia. Effective date: August 2, 2016 2. No activity may substantially disrupt the movement of Expiration date: August 1, 2026 aquatic life indigenous to the water body, including those In compliance with § 401 of the Clean Water Act, as species which normally migrate through the area, unless amended (33 USC § 1341) and the State Water Control Law the primary purpose of the activity is to impound water. and regulations adopted pursuant thereto, the board has Pipes and culverts placed in streams must be installed to determined that there is a reasonable assurance that this VWP maintain low flow conditions and shall be countersunk at general permit, if complied with, will protect instream both inlet and outlet ends of the pipe or culvert, unless beneficial uses, will not violate applicable water quality otherwise specifically approved by the Department of standards, and will not cause or contribute to a significant Environmental Quality on a case-by-case basis, and as impairment of surface waters or fish and wildlife resources. follows: The requirement to countersink does not apply to In issuing this VWP general permit, the board has not taken extensions or maintenance of existing pipes and culverts into consideration the structural stability of any proposed that are not countersunk, floodplain pipes and culverts activities. being placed above ordinary high water, pipes and culverts being placed on bedrock, or pipes and culverts required to be placed on slopes 5.0% or greater. Bedrock encountered

Volume 37, Issue 5 Virginia Register of Regulations October 26, 2020 734 Regulations

during construction must be identified and approved in that location to preclude any unauthorized disturbances to advance of a design change where the countersunk these surface waters and compensatory mitigation areas condition cannot be met. Pipes and culverts 24 inches or during construction. The permittee shall notify contractors less in diameter shall be countersunk three inches below that no activities are to occur in these marked surface the natural stream bed elevations, and pipes and culverts waters. greater than 24 inches shall be countersunk at least six 11. Temporary disturbances to surface waters during inches below the natural stream bed elevations. Hydraulic construction shall be avoided and minimized to the capacity shall be determined based on the reduced capacity maximum extent practicable. All temporarily disturbed due to the countersunk position. In all stream crossings wetland areas shall be restored to preexisting conditions appropriate measures shall be implemented to minimize within 30 days of completing work at each respective any disruption of aquatic life movement. temporary impact area, which shall include reestablishing 3. Wet or uncured concrete shall be prohibited from entry preconstruction elevations and contours with topsoil from into flowing surface waters, unless the area is contained the impact area where practicable and planting or seeding within a cofferdam and the work is performed in the dry or with appropriate wetland vegetation according to cover unless otherwise approved by the Department of type (i.e., emergent, scrub-shrub, or forested). The Environmental Quality. Excess or waste concrete shall not permittee shall take all appropriate measures to promote be disposed of in flowing surface waters or washed into and maintain revegetation of temporarily disturbed wetland flowing surface waters. areas with wetland vegetation through the second year post-disturbance. All temporarily impacted streams and 4. All fill material shall be clean and free of contaminants streambanks shall be restored to their preconstruction in toxic concentrations or amounts in accordance with all elevations and contours with topsoil from the impact area applicable laws and regulations. where practicable within 30 days following the 5. Erosion and sedimentation controls shall be designed in construction at that stream segment. Streambanks shall be accordance with the Virginia Erosion and Sediment seeded or planted with the same vegetation cover type Control Handbook, Third Edition, 1992. These controls originally present, including any necessary, supplemental shall be placed prior to clearing and grading and erosion control grasses. Invasive species identified on the maintained in good working order to minimize impacts to Department of Conservation and Recreation's Virginia state waters. These controls shall remain in place until the Invasive Plant Species List shall not be used to the area is stabilized and shall then be removed. maximum extent practicable or without prior approval from the Department of Environmental Quality. 6. Exposed slopes and streambanks shall be stabilized immediately upon completion of work in each permitted 12. Materials (including fill, construction debris, and area. All denuded areas shall be properly stabilized in excavated and woody materials) temporarily stockpiled in accordance with the Virginia Erosion and Sediment wetlands shall be placed on mats or geotextile fabric, Control Handbook, Third Edition, 1992. immediately stabilized to prevent entry into state waters, managed such that leachate does not enter state waters, and 7. All construction, construction access (e.g., cofferdams, completely removed within 30 days following completion sheetpiling, and causeways) and demolition activities of that construction activity. Disturbed areas shall be associated with the project shall be accomplished in such a returned to preconstruction elevations and contours with manner that minimizes construction or waste materials topsoil from the impact areas where practicable; restored from entering surface waters to the maximum extent within 30 days following removal of the stockpile; and practicable, unless authorized by this VWP general permit. restored with the same vegetation cover type originally 8. No machinery may enter flowing waters, unless present, including any necessary, supplemental erosion authorized by this VWP general permit or approved prior control grasses. Invasive species identified on the to entry by the Department of Environmental Quality. Department of Conservation and Recreation's Virginia Invasive Plant Species List shall not be used to the 9. Heavy equipment in temporarily impacted wetland areas maximum extent practicable or without prior approval shall be placed on mats, geotextile fabric, or other suitable from the Department of Environmental Quality. material, to minimize soil disturbance to the maximum extent practicable. Equipment and materials shall be 13. Continuous flow of perennial springs shall be removed immediately upon completion of work. maintained by the installation of spring boxes, french drains, or other similar structures. 10. All nonimpacted surface waters and compensatory mitigation areas within 50 feet of authorized activities and 14. The permittee shall employ measures to prevent spills within the project or right-of-way limits shall be clearly of fuels or lubricants into state waters. flagged or marked for the life of the construction activity at

Volume 37, Issue 5 Virginia Register of Regulations October 26, 2020 735 Regulations

15. The permittee shall conduct his activities in accordance provided the material is not placed in a manner such that it with the time-of-year restrictions recommended by the is dispersed by currents or other forces. Virginia Department of Game and Inland Fisheries 3. The trench for a utility line cannot be constructed in a Wildlife Resources, the Virginia Marine Resources manner that drains wetlands (e.g., backfilling with Commission, or other interested and affected agencies, as extensive gravel layers creating a trench drain effect.). For contained, when applicable, in a Department of example, utility lines may be backfilled with clay blocks to Environmental Quality VWP general permit coverage ensure that the trench does not drain surface waters letter, and shall ensure that all contractors are aware of the through which the utility line is installed. time-of-year restrictions imposed. E. Stream modification and stream bank protection. 16. Water quality standards shall not be violated as a result of the construction activities. 1. Riprap bank stabilization shall be of an appropriate size and design in accordance with the Virginia Erosion and 17. If stream channelization or relocation is required, all Sediment Control Handbook, Third Edition, 1992. work in surface waters shall be done in the dry, unless otherwise authorized by the Department of Environmental 2. Riprap apron for all outfalls shall be designed in Quality, and all flows shall be diverted around the accordance with the Virginia Erosion and Sediment channelization or relocation area until the new channel is Control Handbook, Third Edition, 1992. stabilized. This work shall be accomplished by leaving a plug at the inlet and outlet ends of the new channel during 3. For stream bank protection activities, the structure and excavation. Once the new channel has been stabilized, flow backfill shall be placed as close to the stream bank as shall be routed into the new channel by first removing the practicable. No material shall be placed in excess of the downstream plug and then the upstream plug. The rerouted minimum necessary for erosion protection. steam flow must be fully established before construction 4. All stream bank protection structures shall be located to activities in the old stream channel can begin. eliminate or minimize impacts to vegetated wetlands to the C. Road crossings. maximum extent practicable. 1. Access roads and associated bridges, pipes, and culverts 5. Asphalt and materials containing asphalt or other toxic shall be constructed to minimize the adverse effects on substances shall not be used in the construction of surface waters to the maximum extent practicable. Access submerged sills or breakwaters. roads constructed above preconstruction elevations and 6. Redistribution of existing stream substrate for the contours in surface waters must be bridged, piped, or purpose of erosion control is prohibited. culverted to maintain surface flows. 7. No material removed from the stream bottom shall be 2. Installation of road crossings shall occur in the dry via disposed of in surface waters, unless otherwise authorized the implementation of cofferdams, sheetpiling, stream by this VWP general permit. diversions, or similar structures. Part II. Construction and Compensation Requirements, D. Utility lines. Monitoring, and Reporting. 1. All utility line work in surface waters shall be performed A. Minimum compensation requirements. in a manner that minimizes disturbance, and the area must be returned to its preconstruction elevations and contours 1. The permittee shall provide any required compensation with topsoil from the impact area where practicable and for impacts in accordance with the conditions in this VWP restored within 30 days of completing work in the area, general permit, the coverage letter, and the chapter unless otherwise authorized by the Department of promulgating the general permit. For all compensation that Environmental Quality. Restoration shall be the seeding or requires a protective mechanism, including preservation of planting of the same vegetation cover type originally surface waters or buffers, the permittee shall record the present, including any necessary, supplemental erosion approved protective mechanism in the chain of title to the control grasses. Invasive species identified on the property, or an equivalent instrument for government- Department of Conservation and Recreation's Virginia owned lands, and proof of recordation shall be submitted to Invasive Plant Species List shall not be used to the the Department of Environmental Quality prior to maximum extent practicable or without prior approval commencing impacts in surface waters. from the Department of Environmental Quality. 2. Compensation options that may be considered under this 2. Material resulting from trench excavation may be VWP general permit shall meet the criteria in 9VAC25- temporarily sidecast into wetlands, not to exceed 90 days, 210-116 and 9VAC25-670-70.

Volume 37, Issue 5 Virginia Register of Regulations October 26, 2020 736 Regulations

3. The permittee-responsible compensation site or sites measures are proposed, and summary of geomorphologic depicted in the conceptual compensation plan submitted measurements (e.g., stream width, entrenchment ratio, with the application shall constitute the compensation site. width-depth ratio, sinuosity, slope, substrate, etc.); a site A site change may require a modification to coverage. access plan; a monitoring plan, including a monitoring and reporting schedule, monitoring design and 4. For compensation involving the purchase of mitigation methodologies for success, proposed success criteria, bank credits or the purchase of in-lieu fee program credits, location of photo-monitoring stations, vegetation the permittee shall not initiate work in permitted impact sampling points, survey points, bank pins, scour chains, areas until documentation of the mitigation bank credit and reference streams; an abatement and control plan for purchase or of the in-lieu fee program credit purchase has undesirable plant species; an erosion and sedimentation been submitted to and received by the Department of control plan, if appropriate; a construction schedule; a Environmental Quality. plan-view drawing depicting the pattern and all 5. The final compensationplan shall be submitted to and compensation measures being employed; a profile approved by the board prior to a construction activity in drawing; cross-sectional drawing or drawings of the permitted impact areas. The board shall review and provide proposed compensation stream; and the final protective written comments on the final plan within 30 days of mechanism for the protection of the compensation site or receipt or it shall be deemed approved. The final plan as sites, including all surface waters and buffer areas within approved by the board shall be an enforceable requirement its boundaries. of any coverage under this VWP general permit. (3) The approved protective mechanism. The protective Deviations from the approved final plan shall be submitted mechanism shall be recorded in the chain of title to the and approved in advance by the board. property, or an equivalent instrument for government- a. The final permittee-responsible wetlands compensation owned lands, and proof of recordation shall be submitted plan shall include: to the Department of Environmental Quality prior to commencing impacts in surface waters. (1) The complete information on all components of the conceptual compensation plan. 6. The following criteria shall apply to permittee- responsible wetland or stream compensation: (2) A summary of the type and acreage of existing wetland impacts anticipated during the construction of a. The vegetation used shall be native species common to the compensation site and the proposed compensation for the area, shall be suitable for growth in local wetland or these impacts; a site access plan; a monitoring plan, riparian conditions, and shall be from areas within the including proposed success criteria, monitoring goals, same or adjacent U.S. Department of Agriculture Plant and the location of photo-monitoring stations, monitoring Hardiness Zone or Natural Resources Conservation wells, vegetation sampling points, and reference wetlands Service Land Resource Region as that of the project site. or streams, if available; an abatement and control plan for Planting of woody plants shall occur when vegetation is undesirable plant species; an erosion and sedimentation normally dormant, unless otherwise approved in the final control plan; a construction schedule; and the final wetlands or stream compensation plan or plans. protective mechanism for the protection of the b. All work in permitted impact areas shall cease if compensation site or sites, including all surface waters compensation site construction has not commenced and buffer areas within its boundaries. within 180 days of commencement of project (3) The approved protective mechanism. The protective construction, unless otherwise authorized by the board. mechanism shall be recorded in the chain of title to the c. The Department of Environmental Quality shall be property, or an equivalent instrument for government- notified in writing prior to the initiation of construction owned lands, and proof of recordation shall be submitted activities at the compensation site. to the Department of Environmental Quality prior to commencing impacts in surface waters. d. Point sources of stormwater runoff shall be prohibited from entering a wetland compensation site prior to b. The final permittee-responsible stream compensation treatment by appropriate best management practices. plan shall include: Appropriate best management practices may include (1) The complete information on all components of the sediment traps, grassed waterways, vegetated filter strips, conceptual compensation plan. debris screens, oil and grease separators, or forebays. (2) An evaluation, discussion, and plan drawing or e. The success of the compensation shall be based on drawings of existing conditions on the proposed meeting the success criteria established in the approved compensation stream, including the identification of final compensation plan. functional and physical deficiencies for which the

Volume 37, Issue 5 Virginia Register of Regulations October 26, 2020 737 Regulations

f. If the wetland or stream compensation area fails to impact area. Each photograph shall be labeled to include meet the specified success criteria in a particular the following information: permit number, impact area monitoring year, other than the final monitoring year, the number, date and time of the photograph, name of the reasons for this failure shall be determined and a person taking the photograph, photograph orientation, corrective action plan shall be submitted to the and photograph subject description. Department of Environmental Quality for approval with b. Site inspections shall be conducted by the permittee or or before that year's monitoring report. The corrective the permittee's qualified designee once every calendar action plan shall contain at a minimum the proposed month during activities within impact areas. Monthly actions, a schedule for those actions, and a monitoring inspections shall be conducted in the following areas: all plan, and shall be implemented by the permittee in authorized permanent and temporary impact areas; all accordance with the approved schedule. Should avoided surface waters, including wetlands, stream significant changes be necessary to ensure success, the channels, and open water; surface water areas within 50 required monitoring cycle shall begin again, with feet of any land disturbing activity and within the project monitoring year one being the year that the changes are or right-of-way limits; and all on-site permanent complete, as confirmed by the Department of preservation areas required under this permit. Environmental Quality. If the wetland or stream Observations shall be recorded on the inspection form compensation area fails to meet the specified success provided by the Department of Environmental Quality. criteria by the final monitoring year or if the wetland or The form shall be completed in its entirety for each stream compensation area has not met the stated monthly inspection and shall be kept on site and made restoration goals, reasons for this failure shall be available for review by the Department of Environmental determined and a corrective action plan, including Quality staff upon request during normal business hours. proposed actions, a schedule, and a monitoring plan, Inspections are not required during periods of no activity shall be submitted with the final year monitoring report within impact areas. for Department of Environmental Quality approval. Corrective action shall be implemented by the permittee 2. Monitoring of water quality parameters shall be in accordance with the approved schedule. Annual conducted during permanent relocation of perennial monitoring shall be required to continue until two streams through new channels in the manner noted below. sequential, annual reports indicate that all criteria have The permittee shall report violations of water quality been successfully satisfied and the site has met the standards to the Department of Environmental Quality in overall restoration goals (e.g., that corrective actions accordance with the procedures in 9VAC25-670-100 Part were successful). II E. Corrective measures and additional monitoring may be required if water quality standards are not met. g. The surveyed wetland boundary for the compensation Reporting shall not be required if water quality standards site shall be based on the results of the hydrology, soils, are not violated. and vegetation monitoring data and shall be shown on the site plan. Calculation of total wetland acreage shall be a. A sampling station shall be located upstream and based on that boundary at the end of the monitoring immediately downstream of the relocated channel. cycle. Data shall be submitted by December 31 of the final monitoring year. b. Temperature, pH, and dissolved oxygen (D.O.) measurements shall be taken every 30 minutes for at least h. Herbicides or algicides shall not be used in or two hours at each station prior to opening the new immediately adjacent to the compensation site or sites channels and immediately before opening new channels. without prior authorization by the board. All vegetation removal shall be done by manual means, unless c. Temperature, pH, and D.O. readings shall be taken authorized by the Department of Environmental Quality after opening the channels and every 30 minutes for at in advance. least three hours at each station. B. Impact site construction monitoring. C. Permittee-responsible wetland compensation site monitoring. 1. Construction activities authorized by this permit that are within impact areas shall be monitored and documented. 1. An as-built ground survey, or an aerial survey provided The monitoring shall consist of: by a firm specializing in aerial surveys, shall be conducted for the entire compensation site or sites including invert a. Preconstruction photographs taken at each impact area elevations for all water elevation control structures and prior to initiation of activities within impact areas. spot elevations throughout the site or sites. Aerial surveys Photographs shall remain on the project site and depict shall include the variation from actual ground conditions, the impact area and the nonimpacted surface waters such as +/- 0.2 feet. Either type of survey shall be certified immediately adjacent to and downgradient of each by a licensed surveyor or by a registered professional

Volume 37, Issue 5 Virginia Register of Regulations October 26, 2020 738 Regulations

engineer to conform to the design plans. The survey shall 8. All wetland compensation monitoring reports shall be be submitted within 60 days of completing compensation submitted in accordance with 9VAC25-670-100 Part II E site construction. Changes or deviations in the as-built 6. survey or aerial survey shall be shown on the survey and D. Permittee-responsible stream compensation and explained in writing. monitoring. 2. Photographs shall be taken at the compensation site or 1. Riparian buffer restoration activities shall be detailed in sites from the permanent markers identified in the final the final compensation plan and shall include, as compensation plan, and established to ensure that the same appropriate, the planting of a variety of native species locations and view directions at the site or sites are currently growing in the site area, including appropriate monitored in each monitoring period. These photographs seed mixtures and woody species that are bare root, balled, shall be taken after the initial planting and at a time or burlapped. A minimum buffer width of 50 feet, specified in the final compensation plan during every measured from the top of the stream bank at bankfull monitoring year. elevation landward on both sides of the stream, shall be 3. Compensation site monitoring shall begin on the first required where practical. day of the first complete growing season (monitoring year 2. The installation of root wads, vanes, and other instream 1) after wetland compensation site construction activities, structures, shaping of the stream banks, and channel including planting, have been completed. Monitoring shall relocation shall be completed in the dry whenever be required for monitoring years 1, 2, 3, and 5, unless practicable. otherwise approved by the Department of Environmental Quality. In all cases, if all success criteria have not been 3. Livestock access to the stream and designated riparian met in the fifth monitoring year, then monitoring shall be buffer shall be limited to the greatest extent practicable. required for each consecutive year until two annual sequential reports indicate that all criteria have been 4. Stream channel restoration activities shall be conducted successfully satisfied. in the dry or during low flow conditions. When site conditions prohibit access from the streambank or upon 4. The establishment of wetland hydrology shall be prior authorization from the Department of Environmental measured during the growing season, with the location and Quality, heavy equipment may be authorized for use within number of monitoring wells, and frequency of monitoring the stream channel. for each site, set forth in the final monitoring plan. Hydrology monitoring well data shall be accompanied by 5. Photographs shall be taken at the compensation site from precipitation data, including rainfall amounts, either from the vicinity of the permanent photo-monitoring stations on site, or from the closest weather station. Once the identified in the final compensation plan. The photograph wetland hydrology success criteria have been satisfied for a orientation shall remain constant during all monitoring particular monitoring year, weekly monitoring may be events. At a minimum, photographs shall be taken from the discontinued for the remainder of that monitoring year center of the stream, facing downstream, with a sufficient following Department of Environmental Quality approval. number of photographs to view the entire length of the After a period of three monitoring years, the permittee may restoration site. Photographs shall document the completed request that hydrology monitoring be discontinued, restoration conditions. Photographs shall be taken prior to providing that adequate hydrology has been established site activities, during instream and riparian compensation and maintained. Hydrology monitoring shall not be construction activities, within one week of completion of discontinued without written approval from the activities, and during at least one day of each monitoring Department of Environmental Quality. year to depict restored conditions. 5. The presence of hydric soils or soils under hydric 6. An as-built ground survey, or an aerial survey provided conditions shall be evaluated in accordance with the final by a firm specializing in aerial surveys, shall be conducted compensation plan. for the entire compensation site or sites. Aerial surveys shall include the variation from actual ground conditions, 6. The establishment of wetland vegetation shall be in such as +/- 0.2 feet. The survey shall be certified by the accordance with the final compensation plan. Monitoring licensed surveyor or by a registered, professional engineer shall take place in August, September, or October during to conform to the design plans. The survey shall be the growing season of each monitoring year, unless submitted within 60 days of completing compensation site authorized in the monitoring plan. construction. Changes or deviations from the final compensation plans in the as-built survey or aerial survey 7. The presence of undesirable plant species shall be shall be shown on the survey and explained in writing. documented.

Volume 37, Issue 5 Virginia Register of Regulations October 26, 2020 739 Regulations

7. Compensation site monitoring shall begin on day one of general permit, unless otherwise approved by the the first complete growing season (monitoring year 1) after Department of Environmental Quality. stream compensation site construction activities, including a. All wetland compensation site monitoring reports shall planting, have been completed. Monitoring shall be include, as applicable, the following: required for monitoring years 1 and 2, unless otherwise approved by the Department of Environmental Quality. In (1) General description of the site including a site all cases, if all success criteria have not been met in the location map identifying photo-monitoring stations, final monitoring year, then monitoring shall be required for vegetative and soil monitoring stations, monitoring wells, each consecutive year until two annual sequential reports and wetland zones. indicate that all criteria have been successfully satisfied. (2) Summary of activities completed during the 8. All stream compensation site monitoring reports shall be monitoring year, including alterations or maintenance submitted in accordance with 9VAC25-670-100 Part II E conducted at the site. 6. (3) Description of monitoring methods. E. Reporting. (4) Analysis of all hydrology information, including 1. Written communications required by this VWP general monitoring well data, precipitation data, and gauging permit shall be submitted to the appropriate Department of data from streams or other open water areas, as set forth Environmental Quality office. The VWP general permit in the final compensation plan. tracking number shall be included on all correspondence. (5) Evaluation of hydric soils or soils under hydric 2. The Department of Environmental Quality shall be conditions, as appropriate. notified in writing prior to the start of construction activities at the first permitted impact area. (6) Analysis of all vegetative community information, including woody and herbaceous species, both planted 3. A construction status update form provided by the and volunteers, as set forth in the final compensation Department of Environmental Quality shall be completed plan. and submitted to the Department of Environmental Quality twice per year for the duration of coverage under a VWP (7) Photographs labeled with the permit number, the general permit. Forms completed in June shall be name of the compensation site, the photo-monitoring submitted by or on July 10, and forms completed in station number, the photograph orientation, the date and December shall be submitted by or on January 10. The time of the photograph, the name of the person taking the form shall include reference to the VWP permit tracking photograph, and a brief description of the photograph number and one of the following statements for each subject. This information shall be provided as a separate authorized surface water impact location: attachment to each photograph, if necessary. Photographs taken after the initial planting shall be included in the a. Construction activities have not yet started; first monitoring report after planting is complete. b. Construction activities have started; (8) Discussion of wildlife or signs of wildlife observed at the compensation site. c. Construction activities have started but are currently inactive; or (9) Comparison of site conditions from the previous monitoring year and reference site. d. Construction activities are complete. (10) Discussion of corrective measures or maintenance 4. The Department of Environmental Quality shall be activities to control undesirable species, to repair notified in writing within 30 days following the completion damaged water control devices, or to replace damaged of all activities in all authorized impact areas. planted vegetation. 5. The Department of Environmental Quality shall be (11) Corrective action plan that includes proposed notified in writing prior to the initiation of activities at the actions, a schedule, and monitoring plan. permittee-responsible compensation site. The notification shall include a projected schedule of activities and b. All stream compensation site monitoring reports shall construction completion. include, as applicable, the following: 6. All permittee-responsible compensation site monitoring (1) General description of the site including a site reports shall be submitted annually by December 31, with location map identifying photo-monitoring stations and the exception of the last year, in which case the report shall monitoring stations. be submitted at least 60 days prior to the expiration of the

Volume 37, Issue 5 Virginia Register of Regulations October 26, 2020 740 Regulations

(2) Summary of activities completed during the 9. Violations of state water quality standards shall be monitoring year, including alterations or maintenance reported to the appropriate Department of Environmental conducted at the site. Quality office no later than the end of the business day following discovery. (3) Description of monitoring methods. 10. The permittee shall notify the Department of (4) Evaluation and discussion of the monitoring results in Environmental Quality no later than the end of the third relation to the success criteria and overall goals of business day following the discovery of additional impacts compensation. to surface waters including wetlands, stream channels, and (5) Photographs shall be labeled with the permit number, open water that are not authorized by the Department of the name of the compensation site, the photo-monitoring Environmental Quality or to any required preservation station number, the photograph orientation, the date and areas. The notification shall include photographs, estimated time of the photograph, the name of the person taking the acreage or linear footage of impacts, and a description of photograph, and a brief description of the photograph the impacts. subject. Photographs taken prior to compensation site 11. Submittals required by this VWP general permit shall construction activities, during instream and riparian contain the following signed certification statement: restoration activities, and within one week of completion of activities shall be included in the first monitoring "I certify under penalty of law that this document and all report. attachments were prepared under my direction or supervision in accordance with a system designed to assure (6) Discussion of alterations, maintenance, or major that qualified personnel properly gather and evaluate the storm events resulting in significant change in stream information submitted. Based on my inquiry of the person profile or cross section, and corrective actions conducted or persons who manage the system, or those persons at the stream compensation site. directly responsible for gathering the information, the (7) Documentation of undesirable plant species and information submitted is, to the best of my knowledge and summary of abatement and control measures. belief, true, accurate, and complete. I am aware that there are significant penalties for submitting false information, (8) Summary of wildlife or signs of wildlife observed at including the possibility of fine and imprisonment for the compensation site. knowing violation." (9) Comparison of site conditions from the previous Part III. Conditions Applicable to All VWP General Permits. monitoring year and reference site, and as-built survey, if applicable. A. Duty to comply. The permittee shall comply with all conditions, limitations, and other requirements of the VWP (10) Corrective action plan that includes proposed general permit; any requirements in coverage granted under actions, a schedule and monitoring plan. this VWP general permit; the Clean Water Act, as amended; (11) Additional submittals that were approved by the and the State Water Control Law and regulations adopted Department of Environmental Quality in the final pursuant to it. Any VWP general permit violation or compensation plan. noncompliance is a violation of the Clean Water Act and State Water Control Law and is grounds for (i) enforcement 7. The permittee shall notify the Department of action, (ii) VWP general permit coverage termination for Environmental Quality in writing when unusual or cause, (iii) VWP general permit coverage revocation, (iv) potentially complex conditions are encountered which denial of application for coverage, or (v) denial of an require debris removal or involve potentially toxic application for a modification to VWP general permit substance. Measures to remove the obstruction, material, or coverage. Nothing in this VWP general permit shall be toxic substance or to change the location of a structure are construed to relieve the permittee of the duty to comply with prohibited until approved by the Department of all applicable federal and state statutes, regulations, and toxic Environmental Quality. standards and prohibitions. 8. The permittee shall report fish kills or spills of oil or fuel B. Duty to mitigate. The permittee shall take all reasonable immediately upon discovery. If spills or fish kills occur steps to minimize or prevent impacts in violation of the VWP between the hours of 8:15 a.m. to 5 p.m., Monday through general permit which may have a reasonable likelihood of Friday, the appropriate Department of Environmental adversely affecting human health or the environment. Quality regional office shall be notified; otherwise, the Department of Emergency Management shall be notified at C. Reopener. This VWP general permit may be reopened to 1-800-468-8892. modify its conditions when the circumstances on which the previous VWP general permit was based have materially and substantially changed, or special studies conducted by the

Volume 37, Issue 5 Virginia Register of Regulations October 26, 2020 741 Regulations board or the permittee show material and substantial change compliance with the requirements of enforcement activities since the time the VWP general permit was issued and related to the authorized activity. thereby constitute cause for revoking and reissuing the VWP 2. The board does not within the 15 days notify the current general permit. and new permittees of its intent to modify or revoke and D. Compliance with state and federal law. Compliance with reissue the VWP general permit. this VWP general permit constitutes compliance with the I. Notice of planned change. VWP general permit coverage VWP permit requirements of the State Water Control Law. may be modified subsequent to issuance in accordance with Nothing in this VWP general permit shall be construed to 9VAC25-670-80. preclude the institution of any legal action under or relieve the permittee from any responsibilities, liabilities, or other J. VWP general permit coverage termination for cause. penalties established pursuant to any other state law or VWP general permit coverage is subject to termination for regulation or under the authority preserved by § 510 of the cause by the board after public notice and opportunity for a Clean Water Act. hearing pursuant to § 62.1-44.15:02 of the Code of Virginia. Reasons for termination for cause are as follows: E. Property rights. The issuance of this VWP general permit does not convey property rights in either real or personal 1. Noncompliance by the permittee with any provision of property or any exclusive privileges, nor does it authorize this chapter, any condition of the VWP general permit, or injury to private property, any invasion of personal property any requirement in general permit coverage; rights, or any infringement of federal, state, or local laws or regulations. 2. The permittee's failure in the application or during the process of granting VWP general permit coverage to F. Severability. The provisions of this VWP general permit disclose fully all relevant facts or the permittee's are severable. misrepresentation of any relevant facts at any time; G. Inspection and entry. Upon presentation of credentials, 3. The permittee's violation of a special or judicial order; the permittee shall allow the board or any duly authorized agent of the board, at reasonable times and under reasonable 4. A determination by the board that the authorized activity circumstances, to enter upon the permittee's property, public endangers human health or the environment and can be or private, and have access to inspect and copy any records regulated to acceptable levels by a modification to the that must be kept as part of the VWP general permit VWP general permit coverage or a termination; conditions; to inspect any facilities, operations, or practices 5. A change in any condition that requires either a (including monitoring and control equipment) regulated or temporary or permanent reduction or elimination of any required under the VWP general permit; and to sample or activity controlled by the VWP general permit; or monitor any substance, parameter, or activity for the purpose of assuring compliance with the conditions of the VWP 6. A determination that the authorized activity has ceased general permit or as otherwise authorized by law. For the and that the compensation for unavoidable adverse impacts purpose of this section, the time for inspection shall be has been successfully completed. deemed reasonable during regular business hours. Nothing K. The board may terminate VWP general permit coverage contained herein shall make an inspection time unreasonable without cause when the permittee is no longer a legal entity during an emergency. due to death or dissolution or when a company is no longer H. Transferability of VWP general permit coverage. VWP authorized to conduct business in the Commonwealth. The general permit coverage may be transferred to another termination shall be effective 30 days after notice of the permittee when all of the criteria listed in this subsection are proposed termination is sent to the last known address of the met. On the date of the VWP general permit coverage permittee or registered agent, unless the permittee objects transfer, the transferred VWP general permit coverage shall within that time. If the permittee does object during that be as fully effective as if it had been granted directly to the period, the board shall follow the applicable procedures for new permittee. termination under §§ 62.1-44.15:02 and 62.1-44.15:25 of the Code of Virginia. 1. The current permittee notifies the board of the proposed transfer of the general permit coverage and provides a L. VWP general permit coverage termination by consent. written agreement between the current and new permittees The permittee shall submit a request for termination by containing a specific date of transfer of VWP general consent within 30 days of completing or canceling all permit responsibility, coverage, and liability to the new authorized activities requiring notification under 9VAC25- permittee, or that the current permittee will retain such 670-50 A and all compensatory mitigation requirements. responsibility, coverage, or liability, including liability for When submitted for project completion, the request for termination by consent shall constitute a notice of project completion in accordance with 9VAC25-210-130 F. The

