CHAPTER 253
An Act to amend and reenact §§ 28.2-1308, 33.1-223.2:1, and
62.1-44.15:23 of the Code of Virginia, relating to the clarification of
references used in designating the location of wetlands mitigation banks.
[H 2126]
Approved March 18, 2011
Be it enacted by the General Assembly of Virginia:
1. That §§ 28.2-1308, 33.1-223.2:1, and 62.1-44.15:23 of the
Code of Virginia are amended and reenacted as follows:
§ 28.2-1308. Standards for use and development of wetlands;
utilization of guidelines.
A. The following standards shall apply to the use and
development of wetlands and shall be considered in the determination of whether
any permit required by this chapter should be granted or denied:
1. Wetlands of primary ecological significance shall not be
altered so that the ecological systems in the wetlands are unreasonably
disturbed; and
2. Development in Tidewater Virginia, to the maximum extent
practical, shall be concentrated in wetlands of lesser ecological significance,
in vegetated wetlands which have been irreversibly disturbed before July 1,
1972, in nonvegetated wetlands which have been irreversibly disturbed prior to
January 1, 1983, and in areas of Tidewater Virginia outside of wetlands.
B. The provisions of guidelines promulgated by the Commission
pursuant to § 28.2-1301 shall be considered in applying the standards listed in
subsection A of this section.
C. When any activity authorized by a permit issued pursuant to
this chapter is conditioned upon compensatory mitigation for adverse impacts to
wetlands, the applicant may be permitted to satisfy all or part of such
mitigation requirements by the purchase or use of credits from any wetlands
mitigation bank, including any banks owned by the permit applicant, that has
been approved and is operating in accordance with applicable federal and state
guidance, laws, or regulations for the establishment, use and operation of
mitigation banks as long as (1) the bank is in the same U.S.G.S. cataloging
unit fourth order subbasin, as defined by the Hydrologic Unit Map
of the United States (U.S.G.S. 1980) hydrologic unit boundaries of the
National Watershed Boundary Dataset, as the impacted site, or in an
adjacent cataloging unit subbasin within the same river
watershed, as the impacted site, or it meets all the conditions found in
clauses (i) through (iv) and either clause (v) or (vi) of this subsection; (2)
the bank is ecologically preferable to practicable on-site and off-site
individual mitigation options, as defined by federal wetland regulations; and
(3) the banking instrument, if approved after July 1, 1996, has been approved
by a process that included public review and comment. When the bank is not
located in the same cataloging unit subbasin or adjacent cataloging
unit subbasin within the same river watershed as the impacted site,
the purchase or use of credits shall not be allowed unless the applicant
demonstrates to the satisfaction of the Commission that (i) the impacts will
occur as a result of a Virginia Department of Transportation linear project or
as the result of a locality project for a locality whose jurisdiction crosses
encompasses multiple river watersheds; (ii) there is no practical same
river watershed mitigation alternative; (iii) the impacts are less than one acre
in a single and complete project within a cataloging unit subbasin;
(iv) there is no significant harm to water quality or fish and wildlife
resources within the river watershed of the impacted site; and either
(v) impacts within the Chesapeake Bay watershed are mitigated within the
Chesapeake Bay watershed as close as possible to the impacted site or (vi)
impacts within U.S.G.S. cataloging units subbasins 02080108,
02080208, and 03010205, as defined by the Hydrologic Unit Map of the United
States (U.S.G.S. 1980) National Watershed Boundary Dataset, are
mitigated in-kind within those hydrologic cataloging units, subbasins
as close as possible to the impacted site. After July 1, 2002, the provisions
of clause (vi) shall apply only to impacts within subdivisions of the listed cataloging
units subbasins where overlapping watersheds exist, as determined by
the Department of Environmental Quality, provided the Department has made such
a determination by that date.
For the purposes of this section, "river watershed"
means the Potomac River Basin, Shenandoah River Basin, James River Basin,
Rappahannock River Basin, Roanoke and Yadkin Rivers Basin, Chowan River Basin
(including the Dismal Swamp and Albemarle Sound), Tennessee River Basin, Big
Sandy River Basin, Chesapeake Bay and its Small Coastal Basins, Atlantic Ocean,
York River Basin, and the New River Basin.
§ 33.1-223.2:1. Wetlands mitigation banking.
When authorization is required by federal or state law for any
project affecting wetlands and such authorization is conditioned upon
compensatory mitigation for adverse impacts to wetlands, the Commonwealth
Transportation Commissioner is authorized to expend funds for the purchase of,
or is authorized to use, credits from any wetlands mitigation bank, including
any owned by the Department, that has been approved and is operating in
accordance with applicable federal and state guidance, laws or regulations for
the establishment, use and operation of mitigation banks as long as: (1) the
bank is in the same U.S.G.S. cataloging unit fourth order subbasin,
as defined by the Hydrologic Unit Map of the United States (U.S.G.S. 1980)
hydrologic unit boundaries of the National Watershed Boundary Dataset, as
the impacted site, or in an adjacent cataloging unit subbasin
within the same river watershed, as the impacted site, or it meets all the
conditions found in clauses (i) through (iv) and either clause (v) or (vi) of
this subsection section; (2) the bank is ecologically preferable
to practicable on-site and off-site individual mitigation options, as defined
by federal wetland regulations; and (3) the banking instrument, if approved
after July 1, 1996, has been approved by a process that included public review
and comment. When the bank is not located in the same cataloging unit subbasin
or adjacent cataloging unit subbasin within the same river
watershed as the impacted site, the purchase or use of credits shall not be
allowed unless the Commissioner demonstrates to the satisfaction of the agency
requiring compensatory mitigation that (i) the impacts will occur as a result
of a Virginia Department of Transportation linear project; (ii) there is no
practical same river watershed mitigation alternative; (iii) the impacts are
less than one acre in a single and complete project within a cataloging unit
subbasin; (iv) there is no significant harm to water quality or fish and
wildlife resources within the river watershed of the impacted site; and either
(v) impacts within the Chesapeake Bay watershed are mitigated within the
Chesapeake Bay watershed as close as possible to the impacted site or (vi)
impacts within U.S.G.S. cataloging units subbasins 02080108,
02080208, and 03010205, as defined by the Hydrologic Unit Map of the United
States (U.S.G.S. 1980) National Watershed Boundary Dataset, are
mitigated in-kind within those hydrologic cataloging units subbasins,
as close as possible to the impacted site. After July 1, 2002, the provisions
of clause (vi) shall apply only to impacts within subdivisions of the listed cataloging
units subbasins where overlapping watersheds exist, as determined by
the Department of Environmental Quality, provided the Department has made such
a determination by that date.
