Environmental Law Institute
Program Administration: Routine Program Changes & Amendments
Project Description as Proposed:
The Virginia CZM Program was fully approved by NOAA in 1986. Since Program approval, the program has been updated on numerous occasions by submittals by Virginia and approval by NOAA. NOAA has advised Virginia’s CZM Program of the importance of clearly identifying enforceable policies of the entire program in accordance with 15 CFR 923.84(b)(1). In order to make these policies clearly accessible and to communicate them effectively to the public and stakeholders concerned with federal consistency, this project will revisit and restate the enforceable policies in an accessible, well-documented format. Beginning with the initial inventory of approved enforceable policies identified for the Virginia CZM Program, the Environmental Law Institute will specifically identify each statement of a Virginia enforceable policy previously approved by NOAA and the current legal foundation on which it is based. ELI will determine how these may be organized, stated, restated, combined or separately presented in order to create a concise, clear, and up-to-date program document. The goal will be to improve clarity, utility, and durability of the enforceable policies and thereby strengthen Virginia’s administration of its approved CZMP. ELI will produce an annotated list of enforceable policies, with references to the supporting laws and policies and approvals. In order to support this, work, ELI will draw upon the approach used in Delaware’s 2009 Request for Concurrence, restating its enforceable policies, and upon Maryland’s revisions with which ELI assisted in 2010. The deliverable will be a set of clearly defined and referenced enforceable policies.
James McElfish, (202) 939-3840; email@example.com
10/1/10 - 9/30/11
Final Product Received:
Routine Program Changes to Commonwealth of Virginia Coastal Management Program Administration of Game, Inland Fisheries and Boating (pdf)
Virginia Threatened and Endangered Species Policy Recommendations in Federal Consistency Review (pdf)
Project Summary Provided by Grantee:
ELI prepared draft Routine Program Change updates to Virginia’s fish and wildlife enforceable policies carried out by the Department of Game and Inland Fisheries (DGIF) that do not involve threatened and endangered species. ELI prepared written analysis and tables in support of the RPC. This RPC package contains updates to relevant sections of Virginia Code, Title 29.1, Chapters 1, 3, 4, and 5 that state “enforceable policies.” This product will be reviewed by the Virginia Coastal Management Program and, in accordance with state and NOAA procedures, be submitted for review and approval by NOAA, at which time it will also be available for public review.
ELI analyzed Virginia threatened and endangered species issues in federal consistency reviews carried out under the Virginia Coastal Management Program. ELI reviewed current Virginia practice, analyzed selected federal consistency determinations and certifications and Virginia DEQ concurrence letters, and examined relevant practices in other states. ELI produced a report: Virginia Threatened and Endangered Species Policy Recommendations in Federal Consistency Review. The report identifies how concerns for Virginia-listed threatened and endangered species are currently addressed in federal consistency determinations and certifications and review processes, and how Virginia practices can affect the content of submissions by federal actors and applicants for federal licenses and permits; the report identifies potential improvements to current practice. The review concluded that
- Virginia would be best served by incorporating its relatively robust state threatened and endangered species laws into its enforceable policies.
- The current system could be improved by Virginia DEQ’s Office of Environmental Impact Review adding new material to its advice to federal agencies and applicants in its federal consistency procedures, forms, and website (Federal Consistency Information Package). This would explain that Virginia DEQ will be examining the submitted project not only with respect to (1) Applicable Enforceable Policies of the VCP and (2) Advisory Policies of the VCP (as it currently does), but also that it will be interested in (3) Additional Environmental Considerations. Doing so may encourage applicants and agencies to address these additional areas (including Virginia-listed species) in project design or mitigation.
- Where DCR or DGIF identifies a concern with a state-listed threatened or endangered species in the course of federal consistency review – and particularly where they make a recommendation -- it would be helpful to create a system that reminds them to follow up on the ensuing project activity at a future date. This is particularly important where the action is not one that is likely to trigger further state permitting or consultation.
- Continued follow-up by DGIF with the Corps of Engineers and the US Fish & Wildlife Service with respect to Clean Water Act 404 Nationwide Permits (NWPs) is warranted. A system of coordination is needed to ensure appropriate consultation on activities that may affect state-listed species, as Virginia’s recommended changes to the NWP regional conditions were not made by the Corps in 2012.
The review will be available after discussion with the Virginia Coastal Program.
Disclaimer: This project summary provides the federal dollars initially awarded to the grantee. Due to underexpenditure or reprogramming of grant funds, this figure may change. For more information on the allocation of coastal grant funds, please contact Laura McKay, Virginia Coastal Program Manager, at 804.698.4323 or email: Laura.McKay@deq.virginia.gov
A more detailed Scope of Work for this project is available. Please direct your request for a copy to Virginia.Witmer@deq.virginia.gov