Virginia Administrative Code › Title 4 - CONSERVATION AND NATURAL RESOURCES › Agency 20 - MARINE RESOURCES COMMISSION › Chapter 390 - WETLANDS MITIGATION - COMPENSATION POLICY › Section 4VAC20-390-30 - General criteria

Current through Register Vol. 40, No. 24, July 15, 2024
It shall remain the policy of the Commonwealth to mitigate or
				  minimize the loss of wetlands and the adverse ecological effects of all
				  permitted activities through the implementation of the principles set forth in
				  the existing Wetlands Guidelines promulgated by the commission. To determine
				  whether compensation is warranted and permissible a two-tiered mechanism will
				  be implemented. This dual approach will consist first of an evaluation of
				  necessity for the proposed wetlands loss (see specific criteria below). If the
				  proposal passes this evaluation, compensation will be required and implemented
				  as set forth in the second phase, the Supplemental Guidelines of this policy,
				  4VAC20-390-50.
The primary thrust of combining the existing Wetlands
				  Guidelines with the two-tiered compensation guidelines is to preserve the
				  wetlands as much as possible in their natural state and to consider appropriate
				  requirements for compensation only after it has been proven that the loss of
				  the natural resource is unavoidable and that the project will have the highest
				  public and private benefit.
A reading of the original Wetlands Act clearly indicates that
				  the General Assembly intended for the Commonwealth's wetland resources to be
				  preserved in their "natural state," and emphasized through its declaration of
				  policy, the importance of an overall ecological approach to wetlands
				  management.
"The Commonwealth of Virginia hereby recognizes the unique
				  character of the wetlands, an irreplaceable natural resource which, in its
				  natural state, is essential to the ecological systems of the tidal rivers, bays
				  and estuaries of the Commonwealth." (Emphasis added)
The General Assembly has also originally stated that where
				  economic development in the wetlands is clearly necessary and justified it will
				  be accommodated while preserving the wetlands resource.
".... it is declared to be the public policy of this
				  Commonwealth to preserve the wetlands and to prevent their despoliation and
				  destruction and to accommodate necessary economic development in a manner
				  consistent with wetlands preservation." (Originally adopted under §
				  62.1-13.1 of the Code of Virginia, now under Powers and Duties of the
				  Commission pursuant to § 28.2-1301 of the Code of Virginia) (Emphasis
				  added)
In § 28.2-1308 of the Code of Virginia the General
				  Assembly mandated the preservation of the ecological systems within wetlands of
				  primary ecological significance and then stated:
"Development in Tidewater, Virginia, to the maximum extent
				  practical, shall be concentrated in wetlands of lesser ecological significance,
				  in vegetated wetlands which have been irreversibly disturbed before July 1,
				  1972, in nonvegetated wetlands which have been irreversibly disturbed prior to
				  January 1, 1983, and in areas of Tidewater, Virginia, outside of
				  wetlands."
The General Assembly has clearly spelled out that "necessary
				  economic development" is to be accommodated in Tidewater, Virginia, but that
				  the emphasis is on wetlands preservation in their natural state.
Since use and development of tidal wetlands are regulated
				  through the Wetlands Zoning Ordinance, commitments to preserve other existing
				  tidal wetlands are not ordinarily an acceptable form of
				  compensation.
Statutory Authority
§§ 28.2-103 and 28.2-1301 of the Code of
					 Virginia.