Section 80. Notice of planned changes; modifications to coverage

A. The permittee shall notify the board in advance of a planned change, and an application or request for modification to coverage shall be reviewed according to all provisions of this chapter. Coverage shall not be modified if (i) the cumulative total of permanent and temporary impacts for a single and complete project exceeds two acres of nontidal wetlands or open water exceeds 1,500 linear feet of nontidal stream bed or (ii) the criteria in subsection B of this section are not met. The applicant may submit a new permit application for consideration under a VWP individual permit.

B. VWP general permit coverage may be modified under the following circumstances:

1. Additional impacts to surface waters are necessary, provided that:

a. The additional impacts are proposed prior to impacting the additional areas.

b. The proposed additional impacts are located within the project boundary as depicted in the application for coverage or are located in areas of directly-related off-site work, unless otherwise prohibited in this chapter.

c. The permittee has provided sufficient documentation that the board may reasonably determine that the additional impacts will not impact federal or state listed threatened or endangered species or designated critical habitat, or result in a taking of threatened or endangered species. The board recommends that the permittee verify that the project will not impact any proposed threatened or endangered species or proposed critical habitat.

d. The cumulative, additional permanent wetland or open water impacts for one or more notices of planned change do not exceed 0.25 acre.

e. The cumulative, additional permanent stream impacts for one or more notices of planned change do not exceed 100 linear feet.

f. Documentation is provided demonstrating that the proposed surface water impacts have been avoided to the maximum extent practicable in accordance with the informational requirements of 9VAC25-690-60 B 12.

g. Compensatory mitigation for the proposed impacts, if required, meets the requirements of 9VAC25-210-1169 and VAC25-690-70. Prior to a planned change approval, the Department of Environmental Quality may require submission of a compensatory mitigation plan for the additional impacts.

h. Where such additional impacts are temporary, and prior to initiating the impacts, the permittee provides a written statement to the board that the area to be temporarily impacted will be restored to its preconstruction elevations and contours with topsoil from the impact area where practicable, such that the previous acreage and functions are restored in accordance with Parts I A 3 and B 11 of 9VAC25-690-100. The additional temporary impacts shall not cause the cumulative total impacts to exceed the general permit threshold for use. The proposed temporary impacts shall be deemed approved if DEQ does not respond within 10 days of receipt of the request for authorization to temporarily impact additional surface waters.

i. The additional proposed impacts do not change the category of the project, based on the original impacts amounts as specified in 9VAC25-690-50 A 2. However, the applicant may submit a new permit application for the total impacts to be considered under this VWP general permit, another VWP general permit, or a VWP individual permit.

2. A reduction in wetland or stream impacts. Compensatory mitigation requirements may be modified in relation to the adjusted impacts, provided that the adjusted compensatory mitigation meets the initial compensatory mitigation goals. DEQ shall not be responsible for ensuring refunds for mitigation bank credit purchases or in-lieu fee program credit purchases.

3. A change in project plans or use that does not result in a change to authorized project impacts other than those allowed by subdivisions 1 and 2 of this subsection.

4. Substitute a specific, DEQ-approved mitigation bank or in-lieu fee program with another DEQ-approved mitigation bank or in-lieu fee program or substitute all or a portion of the prior authorized permittee-responsible compensation with a purchase of mitigation credits in accordance with 9VAC25-210-116 C from a DEQ-approved mitigation bank or in-lieu fee program. The amount of credits proposed to be purchased shall be sufficient to meet the compensatory mitigation requirement for which the compensatory mitigation is proposed to replace.

5. Correct typographical errors.

Historical Notes

Derived from Volume 17, Issue 21, 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.).