Volume 37, Issue 5 Virginia Register of Regulations October 26, 2020 742 Regulations director may accept this termination of coverage on behalf of the activity is not authorized by the VWP permit or the board. The permittee shall submit the following coverage, unless otherwise excluded from obtaining information: coverage. I also understand that the submittal of this notice does not release me from liability for any 1. Name, mailing address, and telephone number; violations of the VWP general permit or coverage, nor 2. Name and location of the activity; does it allow me to resume the authorized activities without reapplication and coverage." 3. The VWP general permit tracking number; and M. Civil and criminal liability. Nothing in this VWP general 4. One of the following certifications: permit shall be construed to relieve the permittee from civil a. For project completion: and criminal penalties for noncompliance. "I certify under penalty of law that all activities and any N. Oil and hazardous substance liability. Nothing in this required compensatory mitigation authorized by the VWP general permit shall be construed to preclude the VWP general permit and general permit coverage have institution of legal action or relieve the permittee from any been completed. I understand that by submitting this responsibilities, liabilities, or penalties to which the permittee notice of termination I am no longer authorized to is or may be subject under § 311 of the Clean Water Act or perform activities in surface waters in accordance with §§ 62.1-44.34:14 through 62.1-44.34:23 of the State Water the VWP general permit and general permit coverage, Control Law. and that performing activities in surface waters is O. Duty to cease or confine activity. It shall not be a defense unlawful where the activity is not authorized by the VWP for a permittee in an enforcement action that it would have permit or coverage, unless otherwise excluded from been necessary to halt or reduce the activity for which VWP obtaining coverage. I also understand that the submittal general permit coverage has been granted in order to maintain of this notice does not release me from liability for any compliance with the conditions of the VWP general permit or violations of the VWP general permit or coverage." coverage. b. For project cancellation: P. Duty to provide information. "I certify under penalty of law that the activities and any 1. The permittee shall furnish to the board any information required compensatory mitigation authorized by the that the board may request to determine whether cause VWP general permit and general permit coverage will exists for modifying, revoking, or terminating VWP permit not occur. I understand that by submitting this notice of coverage or to determine compliance with the VWP termination I am no longer authorized to perform general permit or general permit coverage. The permittee activities in surface waters in accordance with the VWP shall also furnish to the board, upon request, copies of general permit and general permit coverage, and that records required to be kept by the permittee. performing activities in surface waters is unlawful where the activity is not authorized by the VWP permit or 2. Plans, maps, conceptual reports, and other relevant coverage, unless otherwise excluded from obtaining information shall be submitted as required by the board coverage. I also understand that the submittal of this prior to commencing construction. notice does not release me from liability for any Q. Monitoring and records requirements. violations of the VWP general permit or coverage, nor does it allow me to resume the authorized activities 1. Monitoring of parameters, other than pollutants, shall be without reapplication and coverage." conducted according to approved analytical methods as specified in the VWP general permit. Analysis of c. For events beyond permittee control, the permittee pollutants will be conducted according to 40 CFR Part 136 shall provide a detailed explanation of the events, to be (2000), Guidelines Establishing Test Procedures for the approved by the Department of Environmental Quality, Analysis of Pollutants. and the following certification statement: 2. Samples and measurements taken for the purpose of "I certify under penalty of law that the activities or the monitoring shall be representative of the monitored required compensatory mitigation authorized by the activity. VWP general permit and general permit coverage have changed as the result of events beyond my control (see 3. The permittee shall retain records of all monitoring attached). I understand that by submitting this notice of information, including all calibration and maintenance termination I am no longer authorized to perform records and all original strip chart or electronic recordings activities in surface waters in accordance with the VWP for continuous monitoring instrumentation, copies of all general permit and general permit coverage, and that reports required by the VWP general permit, and records of performing activities in surface waters is unlawful where all data used to complete the application for coverage

Volume 37, Issue 5 Virginia Register of Regulations October 26, 2020 743 Regulations

underthe VWP general permit, for a period of at least three 1. When the Virginia Department of Transportation is the years from the date of general permit expiration. This applicant for coverage under this VWP general permit, the period may be extended by request of the board at any notification requirements shall be in accordance with this time. section and 9VAC25-680-60, unless otherwise authorized by the Department of Environmental Quality. 4. Records of monitoring information shall include, as appropriate: 2. An application for coverage for proposed, permanent nontidal wetland or open water impacts greater than one- a. The date, exact place, and time of sampling or tenth acre or for proposed permanent nontidal stream bed measurements; impacts greater than 300 linear feet shall include all b. The name of the individuals who performed the information pursuant to 9VAC25-680-60 B. Compensatory sampling or measurements; mitigation may be required for all permanent impacts. c. The date and time the analyses were performed; 3. An application for coverage for proposed, permanent nontidal wetland or open water impacts up to one-tenth d. The name of the individuals who performed the acre or for proposed, permanent nontidal stream bed analyses; impacts up to 300 linear feet shall be submitted in e. The analytical techniques or methods supporting the accordance with either subdivision 3 a or 3 b of this information such as observations, readings, calculations, subsection: and bench data used; a. For any proposed project in wetlands, open water, f. The results of such analyses; and streams, or compensatory mitigation sites that are under a deed restriction, conservation easement, declaration of g. Chain of custody documentation. restrictive covenant, or other land use protective R. Unauthorized discharge of pollutants. Except in instrument (hereafter "protected areas"), when such compliance with this VWP general permit, it shall be restriction, easement, covenant, or instrument is the result unlawful for the permittee to: of a federal or state permit action and is specific to activities in wetlands and compensatory mitigation sites, 1. Discharge into state waters sewage, industrial wastes, the application shall include all of the information other wastes, or any noxious or deleterious substances; required by 9VAC25-680-60 B. Compensatory 2. Excavate in a wetland; mitigation may be required for all permanent impacts. 3. Otherwise alter the physical, chemical, or biological b. For all other projects, the application shall include the properties of state waters and make them detrimental to the information required by subdivisions 1 through 7, 11, 12, public health, to animal or aquatic life, or to the uses of 15, and 16 of 9VAC25-680-60 B and documentation that such waters for domestic or industrial consumption, for verifies the quantity and type of impacts. Compensatory recreation, or for other uses; or mitigation may be required for all permanent impacts once the notification limits of one-tenth acre wetlands or 4. On and after October 1, 2001, conduct the following open water, or 300 linear feet of stream bed, are activities in a wetland: exceeded, and if required, the application shall include a. New activities to cause draining that significantly the information in 9VAC25-680-60 B 13. alters or degrades existing wetland acreage or functions; B. The Department of Environmental Quality-approved b. Filling or dumping; application forms shall serve as an application for a VWP permit or VWP general permit coverage. c. Permanent flooding or impounding; or C. The board will determine whether the proposed activity d. New activities that cause significant alteration or requires coordination with the U.S. Fish and Wildlife Service, degradation of existing wetland acreage or functions. the Virginia Department of Conservation and Recreation, the S. Duty to reapply. Any permittee desiring to continue a Virginia Department of Agriculture and Consumer Services, previously authorized activity after the expiration date of the and the Virginia Department of Game and Inland Fisheries VWP general permit shall comply with the provisions in Wildlife Resources regarding the presence of federal or state 9VAC25-670-27. listed threatened and endangered species or designated critical habitat. Based upon consultation with these agencies, the 9VAC25-680-50. Notification. board may deny application for coverage under this general A. Notification to the board will be required prior to permit. The applicant may also consult with these agencies commencing construction, as follows: prior to submitting an application. Species or habitat information that the applicant provides will assist the

Volume 37, Issue 5 Virginia Register of Regulations October 26, 2020 744 Regulations

Department of Environmental Quality in reviewing and 8. Plan-view drawing or drawings of the project site processing the application. sufficient to assess the project, including at a minimum the following: 9VAC25-680-60. Application. a. North arrow, graphic scale, and existing and proposed A. Applications shall be filed with the board as follows: topographic or bathymetric contours. 1. The applicant shall file a complete application in b. Limits of proposed impacts to surface waters. accordance with 9VAC25-680-50 and this section for coverage under this VWP general permit for impacts to c. Location of all existing and proposed structures. surface waters from linear transportation projects. d. All delineated wetlands and all jurisdictional surface 2. The VDOT may use its monthly IACM process for waters on the site, including the Cowardin classification submitting applications. (i.e., emergent, scrub-shrub, or forested) for those surface waters and waterway name, if designated; ebb and flood B. A complete application for VWP general permit or direction of flow; and ordinary high water mark in coverage, at a minimum, consists of the following nontidal areas. information, if applicable to the project: e. The limits of Chesapeake Bay Resource Protection 1. The applicant's legalname, mailing address, telephone Areas (RPAs) as field-verified by the applicant, and if number, and if applicable, electronic mail address and fax available, the limits as approved by the locality in which number. the project site is located, unless the proposed use is 2. If different from the applicant, legal name, mailing exempt from the Chesapeake Bay Preservation Area address, telephone number, and if applicable, electronic Designation and Management Regulations (9VAC25- mail address and fax number of property owner. 830). 3. If applicable, authorized agent's name, mailing address, f. The limits of any areas that are under a deed telephone number, and if applicable, fax number and restriction, conservation easement, restrictive covenant, electronic mail address. or other land use protective instrument (i.e., protected areas). 4. The existing VWP general permit tracking number, if applicable. 9. Cross-sectional and profile drawing or drawings. Cross- sectional drawing or drawings of each proposed impact 5. Project name and proposed project schedule. area shall include at a minimum a graphic scale, existing 6. The following information for the project site location, structures, existing and proposed elevations, limits of and any related permittee-responsible compensatory surface water areas, ebb and flood or direction of flow (if mitigation site: applicable), ordinary high water mark in nontidal areas, impact limits, and location of all existing and proposed a. The physical street address, nearest street, or nearest structures. Profile drawing or drawings with this route number; city or county; zip code; and if applicable, information may be required on a case-by-case basis to parcel number of the site or sites. demonstrate minimization of impacts. Any application that b. Name of the impacted water body or water bodies, or proposes piping or culverting stream flows shall provide a receiving waters, as applicable, at the site or sites. longitudinal profile of the pipe or culvert position and stream bed thalweg, or shall provide spot elevations of the c. The latitude and longitude to the nearest second at the stream thalweg at the beginning and end of the pipe or center of the site or sites. culvert, extending to a minimum of 10 feet beyond the d. The fourth order subbasin, as defined by the limits of proposed impact. hydrologic unit boundaries of the National Watershed 10. Materials assessment. Upon request by the board, the Boundary Dataset, for the site or sites. applicant shall provide evidence or certification that the e. A detailed map depicting the location of the site or material is free from toxic contaminants prior to disposal sites, including the project boundary and all existing or that the dredging activity will not cause or contribute to preservation areas on the site or sites. The map (e.g., a a violation of water quality standards during dredging. The U.S. Geologic Survey topographic quadrangle map) applicant may be required to conduct grain size and should be of sufficient detail to easily locate the site or composition analyses, tests for specific parameters or sites for inspection. chemical constituents, or elutriate tests on the dredge material. 7. A narrative description of the project, including project purpose and need. 11. A narrative description of all impacts proposed to surface waters, including the type of activity to be

Volume 37, Issue 5 Virginia Register of Regulations October 26, 2020 745 Regulations

conducted in surface waters and any physical alteration to the proposed project, including review of alternative sites surface waters. Surface water impacts shall be identified as where required for the project, which would avoid or result follows: in less adverse impact to surface waters, and documentation demonstrating the reason the applicant a. Wetland impacts identified according to their determined less damaging alternatives are not practicable. Cowardin classification (i.e., emergent, scrub-shrub, or The analysis shall demonstrate to the satisfaction of the forested); and for each classification, the individual board that avoidance and minimization opportunities have impacts quantified in square feet to the nearest whole been identified and measures have been applied to the number, cumulatively summed in square feet, and then proposed activity such that the proposed activity in terms the sum converted to acres and rounded to two decimal of impacts to state waters and fish and wildlife resources is places using commonly accepted arithmetic principles of the least environmentally damaging practicable alternative. rounding. 13. A compensatory mitigation plan to achieve no net loss b. Individual stream impacts (i) quantified by length in of wetland acreage and functions or stream functions and linear feet to the nearest whole number and by average water quality benefits. width in feet to the nearest whole number; (ii) quantified in square feet to the nearest whole number; and (iii) when a. If permittee-responsible compensation is proposed for compensatory mitigation is required, the impacts wetland impacts, a conceptual wetland compensatory identified according to the assessed type using the mitigation plan must be submitted in order for an Unified Stream Methodology. application to be deemed complete and shall include at a minimum (i) the goals and objectives in terms of c. Open water impacts identified according to their replacement of wetland acreage and functions; (ii) a Cowardin classification; and for each type, the individual detailed location map including latitude and longitude to impacts quantified in square feet to the nearest whole the nearest second and the fourth order subbasin, as number, cumulatively summed in square feet, and then defined by the hydrologic unit boundaries of the National the sum converted to acres and rounded to two decimal Watershed Boundary Dataset, at the center of the site; places using commonly accepted arithmetic principles of (iii) a description of the surrounding land use; (iv) a rounding. hydrologic analysis including a draft water budget for d. A copy of the approved jurisdictional determination nontidal areas based on expected monthly inputs and when available, or when unavailable, (i) the preliminary outputs that will project water level elevations for a jurisdictional determination from the U.S. Army Corps of typical year, a dry year, and a wet year; (v) groundwater Engineers (USACE), U.S. Department of Agriculture elevation data, if available, or the proposed location of Natural Resources Conservation Service (NRCS), or groundwater monitoring wells to collect these data; (vi) DEQ or (ii) other correspondence from the USACE, wetland delineation confirmation, data sheets, and maps NRCS, or DEQ indicating approval of the boundary of for existing surface water areas on the proposed site or applicable jurisdictional surface waters, including sites; (vii) a conceptual grading plan; (viii) a conceptual wetlands data sheets if applicable. planting scheme including suggested plant species and zonation of each vegetation type proposed; (ix) a e. A delineation map that (i) depicts the geographic area description of existing soils including general or areas of all surface water boundaries delineated in information on both topsoil and subsoil conditions, accordance with 9VAC25-210-45 and confirmed in permeability, and the need for soil amendments; (x) a accordance with the jurisdictional determination process; draft design of any water control structures; (xi) inclusion (ii) identifies such areas in accordance with subdivisions of buffer areas; (xii) a description of any structures and 11 a, 11 b, and 11 c of this subsection; and (iii) quantifies features necessary for the success of the site; (xiii) the and identifies any other surface waters according to their schedule for compensatory mitigation site construction; Cowardin classification (i.e., emergent, scrub-shrub, or and (xiv) measures for the control of undesirable species. forested) or similar terminology. b. If permittee-responsible compensation is proposed for 12. An alternatives analysis for the proposed project stream impacts, a conceptual stream compensatory detailing the specific on-site measures taken during project mitigation plan must be submitted in order for an design and development to first avoid and then minimize application to be deemed complete and shall include at a impacts to surface waters to the maximum extent minimum (i) the goals and objectives in terms of water practicable in accordance with the Guidelines for quality benefits and replacement of stream functions; (ii) Specification of Disposal Sites for Dredged or Fill a detailed location map including the latitude and Material, 40 CFR Part 230. Avoidance and minimization longitude to the nearest second and the fourth order includes, but is not limited to, the specific on-site measures subbasin, as defined by the hydrologic unit boundaries of taken to reduce the size, scope, configuration, or density of the National Watershed Boundary Dataset, at the center

Volume 37, Issue 5 Virginia Register of Regulations October 26, 2020 746 Regulations

of the site; (iii) a description of the surrounding land use; proposed to be purchased and documentation from the (iv) the proposed stream segment restoration locations approved mitigation bank or in-lieu fee program sponsor including plan view and cross-sectional drawings; (v) the of the availability of credits at the time of application. stream deficiencies that need to be addressed; (vi) data 14. Permit application fee. The applicant will be notified obtained from a DEQ-approved, stream impact by the board as to the appropriate fee for the project in assessment methodology such as the Unified Stream accordance with 9VAC25-20. Methodology; (vii) the proposed restoration measures to be employed including channel measurements, proposed 15. A written description and a graphical depiction design flows, types of instream structures, and identifying all upland areas including buffers, wetlands, conceptual planting scheme; (viii) reference stream data, open water, other surface waters, and compensatory if available; (ix) inclusion of buffer areas; (x) schedule mitigation areas located within the proposed project for restoration activities; and (xi) measures for the boundary or permittee-responsible compensatory control of undesirable species. mitigation areas that are under a deed restriction, conservation easement, restrictive covenant, or other land c. For any permittee-responsible compensatory use protective instrument (i.e., protected areas). Such mitigation, the conceptual compensatory mitigation plan description and a graphical depiction shall include the shall also include a draft of the intended protective nature of the prohibited activities within the protected areas mechanism or mechanisms, in accordance with 9VAC25- and the limits of Chesapeake Bay Resource Protection 210-116 B 2, such as, but not limited to, a conservation Areas (RPAs) as field-verified by the applicant, and if easement held by a third party in accordance with the available, the limits as approved by the locality in which Virginia Conservation Easement Act (§ 10.1-1009 et seq. the project site is located, unless the proposed use is of the Code of Virginia) or the Virginia Open-Space exempt from the Chesapeake Bay Preservation Area Land Act (§ 10.1-1700 et seq. of the Code of Virginia), a Designation and Management Regulations (9VAC25-830), duly recorded declaration of restrictive covenants, or as additional state or local requirements may apply if the other protective instrument. The draft intended protective project is located within an RPA. mechanism shall contain the information in subdivisions c (1), c (2), and c (3) of this subdivision 13 or in lieu 16. Signature page that has been signed, dated, and thereof shall describe the intended protective mechanism certified by the applicant in accordance with 9VAC25-210- or mechanisms that contains the information required 100. If the applicant is a business or other organization, the below: signature must be made by an individual with the authority to bind the business or organization, and the title of the (1) A provision for access to the site; signatory must be provided. The application signature (2) The following minimum restrictions: no ditching, page, either on the copy submitted to the Virginia Marine land clearing, or discharge of dredge or fill material, and Resources Commission or to DEQ, must have an original no activity in the area designated as compensatory signature. Electronic submittals containing the original mitigation area with the exception of maintenance; signature page, such as that contained in a scanned corrective action measures; or DEQ-approved activities document file, are acceptable. described in the approved final compensatory mitigation C. An analysis of the functions of wetlands proposed to be plan or long-term management plan; and impacted may be required by DEQ. When required, the (3) A long-term management plan that identifies a long- method selected for the analysis shall assess water quality or term steward and adequate financial assurances for long- habitat metrics and shall be coordinated with DEQ in advance term management in accordance with the current of conducting the analysis. standard for mitigation banks and in-lieu fee program 1. No analysis shall be required when: sites, except that financial assurances will not be necessary for permittee-responsible compensation a. Wetland impacts per each single and complete project provided by government agencies on government total 1.00 acre or less; or property. If approved by DEQ, permittee-responsible compensation on government property and long-term b. The proposed compensatory mitigation consists of protection may be provided through federal facility purchasing mitigation bank or in-lieu fee program credits management plans, integrated natural resources at standard mitigation ratios of 2:1 for forest, 1.5:1 for management plans, or other alternate management plans scrub-shrub, and 1:1 for emergent, or higher. submitted by a government agency or public authority. 2. Analysis shall be required when wetland impacts per d. Any compensatory mitigation plan proposing the each single and complete project total 1.01 acres or more purchase of mitigation bank or in-lieu fee program and when any of the following applies: credits shall include the number and type of credits

Volume 37, Issue 5 Virginia Register of Regulations October 26, 2020 747 Regulations

a. The proposed compensatory mitigation consists of information in an application or in any report to the board, permittee-responsible compensation, including water the applicant shall immediately submit such facts or the quality enhancements as replacement for wetlands; or correct information. A revised application with new information shall be deemed a new application for the b. The proposed compensatory mitigation consists of purposes of review but shall not require an additional purchasing mitigation bank or in-lieu fee program credits permit application fee. at less than the standard mitigation ratios of 2:1 for forest, 1.5:1 for scrub-shrub, and 1:1 for emergent. 2. An incomplete permit application for general permit coverage may be administratively withdrawn from D. Upon receipt of an application from the Department of processing by the board for failure to provide the required Transportation for a road or highway construction project by information after 60 days from the date of the latest written the appropriate DEQ office, the board has 10 business days, information request made by the board. The board shall pursuant to § 33.2-258 of the Code of Virginia, to review the provide (i) notice to the applicant and (ii) an opportunity application and either determine the information requested in for an informal fact-finding proceeding when subsection B of this section is complete or inform the administratively withdrawing an incomplete application. Department of Transportation that additional information is Resubmittal of an application for the same or similar required to make the application complete. Upon receipt of an project, after such time that the original permit application application from other applicants for any type of project, the was administratively withdrawn, shall require submittal of board has 15 days to review the application and either an additional permit application fee. determine the information requested in subsection B of this section is complete or inform the applicant that additional 3. An applicant may request a suspension of application information is required to make the application complete. review by the board, but requesting a suspension shall not Pursuant to § 33.2-258 of the Code of Virginia, coverage preclude the board from administratively withdrawing an under this VWP general permit for Department of incomplete application. Resubmittal of a permit application Transportation road or highway construction projects shall be for the same or similar project, after such time that the approved or approved with conditions, or the application shall original permit application was administratively be denied, within 30 business days of receipt of a complete withdrawn, shall require submittal of an additional permit application. For all other projects, coverage under this VWP application fee. general permit shall be approved or approved with conditions, 9VAC25-680-100. VWP general permit. or the application shall be denied, within 45 days of receipt of a complete application. If the board fails to act within the VWP GENERAL PERMIT NO. WP3 FOR LINEAR applicable 30 or 45 days on a complete application, coverage TRANSPORTATION PROJECTS UNDER THE VIRGINIA under this VWP general permit shall be deemed granted. WATER PROTECTION PERMIT AND THE VIRGINIA STATE WATER CONTROL LAW 1. In evaluating the application, the board shall make an assessment of the impacts associated with the project in Effective date: August 2, 2016 combination with other existing or proposed impacts. Expiration date: August 1, 2026 Application for coverage under this VWP general permit In compliance with § 401 of the Clean Water Act, as shall be denied if the cumulative impacts will cause or amended (33 USC § 1341) and the State Water Control Law contribute to a significant impairment of state waters or and regulations adopted pursuant thereto, the board has fish and wildlife resources. determined that there is a reasonable assurance that this VWP 2. The board may place additional requirements on a general permit, if complied with, will protect instream project in order to grant coverage under this VWP general beneficial uses, will not violate applicable water quality permit. However, the requirements must be consistent with standards, and will not cause or contribute to a significant this chapter. impairment of state waters or fish and wildlife resources. In issuing this VWP general permit, the board has not taken into E. Incomplete application. consideration the structural stability of any proposed 1. Where an application for general permit coverage is not activities. accepted as complete by the board within the applicable 10 The permanent or temporary impact of up to two acres of or 15 days of receipt, the board shall require the nontidal wetlands or open water and up to 1,500 linear feet of submission of additional information from the applicant nontidal stream bed shall be subject to the provisions of the and may suspend processing of any application until such VWP general permit set forth herein; any requirements in time as the applicant has supplied the requested coverage granted under this VWP general permit; the Clean information and the application is complete. Where the Water Act, as amended; and the State Water Control Law and applicant becomes aware that he omitted one or more regulations adopted pursuant to it. relevant facts from an application, or submitted incorrect

Volume 37, Issue 5 Virginia Register of Regulations October 26, 2020 748 Regulations

Part I. Special Conditions. determined based on the reduced capacity due to the countersunk position. In all stream crossings appropriate A. Authorized activities. measures shall be implemented to minimize any disruption 1. The activities authorized by this chapter shall not cause of aquatic life movement. more than the permanent or temporary impacts of up to 3. Wet or uncured concrete shall be prohibited from entry two acres of nontidal wetlands or open water and up to into flowing surface waters, unless the area is contained 1,500 linear feet of nontidal stream bed. Additional permit within a cofferdam and the work is performed in the dry or requirements as stipulated by the board in the coverage unless otherwise approved by the Department of letter, if any, shall be enforceable conditions of this permit. Environmental Quality. Excess or waste concrete shall not 2. Any changes to the authorized permanent impacts to be disposed of in flowing surface waters or washed into surface waters shall require a notice of planned change in flowing surface waters. accordance with 9VAC25-680-80. An application or 4. All fill material shall be clean and free of contaminants request for modification to coverage or another VWP in toxic concentrations or amounts in accordance with all permit application may be required. applicable laws and regulations. 3. Any changes to the authorized temporary impacts to 5. Erosion and sedimentation controls shall be designed in surface waters shall require written notification to and accordance with the Virginia Erosion and Sediment approval from the Department of Environmental Quality in Control Handbook, Third Edition, 1992. These controls accordance with 9VAC25-680-80 prior to initiating the shall be placed prior to clearing and grading and impacts and restoration to preexisting conditions in maintained in good working order to minimize impacts to accordance with the conditions of this permit. state waters. These controls shall remain in place until the 4. Modification to compensation requirements may be area is stabilized and shall then be removed. approved at the request of the permittee when a decrease in 6. Exposed slopes and streambanks shall be stabilized the amount of authorized surface waters impacts occurs, immediately upon completion of work in each permitted provided that the adjusted compensation meets the initial impact area. All denuded areas shall be properly stabilized compensation goals. in accordance with the Virginia Erosion and Sediment B. Overall conditions. Control Handbook, Third Edition, 1992. 1. The activities authorized by this VWP general permit 7. All construction, construction access (e.g., cofferdams, shall be executed in a manner so as to minimize adverse sheetpiling, and causeways) and demolition activities impacts on instream beneficial uses as defined in § 62.1-10 associated with the project shall be accomplished in a (b) of the Code of Virginia. manner that minimizes construction or waste materials from entering surface waters to the maximum extent 2. No activity may substantially disrupt the movement of practicable, unless authorized by this VWP general permit. aquatic life indigenous to the water body, including those species which normally migrate through the area, unless 8. No machinery may enter flowing waters, unless the primary purpose of the activity is to impound water. authorized by this VWP general permit or approved prior Pipes and culverts placed in streams must be installed to to entry by the Department of Environmental Quality. maintain low flow conditions and shall be countersunk at 9. Heavy equipment in temporarily impacted wetland areas both inlet and outlet ends of the pipe or culvert, unless shall be placed on mats, geotextile fabric, or other suitable specifically approved by the Department of Environmental material, to minimize soil disturbance to the maximum Quality on a case-by-case basis and as follows: The extent practicable. Equipment and materials shall be requirement to countersink does not apply to extensions or removed immediately upon completion of work. maintenance of existing pipes and culverts that are not countersunk, floodplain pipe and culverts being placed 10. All nonimpacted surface waters and compensatory above ordinary high water, pipes and culverts being placed mitigation areas within 50 feet of authorized activities and on bedrock, or pipes or culverts required to be placed on within the project or right-of-way limits shall be clearly slopes 5.0% or greater. Bedrock encountered during flagged or marked for the life of the construction activity at construction must be identified and approved in advance of that location to preclude unauthorized disturbances to these a design change where the countersunk condition cannot be surface waters and compensatory mitigation areas during met. Pipes and culverts 24 inches or less in diameter shall construction. The permittee shall notify contractors that no be countersunk three inches below the natural stream bed activities are to occur in these marked surface waters. elevations, and pipes and culverts greater than 24 inches 11. Temporary disturbances to surface waters during shall be countersunk at least six inches below the natural construction shall be avoided and minimized to the stream bed elevations. Hydraulic capacity shall be maximum extent practicable. All temporarily disturbed

Volume 37, Issue 5 Virginia Register of Regulations October 26, 2020 749 Regulations

wetland areas shall be restored to preexisting conditions 16. Water quality standards shall not be violated as a result within 30 days of completing work at each respective of the construction activities. temporary impact area, which shall include reestablishing 17. If stream channelization or relocation is required, all preconstruction elevations and contours with topsoil from work in surface waters shall be done in the dry, unless the impact area where practicable and planting or seeding otherwise authorized by the Department of Environmental with appropriate wetland vegetation according to cover Quality, and all flows shall be diverted around the type (i.e., emergent, scrub-shrub, or forested). The channelization or relocation area until the new channel is permittee shall take all appropriate measures to promote stabilized. This work shall be accomplished by leaving a and maintain revegetation of temporarily disturbed wetland plug at the inlet and outlet ends of the new channel during areas with wetland vegetation through the second year excavation. Once the new channel has been stabilized, flow post-disturbance. All temporarily impacted streams and shall be routed into the new channel by first removing the streambanks shall be restored to their preconstruction downstream plug and then the upstream plug. The rerouted elevations and contours with topsoil from the impact area stream flow must be fully established before construction where practicable within 30 days following the activities in the old stream channel can begin. construction at that stream segment. Streambanks shall be seeded or planted with the same vegetation cover type C. Road crossings. originally present, including any necessary, supplemental 1. Access roads and associated bridges, pipes, and culverts erosion control grasses. Invasive species identified on the Department of Conservation and Recreation's Virginia shall be constructed to minimize the adverse effects on Invasive Plant Species List shall not be used to the surface waters to the maximum extent practicable. Access roads constructed above preconstruction elevations and maximum extent practicable or without prior approval contours in surface waters must be bridged, piped, or from the Department of Environmental Quality. culverted to maintain surface flows. 12. Materials (including fill, construction debris, and 2. Installation of road crossings shall occur in the dry via excavated and woody materials) temporarily stockpiled in wetlands shall be placed on mats or geotextile fabric, the implementation of cofferdams, sheetpiling, stream immediately stabilized to prevent entry into state waters, diversions, or similar structures. managed such that leachate does not enter state waters, and D. Utility lines. completely removed within 30 days following completion of that construction activity. Disturbed areas shall be 1. All utility line work in surface waters shall be performed returned to preconstruction elevations and contours with in a manner that minimizes disturbance, and the area must topsoil from the impact area where practicable; restored be returned to its preconstruction elevations and contours within 30 days following removal of the stockpile; and with topsoil from the impact area where practicable and restored with the same vegetation cover type originally restored within 30 days of completing work in the area, present, including any necessary supplemental erosion unless otherwise authorized by the Department of control grasses. Invasive species identified on the Environmental Quality. Restoration shall be the seeding or Department of Conservation and Recreation's Virginia planting of the same vegetation cover type originally Invasive Plant Species List shall not be used to the present, including any necessary supplemental erosion maximum extent practicable or without prior approval control grasses. Invasive species identified on the from the Department of Environmental Quality. Department of Conservation and Recreation's Virginia Invasive Plant Species List shall not be used to the 13. Continuous flow of perennial springs shall be maximum extent practicable or without prior approval maintained by the installation of spring boxes, french from the Department of Environmental Quality. drains, or other similar structures. 2. Material resulting from trench excavation may be 14. The permittee shall employ measures to prevent spills temporarily sidecast into wetlands not to exceed a total of of fuels or lubricants into state waters. 90 days, provided the material is not placed in a manner 15. The permittee shall conduct his activities in accordance such that it is dispersed by currents or other forces. with the time-of-year restrictions recommended by the 3. The trench for a utility line cannot be constructed in a Virginia Department of Game and Inland Fisheries manner that drains wetlands (e.g., backfilling with Wildlife Resources, the Virginia Marine Resources extensive gravel layers creating a french drain effect). For Commission, or other interested and affected agencies, as example, utility lines may be backfilled with clay blocks to contained, when applicable, in Department of ensure that the trench does not drain surface waters Environmental Quality VWP general permit coverage, and through which the utility line is installed. shall ensure that all contractors are aware of the time-of- year restrictions imposed. E. Stream modification and stream bank protection.

