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4. Virginia Marine Resources Commission
A permit must be obtained from the Virginia Marine Resources Commission to build, dump or otherwise trespass upon or over, encroach upon, take or use any material from the beds of the bays, ocean, rivers, streams or creeks within the jurisdiction of Virginia. The permitting process is designed to reduce the unnecessary filling of submerged land, to minimize obstructions or hazards to navigation and to avoid conflicts with other uses of state-owned submerged lands or state waters.
In addition, the VMRC is responsible for managing and regulating the use of Virginia's tidal wetlands and coastal primary sand dunes in conjunction with Virginia's local wetlands boards, where established. Under Virginia law, tidal wetlands include both vegetated and non-vegetated intertidal areas. Vegetated wetlands include all the land lying between and contiguous to mean low water and an elevation above mean low water equal to a factor 1.5 times the mean tidal range at the site and upon which is growing at least one of the botanical species specified in the Virginia Wetlands Act as amended. Non-vegetated wetlands include all the land lying contiguous to mean low water and between mean low water and mean high water at the site.
Coastal primary sand dunes are the first row of dunes that lie along the beach just landward of mean high water. Certain other criteria apply to steepness and the types of vegetation that are supported by a particular dune. Since the dunes are important in prevention of flooding of inland areas, regulations restrict alteration of their shape and disturbance of their stabilizing vegetation. Those wishing to alter the dunes must apply to the VMRC or the local wetlands board for a permit to do so.
Technical assistance and advice on dredging and filling operations that involve subaqueous bottoms and wetlands, all aspects of the marine environment, marine science and marine affairs is available from the Virginia Institute of Marine Science. The institute provides technical assistance, often at no cost, to businesses whose development plans have impacts on marine resources.
All dredge or fill operations and/or construction of bridges, marinas or significant commercial projects and the construction of major water withdrawal intake structures in the navigable waters of Virginia may also require a Virginia Water Protection permit from the Department of Environmental Quality. VWP permits issued by DEQ contain conditions to protect water quality in the area of the proposed project.
Under federal law, the above activities may also require permits under Sections 404 and 401 of the Clean Water Act. Under Section 404, the U.S. Army Corps of Engineers regulates the discharge of dredged or fill material into navigable waters of the United States through the Section 404 Permit Program. "Navigable waters" is defined to include all wetlands, lakes, intermittent streams, etc., so long as the degradation of such waters could affect interstate commerce. Provided that discharges of dredged or fill material comply with certain requirements of the federal Endangered Species Act, Clean Water Act and National Wild and Scenic Rivers Act, construction activities can be authorized in waters of the United States. Also under Section 404, the Nationwide Permit System, the Corps issues "general" or "regional" permits for specified categories of activities involving fill that will have minimal adverse effects.
Any activity covered by a general permit can be conducted without obtaining an individual Section 404 permit so long as the requirements and standards set forth in the general permit are complied with.
Certain dredge and fill operations such as maintenance, temporary sedimentation basins, temporary farm, forest and mining roads are also exempt from regulation if specified effects on navigable waters are avoided.
Section 401 requires certification by the state that prospective federal permits comply with the state's applicable effluent limitations and water quality standards. No federal permit is issued until such certification is obtained. 401 Certification applies to federal permits issued under the Clean Water Act, federal hydropower generation licenses issued by the Federal Energy Regulatory Commission and other federal actions that involve wetland impacts or other discharges that would affect state waters.
The Clean Water Act requires any applicant for a federal license or permit for any activity that may result in a discharge into navigable waters to obtain a certification that the discharge will not adversely affect water quality from the state in which the discharge will occur. DEQ is responsible for 401 Certification, called the Virginia Water Protection permit.
Through the joint permit review process, applications filed with the Virginia Marine Resources Commission are forwarded to the Corps and DEQ as appropriate. While each agency must make its own regulatory decision, this process generally means that the applicant has to file only one application for projects involving state waters and wetlands.
4.1 Permit for Construction in Waters of the Commonwealth and Wetlands
4.1.1 Who Must Apply
Any person planning to fill, build in, on or in any way disturb any waterway or wetland area. In tidal wetlands, the regulated area extends from low tide inland to a point 1.5 times the mean tide range. Nontidal wetlands are defined by federal regulations.
Virginia Code §§ 28.2-1200 through 28.2-1400
The life of the construction or as otherwise specified.
Virginia Marine Resources Commission processing fee is $25 or $100, depending on estimated cost of the project. Also, a royalty is charged for the removal of bottom material; $0.20 per cubic yard that is not used in other construction or $0.60 per cubic yard that is ultimately used as a building material. A royalty may also be assessed for project encroachment over state-owned submerged lands.
4.1.5 Typical Requirements of a Permit
Plans and final construction must conform to design standards and construction procedures approved by VMRC.
4.1.6 Application Process
- Submit a completed "Joint Permit Application" to VMRC. Forms are available from VMRC.
- VMRC forwards copies to DEQ and the Corps.
- Each agency reviews the proposed action and issues a permit if acceptable. Each agency may also deny or defer approval until additional information is received or specified conditions are met. Each agency may respond directly to the applicant or to VMRC.
- Under state law, all applications for use or development of tidal wetlands are subject to a public hearing required to be held within 60 days of receipt of a complete application. A decision on the application is then required within 30 days following the hearing.
- For applications requesting encroachment over state-owned subaqueous lands, processing can usually be complete within 60 to 90 days unless a public hearing is required as a result of a protest or objection by another agency.
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