Virginia
Catherine Harold
1. General State Role in Wetland Mitigation & Stream Mitigation
Impacts to tidal wetlands, including vegetated tidal wetlands and non-vegetated shoreline
between mean low and mean high water, are regulated under the Virginia Tidal Wetlands Act
(Title 28.2, Chapter 12 and 13 of the Code of Virginia) enacted in 1972 and revised in 1982. The
Virginia Marine Resources Commission (VMRC) is the regulating authority for the tidal wetlands
laws; localities in Virginia have the option to regulate their own tidal wetlands through citizen
Wetlands Boards with oversight from VMRC. The Virginia Department of Environmental Quality
(DEQ) is responsible for providing Section 401 Certification of Clean Water Act for Section 404
federal permits for both tidal and nontidal wetlands and water withdrawals, through the Virginia
Water Protection Permit (VWPP) Program first developed in 1992. In 2000, Virginia passed a
Nontidal Wetlands Act that amended Section 62.1-44.15:5 of the Code of Virginia relating to
wetlands. The Nontidal Wetlands Act mandates that the Commonwealth implement a nontidal
wetlands regulatory program to achieve no net loss of existing wetland acreage and function, and
to develop voluntary and incentive based programs to achieve a net resource gain in wetlands.
Amendments to the VWPP program, fully implemented in October 2001, provide additional state
jurisdiction and require a state permit for the following activities in a wetland: excavation, filling or
dumping, activities in a wetland that cause drainage or otherwise significantly alter or degrade
existing wetland acreage or function, and permanent flooding or impounding. The VWPP can
serve as the Section 401 certification of a federal permit or as a state permit when no federal
permit is required. The permit process for both tidal and nontidal wetlands relies on a Joint
Permit Application (JPA) which receives independent and concurrent review by local wetlands
boards, VMRC, DEQ and the U.S. Army Corps of Engineers (Corps), as appropriate. With the
beginning of Virginia’s full scale wetland protection program, resources have been concentrated
on developing and implementing regulations and reviewing and issuing permits. This early period
of the program succeeded in halting Tulloch ditching and unpermitted impacts to isolated
wetlands, and the program and the non-reliance on federal jurisdiction was defended before the
U.S. Court of Appeals
2. Have there been any state-sponsored evaluations of wetland mitigation programs in
any part of your state (e.g., measurements of "success rates" of
restored/created/enhanced wetlands)? Stream mitigation?
DEQ received a three-year grant for the "Development and Implementation of an Inspection and
Compliance Strategy for Virginia’s Wetlands Permitting Program" and is beginning this work.
Prior to this, the program has relied on irregular inspections of permitted activities and on
responding to complaints to find unpermitted impacts. Compensatory mitigation for stream
impacts is also required. An organized study of the “success” of stream compensation sites has
never been conducted. However, each stream compensation site has success criteria it must
meet and is monitored annually for varying length of time. If the site is not succeeding, corrective
action is performed.
3. Do you have written guidance (SOPs) or legally-binding performance standards or
permit conditions to guide the design and construction of created, restored, or enhanced
wetlands. Things like planting, grading, water sources. Any for streams?
As stated in 9 VAC 25-210-80B.k.(4)d : The final compensatory mitigation plan must include
complete information on all components of the conceptual compensatory mitigation plan, as well
as a site access plan; a monitoring plan, including proposed success criteria, monitoring goals,
and the location of photostations, monitoring wells, vegetation sampling points, and reference
wetlands or streams (if available); an abatement and control plan for undesirable plant species;
an erosion and sedimentation control plan; a construction schedule; and proposed deed
restriction language for protecting the compensation site or sites in perpetuity. The final
compensatory mitigation plan must include protection of all surface waters and upland areas that
are to be preserved in perpetuity within the compensation site boundary.
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4. In your opinion, which of the following administrative standards or permit conditions
in each category below have worked the best?
Mitigation Site Protection (Legal): Deed restrictions? Third-party easements? Title
transfers? Others?
Mitigation Site Protection (Physical): Fencing? Signage? Zoning? Other?
Financial Assurances: Performance bonds? Escrow accounts? Letters of credit? Others?
Deed restrictions and easements are used the most. Financial assurance tools that are used
include performance bonds (for construction only), and escrow accounts and letters of credit for
mitigation banks Fencing, signage, and other physical protection of mitigation sites are not
routinely required.
5. How do you (or would you) deal with defaults?
6. Any assessments of mitigation compliance? (statistics on percent of the wetland
mitigation projects built within the last few years have been checked but not monitored in
detail to be sure they were completed) What was the result? If no data, what's your rough
estimate? How about for stream mitigations?
DEQ received a three-year grant for the "Development and Implementation of an Inspection and
Compliance Strategy for Virginia’s Wetlands Permitting Program" and is beginning this work.
Prior to this, the program has relied on irregular inspections of permitted activities and on
responding to complaints to find unpermitted impacts.
7. Any statistics on percent of the projects that have been monitored? What was the
result? If no data, what's your rough estimate? How about for stream mitigations?
Not yet. See above. Monitoring is required both for routine permits and mitigation banks.