For the purposes of this section, "river
watershed" means the Potomac River Basin, Shenandoah River Basin, James
River Basin, Rappahannock River Basin, Roanoke and Yadkin Rivers Basin, Chowan
River Basin (including the Dismal Swamp and Albemarle Sound), Tennessee River
Basin, Big Sandy River Basin, Chesapeake Bay and its Small Coastal Basins,
Atlantic Ocean, York River Basin, and the New River Basin.
§ 62.1-44.15:23. Wetland and stream mitigation banks.
A. When a Virginia Water Protection Permit is conditioned upon
compensatory mitigation for adverse impacts to wetlands or streams, the applicant
may be permitted to satisfy all or part of such mitigation requirements by the
purchase or use of credits from any wetland or stream mitigation bank in the
Commonwealth, or in Maryland on property wholly surrounded by and located in
the Potomac River if the mitigation banking instrument provides that the Board
shall have the right to enter and inspect the property and that the mitigation
bank instrument and the contract for the purchase or use of such credits may be
enforced in the courts of the Commonwealth, including any banks owned by the
permit applicant, that has been approved and is operating in accordance with
applicable federal and state guidance, laws, or regulations for the
establishment, use, and operation of mitigation banks as long as: (1) the bank
is in the same U.S.G.S. cataloging unit fourth order subbasin, as
defined by the Hydrologic Unit Map of the United States (U.S.G.S. 1980) hydrologic
unit boundaries of the National Watershed Boundary Dataset, as the impacted
site, or in an adjacent cataloging unit subbasin within
the same river watershed as the impacted site, or it meets all the
conditions found in clauses (i) through (iv) and either clause (v) or (vi) of
this section subsection; (2) the bank is ecologically preferable
to practicable onsite and offsite individual mitigation options as defined by
federal wetland regulations; and (3) the banking instrument, if approved after
July 1, 1996, has been approved by a process that included public review and
comment. When the bank is not located in the same cataloging unit
subbasin or adjacent cataloging unit subbasin within the same
river watershed as the impacted site, the purchase or use of credits shall not
be allowed unless the applicant demonstrates to the satisfaction of the Department
of Environmental Quality that (i) the impacts will occur as a result of a
Virginia Department of Transportation linear project or as the result of a
locality project for a locality whose jurisdiction crosses encompasses
multiple river watersheds; (ii) there is no practical same river watershed
mitigation alternative; (iii) the impacts are less than one acre in a single
and complete project within a cataloging unit subbasin; (iv)
there is no significant harm to water quality or fish and wildlife resources
within the river watershed of the impacted site; and either (v) impacts within
the Chesapeake Bay watershed are mitigated within the Chesapeake Bay watershed
as close as possible to the impacted site or (vi) impacts within U.S.G.S.
cataloging units subbasins 02080108, 02080208, and 03010205, as
defined by the Hydrologic Unit Map of the United States (U.S.G.S. 1980)
National Watershed Boundary Dataset, are mitigated in-kind within those hydrologic
cataloging units subbasins, as close as possible to the impacted
site.
For the purposes of this section, "river
watershed" means the Potomac River Basin, Shenandoah River Basin, James
River Basin, Rappahannock River Basin, Roanoke and Yadkin Rivers Basin, Chowan
River Basin (including the Dismal Swamp and Albemarle Sound), Tennessee River
Basin, Big Sandy River Basin, Chesapeake Bay and its Small Coastal Basins,
Atlantic Ocean, York River Basin, and the New River Basin.
B. The Department of Environmental Quality is authorized to
serve as a signatory to agreements governing the operation of mitigation banks.
The Commonwealth, its officials, agencies, and employees shall not be liable
for any action taken under any agreement developed pursuant to such authority.
C. State agencies and localities are authorized to purchase
credits from mitigation banks.
D. A locality may establish, operate and sponsor wetland or
stream single-user mitigation banks within the Commonwealth that have been
approved and are operated in accordance with the requirements of subsection A,
provided that such single-user banks may only be considered for compensatory
mitigation for the sponsoring locality's municipal, joint municipal or
governmental projects. For the purposes of this subsection, the term
"sponsoring locality's municipal, joint municipal or governmental
projects" means projects for which the locality is the named permittee,
and for which there shall be no third-party leasing, sale, granting, transfer,
or use of the projects or credits. Localities may enter into agreements with private
third parties to facilitate the creation of privately sponsored wetland and
stream mitigation banks having service areas developed through the procedures
of subsection A.
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