Volume 37, Issue 5 Virginia Register of Regulations October 26, 2020 750 Regulations

1. Riprap bank stabilization shall be of an appropriate size 7. A dredged material management plan for the designated and design in accordance with the Virginia Erosion and upland disposal site shall be submitted and approved 30 Sediment Control Handbook, Third Edition, 1992. days prior to initial dredging activity. 2. Riprap aprons for all outfalls shall be designed in 8. Pipeline outfalls and spillways shall be located at accordance with the Virginia Erosion and Sediment opposite ends of the dewatering area to allow for Control Handbook, Third Edition, 1992. maximum retention and settling time. Filter fabric shall be used to line the dewatering area and to cover the outfall 3. For bank protection activities, the structure and backfill pipe to further reduce sedimentation to state waters. shall be placed as close to the stream bank as practicable. No material shall be placed in excess of the minimum 9. The dredge material dewatering area shall be of necessary for erosion protection. adequate size to contain the dredge material and to allow for adequate dewatering and settling out of sediment prior 4. All stream bank protection structures shall be located to to discharge back into state waters. eliminate or minimize impacts to vegetated wetlands to the maximum extent practicable. 10. The dredge material dewatering area shall utilize an earthen berm or straw bales covered with filter fabric along 5. Asphalt and materials containing asphalt or other toxic the edge of the area to contain the dredged material, filter substances shall not be used in the construction of bags, or other similar filtering practices, any of which shall submerged sills or breakwaters. be properly stabilized prior to placing the dredged material 6. Redistribution of existing stream substrate for the within the containment area. purpose of erosion control is prohibited. 11. Overtopping of the dredge material containment berms 7. No material removed from the stream bottom shall be with dredge materials shall be strictly prohibited. disposed of in surface waters, unless otherwise authorized G. Stormwater management facilities. by this VWP general permit. 1. Stormwater management facilities shall be installed in F. Dredging. accordance with best management practices and watershed 1. Dredging depths shall be determined and authorized protection techniques (e.g., vegetated buffers, siting according to the proposed use and controlling depths considerations to minimize adverse effects to aquatic outside the area to be dredged. resources, bioengineering methods incorporated into the facility design to benefit water quality and minimize 2. Dredging shall be accomplished in a manner that adverse effects to aquatic resources) that provide for long- minimizes disturbance of the bottom and minimizes term aquatic resources protection and enhancement, to the turbidity levels in the water column. maximum extent practicable. 3. If evidence of impaired water quality, such as a fish kill, 2. Compensation for unavoidable impacts shall not be is observed during the dredging, dredging operations shall allowed within maintenance areas of stormwater cease, and the Department of Environmental Quality shall management facilities. be notified immediately. 3. Maintenance activities within stormwater management 4. Barges used for the transportation of dredge material facilities shall not require additional permit coverage or shall be filled in such a manner to prevent the overflow of compensation, provided that the maintenance activities do dredged materials. not exceed the original contours of the facility, as approved 5. Double handling of dredged material in state waters and constructed, and is accomplished in designated shall not be permitted. maintenance areas as indicated in the facility maintenance or design plan or when unavailable, an alternative plan 6. For navigation channels the following shall apply: approved by the Department of Environmental Quality. a. A buffer of four times the depth of the dredge cut shall Part II. Construction and Compensation Requirements, be maintained between the bottom edge of the design Monitoring and Reporting. channel and the channelward limit of wetlands, or a buffer of 15 feet shall be maintained from the dredged A. Minimum compensation requirements. cut and the channelward edge of wetlands, whichever is 1. The permittee shall provide any required compensation greater. This landward limit of buffer shall be flagged for impacts in accordance with the conditions in this VWP and inspected prior to construction. general permit, the coverage letter, and the chapter b. Side slope cuts of the dredging area shall not exceed a promulgating the general permit. For all compensation that two-horizontal-to-one-vertical slope to prevent slumping requires a protective mechanism, including preservation of of material into the dredged area. surface waters or buffers, the permittee shall record the

Volume 37, Issue 5 Virginia Register of Regulations October 26, 2020 751 Regulations

approved protective mechanism in the chain of title to the to the Department of Environmental Quality prior to property, or an equivalent instrument for government- commencing impacts in surface waters. owned lands, and proof of recordation shall be submitted to b. The final permittee-responsible stream compensation the Department of Environmental Quality prior to plan shall include: commencing impacts in surface waters. (1) The complete information on all components of the 2. Compensation options that may be considered under this conceptual compensation plan. VWP general permit shall meet the criteria in 9VAC25- 210-116 and 9VAC25-680-70. (2) An evaluation, discussion, and plan drawing or drawings of existing conditions on the proposed 3. The permittee-responsible compensation site or sites compensation stream, including the identification of depicted in the conceptual compensation plan submitted functional and physical deficiencies for which the with the application shall constitute the compensation site. measures are proposed, and summary of geomorphologic A site change may require a modification to coverage. measurements (e.g., stream width, entrenchment ratio, 4. For compensation involving the purchase of mitigation width-depth ratio, sinuosity, slope, substrate, etc.); a site bank credits or the purchase of in-lieu fee program credits, access plan; a monitoring plan, including a monitoring the permittee shall not initiate work in permitted impact and reporting schedule, monitoring design and areas until documentation of the mitigation bank credit methodologies for success, proposed success criteria, purchase or of the in-lieu fee program credit purchase has location of photo-monitoring stations, vegetation been submitted to and received by the Department of sampling points, survey points, bank pins, scour chains, Environmental Quality. and reference streams; an abatement and control plan for undesirable plant species; an erosion and sedimentation 5. The final compensatory mitigation plan shall be control plan, if appropriate; a construction schedule; a submitted to and approved by the board prior to a plan-view drawing depicting the pattern and all construction activity in permitted impact areas. The board compensation measures being employed; a profile shall review and provide written comments on the final drawing; cross-sectional drawing or drawings of the plan within 30 days of receipt or it shall be deemed proposed compensation stream; and the final protective approved. The final plan as approved by the board shall be mechanism for the protection of the compensation site or an enforceable requirement of any coverage under this sites, including all surface waters and buffer areas within VWP general permit. Deviations from the approved final its boundaries. plan shall be submitted and approved in advance by the board. (3) The approved protective mechanism. The protective mechanism shall be recorded in the chain of title to the a. The final permittee-responsible wetlands compensation property, or an equivalent instrument for government- plan shall include: owned lands, and proof of recordation shall be submitted (1) The complete information on all components of the to the Department of Environmental Quality prior to conceptual compensation plan. commencing impacts in surface waters. (2) A summary of the type and acreage of existing 6. The following criteria shall apply to permittee- wetland impacts anticipated during the construction of responsible wetland or stream compensation: the compensation site and the proposed compensation for a. The vegetation used shall be native species common to these impacts; a site access plan; a monitoring plan, the area, shall be suitable for growth in local wetland or including proposed success criteria, monitoring goals, riparian conditions, and shall be from areas within the and the location of photo-monitoring stations, monitoring same or adjacent U.S. Department of Agriculture Plant wells, vegetation sampling points, and reference wetlands Hardiness Zone or Natural Resources Conservation or streams, if available; an abatement and control plan for Service Land Resource Region as that of the project site. undesirable plant species; an erosion and sedimentation Planting of woody plants shall occur when vegetation is control plan; a construction schedule; and the final normally dormant, unless otherwise approved in the final protective mechanism for the protection of the wetlands or stream compensation plan or plans. compensation site or sites, including all surface waters and buffer areas within its boundaries. b. All work in permitted impact areas shall cease if compensation site construction has not commenced (3) The approved protective mechanism. The protective within 180 days of commencement of project mechanism shall be recorded in the chain of title to the construction, unless otherwise authorized by the board. property, or an equivalent instrument for government- owned lands, and proof of recordation shall be submitted

Volume 37, Issue 5 Virginia Register of Regulations October 26, 2020 752 Regulations

c. The Department of Environmental Quality shall be removal shall be done by manual means only, unless notified in writing prior to the initiation of construction authorized by the Department of Environmental Quality activities at the compensation site. in advance. d. Point sources of stormwater runoff shall be prohibited B. Impact site construction monitoring. from entering a wetland compensation site prior to 1. Construction activities authorized by this permit that are treatment by appropriate best management practices. within impact areas shall be monitored and documented. Appropriate best management practices may include The monitoring shall consist of: sediment traps, grassed waterways, vegetated filter strips, debris screens, oil and grease separators, or forebays. a. Preconstruction photographs taken at each impact area prior to initiation of activities within impact areas. e. The success of the compensation shall be based on Photographs shall remain on the project site and depict meeting the success criteria established in the approved the impact area and the nonimpacted surface waters final compensation plan. immediately adjacent to and downgradient of each f. If the wetland or stream compensation area fails to impact area. Each photograph shall be labeled to include meet the specified success criteria in a particular the following information: permit number, impact area monitoring year, other than the final monitoring year, the number, date and time of the photograph, name of the reasons for this failure shall be determined and a person taking the photograph, photograph orientation, corrective action plan shall be submitted to the and photograph subject description. Department of Environmental Quality for approval with b. Site inspections shall be conducted by the permittee or or before that year's monitoring report. The corrective the permittee's qualified designee once every calendar action plan shall contain at minimum the proposed month during activities within impact areas. Monthly actions, a schedule for those actions, and a monitoring inspections shall be conducted in the following areas: all plan, and shall be implemented by the permittee in authorized permanent and temporary impact areas; all accordance with the approved schedule. Should avoided surface waters, including wetlands, stream significant changes be necessary to ensure success, the channels, and open water; surface water areas within 50 required monitoring cycle shall begin again, with feet of any land disturbing activity and within the project monitoring year one being the year that the changes are or right-of-way limits; and all on-site permanent complete as confirmed by the Department of preservation areas required under this permit. Environmental Quality. If the wetland or stream Observations shall be recorded on the inspection form compensation area fails to meet the specified success provided by the Department of Environmental Quality. criteria by the final monitoring year or if the wetland or The form shall be completed in its entirety for each stream compensation area has not met the stated monthly inspection and shall be kept on site and made restoration goals, reasons for this failure shall be available for review by the Department of Environmental determined and a corrective action plan, including Quality staff upon request during normal business hours. proposed actions, a schedule, and a monitoring plan, Inspections are not required during periods of no activity shall be submitted with the final year monitoring report within impact areas. for the Department of Environmental Quality approval. Corrective action shall be implemented by the permittee 2. Monitoring of water quality parameters shall be in accordance with the approved schedule. Annual conducted during permanent relocation of perennial monitoring shall be required to continue until two streams through new channels in the manner noted below. sequential, annual reports indicate that all criteria have The permittee shall report violations of water quality been successfully satisfied and the site has met the standards to the Department of Environmental Quality in overall restoration goals (e.g., that corrective actions accordance with the procedures in 9VAC25-680-100 Part were successful). II E. Corrective measures and additional monitoring may be required if water quality standards are not met. g.The surveyed wetland boundary for the compensation Reporting shall not be required if water quality standards site shall be based on the results of the hydrology, soils, are not violated. and vegetation monitoring data and shall be shown on the site plan. Calculation of total wetland acreage shall be a. A sampling station shall be located upstream and based on that boundary at the end of the monitoring immediately downstream of the relocated channel. cycle. Data shall be submitted by December 31 of the final monitoring year. b. Temperature, pH, and dissolved oxygen (D.O.) measurements shall be taken every 30 minutes for at least h. Herbicides or algicides shall not be used in or two hours at each station prior to opening the new immediately adjacent to the compensation site or sites channels and immediately before opening new channels. without prior authorization by the board. All vegetation

Volume 37, Issue 5 Virginia Register of Regulations October 26, 2020 753 Regulations

c. Temperature, pH, and D.O. readings shall be taken not be discontinued without written approval from the after opening the channels and every 30 minutes for at Department of Environmental Quality. least three hours at each station. 5. The presence of hydric soils or soils under hydric C. Permittee-responsible wetland compensation site conditions shall be evaluated in accordance with the final monitoring. compensation plan. 1. An as-built ground survey, or an aerial survey provided 6. The establishment of wetland vegetation shall be in by a firm specializing in aerial surveys, shall be conducted accordance with the final compensation plan. Monitoring for the entire compensation site or sites, including invert shall take place in August, September, or October during elevations for all water elevation control structures and the growing season of each monitoring year, unless spot elevations throughout the site or sites. Aerial surveys otherwise authorized in the monitoring plan. shall include the variation from actual ground conditions, 7. The presence of undesirable plant species shall be such as +/- 0.2 feet. Either type of survey shall be certified documented. by a licensed surveyor or by a registered professional engineer to conform to the design plans. The survey shall 8. All wetland compensation monitoring reports shall be be submitted within 60 days of completing compensation submitted in accordance with 9VAC25-680-100 Part II E site construction. Changes or deviations in the as-built 6. survey or aerial survey shall be shown on the survey and explained in writing. D. Permittee-responsible stream compensation and monitoring. 2. Photographs shall be taken at the compensation site or sites from the permanent markers identified in the final 1. Riparian buffer restoration activities shall be detailed in compensation plan, and established to ensure that the same the final compensation plan and shall include, as locations and view directions at the site or sites are appropriate, the planting of a variety of native species monitored in each monitoring period. These photographs currently growing in the site area, including appropriate shall be taken after the initial planting and at a time seed mixtures and woody species that are bare root, balled, specified in the final compensation plan during every or burlapped. A minimum buffer width of 50 feet, monitoring year. measured from the top of the stream bank at bankfull elevation landward on both sides of the stream, shall be 3. Compensation site monitoring shall begin on the first required where practical. day of the first complete growing season (monitoring year 1) after wetland compensation site construction activities, 2. The installation of root wads, vanes, and other instream including planting, have been completed. Monitoring shall structures, shaping of the stream banks and channel be required for monitoring years 1, 2, 3, and 5, unless relocation shall be completed in the dry whenever otherwise approved by the Department of Environmental practicable. Quality. In all cases, if all success criteria have not been 3. Livestock access to the stream and designated riparian met in the final monitoring year, then monitoring shall be buffer shall be limited to the greatest extent practicable. required for each consecutive year until two annual sequential reports indicate that all criteria have been 4. Stream channel restoration activities shall be conducted successfully satisfied. in the dry or during low flow conditions. When site conditions prohibit access from the streambank or upon 4. The establishment of wetland hydrology shall be prior authorization from the Department of Environmental measured weekly during the growing season, with the Quality, heavy equipment may be authorized for use within location and number of monitoring wells, and frequency of the stream channel. monitoring for each site, set forth in the final monitoring plan. Hydrology monitoring well data shall be 5. Photographs shall be taken at the compensation site from accompanied by precipitation data, including rainfall the vicinity of the permanent photo-monitoring stations amounts, either from on site or from the closest weather identified in the final compensation plan. The photograph station. Once the wetland hydrology success criteria have orientation shall remain constant during all monitoring been satisfied for a particular monitoring year, monitoring events. At a minimum, photographs shall be taken from the may be discontinued for the remainder of that monitoring center of the stream, facing downstream, with a sufficient year following Department of Environmental Quality number of photographs to view the entire length of the approval. After a period of three monitoring years, the restoration site. Photographs shall document the completed permittee may request that hydrology monitoring be restoration conditions. Photographs shall be taken prior to discontinued, providing that adequate hydrology has been site activities, during instream and riparian compensation established and maintained. Hydrology monitoring shall construction activities, within one week of completion of

Volume 37, Issue 5 Virginia Register of Regulations October 26, 2020 754 Regulations

activities, and during at least one day of each monitoring 4. The Department of Environmental Quality shall be year to depict restored conditions. notified in writing within 30 days following the completion of all activities in all authorized impact areas. 6. An as-built ground survey, or an aerial survey provided by a firm specializing in aerial surveys, shall be conducted 5. The Department of Environmental Quality shall be for the entire compensation site or sites. Aerial surveys notified in writing prior to the initiation of activities at the shall include the variation from actual ground conditions, permittee-responsible compensation site. The notification such as +/- 0.2 feet. The survey shall be certified by the shall include a projected schedule of activities and licensed surveyor or by a registered, professional engineer construction completion. to conform to the design plans. The survey shall be 6. All permittee-responsible compensation site monitoring submitted within 60 days of completing compensation site reports shall be submitted annually by December 31, with construction. Changes or deviations from the final the exception of the last year, in which case the report shall compensation plans in the as-built survey or aerial survey be submitted at least 60 days prior to the expiration of the shall be shown on the survey and explained in writing. general permit, unless otherwise approved by the 7. Compensation site monitoring shall begin on day one of Department of Environmental Quality. the first complete growing season (monitoring year 1) after a. All wetland compensation site monitoring reports shall stream compensation site constructions activities, including include, as applicable, the following: planting, have been completed. Monitoring shall be required for monitoring years 1 and 2, unless otherwise (1) General description of the site including a site approved by the Department of Environmental Quality. In location map identifying photo-monitoring stations, all cases, if all success criteria have not been met in the vegetative and soil monitoring stations, monitoring wells, final monitoring year, then monitoring shall be required for and wetland zones. each consecutive year until two annual sequential reports indicate that all criteria have been successfully satisfied. (2) Summary of activities completed during the monitoring year, including alterations or maintenance 8. All stream compensation site monitoring reports shall be conducted at the site. submitted in accordance with 9VAC25-680-100 Part II E 6. (3) Description of monitoring methods. E. Reporting. (4) Analysis of all hydrology information, including monitoring well data, precipitation data, and gauging 1. Written communications required by this VWP general data from streams or other open water areas, as set forth permit shall be submitted to the appropriate Department of in the final compensation plan. Environmental Quality office. The VWP general permit tracking number shall be included on all correspondence. (5) Evaluation of hydric soils or soils under hydric conditions, as appropriate. 2. The Department of Environmental Quality shall be notified in writing prior to the start of construction (6) Analysis of all vegetative community information, activities at the first permitted impact area. including woody and herbaceous species, both planted and volunteers, as set forth in the final compensation 3. A construction status update form provided by the plan. Department of Environmental Quality shall be completed and submitted to the Department of Environmental Quality (7) Photographs labeled with the permit number, the twice per year for the duration of coverage under a VWP name of the compensation site, the photo-monitoring general permit. Forms completed in June shall be station number, the photograph orientation, the date and submitted by or on July 10, and forms completed in time of the photograph, the name of the person taking the December shall be submitted by or on January 10. The photograph, and a brief description of the photograph form shall include reference to the VWP permit tracking subject. This information shall be provided as a separate number and one of the following statements for each attachment to each photograph, if necessary. Photographs authorized surface water impact location: taken after the initial planting shall be included in the first monitoring report after planting is complete. a. Construction activities have not yet started; (8) Discussion of wildlife or signs of wildlife observed at b. Construction activities have started; the compensation site. c. Construction activities have started but are currently (9) Comparison of site conditions from the previous inactive; or monitoring year and reference site. d. Construction activities are complete. (10) Discussion of corrective measures or maintenance activities to control undesirable species, to repair

Volume 37, Issue 5 Virginia Register of Regulations October 26, 2020 755 Regulations

damaged water control devices, or to replace damaged prohibited until approved by the Department of planted vegetation. Environmental Quality. (11) Corrective action plan that includes proposed 8. The permittee shall report fish kills or spills of oil or fuel actions, a schedule, and monitoring plan. immediately upon discovery. If spills or fish kills occur between the hours of 8:15 a.m. to 5 p.m., Monday through b. All stream compensation site monitoring reports shall Friday, the appropriate Department of Environmental include, as applicable, the following: Quality regional office shall be notified; otherwise, the (1) General description of the site including a site Department of Emergency Management shall be notified at location map identifying photo-monitoring stations and 1-800-468-8892. monitoring stations. 9. Violations of state water quality standards shall be (2) Summary of activities completed during the reported to the appropriate Department of Environmental monitoring year, including alterations or maintenance Quality office no later than the end of the business day conducted at the site. following discovery. (3) Description of monitoring methods. 10. The permittee shall notify the Department of Environmental Quality no later than the end of the third (4) Evaluation and discussion of the monitoring results in business day following the discovery of additional impacts relation to the success criteria and overall goals of to surface waters including wetlands, stream channels, and compensation. open water that are not authorized by the Department of (5) Photographs shall be labeled with the permit number, Environmental Quality or to any required preservation the name of the compensation site, the photo-monitoring areas. The notification shall include photographs, estimated station number, the photograph orientation, the date and acreage or linear footage of impacts, and a description of time of the photograph, the name of the person taking the the impacts. photograph, and a brief description of the photograph 11. Submittals required by this VWP general permit shall subject. Photographs taken prior to compensation site contain the following signed certification statement: construction activities, during instream and riparian restoration activities, and within one week of completion "I certify under penalty of law that this document and all of activities shall be included in the first monitoring attachments were prepared under my direction or report. supervision in accordance with a system designed to assure that qualified personnel properly gather and evaluate the (6) Discussion of alterations, maintenance, or major information submitted. Based on my inquiry of the person storm events resulting in significant change in stream or persons who manage the system, or those persons profile or cross section, and corrective actions conducted directly responsible for gathering the information, the at the stream compensation site. information submitted is, to the best of my knowledge and (7) Documentation of undesirable plant species and belief, true, accurate, and complete. I am aware that there summary of abatement and control measures. are significant penalties for submitting false information, including the possibility of fine and imprisonment for (8) Summary of wildlife or signs of wildlife observed at knowing violation." the compensation site. Part III. Conditions Applicable to All VWP General Permits. (9) Comparison of site conditions from the previous monitoring year and reference site, and as-built survey, if A. Duty to comply. The permittee shall comply with all applicable. conditions, limitations, and other requirements of the VWP general permit; any requirements in coverage granted under (10) Corrective action plan that includes proposed this VWP general permit; the Clean Water Act, as amended; actions, a schedule and monitoring plan. and the State Water Control Law and regulations adopted (11) Additional submittals that were approved by the pursuant to it. Any VWP general permit violation or Department of Environmental Quality in the final noncompliance is a violation of the Clean Water Act and compensation plan. State Water Control Law and is grounds for (i) enforcement action, (ii) VWP general permit coverage termination for 7. The permittee shall notify the Department of cause, (iii) VWP general permit coverage revocation, (iv) Environmental Quality in writing when unusual or denial of application for coverage, or (v) denial of an potentially complex conditions are encountered which application for a modification to VWP general permit require debris removal or involve potentially toxic coverage. Nothing in this VWP general permit shall be substance. Measures to remove the obstruction, material, or construed to relieve the permittee of the duty to comply with toxic substance or to change the location of a structure are

Volume 37, Issue 5 Virginia Register of Regulations October 26, 2020 756 Regulations all applicable federal and state statutes, regulations, and toxic be as fully effective as if it had been granted directly to the standards and prohibitions. new permittee. B. Duty to mitigate. The permittee shall take all reasonable 1. The current permittee notifies the board of the proposed steps to minimize or prevent impacts in violation of the VWP transfer of the general permit coverage and provides a general permit that may have a reasonable likelihood of written agreement between the current and new permittees adversely affecting human health or the environment. containing a specific date of transfer of VWP general permit responsibility, coverage, and liability to the new C. Reopener. This VWP general permit may be reopened to permittee, or that the current permittee will retain such modify its conditions when the circumstances on which the responsibility, coverage, or liability, including liability for previous VWP general permit was based have materially and compliance with the requirements of enforcement activities substantially changed, or special studies conducted by the related to the authorized activity. board or the permittee show material and substantial change since the time the VWP general permit was issued and 2. The board does not within 15 days notify the current and thereby constitute cause for revoking and reissuing the VWP new permittees of its intent to modify or revoke and reissue general permit. the VWP general permit. D. Compliance with state and federal law. Compliance with I. Notice of planned change. VWP general permit coverage this VWP general permit constitutes compliance with the may be modified subsequent to issuance in accordance with VWP permit requirements of the State Water Control Law. 9VAC25-680-80. Nothing in this VWP general permit shall be construed to J. VWP general permit coverage termination for cause. preclude the institution of any legal action under or relieve VWP general permit coverage is subject to termination for the permittee from any responsibilities, liabilities, or other cause by the board after public notice and opportunity for a penalties established pursuant to any other state law or hearing pursuant to § 62.1-44.15:02 of the Code of Virginia. regulation or under the authority preserved by § 510 of the Reasons for termination for cause are as follows: Clean Water Act. 1. Noncompliance by the permittee with any provision of E. Property rights. The issuance of this VWP general permit this chapter, any condition of the VWP general permit, or does not convey property rights in either real or personal any requirement in general permit coverage; property or any exclusive privileges, nor does it authorize injury to private property, any invasion of personal property 2. The permittee's failure in the application or during the rights, or any infringement of federal, state, or local laws or process of granting VWP general permit coverage to regulations. disclose fully all relevant facts or the permittee's misrepresentation of any relevant facts at any time; F. Severability. The provisions of this VWP general permit are severable. 3. The permittee's violation of a special or judicial order; G. Inspection and entry. Upon presentation of credentials, 4. A determination by the board that the authorized activity the permittee shall allow the board or any duly authorized endangers human health or the environment and can be agent of the board, at reasonable times and under reasonable regulated to acceptable levels by a modification to VWP circumstances, to enter upon the permittee's property, public general permit coverage or a termination; or private, and have access to inspect and copy any records that must be kept as part of the VWP general permit 5. A change in any condition that requires either a conditions; to inspect any facilities, operations, or practices temporary or permanent reduction or elimination of any (including monitoring and control equipment) regulated or activity controlled by the VWP general permit; or required under the VWP general permit; and to sample or 6. A determination that the authorized activity has ceased monitor any substance, parameter, or activity for the purpose and that the compensation for unavoidable adverse impacts of assuring compliance with the conditions of the VWP has been successfully completed. general permit or as otherwise authorized by law. For the purpose of this section, the time for inspection shall be K. The board may terminate VWP general permit coverage deemed reasonable during regular business hours. Nothing without cause when the permittee is no longer a legal entity contained herein shall make an inspection time unreasonable due to death or dissolution or when a company is no longer during an emergency. authorized to conduct business in the Commonwealth. The termination shall be effective 30 days after notice of the H. Transferability of VWP general permit coverage. VWP proposed termination is sent to the last known address of the general permit coverage may be transferred to another permittee or registered agent, unless the permittee objects permittee when all of the criteria listed in this subsection are within that time. If the permittee does object during that met. On the date of the VWP general permit coverage period, the board shall follow the applicable procedures for transfer, the transferred VWP general permit coverage shall

Volume 37, Issue 5 Virginia Register of Regulations October 26, 2020 757 Regulations termination under §§ 62.1-44.15:02 and 62.1-44.15:25 of the approved by the Department of Environmental Quality, Code of Virginia. and the following certification statement: L. VWP general permit coverage termination by consent. "I certify under penalty of law that the activities or the The permittee shall submit a request for termination by required compensatory mitigation authorized by the consent within 30 days of completing or canceling all VWP general permit and general permit coverage have authorized activities requiring notification under 9VAC25- changed as the result of events beyond my control (see 680-50 A and all compensatory mitigation requirements. attached). I understand that by submitting this notice of When submitted for project completion, the request for termination I am no longer authorized to perform termination by consent shall constitute a notice of project activities in surface waters in accordance with the VWP completion in accordance with 9VAC25-210-130 F. The general permit and general permit coverage, and that director may accept this termination of coverage on behalf of performing activities in surface waters is unlawful where the board. The permittee shall submit the following the activity is not authorized by the VWP permit or information: coverage, unless otherwise excluded from obtaining coverage. I also understand that the submittal of this 1. Name, mailing address, and telephone number; notice does not release me from liability for any 2. Name and location of the activity; violations of the VWP general permit authorization or coverage, nor does it allow me to resume the authorized 3. The VWP general permit tracking number; and activities without reapplication and coverage." 4. One of the following certifications: M. Civil and criminal liability. Nothing in this VWP general a. For project completion: permit shall be construed to relieve the permittee from civil and criminal penalties for noncompliance. "I certify under penalty of law that all activities and any required compensatory mitigation authorized by the N. Oil and hazardous substance liability. Nothing in this VWP general permit and general permit coverage have VWP general permit shall be construed to preclude the been completed. I understand that by submitting this institution of legal action or relieve the permittee from any notice of termination I am no longer authorized to responsibilities, liabilities, or penalties to which the permittee perform activities in surface waters in accordance with is or may be subject under § 311 of the Clean Water Act or the VWP general permit and general permit coverage, §§ 62.1-44.34:14 through 62.1-44.34:23 of the State Water and that performing activities in surface waters is Control Law. unlawful where the activity is not authorized by the VWP O. Duty to cease or confine activity. It shall not be a defense permit or coverage, unless otherwise excluded from for a permittee in an enforcement action that it would have obtaining coverage. I also understand that the submittal been necessary to halt or reduce the activity for which VWP of this notice does not release me from liability for any general permit coverage has been granted in order to maintain violations of the VWP general permit coverage." compliance with the conditions of the VWP general permit or b. For project cancellation: coverage. "I certify under penalty of law that the activities and any P. Duty to provide information. required compensatory mitigation authorized by the 1. The permittee shall furnish to the board any information VWP general permit and general permit coverage will that the board may request to determine whether cause not occur. I understand that by submitting this notice of exists for modifying, revoking, or terminating VWP permit termination I am no longer authorized to perform coverage or to determine compliance with the VWP activities in surface waters in accordance with the VWP general permit or general permit coverage. The permittee general permit and general permit coverage, and that shall also furnish to the board, upon request, copies of performing activities in surface waters is unlawful where records required to be kept by the permittee. the activity is not authorized by the VWP permit or coverage, unless otherwise excluded from obtaining 2. Plans, maps, conceptual reports, and other relevant coverage. I also understand that the submittal of this information shall be submitted as required by the board notice does not release me from liability for any prior to commencing construction. violations of the VWP general permit or coverage, nor Q. Monitoring and records requirements. does it allow me to resume the authorized activities without reapplication and coverage." 1. Monitoring of parameters, other than pollutants, shall be conducted according to approved analytical methods as c. For events beyond permittee control, the permittee specified in the VWP general permit. Analysis of shall provide a detailed explanation of the events, to be pollutants will be conducted according to 40 CFR Part 136

Volume 37, Issue 5 Virginia Register of Regulations October 26, 2020 758 Regulations

(2000), Guidelines Establishing Test Procedures for the c. Permanent flooding or impounding; or Analysis of Pollutants. d. New activities that cause significant alteration or 2. Samples and measurements taken for the purpose of degradation of existing wetland acreage or functions. monitoring shall be representative of the monitored S. Duty to reapply. Any permittee desiring to continue a activity. previously authorized activity after the expiration date of the 3. The permittee shall retain records of all monitoring VWP general permit shall comply with the provisions in information, including all calibration and maintenance 9VAC25-680-27. records and all original strip chart or electronic recordings 9VAC25-690-50. Notification. for continuous monitoring instrumentation, copies of all reports required by the VWP general permit, and records of A. Notification to the board will be required prior to all data used to complete the application for coverage commencing construction as follows: under the VWP general permit, for a period of at least three years from the date of general permit expiration. This 1. An application for coverage for proposed, permanent period may be extended by request of the board at any nontidal wetland or open water impacts greater than one- time. tenth acre or for proposed permanent nontidal stream bed impacts greater than 300 linear feet shall include all 4. Records of monitoring information shall include, as information pursuant to 9VAC25-690-60 B. Compensatory appropriate: mitigation may be required for all permanent impacts. a. The date, exact place, and time of sampling or 2. An application for coverage for proposed, permanent measurements; nontidal wetland or open water impacts up to one-tenth acre or for proposed, permanent nontidal stream bed b. The name of the individuals who performed the impacts up to 300 linear feet shall be submitted in sampling or measurements; accordance with either subdivision 2 a or 2 b of this c. The date and time the analyses were performed; subsection: d. The name of the individuals who performed the a. For any proposed project in wetlands, open water, analyses; streams, or compensatory mitigation sites that are under a deed restriction, conservation easement, declaration of e. The analytical techniques or methods supporting the restrictive covenant, or other land use protective information such as observations, readings, calculations, instrument (hereafter "protected areas"), when such and bench data used; restriction, easement, covenant, or instrument is the result f. The results of such analyses; and of a federal or state permit action and is specific to activities in wetlands and compensatory mitigation sites, g. Chain of custody documentation. the application shall include all of the information R. Unauthorized discharge of pollutants. Except in required by 9VAC25-690-60 B. Compensatory compliance with this VWP general permit, it shall be mitigation may be required for all permanent impacts. unlawful for the permittee to: b. For all other projects, the application shall include the 1. Discharge into state waters sewage, industrial wastes, information required by subdivisions 1 through 7, 11, 12, other wastes, or any noxious or deleterious substances; 15, and 16 of 9VAC25-690-60 B, and documentation that verifies the quantity and type of impacts. Compensatory 2. Excavate in a wetland; mitigation may be required for all permanent impacts 3. Otherwise alter the physical, chemical, or biological once the notification limits of one-tenth acre wetlands or properties of state waters and make them detrimental to the open water, or 300 linear feet of stream bed, are public health, to animal or aquatic life, or to the uses of exceeded, and if required, the application shall include such waters for domestic or industrial consumption, for the information in 9VAC25-690-60 B 13. recreation, or for other uses; or B. The Department of Environmental Quality-approved 4. On and after August 1, 2001, for linear transportation application forms shall serve as an application for a VWP projects of the Virginia Department of Transportation, or permit or VWP general permit coverage. on and after October 1, 2001, for all other projects, conduct C. The board will determine whether the proposed activity the following activities in a wetland: requires coordination with the U.S. Fish and Wildlife Service, a. New activities to cause draining that significantly the Virginia Department of Conservation and Recreation, the alters or degrades existing wetland acreage or functions; Virginia Department of Agriculture and Consumer Services and the Virginia Department of Game and Inland Fisheries b. Filling or dumping;

Volume 37, Issue 5 Virginia Register of Regulations October 26, 2020 759 Regulations