8. What usually gets monitored?
Refer to Norfolk District Corps and Virginia Department of Environmental Quality
Recommendations for Wetland Compensatory Mitigation: Including Site Design, Permit
Conditions, Performance Criteria, and Monitoring Criteria
(http://www.deq.virginia.gov/wetlands/mitigate.html).
jurisdictional boundaries (soils, veg, hydrology)?
for vegetation:
Part II.A.17 (Compensation) of the permit conditions for 9 VAC 25-690 of the General Permits
states: "The wetland plant community shall be considered established according to the
performance criteria specified in the final compensation plan and approved by the board. The
proposed vegetation success criteria in the final compensation plan shall include the following:
a. Species composition shall reflect the desired plant community types stated in the final wetland
compensation plan by the end of the first growing season and shall be maintained through the
last monitoring year.
b. Species composition shall consist of greater than 50percent facultative (FAC) or wetter (FACW
or OBL) vegetation, as expressed by plant stem density or areal cover, by the end of the first
growing season and shall be maintained through the last monitoring year.
for hydrology:
Part II.A.17 (Compensation) of the permit conditions for 9 VAC 25-690 of the General Permits
states: “Wetland hydrology shall be considered established if depths to the seasonal high water
table are equal to or less than 12 inches below ground surface for at least 12.5% of the region's
killing frost free growing season, as defined in the soil survey for the locality of the compensation
site or the NRCS WETS table, measured in consecutive days under typical precipitation
conditions, and as defined in the water budget of the final compensation plan." and: "The
establishment of wetland hydrology shall be measured during the growing season, with the
location and number of monitoring wells, and frequency of monitoring for each site, set forth in the
final monitoring plan. All hydrology monitoring well data shall be accompanied by precipitation
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data, including rainfall amounts either from on site or from the closest weather station. Once the
wetland hydrology success criteria have been satisfied for a particular monitoring year, monitoring
may be discontinued for the remainder of that monitoring year following DEQ approval. After a
period of three monitoring years, the permittee may request that hydrology monitoring be
discontinued, providing that adequate hydrology has been established and maintained."
for soils:
for geomorphic conditions (channel profile, bank stability, etc.):
Dimension, pattern, profile, bank stability.
functions (using rapid assessment methods)
Applicants for a VWP permit must provide a functional assessment for wetland impacts greater
than one acre and for all water withdrawals. The assessment of functional values of the affected
surface waters must include information on existing beneficial uses of the surface waters and
information on fish and wildlife resources and habitat at the proposed project location. These
values can be assessed using any of several acceptable methods appropriate for the type of
impacted resource. This information is used to determine the type of compensatory mitigation
required to ensure no net loss of wetland functions.
condition (IBI, animal surveys, etc.)
9. Which of the above parameters have performance standards, either statewide or sitespecific?
Guidelines were developed in collaboration with the Corps of Engineers. See
http://www.deq.virginia.gov/wetlands/mitigate.html.
10. For how long are these parameters monitored? Is duration of monitoring advisory or
mandatory? Is it adaptive? (can it be extended or shortened based on collected data?)
Mitigation sites are monitored for at least five years for general permits and longer for Individual
permits to assure success; mitigation banks are monitored for at least 10 years.
11. Have there been any legal opinions regarding any of the performance standards or
permit conditions? What were the outcomes (which ones are enforceable?)
No
12. For approximately what percent of the projects was the above data collected BEFORE
a site was restored or enhanced? (i.e., baseline data).
13. If no standardized monitoring guidance, who decides what to monitor? e.g., MBRT?
N/A
14. Are the construction and monitoring specifications or guidance the same for
mitigation bank wetlands as for other mitigation wetlands?
15. Does the party that designed the mitigation project always do the monitoring? If not,
who?
Usually
16. Does any state agency keep a wetlands permit ledger, tracking system, or database?
What does it track? (data fields) Streams too, or separate?
The Virginia Institute of Marine Sciences (VIMS) has an on-line GIS-based tracking system for
tidal wetland permits and mitigation (see Bibliography), and is developing a similar system for
nontidal wetlands (see http://ccrm.vims.edu/wetlands.html). DEQ has an Oracle-based permit
tracking system (CEDS) that has information on permit applications, issuances and enforcement,
including impacts and compensation, by location. Permitted wetland losses and wetland
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compensation for those losses are tracked through DEQ’s permit database by latitude/longitude
and HUC. This tracking system will be enhanced to make it more relevant to wetlands permits,
as part of DEQ's new 3-year grant.
17. Is the tracking system easily accessible to the public? If not, what arrangements exist
for interagency sharing of raw data or the database?
No
18. Can the data be displayed automatically on maps?
No
19. Does the state do any wetland mapping of its own?
GIS mapping has been prepared for coastal wetlands by the VIMS.
20. Have there been any attempts to use wetland delineations (done for 404 permits) to
update small areas of existing wetland maps?
No
21. Have HGM class codes been added to NWI or other wetland maps?
No
22. Have maps been overlaid with other GIS layers to generate statistical profiles of
wetlands in any region or watershed?
Yes
23. Contact for state agency wetland mapping/ GIS efforts or permit tracking database?
Michelle Henicheck
P.O. Box 10009
Richmond, VA 23240
(804) 698-4007
mmhenicheck@deq.virginia.gov
24. Contact for state transportation department, wetlands mitigation person?
Leo Snead, Jr.
VA Dept. of Transportation
1404 East Broad Street
Richmond, VA 23219
25. Contact for stream impact mitigation program, if separate?
Michael Keeler
P.O. Box 10009
Richmond, VA 23240
(804) 698-4377
mokeeler@deq.virginia.gov
26. Can you send us (1) mitigation performance guidelines or standards?
Excerpts attached.
27. Can you send us (2) case history of a good mitigation project, in terms of
administrative and technical performance standards, monitoring, adaptive management,
etc.?
28. Can you send us (3) list of data fields in the wetland tracking system (if any)?
29. Other contacts suggested?
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