Section 70. Compensation

A. Compensatory mitigation may be required for permanent, nontidal surface water impacts as specified in 9VAC25-670-50 A. All temporary, nontidal surface water impacts shall be restored to preexisting conditions in accordance with 9VAC25-670-100.

B. Compensatory mitigation and any compensatory mitigation proposals shall be in accordance with this section and 9VAC25-210-116.

C. When required, compensatory mitigation for unavoidable permanent wetland impacts shall be provided at the following minimum mitigation ratios:

1. Impacts to forested wetlands shall be mitigated at 2:1, as calculated on an area basis.

2. Impacts to scrub-shrub wetlands shall be mitigated at 1.5:1, as calculated on an area basis.

3. Impacts to emergent wetlands shall be mitigated at 1:1, as calculated on an area basis.

D. When required, compensatory mitigation for stream bed impacts shall be appropriate to replace lost functions and water quality benefits. One factor in determining the required stream compensation shall be an analysis of stream impacts utilizing a stream impact assessment methodology acceptable to the Department of Environmental Quality.

E. Compensation for permanent open water impacts, other than to streams, may be required at an in-kind or out-of-kind mitigation ratio of 1:1 or less, as calculated on an area basis, to offset impacts to state waters and fish and wildlife resources. Compensation shall not be required for permanent or temporary impacts to open waters identified as palustrine by the Cowardin classification method, but compensation may be required when such open waters are located in areas of karst topography in Virginia and are formed by the natural solution of limestone.

F. When conversion results in a permanent alteration of the functions of a wetland, compensatory mitigation for conversion impacts to wetlands shall be required at a 1:1 mitigation ratio, as calculated on an area basis. For example, the permanent conversion of a forested wetland to an emergent wetland is considered to be a permanent impact for the purposes of this chapter. Compensation for conversion of other types of surface waters may be required, as appropriate, to offset impacts to state waters and fish and wildlife resources.

Historical Notes

Derived from Volume 17, Issue 22, eff. October 1, 2001; amended, Virginia Register Volume 21, Issue 08, eff. January 26, 2005; Volume 22, Issue 21, eff. August 1, 2006; Volume 24, Issue 09, eff. February 6, 2008; Volume 32, Issue 21, eff. August 2, 2016.

Statutory Authority

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