Wildlife Resources regarding the presence of federal or state should be of sufficient detail to easily locate the site or listed threatened and endangered species or designated critical sites for inspection. habitat. Based upon consultation with these agencies, the 7. A narrative description of the project, including project board may deny application for coverage under this general purpose and need. permit. The applicant may also consult with these agencies prior to submitting an application. Species or habitat 8. Plan-view drawing or drawings of the project site information that the applicant provides will assist the sufficient to assess the project, including at a minimum the Department of Environmental Quality in reviewing and following: processing the application. a. North arrow, graphic scale, and existing and proposed 9VAC25-690-60. Application. topographic or bathymetric contours. A. The applicant shall file a complete application in b. Limits of proposed impacts to surface waters. accordance with 9VAC25-690-50 and this section for coverage under this VWP general permit for impacts to c. Location of all existing and proposed structures. surface waters from development and certain mining d. All delineated wetlands and all jurisdictional surface activities. waters on the site, including the Cowardin classification B. A complete application for VWP general permit (i.e., emergent, scrub-shrub, or forested) for those surface coverage, at a minimum, consists of the following waters and waterway name, if designated; ebb and flood information, if applicable to the project: or direction of flow; and ordinary high water mark in nontidal areas. 1. The applicant's legal name, mailing address, telephone number, and if applicable, electronic mail address and fax e. The limits of Chesapeake Bay Resource Protection number. Areas (RPAs) as field-verified by the applicant, and if available, the limits as approved by the locality in which 2. If different from the applicant, legal name, mailing the project site is located, unless the proposed use is address, telephone number, and if applicable, electronic exempt from the Chesapeake Bay Preservation Area mail address and fax number of property owner. Designation and Management Regulations (9VAC25- 830). 3. If applicable, the authorized agent's name, mailing address, telephone number, and if applicable, fax number f. The limits of any areas that are under a deed and electronic mail address. restriction, conservation easement, restrictive covenant, or other land use protective instrument (i.e., protected 4. The existing VWP general permit tracking number, if areas). applicable. 9. Cross-sectional and profile drawing or drawings. Cross- 5. Project name and proposed project schedule. sectional drawing or drawings of each proposed impact 6. The following information for the project site location, area shall include at a minimum a graphic scale, existing and any related permittee-responsible compensatory structures, existing and proposed elevations, limits of mitigation site: surface water areas, ebb and flood or direction of flow (if applicable), ordinary high water mark in nontidal areas, a. The physical street address, nearest street, or nearest impact limits, and location of all existing and proposed route number; city or county; zip code; and if applicable, structures. Profile drawing or drawings with this parcel number of the site or sites. information may be required on a case-by-case basis to b. Name of the impacted water body or water bodies, or demonstrate minimization of impacts. Any application that receiving waters, as applicable, at the site or sites. proposes piping or culverting stream flows shall provide a longitudinal profile of the pipe or culvert position and c. The latitude and longitude to the nearest second at the stream bed thalweg, or shall provide spot elevations of the center of the site or sites. stream thalweg at the beginning and end of the pipe or d. The fourth order subbasin, as defined by the culvert, extending to a minimum of 10 feet beyond the hydrologic unit boundaries of the National Watershed limits of proposed impact. Boundary Dataset, for the site or sites. 10. Materials assessment. Upon request by the board, the e. A detailed map depicting the location of the site or applicant shall provide evidence or certification that the sites, including the project boundary and all existing material is free from toxic contaminants prior to disposal preservation areas on the site or sites. The map (e.g., a or that the dredging activity will not cause or contribute to U.S. Geologic Survey topographic quadrangle map) a violation of water quality standards during dredging. The applicant may be required to conduct grain size and

Volume 37, Issue 5 Virginia Register of Regulations October 26, 2020 760 Regulations

composition analyses, tests for specific parameters or practicable in accordance with the Guidelines for chemical constituents, or elutriate tests on the dredge Specification of Disposal Sites for Dredged or Fill material. Material, 40 CFR Part 230. Avoidance and minimization includes, but is not limited to, the specific on-site measures 11. A narrative description of all impacts proposed to taken to reduce the size, scope, configuration, or density of surface waters, including the type of activity to be the proposed project, including review of alternative sites conducted in surface waters and any physical alteration to where required for the project, which would avoid or result surface waters. Surface water impacts shall be identified as in less adverse impact to surface waters, and follows: documentation demonstrating the reason the applicant a. Wetland impacts identified according to their determined less damaging alternatives are not practicable. Cowardin classification (i.e., emergent, scrub-shrub, or The analysis shall demonstrate to the satisfaction of the forested); and for each classification, the individual board that avoidance and minimization opportunities have impacts quantified in square feet to the nearest whole been identified and measures have been applied to the number, cumulatively summed in square feet, and then proposed activity such that the proposed activity in terms the sum converted to acres and rounded to two decimal of impacts to state waters and fish and wildlife resources is places using commonly accepted arithmetic principles of the least environmentally damaging practicable alternative. rounding. 13. A compensatory mitigation plan to achieve no net loss b. Individual stream impacts (i) quantified by length in of wetland acreage and functions or stream functions and linear feet to the nearest whole number and by average water quality benefits. width in feet to the nearest whole number; (ii) quantified a. If permittee-responsible compensation is proposed for in square feet to the nearest whole number; and (iii) when wetland impacts, a conceptual wetland compensatory compensatory mitigation is required, the impacts mitigation plan must be submitted in order for an identified according to the assessed type using the application to be deemed complete and shall include at a Unified Stream Methodology. minimum (i) the goals and objectives in terms of c. Open water impacts identified according to their replacement of wetland acreage and functions; (ii) a Cowardin classification, and for each type, the individual detailed location map including latitude and longitude to impacts quantified in square feet to the nearest whole the nearest second and the fourth order subbasin, as number, cumulatively summed in square feet, and then defined by the hydrologic unit boundaries of the National the sum converted to acres and rounded to two decimal Watershed Boundary Dataset, at the center of the site; places using commonly accepted arithmetic principles of (iii) a description of the surrounding land use; (iv) a rounding. hydrologic analysis including a draft water budget for nontidal areas based on expected monthly inputs and d. A copy of the approved jurisdictional determination outputs that will project water level elevations for a when available, or when unavailable, (i) the preliminary typical year, a dry year, and a wet year; (v) groundwater jurisdictional determination from the U.S. Army Corps of elevation data, if available, or the proposed location of Engineers (USACE), U.S. Department of Agriculture groundwater monitoring wells to collect these data; (vi) Natural Resources Conservation Service (NRCS), or wetland delineation confirmation, data sheets, and maps DEQ or (ii) other correspondence from the USACE, for existing surface water areas on the proposed site or NRCS, or DEQ indicating approval of the boundary of sites; (vii) a conceptual grading plan; (viii) a conceptual applicable jurisdictional surface waters, including planting scheme including suggested plant species and wetlands data sheets if applicable. zonation of each vegetation type proposed; (ix) a e. A delineation map that (i) depicts the geographic area description of existing soils including general or areas of all surface water boundaries delineated in information on both topsoil and subsoil conditions, accordance with 9VAC25-210-45 and confirmed in permeability, and the need for soil amendments; (x) a accordance with the jurisdictional determination process; draft design of any water control structures; (xi) inclusion (ii) identifies such areas in accordance with subdivisions of buffer areas; (xii) a description of any structures and 11 a, 11 b, and 11 c of this subsection; and (iii) quantifies features necessary for the success of the site; (xiii) the and identifies any other surface waters according to their schedule for compensatory mitigation site construction; Cowardin classification (i.e., emergent, scrub-shrub, or and (xiv) measures for the control of undesirable species. forested) or similar terminology. b. If permittee-responsible compensation is proposed for 12. An alternatives analysis for the proposed project stream impacts, a conceptual stream compensatory detailing the specific on-site measures taken during project mitigation plan must be submitted in order for an design and development to first avoid and then minimize application to be deemed complete and shall include at a impacts to surface waters to the maximum extent minimum (i) the goals and objectives in terms of water

Volume 37, Issue 5 Virginia Register of Regulations October 26, 2020 761 Regulations

quality benefits and replacement of stream functions; (ii) management plans, or other alternate management plans a detailed location map including the latitude and submitted by a government agency or public authority. longitude to the nearest second and the fourth order d. Any compensatory mitigation plan proposing the subbasin, as defined by the hydrologic unit boundaries of purchase of mitigation bank or in-lieu fee program the National Watershed Boundary Dataset, at the center credits shall include the number and type of credits of the site; (iii) a description of the surrounding land use; proposed to be purchased and documentation from the (iv) the proposed stream segment restoration locations approved bank or in-lieu fee program sponsor of the including plan view and cross-sectional drawings; (v) the availability of credits at the time of application. stream deficiencies that need to be addressed; (vi) data obtained from a DEQ-approved, stream impact 14. Permit application fee. The applicant will be notified assessment methodology such as the Unified Stream by the board as to the appropriate fee for the project in Methodology; (vii) the proposed restoration measures to accordance with 9VAC25-20. be employed including channel measurements, proposed design flows, types of instream structures, and 15. A written description and a graphical depiction conceptual planting scheme; (viii) reference stream data, identifying all upland areas including buffers, wetlands, if available; (ix) inclusion of buffer areas; (x) schedule open water, other surface waters, and compensatory for restoration activities; and (xi) measures for the mitigation areas located within the proposed project control of undesirable species. boundary or permittee-responsible compensatory mitigation areas that are under a deed restriction, c. For any permittee-responsible compensatory conservation easement, restrictive covenant, or other land mitigation, the conceptual compensatory mitigation plan use protective instrument (i.e., protected areas). Such shall also include a draft of the intended protective description and a graphical depiction shall include the mechanism or mechanisms, in accordance with 9VAC25- nature of the prohibited activities within the protected areas 210-116 B 2, such as, but not limited to, a conservation and the limits of Chesapeake Bay Resource Protection easement held by a third party in accordance with the Areas (RPAs) as field-verified by the applicant, and if Virginia Conservation Easement Act (§ 10.1-1009 et seq. available, the limits as approved by the locality in which of the Code of Virginia) or the Virginia Open-Space the project site is located, unless the proposed use is Land Act (§ 10.1-1700 et seq. of the Code of Virginia), a exempt from the Chesapeake Bay Preservation Area duly recorded declaration of restrictive covenants, or Designation and Management Regulations (9VAC25-830), other protective instrument. The draft intended protective as additional state or local requirements may apply if the mechanism shall contain the information in subdivisions project is located within an RPA. c (1), c (2), and c (3) of this subdivision 13 or in lieu thereof shall describe the intended protective mechanism 16. Signature page that has been signed, dated, and or mechanisms that contains the information required certified by the applicant in accordance with 9VAC25-210- below: 100. If the applicant is a business or other organization, the signature must be made by an individual with the authority (1) A provision for access to the site; to bind the business or organization, and the title of the signatory must be provided. The application signature (2) The following minimum restrictions: no ditching, page, either on the copy submitted to the Virginia Marine land clearing, or discharge of dredge or fill material, and Resources Commission or to DEQ, must have an original no activity in the area designated as compensatory signature. Electronic submittals containing the original mitigation area with the exception of maintenance; signature page, such as that contained in a scanned corrective action measures; or DEQ-approved activities document file, are acceptable. described in the approved final compensatory mitigation plan or long-term management plan; and C. An analysis of the functions of wetlands proposed to be impacted may be required by DEQ. When required, the (3) A long-term management plan that identifies a long- method selected for the analysis shall assess water quality or term steward and adequate financial assurances for long- habitat metrics and shall be coordinated with DEQ in advance term management in accordance with the current of conducting the analysis. standard for mitigation banks and in-lieu fee program sites, except that financial assurances will not be 1. No analysis shall be required when: necessary for permittee-responsible compensation provided by government agencies on government a. Wetland impacts per each single and complete project property. If approved by DEQ, permittee-responsible total 1.00 acre or less; or compensation on government property and long-term b. The proposed compensatory mitigation consists of protection may be provided through federal facility purchasing mitigation bank or in-lieu fee program credits management plans, integrated natural resources

Volume 37, Issue 5 Virginia Register of Regulations October 26, 2020 762 Regulations

at standard mitigation ratios of 2:1 for forest, 1.5:1 for processing by the board for failure to provide the required scrub-shrub, and 1:1 for emergent, or higher. information after 60 days from the date of the latest written information request made by the board. The board shall 2. Analysis shall be required when wetland impacts per provide (i) notice to the applicant and (ii) an opportunity each single and complete project total 1.01 acres or more for an informal fact-finding proceeding when and when any of the following applies: administratively withdrawing an incomplete application. a. The proposed compensatory mitigation consists of Resubmittal of an application for the same or similar permittee-responsible compensation, including water project, after such time that the original permit application quality enhancements as replacement for wetlands; or was administratively withdrawn, shall require submittal of an additional permit application fee. b. The proposed compensatory mitigation consists of purchasing mitigation bank or in-lieu fee program credits 3. An applicant may request a suspension of application at less than the standard mitigation ratios of 2:1 for review by the board, but requesting a suspension shall not forest, 1.5:1 for scrub-shrub, and 1:1 for emergent. preclude the board from administratively withdrawing an incomplete application. Resubmittal of a permit application D. Upon receipt of an application by the appropriate DEQ for the same or similar project, after such time that the office, the board has 15 days to review the application and original permit application was administratively either determine the information requested in subsection B of withdrawn, shall require submittal of an additional permit this section is complete or inform the applicant that additional application fee. information is required to make the application complete. Coverage under this VWP general permit shall be approved 9VAC25-690-100. VWP general permit. or approved with conditions, or the application shall be VWP GENERAL PERMIT NO. WP4 FOR IMPACTS denied, within 45 days of receipt of a complete application. If FROM DEVELOPMENT AND CERTAIN MINING the board fails to act within 45 days on a complete ACTIVITIES UNDER THE VIRGINIA WATER application, coverage under this VWP permit general permit PROTECTION PERMIT AND THE VIRGINIA STATE shall be deemed granted. WATER CONTROL LAW 1. In evaluating the application, the board shall make an Effective date: August 2, 2016 assessment of the impacts associated with the project in Expiration date: August 1, 2026 combination with other existing or proposed impacts. Application for coverage under this VWP general permit In compliance with § 401 of the Clean Water Act, as shall be denied if the cumulative impacts will cause or amended (33 USC § 1341) and the State Water Control Law contribute to a significant impairment of state waters or and regulations adopted pursuant thereto, the board has fish and wildlife resources. determined that there is a reasonable assurance that this VWP general permit, if complied with, will protect instream 2. The board may place additional requirements on a beneficial uses, will not violate applicable water quality project in order to grant coverage under this VWP general standards, and will not cause or contribute to a significant permit. However, the requirements must be consistent with impairment of state waters or fish and wildlife resources. In this chapter. issuing this VWP general permit, the board has not taken into E. Incomplete application. consideration the structural stability of any proposed activities. 1. Where an application for general permit coverage is not accepted as complete by the board within 15 days of The permanent or temporary impact of up to two acres of receipt, the board shall require the submission of additional nontidal wetlands or open water and up to 1,500 linear feet of information from the applicant and may suspend nontidal stream bed shall be subject to the provisions of the processing of any application until such time as the VWP general permit set forth herein; any requirements in applicant has supplied the requested information and the coverage granted under this general permit; the Clean Water application is complete. Where the applicant becomes Act, as amended; and the State Water Control Law and aware that he omitted one or more relevant facts from an regulations adopted pursuant to it. application, or submitted incorrect information in an Part I. Special Conditions. application or in any report to the board, the applicant shall immediately submit such facts or the correct information. A. Authorized activities. A revised application with new information shall be 1. The activities authorized by this chapter shall not cause deemed a new application for purposes of review but shall more than the permanent or temporary impacts of up to not require an additional permit application fee. two acres of nontidal wetlands or open water and up to 2. An incomplete permit application for general permit 1,500 linear feet of nontidal stream bed. Additional permit coverage may be administratively withdrawn from

Volume 37, Issue 5 Virginia Register of Regulations October 26, 2020 763 Regulations

requirements as stipulated by the board in the coverage unless otherwise approved by the Department of letter, if any, shall be enforceable conditions of this permit. Environmental Quality. Excess or waste concrete shall not be disposed of in flowing surface waters or washed into 2. Any changes to the authorized permanent impacts to flowing surface waters. surface waters shall require a notice of planned change in accordance with 9VAC25-690-80. An application or 4. All fill material shall be clean and free of contaminants request for modification to coverage or another VWP in toxic concentrations or amounts in accordance with all permit application may be required. applicable laws and regulations. 3. Any changes to the authorized temporary impacts to 5. Erosion and sedimentation controls shall be designed in surface waters shall require written notification to and accordance with the Virginia Erosion and Sediment approval from the Department of Environmental Quality in Control Handbook, Third Edition, 1992, or for mining accordance with 9VAC25-690-80 prior to initiating the activities covered by this general permit, the standards impacts and restoration to preexisting conditions in issued by the Virginia Department of Mines, Minerals and accordance with the conditions of this permit. Energy that are effective as those in the Virginia Erosion and Sediment Control Handbook, Third Edition, 1992. 4. Modification to compensation requirements may be These controls shall be placed prior to clearing and grading approved at the request of the permittee when a decrease in and maintained in good working order to minimize impacts the amount of authorized surface waters impacts occurs, to state waters. These controls shall remain in place until provided that the adjusted compensation meets the initial the area is stabilized and shall then be removed. compensation goals. 6. Exposed slopes and streambanks shall be stabilized B. Overall conditions. immediately upon completion of work in each permitted 1. The activities authorized by this VWP general permit impact area. All denuded areas shall be properly stabilized shall be executed in a manner so as to minimize adverse in accordance with the Virginia Erosion and Sediment impacts on instream beneficial uses as defined in § 62.1-10 Control Handbook, Third Edition, 1992. (b) of the Code of Virginia. 7. All construction, construction access (e.g., cofferdams, 2. No activity may substantially disrupt the movement of sheetpiling, and causeways) and demolition activities aquatic life indigenous to the water body, including those associated with theproject shall be accomplished in a species which normally migrate through the area, unless manner that minimizes construction or waste materials the primary purpose of the activity is to impound water. from entering surface waters to the maximum extent Pipes and culverts placed in streams must be installed to practicable, unless authorized by this VWP general permit. maintain low flow conditions and shall be countersunk at 8. No machinery may enter flowing waters, unless both inlet and outlet ends of the pipe or culvert, unless authorized by this VWP general permit or approved prior otherwise specifically approved by the Department of to entry by the Department of Environmental Quality. Environmental Quality on a case-by-case basis, and as follows: The requirement to countersink does not apply to 9. Heavy equipment in temporarily-impacted wetland areas extensions or maintenance of existing pipes and culverts shall be placed on mats, geotextile fabric, or other suitable that are not countersunk, floodplain pipes and culverts material to minimize soil disturbance to the maximum being placed above ordinary high water, pipes and culverts extent practicable. Equipment and materials shall be being placed on bedrock, or pipes and culverts required to removed immediately upon completion of work. be placed on slopes 5.0% or greater. Bedrock encountered 10. All nonimpacted surface waters and compensatory during construction must be identified and approved in mitigation areas within 50 feet of authorized activities and advance of a design change where the countersunk within the project or right-of-way limits shall be clearly condition cannot be met. Pipes and culverts 24 inches or flagged or marked for the life of the construction activity at less in diameter shall be countersunk three inches below that location to preclude unauthorized disturbances to these the natural stream bed elevations, and pipes and culverts surface waters and compensatory mitigation areas during greater than 24 inches shall be countersunk at least six construction. The permittee shall notify contractors that no inches below the natural stream bed elevations. Hydraulic activities are to occur in these marked surface waters. capacity shall be determined based on the reduced capacity due to the countersunk position. In all stream crossings 11. Temporary disturbances to surface waters during appropriate measures shall be implemented to minimize construction shall be avoided and minimized to the any disruption of aquatic life movement. maximum extent practicable. All temporarily disturbed wetland areas shall be restored to preexisting conditions 3. Wet or uncured concrete shall be prohibited from entry within 30 days of completing work at each respective into flowing surface waters, unless the area is contained temporary impact area, which shall include reestablishing within a cofferdam and the work is performed in the dry or

Volume 37, Issue 5 Virginia Register of Regulations October 26, 2020 764 Regulations

preconstruction elevations and contours with topsoil from 17. If stream channelization or relocation is required, all the impact area where practicable and planting or seeding work in surface waters shall be done in the dry, unless with appropriate wetland vegetation according to cover otherwise authorized by the Department of Environmental type (i.e., emergent, scrub-shrub, or forested). The Quality, and all flows shall be diverted around the permittee shall take all appropriate measures to promote channelization or relocation area until the new channel is and maintain revegetation of temporarily disturbed wetland stabilized. This work shall be accomplished by leaving a areas with wetland vegetation through the second year plug at the inlet and outlet ends of the new channel during post-disturbance. All temporarily impacted streams and excavation. Once the new channel has been stabilized, flow streambanks shall be restored to their preconstruction shall be routed into the new channel by first removing the elevations and contours with topsoil from the impact area downstream plug and then the upstream plug. The rerouted where practicable within 30 days following the stream flow must be fully established before construction construction at that stream segment. Streambanks shall be activities in the old stream channel can begin. seeded or planted with the same vegetation cover type C. Road crossings. originally present, including any necessary supplemental erosion control grasses. Invasive species identified on the 1. Access roads and associated bridges, pipes, and culverts Department of Conservation and Recreation's Virginia shall be constructed to minimize the adverse effects on Invasive Plant Species List shall not be used to the surface waters to the maximum extent practicable. Access maximum extent practicable or without prior approval roads constructed above preconstruction elevations and from the Department of Environmental Quality. contours in surface waters must be bridged, piped, or culverted to maintain surface flows. 12. Materials (including fill, construction debris, and excavated and woody materials) temporarily stockpiled in 2. Installation of road crossings shall occur in the dry via wetlands shall be placed on mats or geotextile fabric, the implementation of cofferdams, sheetpiling, stream immediately stabilized to prevent entry into state waters, diversions, or similar structures. managed such that leachate does not enter state waters, and completely removed within 30 days following completion D. Utility lines. of that construction activity. Disturbed areas shall be 1. All utility line work in surface waters shall be performed returned to preconstruction elevations and contours with in a manner that minimizes disturbance, and the area must topsoil from the impact area where practicable; restored be returned to its preconstruction elevations and contours within 30 days following removal of the stockpile; and with topsoil from the impact area where practicable and restored with the same vegetation cover type originally restored within 30 days of completing work in the area, present, including any necessary supplemental erosion unless otherwise authorized the Department of control grasses. Invasive species identified on the Environmental Quality. Restoration shall be the seeding of Department of Conservation and Recreation's Virginia planting of the same vegetation cover type originally Invasive Plant Species List shall not be used to the present, including any necessary supplemental erosion maximum extent practicable or without prior approval control grasses. Invasive specifies identified on the from the Department of Environmental Quality. Department of Conservation and Recreation's Virginia 13. Continuous flow of perennial springs shall be Invasive Plant Species List shall not be used to the maximum extent practicable or without prior approval maintained by the installation of spring boxes, french from the Department of Environmental Quality. drains, or other similar structures. 14. The permittee shall employ measures to prevent spills 2. Material resulting from trench excavation may be temporarily sidecast into wetlands not to exceed a total of of fuels or lubricants into state waters. 90 days, provided the material is not placed in a manner 15. The permittee shall conduct activities in accordance such that it is dispersed by currents or other forces. with the time-of-year restrictions recommended by the Virginia Department of Game and Inland Fisheries 3. The trench for a utility line cannot be constructed in a Wildlife Resources, the Virginia Marine Resources manner that drains wetlands (e.g., backfilling with Commission, or other interested and affected agencies, as extensive gravel layers creating a french drain effect.). For contained, when applicable, in Department of example, utility lines may be backfilled with clay blocks to Environmental Quality VWP general permit coverage, and ensure that the trench does not drain surface waters shall ensure that all contractors are aware of the time-of- through which the utility line is installed. year restrictions imposed. E. Stream modification and stream bank protection. 16. Water quality standards shall not be violated as a result 1. Riprap bank stabilization shall be of an appropriate size of the construction activities. and design in accordance with the Virginia Erosion and Sediment Control Handbook, Third Edition, 1992.

Volume 37, Issue 5 Virginia Register of Regulations October 26, 2020 765 Regulations

2. Riprap apron for all outfalls shall be designed in 8. Pipeline outfalls and spillways shall be located at accordance with the Virginia Erosion and Sediment opposite ends of the dewatering area to allow for Control Handbook, Third Edition, 1992. maximum retention and settling time. Filter fabric shall be used to line the dewatering area and to cover the outfall 3. For stream bank protection activities, the structure and pipe to further reduce sedimentation to state waters. backfill shall be placed as close to the stream bank as practicable. No material shall be placed in excess of the 9. The dredge material dewatering area shall be of minimum necessary for erosion protection. adequate size to contain the dredge material and to allow for adequate dewatering and settling out of sediment prior 4. All stream bank protection structures shall be located to to discharge back into state waters. eliminate or minimize impacts to vegetated wetlands to the maximum extent practicable. 10. The dredge material dewatering area shall utilize an earthen berm or straw bales covered with filter fabric along 5. Asphalt and materials containing asphalt or other toxic the edge of the area to contain the dredged material, filter substances shall not be used in the construction of bags, or other similar filtering practices, any of which shall submerged sills or breakwaters. be properly stabilized prior to placing the dredged material 6. Redistribution of existing stream substrate for the within the containment area. purpose of erosion control is prohibited. 11. Overtopping of the dredge material containment berms 7. No material removed from the stream bottom shall be with dredge materials shall be strictly prohibited. disposed of in surface waters, unless otherwise authorized G. Stormwater management facilities. by this VWP general permit. 1. Stormwater management facilities shall be installed in F. Dredging. accordance with best management practices and watershed 1. Dredging depths shall be determined and authorized protection techniques (e.g., vegetated buffers, siting according to the proposed use and controlling depths considerations to minimize adverse effects to aquatic outside the area to be dredged. resources, bioengineering methods incorporated into the facility design to benefit water quality and minimize 2. Dredging shall be accomplished in a manner that adverse effects to aquatic resources) that provide for long- minimizes disturbance of the bottom and minimizes term aquatic resources protection and enhancement, to the turbidity levels in the water column. maximum extent practicable. 3. If evidence of impaired water quality, such as a fish kill, 2. Compensation for unavoidable impacts shall not be is observed during the dredging, dredging operations shall allowed within maintenance areas of stormwater cease, and the Department of Environmental Quality shall management facilities. be notified immediately. 3. Maintenance activities within stormwater management 4. Barges used for the transportation of dredge material facilities shall not require additional permit coverage or shall be filled in such a manner to prevent the overflow of compensation provided that the maintenance activities do dredged materials. not exceed the original contours of the facility, as approved 5. Double handling of dredged material in state waters and constructed, and is accomplished in designated shall not be permitted. maintenance areas as indicated in the facility maintenance or design plan or when unavailable, an alternative plan 6. For navigation channels the following shall apply: approved by the Department of Environmental Quality. a. A buffer of four times the depth of the dredge cut shall Part II. Construction and Compensation Requirements, be maintained between the bottom edge of the design Monitoring, and Reporting. channel and the channelward limit of wetlands, or a buffer of 15 feet shall be maintained from the dredged A. Minimum compensation requirements. cut and the channelward edge of wetlands, whichever is 1. The permittee shall provide any required compensation greater. This landward limit of buffer shall be flagged for impacts in accordance with the conditions in this VWP and inspected prior to construction. general permit, the coverage letter, and the chapter b. Side slope cuts of the dredging area shall not exceed a promulgating the general permit. For all compensation that two-horizontal-to-one-vertical slope to prevent slumping requires a protective mechanism, including preservation of of material into the dredged area. surface waters or buffers, the permittee shall record the approved protective mechanism in the chain of title to the 7. A dredged material management plan for the designated property, or an equivalent instrument for government- upland disposal site shall be submitted and approved 30 owned lands, and proof of recordation shall be submitted to days prior to initial dredging activity.

Volume 37, Issue 5 Virginia Register of Regulations October 26, 2020 766 Regulations

the Department of Environmental Quality prior to (1) The complete information on all components of the commencing impacts in surface waters. conceptual compensation plan. 2. Compensation options that may be considered under this (2) An evaluation, discussion, and plan drawing or VWP general permit shall meet the criteria in 9VAC25- drawings of existing conditions on the proposed 210-116 and 9VAC25-690-70. compensation stream, including the identification of functional and physical deficiencies for which the 3. The permittee-responsible compensation site or sites measures are proposed, and summary of geomorphologic depicted in the conceptual compensation plan submitted measurements (e.g., stream width, entrenchment ratio, with the application shall constitute the compensation site. width-depth ratio, sinuosity, slope, substrate, etc.); a site A site change may require a modification to coverage. access plan; a monitoring plan, including a monitoring 4. For compensation involving the purchase of mitigation and reporting schedule, monitoring design and bank credits or the purchase of in-lieu fee program credits, methodologies for success, proposed success criteria, the permittee shall not initiate work in permitted impact location of photo-monitoring stations, vegetation areas until documentation of the mitigation bank credit sampling points, survey points, bank pins, scour chains, purchase or of the in-lieu fee program credit purchase has and reference streams; an abatement and control plan for been submitted to and received by the Department of undesirable plant species; an erosion and sedimentation Environmental Quality. control plan, if appropriate; a construction schedule; a plan-view drawing depicting the pattern and all 5. The final compensation plan shall be submitted to and compensation measures being employed; a profile approved by the board prior to a construction activity in drawing; cross-sectional drawing or drawings of the permitted impact areas. The board shall review and provide proposed compensation stream; and the final protective written comments on the final plan within 30 days of mechanism for the protection of the compensation site or receipt or it shall be deemed approved. The final plan as sites, including all surface waters and buffer areas within approved by the board shall be an enforceable requirement its boundaries. of any coverage under this VWP general permit. Deviations from the approved final plan shall be submitted (3) The approved protective mechanism. The protective and approved in advance by the board. mechanism shall be recorded in the chain of title to the property, or an equivalent instrument for government- a. The final permittee-responsible wetlands compensation owned lands, and proof of recordation shall be submitted plan shall include: to the Department of Environmental Quality prior to (1) The complete information on all components of the commencing impacts in surface waters. conceptual compensation plan. 6. The following criteria shall apply to permittee- (2) A summary of the type and acreage of existing responsible wetland or stream compensation: wetland impacts anticipated during the construction of a. The vegetation used shall be native species common to the compensation site and the proposed compensation for the area, shall be suitable for growth in local wetland or these impacts; a site access plan; a monitoring plan, riparian conditions, and shall be from areas within the including proposed success criteria, monitoring goals, same or adjacent U.S. Department of Agriculture Plant and the location of photo-monitoring stations, monitoring Hardiness Zone or Natural Resources Conservation wells, vegetation sampling points, and reference wetlands Service Land Resource Region as that of the project site. or streams, if available; an abatement and control plan for Planting of woody plants shall occur when vegetation is undesirable plant species; an erosion and sedimentation normally dormant, unless otherwise approved in the final control plan; a construction schedule; and the final wetlands or stream compensation plan or plans. protective mechanism for the compensation site or sites, including all surface waters and buffer areas within its b. All work in permitted impact areas shall cease if boundaries. compensation site construction has not commenced within 180 days of commencement of project (3) The approved protective mechanism. The protective construction, unless otherwise authorized by the board. mechanism shall be recorded in the chain of title to the property, or an equivalent instrument for government- c. The Department of Environmental Quality shall be owned lands, and proof of recordation shall be submitted notified in writing prior to the initiation of construction to the Department of Environmental Quality prior to activities at the compensation site. commencing impacts in surface waters. d. Point sources of stormwater runoff shall be prohibited b. The final permittee-responsible stream compensation from entering a wetland compensation site prior to plan shall include: treatment by appropriate best management practices. Appropriate best management practices may include

Volume 37, Issue 5 Virginia Register of Regulations October 26, 2020 767 Regulations

sediment traps, grassed waterways, vegetated filter strips, B. Impact site construction monitoring. debris screens, oil and grease separators, or forebays. 1. Construction activities authorized by this permit that are e. The success of the compensation shall be based on within impact areas shall be monitored and documented. meeting the success criteria established in the approved The monitoring shall consist of: final compensation plan. a. Preconstruction photographs taken at each impact area f. If the wetland or stream compensation area fails to prior to initiation of activities within impact areas. meet the specified success criteria in a particular Photographs shall remain on the project site and depict monitoring year, other than the final monitoring year, the the impact area and the nonimpacted surface waters reasons for this failure shall be determined, and a immediately adjacent to and downgradient of each corrective action plan shall be submitted to the impact area. Each photograph shall be labeled to include Department of Environmental Quality for approval with the following information: permit number, impact area or before that year's monitoring report. The corrective number, date and time of the photograph, name of the action plan shall contain at minimum the proposed person taking the photograph, photograph orientation, actions, a schedule for those actions, and a monitoring and photograph subject description. plan, and shall be implemented by the permittee in b. Site inspections shall be conducted by the permittee or accordance with the approved schedule. Should the permittee's qualified designee once every calendar significant changes be necessary to ensure success, the month during activities within impact areas. Monthly required monitoring cycle shall begin again, with inspections shall be conducted in the following areas: all monitoring year one being the year that the changes are authorized permanent and temporary impact areas; all complete, as confirmed by the Department of avoided surface waters, including wetlands, stream Environmental Quality. If the wetland or stream channels, and open water; surface water areas within 50 compensation area fails to meet the specified success feet of any land disturbing activity and within the project criteria by the final monitoring year or if the wetland or or right-of-way limits; and all on-site permanent stream compensation area has not met the stated preservation areas required under this permit. restoration goals, reasons for this failure shall be Observations shall be recorded on the inspection form determined and a corrective action plan, including provided by the Department of Environmental Quality. proposed actions, a schedule, and a monitoring plan, The form shall be completed in its entirety for each shall be submitted with the final year monitoring report monthly inspection and shall be kept on site and made for Department of Environmental Quality approval. available for review by the Department of Environmental Corrective action shall be implemented by the permittee Quality staff upon request during normal business hours. in accordance with the approved schedule. Annual Inspections are not required during periods of no activity monitoring shall be required to continue until two within impact areas. sequential, annual reports indicate that all criteria have been successfully satisfied and the site has met the 2. Monitoring of water quality parameters shall be overall restoration goals (e.g., that corrective actions conducted during permanent relocation of perennial were successful). streams through new channels in the manner noted below. The permittee shall report violations of water quality g. The surveyed wetland boundary for the wetlands standards to the Department of Environmental Quality in compensation site shall be based on the results of the accordance with the procedures in 9VAC25-690-100 Part hydrology, soils, and vegetation monitoring data and II E. Corrective measures and additional monitoring may shall be shown on the site plan. Calculation of total be required if water quality standards are not met. wetland acreage shall be based on that boundary at the Reporting shall not be required if water quality standards end of the monitoring cycle. Data shall be submitted by are not violated. December 31 of the final monitoring year. a. A sampling station shall be located upstream and h. Herbicides or algicides shall not be used in or immediately downstream of the relocated channel. immediately adjacent to the wetlands or stream compensation site or sites without prior authorization by b. Temperature, pH, and dissolved oxygen (D.O.) the board. All vegetation removal shall be done by measurements shall be taken every 30 minutes for at least manual means, unless authorized by the Department of two hours at each station prior to opening the new Environmental Quality in advance. channels and immediately before opening new channels. c. Temperature, pH, and D.O. readings shall be taken after opening the channels and every 30 minutes for at least three hours at each station.

