4 Va. Admin. Code § 20-395-40 - Conditions and procedures for issuing general permits
A. The commissioner or his designee, Chief,
Habitat Management Division, will oversee administration of the provisions of
the general permit.
B. To qualify
for this general permit the permittee must notify the commissioner or his
designee and provide the following information in such notification:
1. Name, address and telephone number of the
prospective permittee;
2. Location
of the proposed project, including vicinity map;
3. Brief description of the proposed project
or emergency repairs, including methods of work, and the project
purpose;
4. A plan view and cross
section view of the proposed project or emergency repairs, including
dimensions;
5. Location, and
design, if applicable, of the disposal area for any excavated material;
and
6. A description of the
location, extent, and type of wetlands and/or waters to be impacted by the
proposed work.
C. An
approved Local, State, Federal Joint Permit Application (Joint Permit
Application) may be used for this notification. Otherwise, an abbreviated
General Permit No. 6 Notification Form must be completed and filed in
accordance with the instructions contained therein. The notification for EWP
projects shall include the damage survey report for each project site prepared
by NRCS or the FS. Multiple sites in a county or city may be included in a
single notification from the project sponsor for EWP projects in response to an
emergency following a flood event or natural disaster. The notification shall
be submitted to the commission. The commission will assign a processing number
and forward copies to the U.S. Army Corps of Engineers and the Department of
Environmental Quality for concurrent review. Copies will also be forwarded to
the Department of Game and Inland Fisheries, the Department of Conservation and
Recreation, and the Department of Historic Resources.
D. If the proposed project does not satisfy
the conditions of this general permit, or should the commissioner determine
that the environmental impacts and the natural resource issues are estimated to
be more than minimal, the permittee will be notified and the proposed project
will be processed for an individual commission permit.
E. If the project qualifies for the general
permit, the commissioner will so notify the permittee within 30 days of receipt
of all necessary information. In addition, the commission's public notice
requirement shall be waived and no other fees shall be required.
F. The general permit will apply for any of
the following conditions:
1. The project is
part of the Emergency Watershed Protection (EWP) Program and has met the
conditions of the interagency Memorandum of Understanding (MOU) regarding EWP
Program activities in Virginia in effect at the time, the project qualifies
under the U.S. Army Corps of Engineers Nationwide Permit Program ( 33 CFR Part
230 ) or a Norfolk District Corps of Engineers Regional permit, and qualifies
for Department of Environmental Quality (DEQ) 401 Certification. Projects that
address exigency situations under the EWP Program may be initiated immediately
upon submittal of notification to the commission provided the damage survey
report prepared by NRCS, and included with such notification, specifies the
situation qualities as an exigency. Only those actions reasonably necessary to
address the exigency situation shall be conducted prior to receipt of
notification from the commissioner that the project qualifies for this general
permit.
2. The project is for an
activity conducted in response to a Declaration of Emergency by the Governor of
Virginia due to the effects of natural disasters that is necessary to address
immediate health and safety needs when such activity can be authorized by the
commission pursuant to an Executive Order issued in response to a natural
disaster.
3. The project is for
stream bank restoration, generally including bioengineered approaches and
livestock crossings or for waterway or stream restorations that meets the
following requirements:
a. The project has
been designed, funded, or implemented by one or more of the following agencies:
Natural Resources Conservation Service, Department of Conservation and
Recreation, Soil and Water Conservation District, Department of Game and Inland
Fisheries, Department of Forestry, U.S. Fish and Wildlife Service, or U.S.
Forest Service.
b. The project is
conducted in accordance with the terms and conditions of the binding agreement,
if applicable, between the landowner and the oversight agency indicated in
subdivision 3 a of this subsection with such agreement including provisions for
maintenance of the project; and
c.
The project qualifies under the U.S. Army Corps of Engineers Nationwide Permit
Program ( 33 CFR Part 230 ) or a Regional Permit authorized by the Norfolk
District of the U.S. Army Corps of Engineers, and qualifies for Department of
Environmental Quality (DEQ) 401 Certification.
4. The project is necessary to conduct public
utility emergency response activities related to existing public utility
infrastructures. Such projects may be initiated immediately upon submittal of
notification to the commission provided such notification contains a
certification from the owner/operator responsible for the utility
infrastructure that the integrity of the utility structure is in imminent
danger or risk of failure. Only those actions reasonably necessary to address
the imminent danger or risk of failure shall be conducted prior to receipt of
notification from the commissioner that the project qualifies for this general
permit.
5. The project is for the
replacement of a previously existing and previously serviceable structure or
facility located on state-owned submerged land that has been damaged or lost
due to a flood event or natural disaster.
G. Upon a determination that a proposed
project could significantly impact water quality, aquatic resources or other
properties, the commissioner may determine that this general permit does not
apply and require that an individual Marine Resources Commission permit be
processed.
H. This general permit
does not authorize any channelization; levee construction; or water withdrawal.
This general permit does not authorize any projects that will impede the
migration or other movements of aquatic life.
I. All proposals in nontidal waterways that
(i) are necessary in an emergency, (ii) will result in improved water quality,
(iii) are for waterway or stream restoration activities, or (iv) will
facilitate emergency response activities related to existing public utility
infrastructures that encroach in, on or over state-owned subaqueous land and
that meet the criteria in subdivisions F 1 through F 5 are hereby approved
subject to the following conditions:
1. This
permit grants no authority to the permittee to encroach upon property rights,
including riparian rights, of others.
2. The duly authorized agents of the
commission shall have the right to enter upon the premises at reasonable times,
for the purposes of inspecting the work being done pursuant to this
permit.
3. The permittee shall
comply with the water quality standards established by the Department of
Environmental Quality and all other applicable laws, ordinances, rules and
regulations affecting the conduct of this project. The granting of this permit
shall not relieve the permittee of the responsibility of obtaining any and all
other permits or authorizations required for this project.
4. The permit shall not affect or interfere
with the right vouchsafed to the people of Virginia concerning fishing, and
fowling in and from the waters not included within the terms of this
permit.
5. The permittee shall, to
the greatest extent practicable, minimize adverse impacts of the project on
adjacent properties and wetlands and upon the natural resources of the
Commonwealth.
6. This permit may be
revoked at any time by the commission upon the failure of the permittee to
comply with the terms and conditions hereof or at the will of the General
Assembly of Virginia.
7. The
issuance of this permit does not confer upon the permittee any interest or
title to the beds of the nontidal waters impacted.
8. All structures authorized by this permit
that are not maintained in good repair shall be completely removed from
state-owned bottom within 30 days after receiving notification by the
commission or its designated representatives.
9. The permittee, excepting local governments
and federal agencies, agrees to indemnify and save harmless the Commonwealth of
Virginia from any liability arising from the establishment, operation, or
maintenance of said project. Applicable federal law shall apply to federal
agencies. Applicable Virginia law shall apply to localities.
10. This permit authorizes no claim to
archaeological artifacts that may be encountered during the construction or
operation of the project. If, however, archaeological remains are encountered,
the permittee agrees to notify the commission, who will, in turn, notify the
Virginia Department of Historic Resources. The permittee further agrees to
cooperate with agencies in the recovery of archaeological remains if deemed
necessary.
11. This general permit
and commission notification shall be retained by the permittee for the life of
the project as evidence of authorization.
12. Projects authorized under this general
permit shall be completed within one year from the date of notification. Upon
proper request by the permittee, the permit may be extended to allow completion
of the work authorized.
Notes
Statutory Authority
§§ 28.2-103 and 28.2-1207 of the Code of Virginia.
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