Volume 37, Issue 5 Virginia Register of Regulations October 26, 2020 768 Regulations

C. Permittee-responsible wetland compensation site 5. The presence of hydric soils or soils under hydric monitoring. conditions shall be evaluated in accordance with the final compensation plan. 1. An as-built ground survey, or an aerial survey provided by a firm specializing in aerial surveys, shall be conducted 6. The establishment of wetland vegetation shall be in for the entire compensation site or sites including invert accordance with the final compensation plan. Monitoring elevations for all water elevation control structures and shall take place in August, September, or October during spot elevations throughout the site or sites. Aerial surveys the growing season of each monitoring year, unless shall include the variation from actual ground conditions, otherwise authorized in the monitoring plan. such as +/- 0.2 feet. Either type of survey shall be certified 7. The presence of undesirable plant species shall be by a licensed surveyor or by a registered professional documented. engineer to conform to the design plans. The survey shall be submitted within 60 days of completing compensation 8. All wetland compensation monitoring reports shall be site construction. Changes or deviations in the as-built submitted in accordance with 9VAC25-690-100 Part II E survey or aerial survey shall be shown on the survey and 6. explained in writing. D. Permittee-responsible stream compensation and 2. Photographs shall be taken at the compensation site or monitoring. sites from the permanent markers identified in the final compensation plan, and established to ensure that the same 1. Riparian buffer restoration activities shall be detailed in locations and view directions at the site or sites are the final compensation plan and shall include, as monitored in each monitoring period. These photographs appropriate, the planting of a variety of native species shall be taken after the initial planting and at a time currently growing in the site area, including appropriate specified in the final compensation plan during every seed mixtures and woody species that are bare root, balled, monitoring year. or burlapped. A minimum buffer width of 50 feet, measured from the top of the stream bank at bankfull 3. Compensation site monitoring shall begin on day one of elevation landward on both sides of the stream, shall be the first complete growing season (monitoring year 1) after required where practical. wetland compensation site construction activities, including planting, have been completed. Monitoring shall 2. The installation of root wads, vanes, and other instream be required for monitoring years 1, 2, 3, and 5, unless structures, shaping of the stream banks, and channel otherwise approved by the Department of Environmental relocation shall be completed in the dry whenever Quality. In all cases, if all success criteria have not been practicable. met in the final monitoring year, then monitoring shall be 3. Livestock access to the stream and designated riparian required for each consecutive year until two annual buffer shall be limited to the greatest extent practicable. sequential reports indicate that all criteria have been successfully satisfied. 4. Stream channel restoration activities shall be conducted in the dry or during low flow conditions. When site 4. The establishment of wetland hydrology shall be conditions prohibit access from the streambank or upon measured during the growing season, with the location and prior authorization from the Department of Environmental number of monitoring wells, and frequency of monitoring Quality, heavy equipment may be authorized for use within for each site, set forth in the final monitoring plan. the stream channel. Hydrology monitoring well data shall be accompanied by precipitation data, including rainfall amounts either from 5. Photographs shall be taken at the compensation site from on site or from the closest weather station. Once the the vicinity of the permanent photo-monitoring stations wetland hydrology success criteria have been satisfied for a identified in the final compensation plan. The photograph particular monitoring year, monitoring may be orientation shall remain constant during all monitoring discontinued for the remainder of that monitoring year events. At a minimum, photographs shall be taken from the following Department of Environmental Quality approval. center of the stream, facing downstream, with a sufficient After a period of three monitoring years, the permittee may number of photographs to view the entire length of the request that hydrology monitoring be discontinued, restoration site. Photographs shall document the completed providing that adequate hydrology has been established restoration conditions. Photographs shall be taken prior to and maintained. Hydrology monitoring shall not be site activities, during instream and riparian compensation discontinued without written approval from the construction activities, within one week of completion of Department of Environmental Quality. activities, and during at least one day of each monitoring year to depict restored conditions.

Volume 37, Issue 5 Virginia Register of Regulations October 26, 2020 769 Regulations

6. An as-built ground survey, or an aerial survey provided 5. The Department of Environmental Quality shall be by a firm specializing in aerial surveys, shall be conducted notified in writing prior to the initiation of activities at the for the entire compensation site or sites. Aerial surveys permittee-responsible compensation site. The notification shall include the variation from actual ground conditions, shall include a projected schedule of activities and such as +/- 0.2 feet. The survey shall be certified by the construction completion. licensed surveyor or by a registered, professional engineer 6. All permittee-responsible compensation site monitoring to conform to the design plans. The survey shall be reports shall be submitted annually by December 31, with submitted within 60 days of completing compensation site the exception of the last year, in which case the report shall construction. Changes or deviations from the final be submitted at least 60 days prior to the expiration of the compensation plans in the as-built survey or aerial survey general permit, unless otherwise approved by the shall be shown on the survey and explained in writing. Department of Environmental Quality. 7. Compensation site monitoring shall begin on day one of a. All wetland compensation site monitoring reports shall the first complete growing season (monitoring year 1) after include, as applicable, the following: stream compensation site construction activities, including planting, have been completed. Monitoring shall be (1) General description of the site including a site required for monitoring years 1 and 2, unless otherwise location map identifying photo-monitoring stations, approved by the Department of Environmental Quality. In vegetative and soil monitoring stations, monitoring wells, all cases, if all success criteria have not been met in the and wetland zones. final monitoring year, then monitoring shall be required for each consecutive year until two annual sequential reports (2) Summary of activities completed during the indicate that all criteria have been successfully satisfied. monitoring year, including alterations or maintenance conducted at the site. 8. All stream compensation site monitoring reports shall be submitted by in accordance with 9VAC25-690-100 Part II (3) Description of monitoring methods. E 6. (4) Analysis of all hydrology information, including E. Reporting. monitoring well data, precipitation data, and gauging data from streams or other open water areas, as set forth 1. Written communications required by this VWP general in the final compensation plan. permit shall be submitted to the appropriate Department of Environmental Quality office. The VWP general permit (5) Evaluation of hydric soils or soils under hydric tracking number shall be included on all correspondence. conditions, as appropriate. 2. The Department of Environmental Quality shall be (6) Analysis of all vegetative community information, notified in writing prior to the start of construction including woody and herbaceous species, both planted activities at the first permitted impact area. and volunteers, as set forth in the final compensation plan. 3. A construction status update form provided by the Department of Environmental Quality shall be completed (7) Photographs labeled with the permit number, the and submitted to the Department of Environmental Quality name of the compensation site, the photo-monitoring twice per year for the duration of coverage under a VWP station number, the photograph orientation, the date and general permit. Forms completed in June shall be time of the photograph, the name of the person taking the submitted by or on July 10, and forms completed in photograph, and a brief description of the photograph December shall be submitted by or on January 10. The subject. This information shall be provided as a separate form shall include reference to the VWP permit tracking attachment to each photograph, if necessary. Photographs number and one of the following statements for each taken after the initial planting shall be included in the authorized surface water impact location: first monitoring report after planting is complete. a. Construction activities have not yet started; (8) Discussion of wildlife or signs of wildlife observed at the compensation site. b. Construction activities have started; (9) Comparison of site conditions from the previous c. Construction activities have started but are currently monitoring year and reference site. inactive; or (10) Discussion of corrective measures or maintenance d. Construction activities are complete. activities to control undesirable species, to repair damaged water control devices, or to replace damaged 4. The Department of Environmental Quality shall be planted vegetation. notified in writing within 30 days following the completion of all activities in all authorized impact areas.

Volume 37, Issue 5 Virginia Register of Regulations October 26, 2020 770 Regulations

(11) Corrective action plan that includes proposed 8. The permittee shall report fish kills or spills of oil or fuel actions, a schedule, and monitoring plan. immediately upon discovery. If spills or fish kills occur between the hours of 8:15 a.m. to 5 p.m., Monday through b. All stream compensation site monitoring reports shall Friday, the appropriate Department of Environmental include, as applicable, the following: Quality regional office shall be notified; otherwise, the (1) General description of the site including a site Department of Emergency Management shall be notified at location map identifying photo-monitoring stations and 1-800-468-8892. monitoring stations. 9. Violations of state water quality standards shall be (2) Summary of activities completed during the reported to the appropriate Department of Environmental monitoring year, including alterations or maintenance Quality office no later than the end of the business day conducted at the site. following discovery. (3) Description of monitoring methods. 10. The permittee shall notify the Department of Environmental Quality no later than the end of the third (4) Evaluation and discussion of the monitoring results in business day following the discovery of additional impacts relation to the success criteria and overall goals of to surface waters including wetlands, stream channels, and compensation. open water that are not authorized by the Department of (5) Photographs shall be labeled with the permit number, Environmental Quality or to any required preservation the name of the compensation site, the photo-monitoring areas. The notification shall include photographs, estimated station number, the photograph orientation, the date and acreage or linear footage of impacts, and a description of time of the photograph, the name of the person taking the the impacts. photograph, and a brief description of the photograph 11. Submittals required by this VWP general permit shall subject. Photographs taken prior to compensation site contain the following signed certification statement: construction activities, during instream and riparian restoration activities, and within one week of completion "I certify under penalty of law that this document and all of activities shall be included in the first monitoring attachments were prepared under my direction or report. supervision in accordance with a system designed to assure that qualified personnel properly gather and evaluate the (6) Discussion of alterations, maintenance, or major information submitted. Based on my inquiry of the person storm events resulting in significant change in stream or persons who manage the system, or those persons profile or cross section, and corrective actions conducted directly responsible for gathering the information, the at the stream compensation site. information submitted is, to the best of my knowledge and (7) Documentation of undesirable plant species and belief, true, accurate, and complete. I am aware that there summary of abatement and control measures. are significant penalties for submitting false information, including the possibility of fine and imprisonment for (8) Summary of wildlife or signs of wildlife observed at knowing violation." the compensation site. Part III. Conditions Applicable to All VWP General Permits. (9) Comparison of site conditions from the previous monitoring year and reference site, and as-built survey, if A. Duty to comply. The permittee shall comply with all applicable. conditions, limitations, and other requirements of the VWP general permit; any requirements in coverage granted under (10) Corrective action plan that includes proposed this VWP general permit; the Clean Water Act, as amended; actions, a schedule and monitoring plan. and the State Water Control Law and regulations adopted (11) Additional submittals that were approved by the pursuant to it. Any VWP general permit violation or Department of Environmental Quality in the final noncompliance is a violation of the Clean Water Act and compensation plan. State Water Control Law and is grounds for (i) enforcement action, (ii) VWP general permit coverage termination for 7. The permittee shall notify the Department of cause, (iii) VWP general permit coverage revocation, (iv) Environmental Quality in writing when unusual or denial of application for coverage, or (v) denial of an potentially complex conditions are encountered which application for a modification to VWP general permit require debris removal or involve potentially toxic coverage. Nothing in this VWP general permit shall be substance. Measures to remove the obstruction, material, or construed to relieve the permittee of the duty to comply with toxic substance or to change the location of a structure are all applicable federal and state statutes, regulations, and toxic prohibited until approved by the Department of standards and prohibitions. Environmental Quality.

Volume 37, Issue 5 Virginia Register of Regulations October 26, 2020 771 Regulations

B. Duty to mitigate. The permittee shall take all reasonable 1. The current permittee notifies the board of the proposed steps to minimize or prevent impacts in violation of the VWP transfer of the general permit coverage and provides a general permit which may have a reasonable likelihood of written agreement between the current and new permittees adversely affecting human health or the environment. containing a specific date of transfer of VWP general permit responsibility, coverage, and liability to the new C. Reopener. This VWP general permit may be reopened to permittee, or that the current permittee will retain such modify its conditions when the circumstances on which the responsibility, coverage, or liability, including liability for previous VWP general permit was based have materially and compliance with the requirements of enforcement activities substantially changed, or special studies conducted by the related to the authorized activity. board or the permittee show material and substantial change since the time the VWP general permit was issued and 2. The board does not within 15 days notify the current and thereby constitute cause for revoking and reissuing the VWP new permittees of its intent to modify or revoke and reissue general permit. the VWP general permit. D. Compliance with state and federal law. Compliance with I. Notice of planned change. VWP general permit coverage this VWP general permit constitutes compliance with the may be modified subsequent to issuance in accordance with VWP permit requirements of the State Water Control Law. 9VAC25-690-80. Nothing in this VWP general permit shall be construed to J. VWP general permit coverage termination for cause. preclude the institution of any legal action under or relieve VWP general permit coverage is subject to termination for the permittee from any responsibilities, liabilities, or other cause by the board after public notice and opportunity for a penalties established pursuant to any other state law or hearing pursuant to § 62.1-44.15:02 of the Code of Virginia. regulation or under the authority preserved by § 510 of the Reasons for termination for cause are as follows: Clean Water Act. 1. Noncompliance by the permittee with any provision of E. Property rights. The issuance of this VWP general permit this chapter, any condition of the VWP general permit, or does not convey property rights in either real or personal any requirement in general permit coverage; property or any exclusive privileges, nor does it authorize injury to private property, any invasion of personal property 2. The permittee's failure in the application or during the rights, or any infringement of federal, state, or local laws or process of granting VWP general permit coverage to regulations. disclose fully all relevant facts or the permittee's misrepresentation of any relevant facts at any time; F. Severability. The provisions of this VWP general permit are severable. 3. The permittee's violation of a special or judicial order; G. Inspection and entry. Upon presentation of credential, the 4. A determination by the board that the authorized activity permittee shall allow the board or any duly authorized agent endangers human health or the environment and can be of the board, at reasonable times and under reasonable regulated to acceptable levels by a modification to VWP circumstances, to enter upon the permittee's property, public general permit coverage or a termination; or private, and have access to inspect and copy any records that must be kept as part of the VWP general permit 5. A change in any condition that requires either a conditions; to inspect any facilities, operations, or practices temporary or permanent reduction or elimination of any (including monitoring and control equipment) regulated or activity controlled by the VWP general permit; or required under the VWP general permit; and to sample or 6. A determination that the authorized activity has ceased monitor any substance, parameter, or activity for the purpose and that the compensation for unavoidable adverse impacts of assuring compliance with the conditions of the VWP has been successfully completed. general permit or as otherwise authorized by law. For the purpose of this section, the time for inspection shall be K. The board may terminate VWP general permit coverage deemed reasonable during regular business hours. Nothing without cause when the permittee is no longer a legal entity contained herein shall make an inspection time unreasonable due to death or dissolution or when a company is no longer during an emergency. authorized to conduct business in the Commonwealth. The termination shall be effective 30 days after notice of the H. Transferability of VWP general permit coverage. VWP proposed termination is sent to the last known address of the general permit coverage may be transferred to another permittee or registered agent, unless the permittee objects permittee when all of the criteria listed in this subsection are within that time. If the permittee does object during that met. On the date of the VWP general permit coverage period, the board shall follow the applicable procedures for transfer, the transferred VWP general permit coverage shall termination under §§ 62.1-44.15:02 and 62.1-44.15:25 of the be as fully effective as if it had been granted directly to the Code of Virginia. new permittee.

Volume 37, Issue 5 Virginia Register of Regulations October 26, 2020 772 Regulations

L. VWP general permit coverage termination by consent. "I certify under penalty of law that the activities or the The permittee shall submit a request for termination by required compensatory mitigation authorized by the consent within 30 days of completing or canceling all VWP general permit and general permit coverage have authorized activities requiring notification under 9VAC25- changed as the result of events beyond my control (see 690-50 A and all compensatory mitigation requirements. attached). I understand that by submitting this notice of When submitted for project completion, the request for termination I am no longer authorized to perform termination by consent shall constitute a notice of project activities in surface waters in accordance with the VWP completion in accordance with 9VAC25-210-130 F. The general permit and general permit coverage, and that director may accept this termination of coverage on behalf of performing activities in surface waters is unlawful where the board. The permittee shall submit the following the activity is not authorized by the VWP permit or information: coverage, unless otherwise excluded from obtaining coverage. I also understand that the submittal of this 1. Name, mailing address, and telephone number; notice does not release me from liability for any 2. Name and location of the activity; violations of the VWP general permit or coverage, nor does it allow me to resume the authorized activities 3. The VWP general permit tracking number; and without reapplication and coverage." 4. One of the following certifications: M. Civil and criminal liability. Nothing in this VWP general a. For project completion: permit shall be construed to relieve the permittee from civil and criminal penalties for noncompliance. "I certify under penalty of law that all activities and any required compensatory mitigation authorized by the N. Oil and hazardous substance liability. Nothing in this VWP general permit and general permit coverage have VWP general permit shall be construed to preclude the been completed. I understand that by submitting this institution of legal action or relieve the permittee from any notice of termination I am no longer authorized to responsibilities, liabilities, or penalties to which the permittee perform activities in surface waters in accordance with is or may be subject under § 311 of the Clean Water Act or the VWP general permit and general permit coverage, §§ 62.1-44.34:14 through 62.1-44.34:23 of the State Water and that performing activities in surface waters is Control Law. unlawful where the activity is not authorized by the VWP O. Duty to cease or confine activity. It shall not be a defense permit or coverage, unless otherwise excluded from for a permittee in an enforcement action that it would have obtaining coverage. I also understand that the submittal been necessary to halt or reduce the activity for which VWP of this notice does not release me from liability for any general permit coverage has been granted in order to maintain violations of the VWP general permit or coverage." compliance with the conditions of the VWP general permit or b. For project cancellation: coverage. "I certify under penalty of law that the activities and any P. Duty to provide information. required compensatory mitigation authorized by the 1. The permittee shall furnish to the board any information VWP general permit and general permit coverage will that the board may request to determine whether cause not occur. I understand that by submitting this notice of exists for modifying, revoking, or terminating VWP permit termination I am no longer authorized to perform coverage or to determine compliance with the VWP activities in surface waters in accordance with the VWP general permit or general permit coverage. The permittee general permit and general permit coverage, and that shall also furnish to the board, upon request, copies of performing activities in surface waters is unlawful where records required to be kept by the permittee. the activity is not authorized by the VWP permit or coverage, unless otherwise excluded from obtaining 2. Plans, maps, conceptual reports, and other relevant coverage. I also understand that the submittal of this information shall be submitted as required by the board notice does not release me from liability for any prior to commencing construction. violations of the VWP general permit or coverage, nor Q. Monitoring and records requirements. does it allow me to resume the authorized activities without reapplication and coverage." 1. Monitoring of parameters, other than pollutants, shall be conducted according to approved analytical methods as c. For events beyond permittee control, the permittee specified in the VWP general permit. Analysis of shall provide a detailed explanation of the events, to be pollutants will be conducted according to 40 CFR Part 136 approved by the Department of Environmental Quality, (2000), Guidelines Establishing Test Procedures for the and the following certification statement: Analysis of Pollutants.

Volume 37, Issue 5 Virginia Register of Regulations October 26, 2020 773 Regulations

2. Samples and measurements taken for the purpose of S. Duty to reapply. Any permittee desiring to continue a monitoring shall be representative of the monitored previously authorized activity after the expiration date of the activity. VWP general permit shall comply with the provisions in 9VAC25-690-27. 3. The permittee shall retain records of all monitoring information, including all calibration and maintenance VA.R. Doc. No. R21-6473; Filed September 29, 2020, 4:57 a.m. records and all original strip chart or electronic recordings Final Regulation for continuous monitoring instrumentation, copies of all reports required by the VWP general permit, and records of REGISTRAR'S NOTICE: The State Water Control Board is all data used to complete the application for coverage claiming an exemption from Article 2 of the Administrative under the VWP general permit, for a period of at least three Process Act in accordance with § 2.2-4006 A 4 a of the Code years from the date of general permit expiration. This of Virginia, which excludes regulations that are necessary to period may be extended by request of the board at any conform to changes in Virginia statutory law or the time. appropriation act where no agency discretion is involved. The State Water Control Board will receive, consider, and respond 4. Records of monitoring information shall include, as to petitions by any interested person at any time with respect appropriate: to reconsideration or revision. a. The date, exact place, and time of sampling or Title of Regulation: 9VAC25-870. Virginia Stormwater measurements; Management Program (VSMP) Regulation (amending b. The name of the individuals who performed the 9VAC25-870-10, 9VAC25-870-65, 9VAC25-870-112). sampling or measurements; Statutory Authority: §§ 62.1-44.15:25 and 62.1-44.15:28 of c. The date and time the analyses were performed; the Code of Virginia. d. The name of the individuals who performed the Effective Date: November 25, 2020. analyses; Agency Contact: Erin Belt, Department of Environmental e. The analytical techniques or methods supporting the Quality, 1111 East Main Street, Suite 1400, P.O. Box 1105, information such as observations, readings, calculations, Richmond, VA 23218, telephone (757) 374-4621, or email and bench data used; [email protected]. f. The results of such analyses; and Summary: g. Chain of custody documentation. The amendments conform the regulation to legislation adopted during the 2020 Session of the General Assembly. R. Unauthorized discharge of pollutants. Except in Chapter 313 requires the board to adopt regulations compliance with this VWP general permit, it shall be stipulating that the owner of property that is zoned for unlawful for the permittee to: residential use and on which is located a privately owned 1. Discharge into state waters sewage, industrial wastes, stormwater management facility serving one or more other wastes, or any noxious or deleterious substances; residential properties record the long-term maintenance and inspection requirements for such facility with the deed 2. Excavate in a wetland; for the owner's property. Chapter 667 directs the board to 3. Otherwise alter the physical, chemical, or biological adopt regulations that provide for the (i) use of a properties of state waters and make them detrimental to the proprietary best management practice only if another public health, to animal or aquatic life, or to the uses of state, regional, or national certification program has such waters for domestic or industrial consumption, for verified and certified its nutrient or sediment removal recreation, or for other uses; or effectiveness and (ii) evaluation and potential inclusion of emerging or innovative nonproprietary stormwater control 4. On and after October 1, 2001, conduct the following technologies that may prove effective in reducing nonpoint activities in a wetland: source pollution. Chapters 1102 and 1103 establish that a. New activities to cause draining that significantly any publicly owned treatment works that is permitted alters or degrades existing wetland acreage or functions; under the Watershed General Virginia Pollutant Discharge Elimination System (VPDES) Permit and is b. Filling or dumping; constructing or expanding the treatment works, wastewater c. Permanent flooding or impounding; or collection system, or other facility used for public wastewater utility operations may, as an alternative to d. New activities that cause significant alteration or acquiring and using certain perpetual nutrient credits degradation of existing wetland acreage or functions. pursuant to subsection B of § 62.1-44.19:21, permanently

Volume 37, Issue 5 Virginia Register of Regulations October 26, 2020 774 Regulations

retire a portion of its wasteload allocation if (i) notice is "Average weekly discharge limitation" means the highest given by such applicant to the Department of allowable average of daily discharges over a calendar week, Environmental Quality, (ii) a ratio of 10 pounds of calculated as the sum of all daily discharges measured during nitrogen allocation for each pound of phosphorous a calendar week divided by the number of daily discharges allocation retired is also permanently retired and applied measured during that week. toward the land-disturbing project, and (iii) the general "Best management practice" or "BMP" means schedules of permit registration list is modified to reflect the permanent activities, prohibitions of practices, maintenance procedures, retirement of the wasteload allocation, but, except for a and other management practices, including both structural water reclamation and reuse project at a treatment works, and nonstructural practices, to prevent or reduce the pollution no more than 10 pounds per year of phosphorous of surface waters and groundwater systems. This includes: allocation may be applied toward postconstruction phosphorus control requirement for a single project. 1. "Nonproprietary best management practice" means both structural and nonstructural practices to prevent or reduce Part I the pollution of surface waters and groundwater systems Definitions, Purpose, and Applicability that are in the public domain and are not protected by 9VAC25-870-10. Definitions. trademark or patent or copyright. The following words and terms used in this chapter have the 2. "Proprietary best management practice" means both following meanings unless the context clearly indicates structural and nonstructural practices to prevent or reduce otherwise. the pollution of surface waters and groundwater systems that are privately owned and controlled and may be "Act" means the Virginia Stormwater Management Act, protected by trademark or patent or copyright. Article 2.3 (§ 62.1-44.15:24 et seq.) of Chapter 3.1 of Title 62.1 of the Code of Virginia. "Board" means the State Water Control Board. "Administrator" means the Administrator of the United "Bypass" means the intentional diversion of waste streams States Environmental Protection Agency or an authorized from any portion of a treatment facility. representative. "Channel" means a natural or manmade waterway. "Agreement in lieu of a stormwater management plan" "Chesapeake Bay Preservation Act" means Article 2.5 means a contract between the VSMP authority and the owner (§ 62.1-44.15:67 et seq.) of Chapter 3.1 of Title 62.1 of the or permittee that specifies methods that shall be implemented Code of Virginia. to comply with the requirements of a VSMP for the construction of a single-family residence; such contract may "Chesapeake Bay Preservation Act land-disturbing activity" be executed by the VSMP authority in lieu of a stormwater means a land-disturbing activity including clearing, grading, management plan. or excavation that results in a land disturbance equal to or greater than 2,500 square feet and less than one acre in all "Applicable standards and limitations" means all state, areas of jurisdictions designated as subject to the Chesapeake interstate, and federal standards and limitations to which a Bay Preservation Area Designation and Management discharge or a related activity is subject under the Clean Regulations (9VAC25-830) adopted pursuant to the Water Act (CWA) (33 USC § 1251 et seq.) and the Act, Chesapeake Bay Preservation Act. including effluent limitations, water quality standards, standards of performance, toxic effluent standards or "Chesapeake Bay Preservation Area" means any land prohibitions, best management practices, and standards for designated by a local government pursuant to Part III sewage sludge use or disposal under §§ 301, 302, 303, 304, (9VAC25-830-70 et seq.) of the Chesapeake Bay 306, 307, 308, 403, and 405 of CWA. Preservation Area Designation and Management Regulations and § 62.1-44.15:74 of the Chesapeake Bay Preservation Act. "Approval authority" means the State Water Control Board A Chesapeake Bay Preservation Area shall consist of a or its designee. Resource Protection Area and a Resource Management Area "Approved program" or "approved state" means a state or as defined in the Chesapeake Bay Preservation Area interstate program that has been approved or authorized by Designation and Management Regulations (9VAC25-830). EPA under 40 CFR Part 123. "Chesapeake Bay watershed" means all land areas draining "Average monthly discharge limitation" means the highest to the following Virginia river basins: Potomac River Basin, allowable average of daily discharges over a calendar month, James River Basin, Rappahannock River Basin, Chesapeake calculated as the sum of all daily discharges measured during Bay and its small coastal basins, and York River Basin. a calendar month divided by the number of daily discharges measured during that month.

Volume 37, Issue 5 Virginia Register of Regulations October 26, 2020 775 Regulations

"Common plan of development or sale" means a contiguous "Development" means land disturbance and the resulting area where separate and distinct construction activities may landform associated with the construction of residential, be taking place at different times on different schedules. commercial, industrial, institutional, recreation, transportation, or utility facilities or structures or the clearing "Comprehensive stormwater management plan" means a of land for nonagricultural or nonsilvicultural purposes. The plan, which may be integrated with other land use plans or regulation of discharges from development, for purposes of regulations, that specifies how the water quality components, this chapter, does not include the exemptions found in quantity components, or both of stormwater are to be 9VAC25-870-300. managed on the basis of an entire watershed or a portion thereof. The plan may also provide for the remediation of "Direct discharge" means the discharge of a pollutant. erosion, flooding, and water quality and quantity problems "Director" means the Director of the Department of caused by prior development. Environmental Quality or his designee. "Construction activity" means any clearing, grading, or "Discharge," when used without qualification, means the excavation associated with large construction activity or discharge of a pollutant. associated with small construction activity. "Discharge of a pollutant" means: "Contiguous zone" means the entire zone established by the United States under Article 24 of the Convention on the 1. Any addition of any pollutant or combination of Territorial Sea and the Contiguous Zone (37 FR 11906 June pollutants to state waters from any point source; or 15, 1972). 2. Any addition of any pollutant or combination of "Continuous discharge" means a discharge which occurs pollutants to the waters of the contiguous zone or the ocean without interruption throughout the operating hours of the from any point source other than a vessel or other floating facility, except for infrequent shutdowns for maintenance, craft which is being used as a means of transportation. process changes, or other similar activities. This definition includes additions of pollutants into surface "Control measure" means any BMP, stormwater facility, or waters from: surface runoff that is collected or channeled by other method used to minimize the discharge of pollutants to man; discharges through pipes, sewers, or other conveyances state waters. owned by a state, municipality, or other person that do not lead to a treatment works; and discharges through pipes, "Co-operator" means an operator of a state permit that is sewers, or other conveyances, leading into privately owned only responsible for state permit conditions relating to the treatment works. This term does not include an addition of discharge for which it is the operator. pollutants by any indirect discharger. "Clean Water Act" or "CWA" means the federal Clean "Discharge Monitoring Report" or "DMR" means the form Water Act (33 USC § 1251 et seq.), formerly referred to as supplied by the department, or an equivalent form developed the Federal Water Pollution Control Act or Federal Water by the operator and approved by the board, for the reporting Pollution Control Act Amendments of 1972, Public Law 92- of self-monitoring results by operators. 500, as amended by Public Law 95-217, Public Law 95-576, Public Law 96-483, and Public Law 97-117, or any "Draft state permit" means a document indicating the board's subsequent revisions thereto. tentative decision to issue or deny, modify, revoke and reissue, terminate, or reissue a state individual or general "CWA and regulations" means the Clean Water Act (CWA) permit. A notice of intent to deny a state individual or general and applicable regulations published in the Code of Federal permit is a type of draft state permit. A denial of a request for Regulations promulgated thereunder. For the purposes of this modification, revocation and reissuance, or termination is not chapter, it includes state program requirements. a draft state permit. "Daily discharge" means the discharge of a pollutant "Drainage area" means a land area, water area, or both from measured during a calendar day or any 24-hour period that which runoff flows to a common point. reasonably represents the calendar day for purposes of sampling. For pollutants with limitations expressed in units of "Effluent limitation" means any restriction imposed by the mass, the daily discharge is calculated as the total mass of the board on quantities, discharge rates, and concentrations of pollutant discharged over the day. For pollutants with pollutants which are discharged from point sources into limitations expressed in other units of measurement, the daily surface waters, the waters of the contiguous zone, or the discharge is calculated as the average measurement of the ocean. pollutant over the day. "Effluent limitations guidelines" means a regulation "Department" means the Department of Environmental published by the administrator under § 304(b) of the CWA to Quality. adopt or revise effluent limitations.

Volume 37, Issue 5 Virginia Register of Regulations October 26, 2020 776 Regulations

"Environmental Protection Agency" or "EPA" means the "General permit" means a state permit authorizing a United States Environmental Protection Agency. category of discharges under the CWA and the Act within a geographical area. "Erosion and Sediment Control Law" means Article 2.4 (§ 62.1-44.15:51 et seq.) of Chapter 3.1 of Title 62.1 of the "Hazardous substance" means any substance designated Code of Virginia. under the Code of Virginia or 40 CFR Part 116 pursuant to § 311 of the CWA. "ESC" means erosion and sediment control. "Hydrologic Unit Code" or "HUC" means a watershed unit "Existing state permit" means for the purposes of this established in the most recent version of Virginia's 6th Order chapter a state permit issued by the board and currently held National Watershed Boundary Dataset unless specifically by a state permit applicant. identified as another order. "Existing source" means any source that is not a new source "Illicit discharge" means any discharge to a municipal or a new discharger. separate storm sewer that is not composed entirely of "Facilities or equipment" means buildings, structures, stormwater, except discharges pursuant to a separate VPDES process or production equipment or machinery that form a or state permit (other than the state permit for discharges from permanent part of a new source and that will be used in its the municipal separate storm sewer), discharges resulting operation, if these facilities or equipment are of such value as from firefighting activities, and discharges identified by and to represent a substantial commitment to construct. It in compliance with 9VAC25-870-400 D 2 c (3). excludes facilities or equipment used in connection with "Impervious cover" means a surface composed of material feasibility, engineering, and design studies regarding the new that significantly impedes or prevents natural infiltration of source or water pollution treatment for the new source. water into soil. "Facility or activity" means any point source or treatment "Incorporated place" means a city, town, township, or works treating domestic sewage or any other facility or village that is incorporated under the Code of Virginia. activity (including land or appurtenances thereto) that is subject to regulation under the VSMP. "Indian country" means (i) all land within the limits of any Indian reservation under the jurisdiction of the United States "Flood fringe" means the portion of the floodplain outside government, notwithstanding the issuance of any patent, and the floodway that is usually covered with water from the 100- including rights-of-way running through the reservation; (ii) year flood or storm event. This includes the flood or all dependent Indian communities with the borders of the floodway fringe designated by the Federal Emergency United States whether within the originally or subsequently Management Agency. acquired territory thereof, and whether within or without the "Flooding" means a volume of water that is too great to be limits of a state; and (iii) all Indian allotments, the Indian confined within the banks or walls of the stream, water body titles to which have not been extinguished, including rights- or conveyance system and that overflows onto adjacent lands, of-way running through the same. thereby causing or threatening damage. "Indirect discharger" means a nondomestic discharger "Floodplain" means the area adjacent to a channel, river, introducing "pollutants" to a "publicly owned treatment stream, or other water body that is susceptible to being works (POTW)." inundated by water normally associated with the 100-year "Inspection" means an on-site review of the project's flood or storm event. This includes the floodplain designated compliance with the permit or the state permit, the VSMP, by the Federal Emergency Management Agency. and any applicable design criteria, or an on-site review to "Flood-prone area" means the component of a natural or obtain information or conduct surveys or investigations restored stormwater conveyance system that is outside the necessary in the implementation or enforcement of the Act main channel. Flood-prone areas may include the floodplain, and this chapter. the floodway, the flood fringe, wetlands, riparian buffers, or "Interstate agency" means an agency of two or more states other areas adjacent to the main channel. established by or under an agreement or compact approved by "Floodway" means the channel of a river or other Congress, or any other agency of two or more states having watercourse and the adjacent land areas, usually associated substantial powers or duties pertaining to the control of with flowing water, that must be reserved in order to pollution as determined and approved by the administrator discharge the 100-year flood or storm event without under the CWA and regulations. cumulatively increasing the water surface elevation more than "Karst area" means any land area predominantly underlain at one foot. This includes the floodway designated by the the surface or shallow subsurface by limestone, dolomite, or Federal Emergency Management Agency.

Volume 37, Issue 5 Virginia Register of Regulations October 26, 2020 777 Regulations other soluble bedrock regardless of any obvious surface karst e. Other relevant factors; features. 4. The board may, upon petition, designate as a large "Karst features" means sinkholes, sinking and losing municipal separate storm sewer system, municipal separate streams, caves, large flow springs, and other such landscape storm sewers located within the boundaries of a region features found in karst areas. defined by a stormwater management regional authority based on a jurisdictional, watershed, or other appropriate "Land disturbance" or "land-disturbing activity" means a basis that includes one or more of the systems described in manmade change to the land surface that potentially changes this definition. its runoff characteristics including clearing, grading, or excavation, except that the term shall not include those "Layout" means a conceptual drawing sufficient to provide exemptions specified in § 62.1-44.15:34 of the Code of for the specified stormwater management facilities required at Virginia. the time of approval. "Large construction activity" means construction activity "Linear development project" means a land-disturbing including clearing, grading, and excavation, except operations activity that is linear in nature such as, but not limited to, (i) that result in the disturbance of less than five acres of total the construction of electric and telephone utility lines, and land area. Large construction activity also includes the natural gas pipelines; (ii) construction of tracks, rights-of- disturbance of less than five acres of total land area that is a way, bridges, communication facilities and other related part of a larger common plan of development or sale if the structures of a railroad company; (iii) highway construction larger common plan will ultimately disturb five acres or projects; (iv) construction of stormwater channels and stream more. Large construction activity does not include routine restoration activities; and (v) water and sewer lines. Private maintenance that is performed to maintain the original line subdivision roads or streets shall not be considered linear and grade, hydraulic capacity, or original purpose of the development projects. facility. "Locality" means a county, city, or town. "Large municipal separate storm sewer system" means all "Localized flooding" means smaller scale flooding that may municipal separate storm sewers that are either: occur outside of a stormwater conveyance system. This may 1. Located in an incorporated place with a population of include high water, ponding, or standing water from 250,000 or more as determined by the 1990 decennial stormwater runoff, which is likely to cause property damage census by the Bureau of Census (40 CFR Part 122 or unsafe conditions. Appendix F); "Main channel" means the portion of the stormwater 2. Located in the counties listed in 40 CFR Part 122 conveyance system that contains the base flow and small Appendix H, except municipal separate storm sewers that frequent storm events. are located in the incorporated places, townships or towns "Major facility" means any facility or activity classified as within such counties; such by the regional administrator in conjunction with the 3. Owned or operated by a municipality other than those board. described in subdivision 1 or 2 of this definition and that "Major modification" means, for the purposes of this are designated by the board as part of the large or medium chapter, the modification or amendment of an existing state municipal separate storm sewer system due to the permit before its expiration that is not a minor modification as interrelationship between the discharges of the designated defined in this regulation. storm sewer and the discharges from municipal separate storm sewers described under subdivision 1 or 2 of this "Major municipal separate storm sewer outfall" or "major definition. In making this determination the board may outfall" means a municipal separate storm sewer outfall that consider the following factors: discharges from a single pipe with an inside diameter of 36 inches or more or its equivalent (discharge from a single a. Physical interconnections between the municipal conveyance other than circular pipe which is associated with separate storm sewers; a drainage area of more than 50 acres); or for municipal b. The location of discharges from the designated separate storm sewers that receive stormwater from lands municipal separate storm sewer relative to discharges zoned for industrial activity (based on comprehensive zoning from municipal separate storm sewers described in plans or the equivalent), with an outfall that discharges from a subdivision 1 of this definition; single pipe with an inside diameter of 12 inches or more or from its equivalent (discharge from other than a circular pipe c. The quantity and nature of pollutants discharged to associated with a drainage area of two acres or more). surface waters; "Manmade" means constructed by man. d. The nature of the receiving surface waters; and

Volume 37, Issue 5 Virginia Register of Regulations October 26, 2020 778 Regulations

"Maximum daily discharge limitation" means the highest "Minimize" means to reduce or eliminate the discharge of allowable daily discharge. pollutants to the extent achievable using stormwater controls that are technologically available and economically "Maximum extent practicable" or "MEP" means the practicable. technology-based discharge standard for municipal separate storm sewer systems established by CWA § 402(p). MEP is "Minor modification" means, for the purposes of this achieved, in part, by selecting and implementing effective chapter, minor modification or amendment of an existing structural and nonstructural best management practices state permit before its expiration for the reasons listed at (BMPs) and rejecting ineffective BMPs and replacing them 40 CFR 122.63 and as specified in 9VAC25-870-640. Minor with effective best management practices (BMPs). MEP is an modification for the purposes of this chapter also means other iterative standard, which evolves over time as urban runoff modifications and amendments not requiring extensive management knowledge increases. As such, the operator's review and evaluation including changes in EPA promulgated MS4 program must continually be assessed and modified to test protocols, increasing monitoring frequency requirements, incorporate improved programs, control measures, BMPs, changes in sampling locations, and changes to compliance etc., to attain compliance with water quality standards. dates within the overall compliance schedules. A minor state permit modification or amendment does not substantially "Medium municipal separate storm sewer system" means all alter state permit conditions, substantially increase or municipal separate storm sewers that are either: decrease the amount of surface water impacts, increase the 1. Located in an incorporated place with a population of size of the operation, or reduce the capacity of the facility to 100,000 or more but less than 250,000 as determined by protect human health or the environment. the 1990 decennial census by the Bureau of Census "Municipal separate storm sewer" means a conveyance or (40 CFR Part 122 Appendix G); system of conveyances otherwise known as a municipal 2. Located in the counties listed in 40 CFR Part 122 separate storm sewer system, including roads with drainage Appendix I, except municipal separate storm sewers that systems, municipal streets, catch basins, curbs, gutters, are located in the incorporated places, townships or towns ditches, manmade channels, or storm drains: within such counties; 1. Owned or operated by a federal, state, city, town, 3. Owned or operated by a municipality other than those county, district, association, or other public body, created described in subdivision 1 or 2 of this definition and that by or pursuant to state law, having jurisdiction or delegated are designated by the board as part of the large or medium authority for erosion and sediment control and stormwater municipal separate storm sewer system due to the management, or a designated and approved management interrelationship between the discharges of the designated agency under § 208 of the CWA that discharges to surface storm sewer and the discharges from municipal separate waters; storm sewers described under subdivision 1 or 2 of this 2. Designed or used for collecting or conveying definition. In making this determination the board may stormwater; consider the following factors: 3. That is not a combined sewer; and a. Physical interconnections between the municipal separate storm sewers; 4. That is not part of a publicly owned treatment works. b. The location of discharges from the designated "Municipal separate storm sewer system" or "MS4" means municipal separate storm sewer relative to discharges all separate storm sewers that are defined as "large" or from municipal separate storm sewers described in "medium" or "small" municipal separate storm sewer systems subdivision 1 of this definition; or designated under 9VAC25-870-380 A 1. c. The quantity and nature of pollutants discharged to "Municipal Separate Storm Sewer System Management surface waters; Program" or "MS4 Program" means a management program covering the duration of a state permit for a municipal d. The nature of the receiving surface waters; or separate storm sewer system that includes a comprehensive e. Other relevant factors; planning process that involves public participation and intergovernmental coordination, to reduce the discharge of 4. The board may, upon petition, designate as a medium pollutants to the maximum extent practicable, to protect water municipal separate storm sewer system, municipal separate quality, and to satisfy the appropriate water quality storm sewers located within the boundaries of a region requirements of the CWA and regulations and the Act and defined by a stormwater management regional authority attendant regulations, using management practices, control based on a jurisdictional, watershed, or other appropriate techniques, and system, design and engineering methods, and basis that includes one or more of the systems described in such other provisions that are appropriate. subdivisions 1, 2, and 3 of this definition.

Volume 37, Issue 5 Virginia Register of Regulations October 26, 2020 779 Regulations

"Municipality" means a city, town, county, district, 9VAC25-890 shall not be subject to §§ 62.1-44.15:3 A and association, or other public body created by or under state law 62.1-44.15:4 D of the Code of Virginia. and having jurisdiction over disposal of sewage, industrial "New source," means any building, structure, facility, or wastes, or other wastes, or an Indian tribe or an authorized installation from which there is or may be a discharge of Indian tribal organization, or a designated and approved pollutants, the construction of which commenced: management agency under § 208 of the CWA. 1. After promulgation of standards of performance under "National Pollutant Discharge Elimination System" or § 306 of the CWA that are applicable to such source; or "NPDES" means the national program for issuing, modifying, revoking and reissuing, terminating, monitoring and 2. After proposal of standards of performance in enforcing state permits, and imposing and enforcing accordance with § 306 of the CWA that are applicable to pretreatment requirements under §§ 307, 402, 318, and 405 of such source, but only if the standards are promulgated in the CWA. The term includes an approved program. accordance with § 306 of the CWA within 120 days of their proposal. "Natural channel design concepts" means the utilization of engineering analysis based on fluvial geomorphic processes "Nonpoint source pollution" means pollution such as to create, rehabilitate, restore, or stabilize an open conveyance sediment, nitrogen, phosphorous, hydrocarbons, heavy system for the purpose of creating or recreating a stream that metals, and toxics whose sources cannot be pinpointed but conveys its bankfull storm event within its banks and allows rather are washed from the land surface in a diffuse manner larger flows to access its floodplain. by stormwater runoff. "Natural stream" means a tidal or nontidal watercourse that "Oil and gas exploration, production, processing, or is part of the natural topography. It usually maintains a treatment operations or transmission facilities" means all field continuous or seasonal flow during the year and is activities or operations associated with exploration, characterized as being irregular in cross-section with a production, or treatment operations, or transmission facilities, meandering course. Constructed channels such as drainage including activities necessary to prepare a site for drilling and ditches or swales shall not be considered natural streams; for the movement and placement of drilling equipment, however, channels designed utilizing natural channel design whether or not such field activities or operations may be concepts may be considered natural streams. considered to be construction activity. (33 USC § 1362(24)) "New discharger" means any building, structure, facility, or "Operator" means the owner or operator of any facility or installation: activity subject to the Act and this chapter. In the context of stormwater associated with a large or small construction 1. From which there is or may be a discharge of pollutants; activity, operator means any person associated with a 2. That did not commence the discharge of pollutants at a construction project that meets either of the following two particular site prior to August 13, 1979; criteria: (i) the person has direct operational control over construction plans and specifications, including the ability to 3. Which is not a new source; and make modifications to those plans and specifications or (ii) 4. Which has never received a finally effective separate the person has day-to-day operational control of those VPDES or state permit for discharges at that site. activities at a project that are necessary to ensure compliance with a stormwater pollution prevention plan for the site or This definition includes an indirect discharger that other state permit or VSMP authority permit conditions (i.e., commences discharging into surface waters after August 13, they are authorized to direct workers at a site to carry out 1979. It also includes any existing mobile point source (other activities required by the stormwater pollution prevention than an offshore or coastal oil and gas exploratory drilling rig plan or comply with other permit conditions). In the context or a coastal oil and gas developmental drilling rig) such as a of stormwater discharges from Municipal Separate Storm seafood processing rig, seafood processing vessel, or Sewer Systems (MS4s), operator means the operator of the aggregate plant, that begins discharging at a site for which it regulated MS4 system. does not have a separate VPDES or state permit; and any offshore or coastal mobile oil and gas exploratory drilling rig "Outfall" means, when used in reference to municipal or coastal mobile oil and gas developmental drilling rig that separate storm sewers, a point source at the point where a commences the discharge of pollutants after August 13, 1979. municipal separate storm sewer discharges to surface waters and does not include open conveyances connecting two "New permit" means, for the purposes of this chapter, a state municipal separate storm sewers, or pipes, tunnels or other permit issued by the board to a state permit applicant that conveyances which connect segments of the same stream or does not currently hold and has never held a state permit of other surface waters and are used to convey surface waters. that type, for that activity, at that location. An application for a new permit issued pursuant to this chapter, 9VAC25-880, or

Volume 37, Issue 5 Virginia Register of Regulations October 26, 2020 780 Regulations

"Overburden" means any material of any nature, wrecked or discarded equipment, rock, sand, cellar dirt and consolidated or unconsolidated, that overlies a mineral industrial, municipal, and agricultural waste discharged into deposit, excluding topsoil or similar naturally occurring water. It does not mean: surface materials that are not disturbed by mining operations. 1. Sewage from vessels; or "Owner" means the Commonwealth or any of its political 2. Water, gas, or other material that is injected into a well subdivisions including sanitation district commissions and to facilitate production of oil or gas, or water derived in authorities, and any public or private institution, corporation, association with oil and gas production and disposed of in association, firm or company organized or existing under the a well if the well used either to facilitate production or for laws of this or any other state or country, or any officer or disposal purposes is approved by the board and if the board agency of the United States, or any person or group of determines that the injection or disposal will not result in persons acting individually or as a group that owns, operates, the degradation of groundwater or surface water resources. charters, rents, or otherwise exercises control over or is responsible for any actual or potential discharge of sewage, "Pollutant discharge" means the average amount of a industrial wastes, or other wastes or pollutants to state waters, particular pollutant measured in pounds per year or other or any facility or operation that has the capability to alter the standard reportable unit as appropriate, delivered by physical, chemical, or biological properties of state waters in stormwater runoff. contravention of § 62.1-44.5 of the Code of Virginia, the Act and this chapter. "Pollution" means such alteration of the physical, chemical, or biological properties of any state waters as will or is likely "Peak flow rate" means the maximum instantaneous flow to create a nuisance or render such waters (a) harmful or from a prescribed design storm at a particular location. detrimental or injurious to the public health, safety, or welfare, or to the health of animals, fish or aquatic life; (b) "Percent impervious" means the impervious area within the unsuitable with reasonable treatment for use as present or site divided by the area of the site multiplied by 100. possible future sources of public water supply; or (c) "Permit" or "VSMP authority permit" means an approval to unsuitable for recreational, commercial, industrial, conduct a land-disturbing activity issued by the VSMP agricultural, or other reasonable uses, provided that (i) an authority for the initiation of a land-disturbing activity after alteration of the physical, chemical, or biological property of evidence of general permit coverage has been provided where state waters, or a discharge or deposit of sewage, industrial applicable. wastes or other wastes to state waters by any owner which by itself is not sufficient to cause pollution, but which, in "Permittee" means the person to whom the state permit or combination with such alteration of or discharge or deposit to VSMP authority permit is issued, including any owner or state waters by other owners, is sufficient to cause pollution; operator whose construction site is covered under a state (ii) the discharge of untreated sewage by any owner into state construction general permit. waters; and (iii) contributing to the contravention of standards "Person" means any individual, corporation, partnership, of water quality duly established by the State Water Control association, state, municipality, commission, or political Board, are "pollution" for the terms and purposes of this subdivision of a state, governmental body, including a chapter. federal, state, or local entity as applicable, any interstate body "Postdevelopment" refers to conditions that reasonably may or any other legal entity. be expected or anticipated to exist after completion of the "Point of discharge" means a location at which concentrated land development activity on a specific site. stormwater runoff is released. "Predevelopment" refers to the conditions that exist at the "Point source" means any discernible, confined, and discrete time that plans for the land development of a tract of land are conveyance including any pipe, ditch, channel, tunnel, submitted to the VSMP authority. Where phased development conduit, well, discrete fissure, container, rolling stock, or plan approval occurs (preliminary grading, demolition of concentrated animal feeding operation, landfill leachate existing structures, roads and utilities, etc.), the existing collection system, vessel, or other floating craft from which conditions at the time prior to the first item being submitted pollutants are or may be discharged. This term does not shall establish predevelopment conditions. include return flows from irrigated agriculture or agricultural "Prior developed lands" means land that has been previously stormwater runoff. utilized for residential, commercial, industrial, institutional, "Pollutant" means dredged spoil, solid waste, incinerator recreation, transportation, or utility facilities or structures, and residue, filter backwash, sewage, garbage, sewage sludge, that will have the impervious areas associated with those uses munitions, chemical wastes, biological materials, radioactive altered during a land-disturbing activity. materials (except those regulated under the Atomic Energy Act of 1954, as amended (42 USC § 2011 et seq.)), heat,

Volume 37, Issue 5 Virginia Register of Regulations October 26, 2020 781 Regulations

"Privately owned treatment works" or "PVOTW" means any eligible to join the Rural Coastal Virginia Community device or system that is (i) used to treat wastes from any Enhancement Authority established by Chapter 76 (§ 15.2- facility whose operator is not the operator of the treatment 7600 et seq.) of Title 15.2 of the Code of Virginia. works and (ii) not a POTW. "Schedule of compliance" means a schedule of remedial "Publicly owned treatment works" or "POTW" means a measures included in a state permit, including an enforceable treatment works as defined by § 212 of the CWA that is sequence of interim requirements (for example, actions, owned by a state or municipality (as defined by § 502(4) of operations, or milestone events) leading to compliance with the CWA). This definition includes any devices and systems the Act, the CWA, and regulations. used in the storage, treatment, recycling, and reclamation of "Secretary" means the Secretary of the Army, acting through municipal sewage or industrial wastes of a liquid nature. It the Chief of Engineers. also includes sewers, pipes, and other conveyances only if they convey wastewater to a POTW treatment plant. The term "Severe property damage" means substantial physical also means the municipality as defined in § 502(4) of the damage to property, damage to the treatment facilities that CWA, that has jurisdiction over the indirect discharges to and causes them to become inoperable, or substantial and the discharges from such a treatment works. permanent loss of natural resources that can reasonably be expected to occur in the absence of a bypass. Severe property "Qualified personnel" means a person knowledgeable in the damage does not mean economic loss caused by delays in principles and practices of erosion and sediment and production. stormwater management controls who possesses the skills to assess conditions at the construction site for the operator that "Significant materials" means, but is not limited to: raw could impact stormwater quality and quantity and to assess materials; fuels; materials such as solvents, detergents, and the effectiveness of any sediment and erosion control plastic pellets; finished materials such as metallic products; measures or stormwater management facilities selected to raw materials used in food processing or production; control the quality and quantity of stormwater discharges hazardous substances designated under § 101(14) of from the construction activity. For VSMP authorities this CERCLA (42 USC § 9601(14)); any chemical the facility is requires the use of a person who holds a certificate of required to report pursuant to § 313 of Title III of SARA competency from the board in the area of project inspection (42 USC § 11023); fertilizers; pesticides; and waste products for ESC and project inspection for SWM or combined such as ashes, slag, and sludge that have the potential to be administrator for ESC and combined administrator for SWM released with stormwater discharges. as defined in 9VAC25-850-10 or a combination of ESC and SWM qualifications from these two areas. "Single jurisdiction" means, for the purposes of this chapter, a single county or city. The term county includes incorporated "Recommencing discharger" means a source that towns which are part of the county. recommences discharge after terminating operations. "Site" means the land or water area where any facility or "Regional administrator" means the Regional Administrator land-disturbing activity is physically located or conducted, of Region III of the Environmental Protection Agency or the including adjacent land used or preserved in connection with authorized representative of the regional administrator. the facility or land-disturbing activity. Areas channelward of mean low water in tidal Virginia shall not be considered part "Revoked state permit" means, for the purposes of this of a site. chapter, an existing state permit that is terminated by the board before its expiration. "Site hydrology" means the movement of water on, across, through, and off the site as determined by parameters "Runoff coefficient" means the fraction of total rainfall that including soil types, soil permeability, vegetative cover, will appear at a conveyance as runoff. seasonal water tables, slopes, land cover, and impervious "Runoff" or "stormwater runoff" means that portion of cover. precipitation that is discharged across the land surface or "Small construction activity" means: through conveyances to one or more waterways. 1. Construction activities including clearing, grading, and "Runoff characteristics" includes maximum velocity, peak excavating that results in land disturbance of equal to or flow rate, volume, and flow duration. greater than one acre and less than five acres. Small "Runoff volume" means the volume of water that runs off construction activity also includes the disturbance of less the site from a prescribed design storm. than one acre of total land area that is part of a larger common plan of development or sale if the larger common "Rural Tidewater locality" means any locality that is (i) plan will ultimately disturb equal to or greater than one and subject to the provisions of the Chesapeake Bay Preservation less than five acres. Small construction activity does not Act (§ 62.1-44.15:67 et seq. of the Code of Virginia) and (ii) include routine maintenance that is performed to maintain

Volume 37, Issue 5 Virginia Register of Regulations October 26, 2020 782 Regulations

the original line and grade, hydraulic capacity, or original storm sewer systems in municipalities, such as systems at purpose of the facility. The board may waive the otherwise military bases, large hospital or prison complexes, and applicable requirements in a general permit for a highway and other thoroughfares. The term does not include stormwater discharge from construction activities that separate storm sewers in very discrete areas, such as disturb less than five acres where stormwater controls are individual buildings. not needed based on an approved "total maximum daily "Source" means any building, structure, facility, or load" (TMDL) that addresses the pollutants of concern or, installation from which there is or may be a discharge of for nonimpaired waters that do not require TMDLs, an pollutants. equivalent analysis that determines allocations for small construction sites for the pollutants of concern or that "State" means the Commonwealth of Virginia. determines that such allocations are not needed to protect water quality based on consideration of existing in-stream "State application" or "application" means the standard form concentrations, expected growth in pollutant contributions or forms, including any additions, revisions, or modifications from all sources, and a margin of safety. For the purpose of to the forms, approved by the administrator and the board for this subdivision, the pollutants of concern include sediment applying for a state permit. or a parameter that addresses sediment (such as total "State/EPA agreement" means an agreement between the suspended solids, turbidity, or siltation) and any other EPA regional administrator and the state that coordinates pollutant that has been identified as a cause of impairment EPA and state activities, responsibilities, and programs of any water body that will receive a discharge from the including those under the CWA and the Act. construction activity. The operator must certify to the board that the construction activity will take place, and "State permit" means an approval to conduct a land- stormwater discharges will occur, within the drainage area disturbing activity issued by the board in the form of a state addressed by the TMDL or equivalent analysis. As of the stormwater individual permit or coverage issued under a state start date in Table 1 of 9VAC25-31-1020, all certifications general permit or an approval issued by the board for submitted in support of the waiver shall be submitted stormwater discharges from an MS4. Under these state electronically by the owner or operator to the department permits, the Commonwealth imposes and enforces in compliance with this subdivision and 40 CFR Part 3 requirements pursuant to the federal Clean Water Act and (including, in all cases, 40 CFR Part 3 Subpart D), regulations, the Act, and this chapter. As the mechanism that 9VAC25-870-370, and Part XI (9VAC25-31-950 et seq.) imposes and enforces requirements pursuant to the federal of the Virginia Pollutant Discharge Elimination System Clean Water Act and regulations, a state permit for (VPDES) Permit Regulation. Part XI of 9VAC25-31 is not stormwater discharges from an MS4 and, after June 30, 2014, intended to undo existing requirements for electronic a state permit for conducting a land-disturbing activity issued reporting. Prior to this date, and independent of Part XI of pursuant to the Act, are also types of Virginia Pollutant 9VAC25-31, permittees may be required to report Discharge Elimination System (VPDES) Permits. State electronically if specified by a particular permit. permit does not include any state permit that has not yet been the subject of final board action, such as a draft state permit. 2. Any other construction activity designated by either the Approvals issued pursuant to this chapter, 9VAC25-880, and board or the EPA regional administrator, based on the 9VAC25-890 are not issuances of a permit under § 62.1- potential for contribution to a violation of a water quality 44.15.01 of the Code of Virginia. standard or for significant contribution of pollutants to surface waters. "State project" means any land development project that is undertaken by any state agency, board, commission, "Small municipal separate storm sewer system" or "small authority, or any branch of state government, including state- MS4" means all separate storm sewers that are (i) owned or supported institutions of higher learning. operated by the United States, a state, city, town, borough, county, parish, district, association, or other public body "State Water Control Law" means Chapter 3.1 (§ 62.1-44.2 (created by or pursuant to state law) having jurisdiction over et seq.) of Title 62.1 of the Code of Virginia. disposal of sewage, industrial wastes, stormwater, or other "State waters" means all water, on the surface and under the wastes, including special districts under state law such as a ground, wholly or partially within or bordering the sewer district, flood control district or drainage district, or Commonwealth or within its jurisdiction, including wetlands. similar entity, or an Indian tribe or an authorized Indian tribal organization, or a designated and approved management "Stormwater" means precipitation that is discharged across agency under § 208 of the CWA that discharges to surface the land surface or through conveyances to one or more waters and (ii) not defined as "large" or "medium" municipal waterways and that may include stormwater runoff, snow separate storm sewer systems or designated under 9VAC25- melt runoff, and surface runoff and drainage. 870-380 A 1. This term includes systems similar to separate

Volume 37, Issue 5 Virginia Register of Regulations October 26, 2020 783 Regulations

"Stormwater conveyance system" means a combination of "Subdivision" means the same as defined in § 15.2-2201 of drainage components that are used to convey stormwater the Code of Virginia. discharge, either within or downstream of the land-disturbing "Surface waters" means: activity. This includes: 1. All waters that are currently used, were used in the past, 1. "Manmade stormwater conveyance system" means a or may be susceptible to use in interstate or foreign pipe, ditch, vegetated swale, or other stormwater commerce, including all waters that are subject to the ebb conveyance system constructed by man except for restored and flow of the tide; stormwater conveyance systems; 2. All interstate waters, including interstate wetlands; 2. "Natural stormwater conveyance system" means the main channel of a natural stream and the flood-prone area 3. All other waters such as intrastate lakes, rivers, streams adjacent to the main channel; or (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa 3. "Restored stormwater conveyance system" means a lakes, or natural ponds the use, degradation, or destruction stormwater conveyance system that has been designed and of which would affect or could affect interstate or foreign constructed using natural channel design concepts. commerce including any such waters: Restored stormwater conveyance systems include the main channel and the flood-prone area adjacent to the main a. That are or could be used by interstate or foreign channel. travelers for recreational or other purposes; "Stormwater discharge associated with construction activity" b. From which fish or shellfish are or could be taken and means a discharge of stormwater runoff from areas where sold in interstate or foreign commerce; or land-disturbing activities (e.g., clearing, grading, or excavation); construction materials or equipment storage or c. That are used or could be used for industrial purposes maintenance (e.g., fill piles, borrow area, concrete truck by industries in interstate commerce; washout, fueling); or other industrial stormwater directly 4. All impoundments of waters otherwise defined as related to the construction process (e.g., concrete or asphalt surface waters under this definition; batch plants) are located. 5. Tributaries of waters identified in subdivisions 1 through "Stormwater discharge associated with large construction 4 of this definition; activity" means the discharge of stormwater from large construction activities. 6. The territorial sea; and "Stormwater discharge associated with small construction 7. Wetlands adjacent to waters (other than waters that are activity" means the discharge of stormwater from small themselves wetlands) identified in subdivisions 1 through 6 construction activities. of this definition. "Stormwater management facility" means a control measure Waste treatment systems, including treatment ponds or that controls stormwater runoff and changes the lagoons designed to meet the requirements of the CWA and characteristics of that runoff including the quantity and the law, are not surface waters. Surface waters do not include quality, the period of release or the velocity of flow. prior converted cropland. Notwithstanding the determination of an area's status as prior converted cropland by any other "Stormwater management plan" means a document agency, for the purposes of the CWA, the final authority containing material for describing methods for complying regarding the CWA jurisdiction remains with the EPA. with the requirements of the VSMP or this chapter. An agreement in lieu of a stormwater management plan as "SWM" means stormwater management. defined in this chapter shall be considered to meet the "Total dissolved solids" means the total dissolved (filterable) requirements of a stormwater management plan. solids as determined by use of the method specified in "Stormwater Pollution Prevention Plan" or "SWPPP" means 40 CFR Part 136. a document that is prepared in accordance with good "Total maximum daily load" or "TMDL" means the sum of engineering practices and that identifies potential sources of the individual wasteload allocations for point sources, load pollutants that may reasonably be expected to affect the allocations (LAs) for nonpoint sources, natural background quality of stormwater discharges. A SWPPP required under a loading, and a margin of safety. TMDLs can be expressed in VSMP for construction activities shall identify and require terms of either mass per time, toxicity, or other appropriate the implementation of control measures and shall include or measure. The TMDL process provides for point versus incorporate by reference an approved erosion and sediment nonpoint source trade-offs. control plan, an approved stormwater management plan, and a pollution prevention plan.

Volume 37, Issue 5 Virginia Register of Regulations October 26, 2020 784 Regulations

"TMDL Action Plan" means the scheduled steps of activities "Virginia Pollutant Discharge Elimination System (VPDES) that the MS4 operator will take to address the assumptions permit" or "VPDES permit" means a document issued by the and requirements of the TMDL wasteload allocation. TMDL State Water Control Board pursuant to the State Water action plans may be implemented in multiple phases over Control Law authorizing, under prescribed conditions, the more than one state permit cycle. potential or actual discharge of pollutants from a point source to surface waters. "Toxic pollutant" means any pollutant listed as toxic under § 307(a)(1) of the CWA or, in the case of sludge use or "Virginia Stormwater Management Act" means Article 2.3 disposal practices, any pollutant identified in regulations (§ 62.1-44.15:24 et seq.) of Chapter 3.1 of Title 62.1 of the implementing § 405(d) of the CWA. Code of Virginia. "Upset" means an exceptional incident in which there is "Virginia Stormwater BMP Clearinghouse Website" means unintentional and temporary noncompliance with technology a website that contains detailed design standards and based state permit effluent limitations because of factors specifications for control measures that may be used in beyond the reasonable control of the operator. An upset does Virginia to comply with the requirements of the Virginia not include noncompliance to the extent caused by Stormwater Management Act and associated regulations. operational error, improperly designed treatment facilities, "Virginia Stormwater Management Handbook" means a inadequate treatment facilities, lack of preventive collection of pertinent information that provides general maintenance, or careless or improper operation. guidance for compliance with the Act and associated "Variance" means any mechanism or provision under § 301 regulations and is developed by the department with advice or § 316 of the CWA or under 40 CFR Part 125, or in the from a stakeholder advisory committee. applicable federal effluent limitations guidelines that allows "Virginia Stormwater Management Program" or "VSMP" modification to or waiver of the generally applicable effluent means a program approved by the board after September 13, limitation requirements or time deadlines of the CWA. This 2011, that has been established by a VSMP authority to includes provisions that allow the establishment of alternative manage the quality and quantity of runoff resulting from land- limitations based on fundamentally different factors or on disturbing activities and shall include such items as local § 301(c), § 301(g), § 301(h), § 301(i), or § 316(a) of the ordinances, rules, permit requirements, annual standards and CWA. specifications, policies and guidelines, technical materials, "Virginia Erosion and Sediment Control Program" or and requirements for plan review, inspection, enforcement, "VESCP" means a program approved by the board that has where authorized in the Act and associated regulations, and been established by a VESCP authority for the effective evaluation consistent with the requirements of the SWM Act control of soil erosion, sediment deposition, and and associated regulations. nonagricultural runoff associated with a land-disturbing "VSMP authority" means an authority approved by the activity to prevent the unreasonable degradation of properties, board after September 13, 2011, to operate a Virginia stream channels, waters, and other natural resources and shall Stormwater Management Program or the department. An include such items where applicable as local ordinances, authority may include a locality as set forth in § 62.1- rules, permit requirements, annual standards and 44.15:27 of the Code of Virginia; state entity, including the specifications, policies and guidelines, technical materials, department; federal entity; or, for linear projects subject to and requirements for plan review, inspection, enforcement annual standards and specifications in accordance with where authorized in the Erosion and Sediment Control Act subsection B of § 62.1-44.15:31 of the Code of Virginia, and its attendant regulations, and evaluation consistent with electric, natural gas, and telephone utility companies, the requirements of the Erosion and Sediment Control Act interstate and intrastate natural gas pipeline companies, and its attendant regulations. railroad companies, or authorities created pursuant to § 15.2- "Virginia Erosion and Sediment Control Program authority" 5102 of the Code of Virginia. Prior to approval, the board or "VESCP authority" means an authority approved by the must find that the ordinances adopted by the locality's VSMP board to operate a Virginia Erosion and Sediment Control authority are consistent with the Act and this chapter Program. An authority may include a state entity, including including the General Permit for Discharges of Stormwater the department; a federal entity; a district, county, city, or from Construction Activities (9VAC25-880). town; or for linear projects subject to annual standards and "Wasteload allocation" or "wasteload" or "WLA" means the specifications, electric, natural gas and telephone utility portion of a receiving surface water's loading or assimilative companies, interstate and intrastate natural gas pipeline capacity allocated to one of its existing or future point sources companies, railroad companies, or authorities created of pollution. WLAs are a type of water quality-based effluent pursuant to § 15.2-5102 of the Code of Virginia. limitation.

Volume 37, Issue 5 Virginia Register of Regulations October 26, 2020 785 Regulations

"Water quality standards" or "WQS" means provisions of 7. Bioretention (Version 1.9, March 1, 2011); state or federal law that consist of a designated use or uses for 8. Infiltration (Version 1.9, March 1, 2011); the waters of the Commonwealth and water quality criteria for such waters based on such uses. Water quality standards 9. Dry Swale (Version 1.9, March 1, 2011); are to protect the public health or welfare, enhance the quality of water, and serve the purposes of the State Water Control 10. Wet Swale (Version 1.9, March 1, 2011); Law (§ 62.1-44.2 et seq. of the Code of Virginia), the Act 11. Sheet Flow to Filter/Open Space (Version 1.9, March (§ 62.1-44.15:24 et seq. of the Code of Virginia), and the 1, 2011); CWA (33 USC § 1251 et seq.). 12. Extended Detention Pond (Version 1.9, March 1, "Water quantity technical criteria" means standards that 2011); establish minimum design criteria for measures to control localized flooding and stream channel erosion. 13. Filtering Practice (Version 1.8, March 1, 2011); "Watershed" means a defined land area drained by a river or 14. Constructed Wetland (Version 1.9, March 1, 2011); stream, karst system, or system of connecting rivers or and streams such that all surface water within the area flows 15. Wet Pond (Version 1.9, March 1, 2011). through a single outlet. In karst areas, the karst feature to which the water drains may be considered the single outlet for C. Nonproprietary BMPs differing from those listed in the watershed. subsection B of this section or proprietary BMPs certified in other states shall be reviewed and approved by the director in "Wetlands" means those areas that are inundated or accordance with procedures established by the department. saturated by surface water or groundwater at a frequency and duration sufficient to support, and that under normal D. Proprietary BMPs listed on the Virginia Stormwater circumstances do support, a prevalence of vegetation BMP Clearinghouse Website are approved for use in typically adapted for life in saturated soil conditions. accordance with the Virginia Runoff Reduction Method. Wetlands generally include swamps, marshes, bogs, and 1. Any proprietary BMP listed on the Virginia Stormwater similar areas. BMP Clearinghouse Website prior to July 1, 2020, shall by "Whole effluent toxicity" means the aggregate toxic effect December 31, 2021, provide documentation to the of an effluent measured directly by a toxicity test. department showing that another state, regional, or national certification program has verified and certified its nutrient 9VAC25-870-65. Water quality compliance. or sediment removal effectiveness. Any proprietary BMP A. Compliance with the water quality design criteria set out that fails to provide the department with the documentation in subdivisions A 1 and A 2 of 9VAC25-870-63 shall be required by December 31, 2021, shall not be approved for determined by utilizing the Virginia Runoff Reduction use in any stormwater management plan submitted on or Method or another equivalent methodology that is approved after January 1, 2022, until such proprietary BMP provides by the board. the department with such required documentation. B. The nonproprietary BMPs listed in this subsection are 2. Any proprietary BMP approved for use after July 1, approved for use as necessary to effectively reduce the 2020, must meet the requirements of § 62.1-44.15:28 A 9 phosphorus load and runoff volume in accordance with the of the Code of Virginia. Virginia Runoff Reduction Method. Other approved E. A VSMP authority may establish limitations on the use of nonproprietary BMPs found on the Virginia Stormwater BMP specific BMPs in accordance with § 62.1-44.15:33 of the Clearinghouse Website may also be utilized. Design Code of Virginia. specifications and the pollutant removal efficiencies for all approved nonproprietary BMPs are found on the Virginia E. F. The VSMP authority shall have the discretion to allow Stormwater BMP Clearinghouse Website. for application of the design criteria to each drainage area of the site. However, where a site drains to more than one HUC, 1. Vegetated Roof (Version 2.3, March 1, 2011); the pollutant load reduction requirements shall be applied 2. Rooftop Disconnection (Version 1.9, March 1, 2011); independently within each HUC unless reductions are achieved in accordance with a comprehensive watershed 3. Rainwater Harvesting (Version 1.9.5, March 1, 2011); stormwater management plan in accordance with 9VAC25- 4. Soil Amendments (Version 1.8, March 1, 2011); 870-92. F. G. Offsite alternatives where allowed in accordance with 5. Permeable Pavement (Version 1.8, March 1, 2011); 9VAC25-870-69 may be utilized to meet the design criteria of 6. Grass Channel (Version 1.9, March 1, 2011); subsection A of 9VAC25-870-63.

Volume 37, Issue 5 Virginia Register of Regulations October 26, 2020 786 Regulations

H. Any publicly owned treatment works that is permitted Final Regulation under the watershed general VPDES permit pursuant to REGISTRAR'S NOTICE: The State Water Control Board is § 62.1-44.19:14 of the Code of Virginia and is constructing or claiming an exemption from Article 2 of the Administrative expanding the treatment works, wastewater collection system, Process Act in accordance with § 2.2-4006 A 4 a of the Code or other facility used for public wastewater utility operations of Virginia, which excludes regulations that are necessary to may, in accordance with § 62.1-44.19:21.2 C of the Code of conform to changes in Virginia statutory law or the Virginia, permanently retire a portion of its wasteload appropriation act where no agency discretion is involved. The allocation to meet the design criteria of subsection A of State Water Control Board will receive, consider, and respond 9VAC25-870-63. Notice shall be given by such applicant to to petitions by any interested person at any time with respect the VSMP authority and to the department. to reconsideration or revision. 9VAC25-870-112. Long-term maintenance of permanent Title of Regulation: 9VAC25-880. General VPDES Permit stormwater management facilities. for Discharges of Stormwater from Construction A. The VSMP authority shall require the provision of long- Activities (amending 9VAC25-880-50). term responsibility for and maintenance of stormwater Statutory Authority: § 62.1-44.15:25 of the Code of Virginia. management facilities and other techniques specified to manage the quality and quantity of runoff. Such requirements Effective Date: November 25, 2020. shall be set forth in an instrument recorded in the local land Agency Contact: Erin Belt, Department of Environmental records prior to state permit termination or earlier as required Quality, 1111 East Main Street, Suite 1400, P.O. Box 1105, by the VSMP authority and shall at a minimum: Richmond, VA 23218, telephone (757) 374-4621, or email 1. Be submitted to the VSMP authority for review and [email protected]. approval prior to the approval of the stormwater Summary: management plan; Pursuant to Chapter 565 of the 2020 Acts of Assembly, the 2. Be stated to run with the land; amendments clarify the process whereby any person that 3. Provide for all necessary access to the property for receives coverage under the General Virginia Pollutant purposes of maintenance and regulatory inspections; Discharge Elimination System (VPDES) Permit for Discharges of Stormwater from Construction Activities 4. Provide for inspections and maintenance and the that will be transporting fill from a project site for disposal submission of inspection and maintenance reports to the off site as part of its land-disturbing activities discloses to VSMP authority; and the department as part of its registration statement (i) the 5. Be enforceable by all appropriate governmental source of the fill to be disposed of, (ii) the contents of the parties. fill, and (iii) the off-site location of the disposal. B. At the discretion of the VSMP authority, such recorded 9VAC25-880-50. Registration statement. instruments need not be required for stormwater management A. Deadlines for submitting registration statement. Any facilities designed to treat stormwater runoff primarily from operator seeking coverage under this general permit, and that an individual residential lot on which they are located, is required to submit a registration statement, shall submit a provided it is demonstrated to the satisfaction of the VSMP complete and accurate general VPDES permit registration authority that future maintenance of such facilities will be statement in accordance with this section, which shall serve addressed through an enforceable mechanism at the discretion as a notice of intent for coverage under the general VPDES of the VSMP authority. permit for discharges of stormwater from construction C. In addition to the requirements of subsection A of this activities. section, any owner of property that is zoned for residential 1. New construction activities. use and on which is located a privately owned stormwater management facility serving one or more residential a. Any operator proposing a new stormwater discharge properties shall record the long-term maintenance and from construction activities shall submit a complete and inspection requirements for such facility with the deed for the accurate registration statement to the VSMP authority property. prior to the commencement of land disturbance. VA.R. Doc. No. R21-6489; Filed September 29, 2020, 5:06 a.m. b. Any operator proposing a new stormwater discharge from construction activities in response to a public

emergency where the related work requires immediate authorization to avoid imminent endangerment to human

Volume 37, Issue 5 Virginia Register of Regulations October 26, 2020 787 Regulations

health or the environment is authorized to discharge 4. Late notifications. Operators are not prohibited from under this general permit, provided that: submitting registration statements after commencing land disturbance. When a late registration statement is (1) The operator submits a complete and accurate submitted, authorization for discharges shall not occur until registration statement to the VSMP authority no later coverage under the general permit is issued. The VSMP than 30 days after commencing land disturbance; and authority, department, board, and the EPA reserve the right (2) Documentation to substantiate the occurrence of the to take enforcement action for any unpermitted discharges public emergency is provided with the registration that occur between the commencement of land disturbance statement. and discharge authorization. c. Any operator proposing a new stormwater discharge 5. Late registration statements. Registration statements for associated with the construction of a single-family existing facilities covered under subdivision A 2 a of this detached residential structure, within or outside a section will be accepted after the expiration date of this common plan of development or sale, is authorized to permit, but authorization to discharge will not be discharge under this general permit and is not required to retroactive. The VSMP authority, department, board, and submit a registration statement or the department portion the EPA reserve the right to take enforcement action for of the permit fee. any unpermitted discharges that occur after existing permit coverage expires and prior to coverage under this permit is 2. Existing construction activities. approved. a. Any operator who was authorized to discharge under B. Registration statement. The operator shall submit a the expiring or expired general permit and who intends to registration statement to the VSMP authority that contains the continue coverage under this general permit shall: following information: (1) Submit a complete and accurate registration statement 1. Name, contact, mailing address, telephone number, and to the VSMP authority at least 60 days prior to the email address if available of the construction activity expiration date of the existing permit or a later submittal operator. No more than one operator may receive coverage date established by the board; and under each registration statement; (2) Update its stormwater pollution prevention plan to NOTE: General permit coverage will be issued to this comply with the requirements of this general permit no operator, and the certification in subdivision 17 of this later than 60 days after the date of coverage under this subsection shall be signed by the appropriate person general permit. associated with this operator as described in Part III K of b. Any operator with an existing stormwater discharge 9VAC25-880-70. associated with the construction of a single-family 2. Name and physical location address of the construction detached residential structure, within or outside a activity, when available, to be covered under this general common plan of development or sale that intends to permit, including city or county, and latitude and longitude continue coverage under this general permit, is in decimal degrees (six digits - ten-thousandths place); authorized to discharge under this general permit and is not required to submit a registration statement or the 3. A site map (in an 8.5 inch by 11 inch format) showing department portion of the permit fee, provided that the the location of the existing or proposed land-disturbing operator updates its stormwater pollution prevention plan activities for which the operator is seeking permit to comply with the requirements of this general permit no coverage, the limits of land disturbance, construction later than 60 days after the date of coverage under this entrances, on-site support activities, and all water bodies general permit. receiving stormwater discharges from the site; 3. For stormwater discharges from construction activities 4. If offsite off-site support activities will be used, the where the operator changes, the new operator shall submit name and physical location address, when available, of a complete and accurate registration statement or transfer those offsite all off-site support activities, including city or agreement form and any other documents deemed county; latitude and longitude in decimal degrees (six necessary by the VSMP authority to the VSMP authority to digits - ten-thousandths place); and whether or not the demonstrate transfer of ownership and long-term offsite off-site support activity will be covered under this maintenance responsibilities for stormwater management general permit or a separate VPDES permit; facilities, as required, has occurred prior to assuming 5. If excavated material (i.e., fill) will be transported off operational control over site specifications or commencing site for disposal, the name and physical location address, work on-site. when available, of all off-site excavated material disposal areas, including city or county; latitude and longitude in

Volume 37, Issue 5 Virginia Register of Regulations October 26, 2020 788 Regulations

decimal degrees (six digits – ten-thousandths place); and the information submitted. Based on my inquiry of the the contents of the excavated material; person or persons who manage the system or those persons directly responsible for gathering the information, the 6. Status of the construction activity: federal, state, public, information submitted is to the best of my knowledge and or private; belief true, accurate, and complete. I am aware that there 6. 7. Nature of the construction activity (e.g., commercial, are significant penalties for submitting false information industrial, residential, agricultural, oil and gas, etc.); including the possibility of fine and imprisonment for knowing violations." 7. 8. If stormwater management plans for the construction activity have been approved by an entity with department C. The registration statement shall be signed in accordance approved annual standards and specifications, the name of with 9VAC25-880-70, Part III K. the entity with the department approved annual standards VA.R. Doc. No. R21-6490; Filed September 29, 2020, 5:11 a.m. and specifications. A copy of the annual standard and specification entity form shall be submitted with the   registration statement; –––––––––––––––––– 8. 9. If the construction activity was previously authorized TITLE 18. PROFESSIONAL AND to discharge under the general permit effective July 1, OCCUPATIONAL LICENSING 2014, the date of erosion and sediment control plan approval for the estimated area to be disturbed by the BOARD OF PHARMACY construction activity during this permit term; Final Regulation 9. 10. If the construction activity was previously authorized to discharge under the general permit effective July 1, REGISTRAR'S NOTICE: The Board of Pharmacy is 2014, whether land disturbance has commenced; claiming an exemption from Article 2 of the Administrative Process Act in accordance with § 2.2-4006 A 13 of the Code 10. 11. Name of the receiving waters and sixth order of Virginia, which exempts amendments to regulations of the Hydrologic Unit Code (HUC); board to schedule a substance in Schedule I or II pursuant to 11. 12. If the discharge is through a municipal separate subsection D of § 54.1-3443 of the Code of Virginia. The storm sewer system (MS4), the name of the MS4 operator; board will receive, consider, and respond to petitions by any interested person at any time with respect to reconsideration 12. 13. Estimated project start date and completion date; or revision. 13. 14. Total land area of development and estimated area Title of Regulation: 18VAC110-20. Regulations Governing to be disturbed by the construction activity during this the Practice of Pharmacy (amending 18VAC110-20-322). permit term (to the nearest one-hundredth of an acre); Statutory Authority: §§ 54.1-2400 and 54.1-3443 of the Code 14. 15. Whether the area to be disturbed by the of Virginia. construction activity is part of a larger common plan of development or sale; Effective Date: November 25, 2020. 15. 16. If nutrient credits are to be used to demonstrate Agency Contact: Caroline Juran, RPh, Executive Director, compliance with the water quality technical criteria as Board of Pharmacy, 9960 Mayland Drive, Suite 300, allowed in 9VAC25-870-65 F, a letter of availability from Richmond, VA 23233-1463, telephone (804) 367-4456, FAX an appropriate nutrient bank that nonpoint source nutrient (804) 527-4472, or email [email protected]. credits are available; Summary: 16. 17. A stormwater pollution prevention plan (SWPPP) The amendments add 13 compounds into Schedule I of the shall be prepared in accordance with the requirements of Drug Control Act as recommended by the Department of the General VPDES Permit for Stormwater Discharges Forensic Science pursuant to § 54.1-3443 of the Code of from Construction Activities prior to submitting the Virginia. These compounds added by regulatory action registration statement. By signing the registration will remain in effect for 18 months or until the compounds statement, the operator certifies that the SWPPP has been are placed in Schedule I by legislative action of the prepared; and General Assembly. 17. 18. The following certification: "I certify under penalty 18VAC110-20-322. Placement of chemicals in Schedule I. of law that I have read and understand this registration statement and that this document and all attachments were A. Pursuant to subsection D of § 54.1-3443 of the Code of prepared in accordance with a system designed to assure Virginia, the Board of Pharmacy places the following in that qualified personnel properly gathered and evaluated Schedule I of the Drug Control Act:

Volume 37, Issue 5 Virginia Register of Regulations October 26, 2020 789 Regulations

1. Synthetic opioids. of isomers whenever the existence of such salts, isomers, and salts of isomers is possible within the specific a. N-[2-(dimethylamino)cyclohexyl]-N-phenylfuran-2- chemical designation. carboxamide (other name: Furanyl UF-17), its isomers, esters, ethers, salts, and salts of isomers, esters, and The placement of drugs listed in this subsection shall remain ethers, unless specifically excepted, whenever the in effect until June 10, 2021, unless enacted into law in the existence of these isomers, esters, ethers, and salts is Drug Control Act. possible within the specific chemical designation. B. Pursuant to subsection D of § 54.1-3443 of the Code of b. N-[2-(dimethylamino)cyclohexyl]-N-phenylpropionamide Virginia, the Board of Pharmacy places the following in (other name: UF-17), its isomers, esters, ethers, salts, and Schedule I of the Drug Control Act: salts of isomers, esters, and ethers, unless specifically excepted, whenever the existence of these isomers, esters, 1. Synthetic opioids. ethers, and salts is possible within the specific chemical a. N-phenyl-N-[1-(2-phenylmethyl)-4-piperidinyl]-2- designation. furancarboxamide (other name: N-benzyl Furanyl 2. Research chemicals. norfentanyl), its isomers, esters, ethers, salts, and salts of isomers, esters, and ethers, unless specifically excepted, a. 5-methoxy-N,N-dibutyltryptamine (other name: 5- whenever the existence of these isomers, esters, ethers, methoxy-DBT), its optical, position, and geometric and salts is possible within the specific chemical isomers, salts, and salts of isomers whenever the designation. existence of such salts, isomers, and salts of isomers is possible within the specific chemical designation. b. 1-[2-methyl-4-(3-phenyl-2-propen-1-yl)-1-piperazinyl]-1- butanone (other name: 2-methyl AP-237), its isomers, b. 1-(1,3-benzodioxol-5-yl)-2-(ethylamino)-1-butanone esters, ethers, salts, and salts of isomers, esters, and ethers, (other name: Eutylone, bk-EBDB), its optical, position, unless specifically excepted, whenever the existence of and geometric isomers, salts, and salts of isomers these isomers, esters, ethers, and salts is possible within the whenever the existence of such salts, isomers, and salts specific chemical designation. of isomers is possible within the specific chemical 2. Research chemicals. designation. a. N-hexyl-3,4-dimethoxyamphetamine (other names: N- c. 1-(1,3-benzodioxol-5-yl)-2-(butylamino)-1-pentanone hexyl-3.4-DMA), its optical, position, and geometric (other name: N-butylpentylone), its optical, position, and isomers, salts, and salts of isomers whenever the geometric isomers, salts, and salts of isomers whenever existence of such salts, isomers, and salts of isomers is the existence of such salts, isomers, and salts of isomers possible within the specific chemical designation. is possible within the specific chemical designation. b. N-heptyl-3,4-dimethoxyamphetamine (other names: d. N-benzyl-3,4-dimethoxyamphetamine (other name: N- N-heptyl-3.4-DMA), its optical, position, and geometric benzyl-3,4-DMA), its optical, position, and geometric isomers, salts, and salts of isomers whenever the isomers, salts, and salts of isomers whenever the existence of such salts, isomers, and salts of isomers is existence of such salts, isomers, and salts of isomers is possible within the specific chemical designation. possible within the specific chemical designation. c. 2-(isobutylamino)-1-phenylhexan-1-one (other names: e. 3,4-methylenedioxy-N-benzylcathinone (other name: N-Isobutyl Hexedrone, α-isobutylaminohexanphenone), BMDP), its optical, position, and geometric isomers, its optical, position, and geometric isomers, salts, and salts, and salts of isomers whenever the existence of such salts of isomers whenever the existence of such salts, salts, isomers, and salts of isomers is possible within the isomers, and salts of isomers is possible within the specific chemical designation. specific chemical designation. 3. Cannabimimetic agents. d. 1-(benzo[d][1,3]dioxol-5-yl)-2-(sec-butylamino)pentan-1- a. Ethyl 2-({1-[(4-fluorophenyl)methyl]-1H-indazole-3- one (other name: N-sec-butyl Pentylone), its optical, carbonyl}amino)-3-methylbutanoate (other name: EMB- position, and geometric isomers, salts, and salts of isomers FUBINACA), its salts, isomers, and salts of isomers whenever the existence of such salts, isomers, and salts of whenever the existence of such salts, isomers, and salts isomers is possible within the specific chemical designation. of isomers is possible within the specific chemical e. 2-fluoro-Deschloroketamine (other name: 2-(2- designation. fluorophenyl)-2-(methylamino)-cyclohexanone), its b. Methyl 2-[1-4-fluorobutyl)-1H-indazole-3- optical, position, and geometric isomers, salts, and salts carboxamido]-3,3-dimethylbutanoate (other name: 4- of isomers whenever the existence of such salts, isomers, fluoro-MDMB-BUTINACA), its salts, isomers, and salts

Volume 37, Issue 5 Virginia Register of Regulations October 26, 2020 790 Regulations

and salts of isomers is possible within the specific isomers, and salts of isomers is possible within the chemical designation. specific chemical designation. 3. Cannabimimetic agents. b. 2-(ethylamino)-1-phenylheptan-1-one (other name: N- ethylheptedrone), its optical, position, and geometric a. Methyl 2-[1-(5-fluoropentyl)-1H-indole-3- isomers, salts, and salts of isomers whenever the carboxamido]-3-methylbutanoate (other name: MMB existence of such salts, isomers, and salts of isomers is 2201), its salts, isomers, and salts of isomers whenever possible within the specific chemical designation. the existence of such salts, isomers, and salts of isomers is possible within the specific chemical designation. c. 4-ethyl-2,5-dimethoxy-N-[(2-hydroxyphenyl)methyl]- benzeneethanamine (other name: 25E-NBOH), its b. Methyl 2-[1-(4-penten-1-yl)-1H-indole-3- optical, position, and geometric isomers, salts, and salts carboxamido]-3-methylbutanoate (other names: of isomers whenever the existence of such salts, isomers, MMB022, MMB-4en-PICA), its salts, isomers, and salts and salts of isomers is possible within the specific of isomers whenever the existence of such salts, isomers, chemical designation. and salts of isomers is possible within the specific chemical designation. d. 4-hydroxy-N-ethyl-N-propyltryptamine (other name: 4-hydroxy-EPT), its optical, position, and geometric c. Methyl 2-[1-(5-fluoropentyl)-1H-indole-3- isomers, salts, and salts of isomers whenever the carboxamido]-3-phenylpropanoate (other name: 5-fluoro- existence of such salts, isomers, and salts of isomers is MPP-PICA), its salts, isomers, and salts of isomers possible within the specific chemical designation. whenever the existence of such salts, isomers, and salts of isomers is possible within the specific chemical e. N-ethyl-1-(3-hydroxyphenyl)cyclohexylamine (other designation. name: 3-hydroxy-PCE), its optical, position, and geometric isomers, salts, and salts of isomers whenever d. 1-(5-fluoropentyl)-N-(1-methyl-1-phenylethyl)-1H- the existence of such salts, isomers, and salts of isomers indole-3-carboxamide (other name: 5-fluoro CUMYL- is possible within the specific chemical designation. PICA), its salts, isomers, and salts of isomers whenever the existence of such salts, isomers, and salts of isomers f. 1-cyclopropionyl lysergic acid diethylamide (other is possible within the specific chemical designation. name: 1cP-LSD), its optical, position, and geometric isomers, salts, and salts of isomers whenever the The placement of drugs listed in this subsection shall remain existence of such salts, isomers, and salts of isomers is in effect until February 4, 2022, unless enacted into law in the possible within the specific chemical designation. Drug Control Act. g. 1-(4-methoxyphenyl)-N-methylpropan-2-amine (other C. Pursuant to subsection D of § 54.1-3443 of the Code of names: para-Methoxymethamphetamine, PMMA), its Virginia, the Board of Pharmacy places the following in optical, position, and geometric isomers, salts, and salts Schedule I of the Drug Control Act: of isomers whenever the existence of such salts, isomers, 1. Synthetic opioids. and salts of isomers is possible within the specific chemical designation. a. N-phenyl-N-(4-piperidinyl)-propanamide (other name: Norfentanyl), its isomers, esters, ethers, salts, and salts of 3. Cannabimimetic agents. isomers, esters, and ethers, unless specifically excepted, a. Methyl 2-[1-(pent-4-enyl)-1H-indazole-3- whenever the existence of these isomers, esters, ethers, carboxamindo]-3,3-dimethylbutanoate (other name: and salts is possible within the specific chemical MDMB-4en-PINACA), its salts, isomers, and salts of designation. isomers whenever the existence of such salts, isomers, b. N,N-diethyl-2-(2-(4-isopropoxybenzyl)-5-nitro-1H- and salts of isomers is possible within the specific benzimidazol-1-yl)ethan-1-amine (other name: chemical designation. Isotonitazene), its isomers, esters, ethers, salts, and salts b. N-(1-amino-3,3-dimethyl-1-oxobutan-2-yl)-1- of isomers, esters, and ethers, unless specifically butylindazole-3-carboxamide (other name: ADB- excepted, whenever the existence of these isomers, BUTINACA), its salts, isomers, and salts of isomers esters, ethers, and salts is possible within the specific whenever the existence of such salts, isomers, and salts chemical designation. of isomers is possible within the specific chemical 2. Research chemicals. designation. a. (2-ethylaminopropyl)benzofuran (other name: EAPB), c. N-(1-amino-3-methyl-1-oxobutan-2-yl)-1-(5- its optical, position, and geometric isomers, salts, and chloropentyl)indazole-3-carboxamide (other name: 5- salts of isomers whenever the existence of such salts, chloro-AB-PINACA), its salts, isomers, and salts of

Volume 37, Issue 5 Virginia Register of Regulations October 26, 2020 791 Regulations

isomers whenever the existence of such salts, isomers, for that patient. Documented informed consent from the and salts of isomers is possible within the specific patient shall be obtained by the practitioner who authorizes chemical designation. the patient to participate in the agreement or by the pharmacist who is also a party to the agreement. A patient d. Methyl 2-({1-[(4-fluorophenyl)methyl]-1H-indole-3- who meets the criteria for inclusion in the category of patients carbonyl}amino)-3-methylbutanoate (other names: whose care is subject to a collaborative agreement and who MMB-FUBICA, AMB-FUBICA), its salts, isomers, and chooses to not participate in a collaborative procedure shall salts of isomers whenever the existence of such salts, notify the prescriber of the patient's refusal to participate in isomers, and salts of isomers is possible within the such collaborative procedure. specific chemical designation. 1. The patient may decline to participate or withdraw from The placement of drugs listed in this subsection shall remain participation at any time. in effect until May 24, 2022, unless enacted into law in the Drug Control Act. 2. Prior to giving consent to participate, the The patient VA.R. Doc. No. R21-6502; Filed October 5, 2020, 2:47 p.m. shall be informed by the practitioner or the pharmacist of the cooperative collaborative procedures that will be used Final Regulation pursuant to an agreement, and such discussion shall be REGISTRAR'S NOTICE: The Board of Pharmacy is documented in the patient record. claiming an exemption from Article 2 of the Administrative 3. As part of the informed consent, the The practitioner and Process Act in accordance with § 2.2-4006 A 4 a of the Code the pharmacist shall provide written disclosure to the of Virginia, which excludes regulations that are necessary to patient of any contractual arrangement with any other party conform to changes in Virginia statutory law or the or any financial incentive that may impact one of the appropriation act where no agency discretion is involved. The party's decisions to participate in the agreement. Board of Pharmacy will receive, consider, and respond to VA.R. Doc. No. R21-6506; Filed October 5, 2020, 2:48 p.m. petitions by any interested person at any time with respect to reconsideration or revision.  ––––––––––––––––––  Title of Regulation: 18VAC110-40. Regulations Governing Collaborative Practice Agreements (amending TITLE 20. PUBLIC UTILITIES AND 18VAC110-40-20). TELECOMMUNICATIONS Statutory Authority: §§ 54.1-2400, 54.1-3300, and 54.1- 3300.1 of the Code of Virginia. STATE CORPORATION COMMISSION Effective Date: November 25, 2020. Proposed Regulation Agency Contact: Caroline Juran, RPh, Executive Director, REGISTRAR'S NOTICE: The State Corporation Board of Pharmacy, 9960 Mayland Drive, Suite 300, Commission is claiming an exemption from the Richmond, VA 23233-1463, telephone (804) 367-4456, FAX Administrative Process Act in accordance with § 2.2-4002 A (804) 527-4472, or email [email protected]. 2 of the Code of Virginia, which exempts courts, any agency of the Supreme Court, and any agency that by the Summary: Constitution is expressly granted any of the powers of a court Pursuant to Chapter 731 of the 2020 Acts of the Assembly, of record. the amendment provides that a patient must sign a Title of Regulation: 20VAC5-350. Rules Governing document to opt out of participation in a procedure using a Exemptions for Large General Service Customers (adding collaborative agreement rather than signing a document 20VAC5-350-10 through 20VAC5-350-50). consenting to the procedure. Statutory Authority: §§ 12.1-13 and 56-585.1 of the Code of 18VAC110-40-20. Signed authorization for an agreement. Virginia. A. The signatories to an agreement shall be a practitioner Public Hearing Information: A public hearing will be held involved directly in patient care and a pharmacist involved upon request. directly in patient care. Within the agreement, the pharmacist may designate alternate pharmacists, provided the alternates Public Comment Deadline: November 17, 2020. are involved directly in patient care at a single physical Agency Contact: Allison Samuel, Principal Utilities Analyst, location where patients receive services. Division of Public Utility Regulation, State Corporation B. An agreement shall only be implemented for an Commission, P.O. Box 1197, Richmond, VA 23218, individual patient pursuant to an order from the practitioner

Volume 37, Issue 5 Virginia Register of Regulations October 26, 2020 792 Regulations telephone (804) 225-3177, FAX (804) 371-9350, or email including means of evaluating measurement and verification, [email protected]. as well as confidentiality requirements. Each exempted LGS customer must certify to the utility and Commission that its Summary: implemented energy efficiency programs have delivered The proposed action implements certain provisions of measured and verified savings within the prior five years. Chapters 1193 and 1194 of the 2020 Acts of Assembly that The Statute further requires the rules concerning this amend § 56-585.1 A 5 c of the Code of Virginia and exemption to specify the timing as to when a utility must require the State Corporation Commission to establish accept and act on exemption notices, taking into rules under which eligible large general service customers consideration, among other things, the utility's integrated may be exempted from participation in energy efficiency resource planning process and its administration of energy programs. The proposed new regulation, Rules Governing efficiency programs that have been approved for cost Exemption for Large General Service Customers recovery by the Commission. Energy savings from LGS (20VAC5-350), defines the applicability and scope of the customers are required to be accounted for in utility reporting exemption and provides for notice requirements, dispute in accordance with Code § 56-596.2. The Statute mandates resolution, waiver, and enforcement. that a notice of nonparticipation by an LGS customer shall be AT RICHMOND, SEPTEMBER 30, 2020 for the duration of the service life of the customer's energy efficiency measures and provides for Commission COMMONWEALTH OF VIRGINIA, ex rel. verification of such nonparticipant's energy efficiency STATE CORPORATION COMMISSION achievements if the Commission has evidence of the CASE NO. PUR-2020-00172 nonparticipant's having knowingly misrepresented such savings. Ex Parte: In the matter of adopting new rules of the State Corporation Commission NOW THE COMMISSION, upon consideration of the governing exemptions for large general foregoing, is of the opinion and finds that a proceeding services customers under § 56-585-1 A 5 c should be established to promulgate rules governing LGS of the Code of Virginia customer exemptions from utility Rate Adjustment Clause charges for energy efficiency. To initiate this proceeding, the ORDER FOR NOTICE AND COMMENT Commission's Staff ("Staff") has prepared proposed rules During its 2020 Session, the Virginia General Assembly which are appended to this Order ("Proposed Rules"). We enacted Chapters 1193 (HB 1526) and 1194 (SB 851) of the will direct that notice of the Proposed Rules be given to the 2020 Virginia Acts of Assembly. These duplicate Acts of public and that interested persons be provided an opportunity Assembly, known as the Virginia Clean Economy Act to file written comments on, propose modifications or ("VCEA"), became effective on July 1, 2020. The VCEA, supplements to, or request a hearing on the Proposed Rules. inter alia, amended § 56-585.1 A 5 c of the Code of Virginia We further find that a copy of the Proposed Rules should be ("Statute") to require the State Corporation Commission sent to the Registrar of Regulations for publication in the ("Commission") to establish rules by which large general Virginia Register of Regulations. services customers may be exempted from participation in The Commission further takes judicial notice of the ongoing energy efficiency programs. The Statute directs that the new public health emergency related to the spread of the rules are to be effective by June 30, 2021. coronavirus, or COVID-19, and the declarations of Under the Statute, a large general service customer ("LGS emergency issued at both the state and federal levels.1 The customer") is defined as a customer that has a "verifiable Commission has taken certain actions, and may take history" of having used more than one megawatt of demand additional actions going forward, which could impact the from a single site. Further, an LGS customer is exempt from procedures in this proceeding.2 Consistent with these actions, participating in energy efficiency programs if the in regard to the terms of the procedural framework Commission finds that the LGS customer has, at the established below, the Commission will, among other things, customer's own expense, implemented energy efficiency direct the electronic filing of comments. programs that have or will produce measured and verified Accordingly, IT IS ORDERED THAT: results. (1) This matter is docketed as Case No. PUR-2020-00172. The Statute requires the Commission to adopt rules (a) establishing the process for large general service customers to (2) All filings in this matter shall be submitted electronically apply for such an exemption, (b) establishing the to the extent authorized by Rule 5 VAC 5-20-150, Copies and administrative procedures by which eligible customers will Format, of the Commission's Rules of Practice and Procedure notify the utility, and (c) defining the standard criteria that ("Rules of Practice").3 For the duration of the COVID-19 must be satisfied by an applicant in order to notify the utility, emergency, any person seeking to hand deliver and physically

Volume 37, Issue 5 Virginia Register of Regulations October 26, 2020 793 Regulations file or submit any pleading or other document shall contact comments, proposals, or requests for hearing submitted to the the Clerk's Office Document Control Center at (804) 371- Commission on the Proposed Rules. 9838 to arrange the delivery.4 (10) This matter is continued. (3) The Commission's Division of Information Resources A COPY hereof shall be sent electronically by the Clerk of shall forward a copy of this Order for Notice and Comment the Commission to all persons on the official Service List in ("Order"), including a copy of the Proposed Rules, to the this matter. The Service List is available from the Clerk of the Registrar of Regulations for publication in the Virginia Commission. A copy hereof also shall be sent to the Register of Regulations. Commission's Office of General Counsel and Divisions of (4) Within five (5) business days of the date of this Order, Public Utility Regulation and Utility Accounting and Finance. Staff shall transmit electronically copies of this Order to those ______persons and entities identified by Staff as potentially having an interest in this matter. 1See, e.g., Executive Order No. 51, Declaration of a State of Emergency Due to Novel Coronavirus, COVID-19, issued (5) Within ten (10) business days of the date of this Order, March 12, 2020, by Gov. Ralph S. Northam. See also Virginia Electric and Power Company and Appalachian Executive Order No. 53, Temporary Restrictions on Power Company shall transmit, to each of their Large General Restaurants, Recreational, Entertainment, Gatherings, Non- Service customers, by separate first class mailing, by Essential Retail Businesses, and Closure of K-12 Schools electronic mail, or by bill insert, the notice in the Attachment Due to Novel Coronavirus (COVID-19), issued March 23, to this Order. 2020, by Governor Ralph S. Northam, and Executive Order (6) Within thirty (30) days of the date of this Order, Virginia No. 55, Temporary Stay at Home Order Due to Novel Electric and Power Company and Appalachian Power Coronavirus (COVID-19), issued March 30, 2020, by Company shall file an affidavit of compliance with the Governor Ralph S. Northam. These and subsequent Executive requirement of Ordering Paragraph (5) with the Clerk, State Orders related to COVID-19 may be found at: Corporation Commission, c/o Document Control Center, P.O. https://www.governor.virginia.gov/executive-actions/. Box 2118, Richmond, Virginia 23218-2118, or by filing 2See, e.g., Commonwealth of Virginia, ex rel. State electronically at scc.virginia.gov/clk/efiling/. The affidavit Corporation Commission, Ex Parte: Electronic Service of shall not include the names or other identifying information Commission Orders, Case No. CLK-2020-00004, Doc. Con. of the notified customers, but each utility shall maintain a Cen. No. 200330035, Order Concerning Electronic Service of record of such information. Commission Orders (Mar. 19, 2020), extended by Doc. Con. (7) An electronic copy of these rules may be obtained by Cen. No. 200520105, Order Regarding the State Corporation submitting a request to Allison Samuel in the Commission's Commission’s Revised Operating Procedures During Division of Public Utility Regulation at the following e-mail COVID-19 Emergency (May 11, 2020); Commonwealth of address: [email protected]. An electronic Virginia, ex rel., State Corporation Commission, Ex Parte: copy of the Proposed Rules can also be found at the Division Revised Operating Procedures During COVID-19 of Public Utility Regulation's website: Emergency, Case No. CLK-2020-00005, Doc. Con. Cen. No. scc.virginia.gov/pages/Rulemaking. Additionally, interested 200330042, Order Regarding the State Corporation persons may download unofficial copies of the Order and the Commission's Revised Operating Procedures During COVID- Proposed Rules from the Commission's website: 19 Emergency (Mar. 19, 2020) ("Revised Operating scc.virginia.gov/pages/Case-Information. Procedures Order"), extended by Doc. Con. Cen. No. 200520105, Order Regarding the State Corporation (8) On or before November 17, 2020, any interested person Commission’s Revised Operating Procedures During may file comments on the Proposed Rules by following the COVID-19 Emergency (May 11, 2020); Commonwealth of instructions found on the Commission's website: Virginia, ex rel. State Corporation Commission, Ex Parte: scc.virginia.gov/casecomments/Submit-Public-Comments. Electronic service among parties during COVID-19 Such comments may also include proposed modifications and emergency, Case No. CLK-2020-00007, Doc. Con. Cen. No. hearing requests. All filings shall refer to Case No. PUR- 200410009, Order Requiring Electronic Service (Apr. 1, 2020-00172. Any request for hearing shall state with 2020). specificity why the issues raised in the request for hearing cannot be addressed adequately in written comments. If a 35 VAC 5-20-10 et seq. sufficient request for hearing is not received, the Commission 4As noted in the Revised Operating Procedures Order, may consider the matter and enter an order based upon the submissions to the Commission’s Clerk’s Office via U.S. papers filed herein. mail or commercial mail equivalents may not be processed (9) On or before December 17, 2020, the Staff may file with for an indefinite period of time due to the COVID-19 the Clerk of the Commission a report on or a response to any emergency.

Volume 37, Issue 5 Virginia Register of Regulations October 26, 2020 794 Regulations

CHAPTER 350 beginning with the billing month following the date of RULES GOVERNING EXEMPTIONS FOR LARGE acceptance of the exemption request and continuing GENERAL SERVICE CUSTOMERS throughout the life of the customer's energy efficiency improvements described in the customer's notice of 20VAC5-350-10. Applicability and scope. nonparticipation. A customer shall notify the utility and the This chapter is promulgated pursuant to the provisions of commission if the conditions of the customer's notice of § 56-585.1 A 5 c of the Virginia Electric Utility Regulation nonparticipation change in any material respect. Act, Chapter 23 (§ 56-576 et seq.) of Title 56 of the Code of D. Each notice of nonparticipation that contains confidential Virginia. This chapter is specifically applicable to the large information shall be treated in accordance with 5VAC5-20- general service customers of Virginia's electric utilities 170 of State Corporation Commission Rules of Practice and subject to the provisions of § 56-585.1 A 5 c that have Procedure (5VAC5-20). verifiable histories of using more than one megawatt of demand from a single site. As used in this chapter, a customer 20VAC5-350-30. Standard criteria for notice to utility. comprises all of the individual electric utility accounts owned A. Each notice of nonparticipation shall identify the by a single entity, located on a single site, and that are customer, the customer's billing address and utility account engaged in the same business. This chapter is also applicable number, and the location of the specific facility and metering to customers with highest measured demands from a single point for which any such exemption is being sought. site of more than one megawatt in any single month if such customers do not have three calendar years of history. A B. The notice of nonparticipation shall also contain an customer is eligible for an exemption from any rate affidavit signed by the customer's president, corporate adjustment clause approved for a utility by the State secretary, or other officer of the customer concerning each Corporation Commission pursuant to § 56-585.1 A 5 c, if any energy efficiency program. Such affidavit shall attest to the customer can demonstrate that it has implemented an energy validity of information submitted in support of the customer's efficiency program, at the customer's expense, that has notice of nonparticipation. produced measured and verified results within the prior five C. The notice of nonparticipation shall describe the energy years. efficiency savings achieved in the prior five years from its 20VAC5-350-20. Administrative procedures for notice to investment in its energy efficiency program and the specific utility and commission. measures undertaken to achieve those savings. A. Any customer seeking to establish its exemption from a D. The notice of nonparticipation shall include information rate adjustment clause authorized by the commission pursuant concerning any anticipated change in operations that may to § 56-585.1 A 5 c of the Code of Virginia shall provide a affect achieved or expected energy efficiency savings, notice of nonparticipation concerning the rate adjustment including the life expectancy of the energy efficiency clause to its utility on or before March 1 of the year in which measures undertaken. an exemption is sought. The notice of nonparticipation shall be concurrently filed by the customer with the commission's E. To qualify for the exemption, each customer shall have measurable and verifiable energy efficiency savings in the Division of Public Utility Regulation. prior five years consistent with § 56-585.1 A 5 c of the Code B. Upon receipt of the notice of nonparticipation, a utility of Virginia. Additionally, each customer providing a notice of shall, within 60 days thereof, verify the customer's highest nonparticipation to its utility pursuant to this chapter shall measured demand in the three prior calendar years preceding subsequently furnish yearly reports to the commission's the receipt of such notice. The utility shall accept the Division of Public Utility Regulation describing the energy exemption request if the customer has a highest measured efficiency savings achieved by the customer during each 12- usage in excess of one megawatt and has submitted the month period in which such notice of nonparticipation is in information required by 20VAC5-350-30. In the event the effect. Such reports shall be filed on or about March 1 of the utility fails to notify the customer of any deficiency in its year following such customer's filing of its notice of notice of nonparticipation within the 60-day period, the nonparticipation, with such March 1 filings continuing exemption shall be deemed accepted by the utility. The thereafter throughout the life of the customer's energy utility's acceptance or denial of any exemption request shall efficiency improvements described in the customer's notice of concurrently be sent to the customer and filed by the utility nonparticipation. with the commission's Division of Public Utility Regulation. F. Each notice of nonparticipation shall also include a C. Once a utility has accepted a customer's exemption measurement and verification plan conforming to the protocol request, that customer shall be exempt from any rate set forth in the definition of "measured and verified" as adjustment clause approved for the utility by the commission provided in § 56-576 of the Code of Virginia. pursuant to § 56-585.1 A 5 c of the Code of Virginia,

Volume 37, Issue 5 Virginia Register of Regulations October 26, 2020 795 Regulations

G. Not later than December 31 of each year, each utility shall notify its customers of the percentage energy efficiency reductions expected to be achieved by the utility's energy efficiency programs for which the commission has approved rate adjustment clauses pursuant to § 56-585.1 A 5 c of the Code of Virginia. 20VAC5-350-40. Dispute resolution. A. Customers and utilities shall seek to resolve all disputes arising out of the exemption process established under this chapter pursuant to the provisions of this section. B. In the event of any such dispute, either party shall furnish the other a written notice of dispute. The notice shall describe in detail the nature of the dispute. The parties shall make good faith efforts to resolve the dispute informally within 10 business days of the receipt of such notice. C. If any such dispute has not been resolved within 10 business days following receipt of the notice, either party may seek resolution assistance from the commission's Division of Public Utility Regulation where such matter will be treated as an informal complaint under State Corporation Commission Rules of Practice and Procedure (5VAC5-20). Alternatively, the parties may, upon mutual agreement, seek resolution through the assistance of a dispute resolution service for the purpose of assisting the parties in (i) resolving the dispute or (ii) selecting an appropriate dispute resolution method or mechanism (e.g., mediation, settlement judge, early neutral evaluation, or technical expert) to assist the parties in resolving their dispute. In any such dispute resolution proceeding, each party shall conduct all negotiations in good faith and shall be responsible for one half of any charges for the dispute resolution provider, but each party shall bear its own legal fees and other costs incurred as a result of the dispute resolution process. D. If any such dispute remains unresolved following the parties' good faith exercise of the dispute resolution alternatives set forth in this section, either party may file a formal complaint with the commission pursuant to State Corporation Commission Rules of Practice and Procedure (5VAC5-20). 20VAC5-350-50. Waiver and enforcement. A. The commission may waive any or all parts of this chapter for good cause shown. B. The commission on its own motion may initiate steps necessary to verify a nonparticipating customer's achievement of energy efficiency if the commission has a body of evidence that the nonparticipating customer has knowingly misrepresented its energy efficiency achievement. Such proceedings shall be governed by State Corporation Commission Rules of Practice and Procedure (5VAC5-20). VA.R. Doc. No. R21-6100; Filed September 30, 2020, 4:11 p.m.

Volume 37, Issue 5 Virginia Register of Regulations October 26, 2020 796 GUIDANCE DOCUMENTS

GUIDANCE DOCUMENTS PUBLIC COMMENT OPPORTUNITY Pursuant to § 2.2-4002.1 of the Code of Virginia, a certified guidance document is subject to a 30-day public comment period after publication in the Virginia Register of Regulations and prior to the guidance document's effective date. During the public comment period, comments may be made through the Virginia Regulatory Town Hall website (http://www.townhall.virginia.gov) or sent to the agency contact. Under subsection C of § 2.2-4002.1, the effective date of the guidance document may be delayed for an additional period. The guidance document may also be withdrawn. The following guidance documents have been submitted for publication by the listed agencies for a public comment period. Online users of this issue of the Virginia Register of Regulations may click on the name of a guidance document to access it. Guidance documents are also available on the Virginia Regulatory Town Hall (http://www.townhall.virginia.gov) or from the agency contact or may be viewed at the Office of the Registrar of Regulations, 900 East Main Street, Richmond, Virginia 23219.

DEPARTMENT FOR AGING AND REHABILITATIVE STATE BOARD OF HEALTH SERVICES Title of Document: Enforcement Manual. Title of Document: State Plan for Independent Living (SPIL). Public Comment Deadline: November 25, 2020. Public Comment Deadline: November 25, 2020. Effective Date: November 26, 2020. Effective Date: November 26, 2020. Agency Contact: Jennifer Coleman, Director, Compliance Agency Contact: Charlotte Arbogast, Senior Policy Advisor, and Enforcement, Office of Drinking Water, Department of Department for Aging and Rehabilitative Services, 8004 Health, 109 Governor Street, Richmond, VA 23219, Franklin Farms Drive, Richmond, VA 23229, telephone (804) telephone (804) 864-7498, or email 662-7093, or email [email protected]. [email protected].

STATE AIR POLLUTION CONTROL BOARD * * * DEPARTMENT OF ENVIRONMENTAL QUALITY Title of Document: Guidance for Outdoor Cooking VIRGINIA WASTE MANAGEMENT BOARD Operations at Permanent Food Establishments. STATE WATER CONTROL BOARD Public Comment Deadline: November 25, 2020. Title of Document: Civil Enforcement Manual, Chapter 4. Effective Date: November 26, 2020. Public Comment Deadline: November 25, 2020. Agency Contact: Kristin Marie Clay, Senior Policy Analyst, Effective Date: December 1, 2020. Office of Environmental Health Services, Department of Agency Contact: Kristen Sadtler, Department of Health, 109 Governor Street, 5th Floor, Richmond, VA Environmental Quality, P.O. Box 1105, Richmond, VA 23219, telephone (804) 864-7474, or email 23218, telephone (804) 698-4149, or email [email protected]. [email protected]. * * * * * * Title of Document: Project Review & Permit Procedures Title of Document: Manual for Processing Information Manual. Requests Pursuant to the Virginia Freedom of Information Public Comment Deadline: November 25, 2020. Act. Effective Date: November 26, 2020. Public Comment Deadline: November 25, 2020. Agency Contact: Aaron Moses, Professional Engineer, Field Effective Date: December 1, 2020. Services Engineer, Office of Drinking Water, Department of Agency Contact: Natalie Driver Womack, Freedom of Health, 109 Governor Street, Richmond, VA 23219, Information Officer, Department of Environmental Quality, telephone (804) 864-7492, or email P.O. Box 1105, Richmond, VA 23218, telephone (804) 698- [email protected]. 4085, or email [email protected].

Volume 37, Issue 5 Virginia Register of Regulations October 26, 2020 797 GENERAL NOTICES/ERRATA

GENERAL NOTICES/ERRATA DEPARTMENT OF ENVIRONMENTAL QUALITY Proposed Enforcement Action for Mojax LLC Stratford Solar Center LLC New Notice of Intent for An enforcement action has been proposed for Mojax LLC for Small Renewable Energy Project (Solar) - violations of the State Water Control Law at the Middleburg City of Suffolk Preserve I and II development sites located in Loudoun County, Virginia. A description of the proposed action is Stratford Solar Center LLC, under new ownership, has available at the Department of Environmental Quality office provided the Department of Environmental Quality a new listed or online at notice of intent to submit the necessary documentation for a http://www.deq.virginia.gov/Programs/Enforcement/PublicN permit by rule for a renewable energy project (solar) in the otices. Jim Datko will accept comments by email at City of Suffolk. The project is to be located on approximately [email protected] or postal mail at Department 150 acres adjacent to White Marsh Road. The project will of Environmental Quality, Northern Regional Office, 13901 have a maximum capacity of 15 megawatts alternating Crown Court, Woodbridge, VA 22193, from October 31, current and, depending on final design, consist of 2020, through November 30, 2020. approximately 50,000 solar photovoltaic modules installed on single-axis tracking racking structures and inverters installed Proposed Consent Order for the Board of Trustees, on approximately five separate concrete pads. The original Oak Grove Mennonite Church notice of intent for Reg. No 0000153, published on March 16, An enforcement action has been proposed for the Board of 2020, has been withdrawn. It is replaced by this notice. Trustees, Oak Grove Mennonite Church for violations of the Contact Information: Mary E. Major, Department of State Water Control Law and regulations associated with the Environmental Quality, 1111 East Main Street, Suite 1400, Mountain View Nursing Home sewage treatment plant P.O. Box 1105, Richmond, VA 23218, telephone (804) 698- located at 1776 Elly Road, Aroda, Virginia. The State Water 4423, or email [email protected]. Control Board proposes to issue a consent order to resolve violations associated with the Mountain View Nursing Home BOARD OF PHARMACY sewage treatment plant. A description of the proposed action is available at the Department of Environmental Quality Request for Application for Pharmaceutical office listed or online at www.deq.virginia.gov. Stephanie Processor Bellotti will accept comments by email at A Request for Application for approval of a permit to operate [email protected] or postal mail at a pharmaceutical processor in Health Service Area I is filed. Department of Environmental Quality, Northern Regional Office, 13901 Crown Court, Woodbridge, VA 22193, from The link is provided here: October 27, 2020, through November 26, 2020. https://www.dhp.virginia.gov/Pharmacy/PharmaceuticalProce ssing/docs/RFA_PharmaceuticalProcessors2020.pdf. Proposed Consent Order for RREF II- TFC Wynwood LLC Contact Information: Annette Kelley, Deputy Executive Director, Board of Pharmacy, 9960 Mayland Drive, Suite The State Water Control Board has proposed an enforcement 300, Richmond, VA 23233, telephone (804) 367-4456, FAX action for RREF II-TFC Wynwood LLC for violations at (804) 527-4472, or email [email protected]. Wynwood Subdivision located on Woolridge Road, one half miles east of its intersect with Otterdale Road in Chesterfield STATE WATER CONTROL BOARD County, Virginia. The board proposes to issue a consent order to address noncompliance with State Water Control Law and Proposed Consent Special Order for Mid Atlantic regulations. A description of the proposed action is available Steel Erectors Inc. at the Department of Environmental Quality office listed or The State Water Control Board proposes to issue a consent online at www.deq.virginia.gov. Frank Lupini will accept special order to Mid Atlantic Steel Erectors Inc. for alleged comments by email at [email protected] or violation of the State Water Control Law at 12321, 12401, postal mail at Department of Environmental Quality, 12405, 12407, 12413, and 12419 Genito Road, Chesterfield Piedmont Regional Office, 4949A Cox Road, Glen Allen, VA County, Virginia 23112. A description of the proposed action 23060, from October 26, 2020, to November 26, 2020. is available at the Department of Environmental Quality Proposed Enforcement Action for office listed or online at www.deq.virginia.gov. Aree SDC XIII Sudley LLC Reinhardt will accept comments by email at [email protected] or postal mail at Department An enforcement action has been proposed for SDC XIII of Environmental Quality, Piedmont Regional Office Sudley LLC for violations of the State Water Control Law at (Enforcement), 4949-A Cox Road, Glen Allen, VA 23060, the Brookfield Braemar Commercial Development located in from October 26, 2020, to November 27, 2020. Bristow, Virginia. A description of the proposed action is

Volume 37, Issue 5 Virginia Register of Regulations October 26, 2020 798 General Notices/Errata available at the Department of Environmental Quality office M.A. Mortenson Co. and Hensel Phelps Construction Co. for listed or online at alleged violation of the State Water Control Law at the http://www.deq.virginia.gov/Programs/Enforcement/PublicN Foreign Affairs Security Training Center located at Fort otices. Jim Datko will accept comments by email at Pickett in Nottoway County, Virginia. A description of the [email protected] or postal mail at Department proposed action is available at the Department of of Environmental Quality, Northern Regional Office, 13901 Environmental Quality office listed or online at Crown Court, Woodbridge, VA 22193, from October 27, www.deq.virginia.gov. Jeff Reynolds will accept comments 2020, through November 26, 2020. by email at [email protected], FAX at (804) 527-5106, or postal mail at Department of Proposed Consent Order for Sturgess Real Estate Environmental Quality, Piedmont Regional Office Holdings LLC (Enforcement), 4949-A Cox Road, Glen Allen, VA 23060, An enforcement action has been proposed for Sturgess Real until November 26, 2020. Estate Holdings LLC for violations of the State Water Total Maximum Daily Load Implementation Plan for Control Law and regulations at the King George Citgo Flat Branch, Indian Run, lower Hazel River, Jonas facility located in King George, Virginia. The State Water Run, Mountain Run, Mountain Run Reservoir, Control Board proposes to issue a consent order to resolve Muddy Run, unnamed tributary to Jonas Run, and violations associated with the King George Citgo facility. A Waterford Run in Culpeper County, Virginia description of the proposed action is available at the Department of Environmental Quality office listed or online The Department of Environmental Quality (DEQ) seeks at www.deq.virginia.gov. Benjamin Holland will accept written and oral comments from interested persons on the comments by email at [email protected] or development of a total maximum daily load (TMDL) by postal mail at Department of Environmental Quality, implementation plan (IP) for the following streams located in Northern Regional Office, 13901 Crown Court, Woodbridge, Culpeper County, Virginia: Flat Branch, Indian Run, the VA 22193, from October 27, 2020, through November 26, (lower) Hazel River, Jonas Run, Mountain Run, Mountain 2020. Run Reservoir, Muddy Run, an Unnamed Tributary to Jonas Run, and Waterford Run. The IP will address the following Proposed Consent Special Order for U.S. General stream segments that are listed on the § 303(d) TMDL Services Administration, Priority List and Report as impaired due to violations of the M.A. Mortenson Co. and Hensel Phelps state's water quality standards for bacteria or the General Construction Co. Standard (Benthics). The State Water Control Board proposes to issue a consent special order to the U.S. General Services Administration, Impairment Water Quality Stream Name Location Length (miles) Standard(s) From the confluence with Indian Run downstream to Muddy Bacteria Hazel River 3.36 miles Run. From confluence with an unnamed tributary to Indian Run, Bacteria Indian Run 3.84 miles upstream from Route 626, downstream to the Hazel River. From the headwaters of Waterford Run downstream to the Hazel Bacteria Waterford Run 6.23 miles River. From the confluence with an unnamed tributary to Muddy Run, Bacteria Muddy Run 6.09 miles 0.2 miles upstream of Route 229, downstream to the Hazel River. From the headwaters of Muddy Run downstream to an unnamed Bacteria Muddy Run 8.25 miles tributary to Muddy Run, 0.2 miles upstream of Route 229. From the confluence with Flat Run downstream to the confluence 7.58 miles Bacteria and Mountain Run with the Rappahannock River. Benthics From the confluence with Jonas Run downstream to the 5.67 miles Benthics Mountain Run confluence with Flat Run. From the Route 15/29 bridge crossing downstream to until the 6.65 miles Bacteria and Mountain Run confluence with Jonas Run. Benthics

Volume 37, Issue 5 Virginia Register of Regulations October 26, 2020 799 General Notices/Errata

From the outlet of Lake Pelham downstream to the Route 15/29 4.63 miles Bacteria and Mountain Run bridge crossing. Benthics From the confluence with an unnamed tributary that drains 1.63 miles Bacteria Mountain Run Caymore Lake downstream to Lake Pelham.

Mountain Run All of Mountain Run Reservoir. 72.75 acres Bacteria Reservoir From the confluence with an unnamed tributary to Jonas Run, at 3.78 miles Bacteria and Jonas Run rivermile 3.74, downstream to the confluence with Mountain Benthics Run. Unnamed trib From the confluence with an unnamed tributary below Swan 0.53 miles Bacteria and to Jonas Run Dam downstream to the confluence with Jonas Run. Benthics From the headwaters of Flat Run downstream to the confluence 6.23 miles Bacteria Flat Run with Mountain Run. Section 303(d) of the Clean Water Act and § 62.1-44.19:7 C The public comment period will begins October 29, 2020, of the State Water Control Law require DEQ to develop and ends November 30, 2020. TMDLs for pollutants responsible for each impaired water An advisory committee to assist in development of this IP contained in Virginia's § 303(d) TMDL Priority List and will be established. The first virtual meeting of this Report, and Virginia state law requires implementation plans committee will be held from 10 a.m. to noon on Thursday, for areas with TMDLs. October 29, 2020. Logistical information and more details for Given the existing State of Emergency related to the COVID- this meeting are available in a separate public notice posted 19 pandemic, this meeting will be held entirely virtually. A on the Virginia Regulatory Town Hall, and can also be computer or a telephone are necessary to participate virtually. requested directly from the DEQ contact person listed. All meeting attendees are encouraged to access the meeting Persons interested to participate in the advisory committee using a computer to view the meeting visuals. Attendees may should notify the DEQ contact person by the end of the also use a phone for audio and a computer for visual to avoid comment period and provide name, address, phone number, possible interruptions in computer audio. Although the use of email address and the organization being represented (if any). a phone for audio only participation is possible, since the Notification of the final composition of the panel will be sent meeting will rely on visuals, audio only participation is to all applicants. discouraged. The URL to register for the virtual meeting is Information on the development of the IP for the impairments provided at the end of this notice. Once registered for the is available upon request. Questions or information requests meeting, registrants will receive an email with the URL and should be addressed to the DEQ contact person listed. Please telephone information to participate in the meeting. If note, all written comments should include the name, address, meeting attendees experience any interruption in the meeting and telephone number of the person submitting the comments broadcast, they should call the technical support line that is and should be sent to the DEQ contact person: also provided at the end of this notice. Contact Information: David Evans, Department of The first public meeting on the development of the Environmental Quality, Northern Regional Office, 13901 implementation plan to address the bacteria and General Crown Court, Woodbridge, VA 22193, telephone (703) 583- Standard (Benthics) for these segments will be held: 3835, or email [email protected]. Thursday, October 28, 2020, from 6:30 p.m. until 8 p.m. To register for this virtual meeting and to receive access VIRGINIA CODE COMMISSION information, sign up at https://attendee.gotowebinar.com/register /6960099229001942544. Notice to State Agencies For technical assistance during the meeting call (703) 583- Contact Information: Mailing Address: Virginia Code Commission, Pocahontas Building, 900 East Main Street, 8th 3906. Floor, Richmond, VA 23219; Telephone: (804) 698-1810; In the event that the Governor's State of Emergency is lifted, Email: [email protected]. the meeting will be held on the same date and time at Section 2.2-3707 C of the Code of Virginia Department of Environmental Quality, Northern Regional Meeting Notices: Office, 13901 Crown Court, Woodbridge, VA 22193. requires state agencies to post meeting notices on their

Volume 37, Issue 5 Virginia Register of Regulations October 26, 2020 800 General Notices/Errata websites and on the Commonwealth Calendar at https://commonwealthcalendar.virginia.gov. Cumulative Table of Virginia Administrative Code Sections Adopted, Amended, or Repealed: A table listing regulation sections that have been amended, added, or repealed in the Virginia Register of Regulations since the regulations were originally published or last supplemented in the print version of the Virginia Administrative Code is available at http://register.dls.virginia.gov/documents/cumultab.pdf. Filing Material for Publication in the Virginia Register of Regulations: Agencies use the Regulation Information System (RIS) to file regulations and related items for publication in the Virginia Register of Regulations. The Registrar's office works closely with the Department of Planning and Budget (DPB) to coordinate the system with the Virginia Regulatory Town Hall. RIS and Town Hall complement and enhance one another by sharing pertinent regulatory information.

ERRATA

STATE CORPORATION COMMISSION Title of General Notice: Bureau of Insurance Administrative Letter 2020-07. Publication: 37:3 VA.R. 519-522 September 28, 2020. Correction to Administrative Letter: Page 521, column two, first bullet, subdivision 2, after "pathogenic" insert "or poisonous biological or chemical materials;"

Volume 37, Issue 5 Virginia Register of Regulations October 26, 2020 801 General Notices/Errata

Volume 37, Issue 5 Virginia Register of Regulations October 26, 2020 802